                                  IN THE
                          TENTH COURT OF APPEALS



                                 No. 10-10-00263-CV

                              IN RE LOUIS F. BOUSE


                                Original Proceeding



                                    OPINION


      Relators Louis F. Bouse, Teri L. Gerst, Beth J. Becker, Marcy Halterman, and

Brian K. Alg seek a writ of mandamus compelling Respondents, the City Secretary for

the City of College Station and the City Council of College Station, to certify an

initiative petition and either approve the proposed ordinance or submit the ordinance

to the electorate. We deny the relief requested.

                           MANDAMUS REQUIREMENTS

      “[A] court of appeals may issue a writ of mandamus to compel the performance

of any duty imposed by law in connection with the holding of an election or a political

party convention, regardless of whether the person responsible for performing the duty

is a public officer.” TEX. ELEC. CODE ANN. § 273.061 (Vernon 2010); see In re Jackson, 14
S.W.3d 843, 846 (Tex. App.—Waco 2000, orig. proceeding). Because the question before

us involves an election matter, mandamus is the appropriate remedy. See In re Bailey,

975 S.W.2d 430, 432 (Tex. App.—Waco 1998, orig. proceeding).

                              FACTUAL BACKGROUND

        Wellborn is an unincorporated area that lies within the extraterritorial

jurisdiction of College Station. The residents of Wellborn requested the College Station

City Council’s consent to incorporate. The record does not indicate that consent was

received. Relators submitted an initiative petition and a proposed ordinance “granting

consent to the citizens of Wellborn, Texas, for an election on the proposition of the

incorporation of the Wellborn area as a municipality under the laws of Texas…”

        Connie Hooks, the City Secretary, determined that the petition was insufficient.

In a memorandum, the City Attorney explained that: (1) each petition paper was not

accompanied by the affidavit of the circulator and did not contain the full text of the

proposed ordinance; (2) no plat was attached to the ordinance; (3) if a plat was shown to

the voters and was the same plat that had previously been submitted to the City

Council, the area fails to “meet the legal requirements for incorporation;” and (4) to

incorporate, Wellborn must follow the procedures outlined in section 42.041 of the

Local Government Code, which do not include an initiative petition.

        Relators submitted an amended petition.      Hooks again concluded that the

petition was insufficient: (1) it is “[n]ot clear in all sworn affidavits that a complete

initiative ordinance was presented to voters;” (2) “[i]f an incomplete ordinance was

presented to the voters it is vague, ambiguous and invalid;” and (3) the concerns of the


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City Attorney were not resolved. Hooks opined that no action was required by the City

Council.

                                         ANALYSIS

        “‘[T]he power of initiative and referendum…is the exercise by the people of a

power reserved to them, and not the exercise of a right granted,’ and [] ‘in order to

protect the people of the city in the exercise of this reserved legislative power, such

charter provisions should be liberally construed in favor of the power reserved.’” Glass

v. Smith, 244 S.W.2d 645, 648-49 (Tex. 1951) (quoting Taxpayers Ass’n. of Harris County v.

City of Houston, 129 Tex. 627, 105 S.W. 2d 655, 657 (1937)).

        The College Station City Charter allows for the filing of an initiative petition,

except with regard to “zoning or rezoning property, appropriating money, authorizing

the issuance of bonds, or authorizing the levy of taxes.” COLLEGE STATION, TEX., CITY

CHARTER art. X, § 83. The City Secretary must “determine whether each paper of the

petition has a proper statement of the circulator and…is signed by a sufficient number

of qualified electors.” Id. § 86. If the petition is insufficient, an amended petition may

be filed. Id. § 87. If an amended petition is insufficient, the secretary “shall file his

certificate to that effect.” Id. No further action is required if the amended petition is

insufficient. Id. Once a petition is certified, the council must consider the petition. Id. §

89. If the proposed ordinance is not passed by the council, it must be submitted to the

electorate at either a regular or special election. Id. § 90.

        Bouse contends that the amended petition cured the alleged defects, requiring

Hooks to certify the petition and requiring the City Council to either approve the


In re Bouse                                                                            Page 3
ordinance or submit the ordinance to the electorate.            The City responds that

incorporation is not a proper subject for an initiative petition. In an amicus brief, the

Texas Municipal League and Texas City Attorneys Association support the City’s

position.     According to Relators, the issue is whether the City failed to execute a

ministerial duty by improperly rejecting the petition and refusing to process the

initiative ordinance, not whether the initiative process is appropriate.

        A governing body cannot defeat the right to an initiative election by refusing to

“perform purely ministerial duties on the ground that in [its] opinion the ordinance

would be invalid if adopted.” Glass, 244 S.W.2d at 648. However, mandamus may

issue only where the “subject matter of the proposed ordinance [is] legislative in

character” and has not been “withdrawn from the field in which the initiatory process is

operative.” Id. The subject matter of the proposed ordinance may be “withdrawn,

expressly or by necessary implication, by either the general laws or the city charter.” Id.

at 650. “Any rights conferred by or claimed under the provisions of a city charter,

including the right to an initiative election, are subordinate to the provisions of the

general law.” Id. at 649.

        In this case, the City argues that section 42.041 of the Local Government Code

has withdrawn the subject matter of the proposed ordinance, incorporation, from the

field in which the initiatory process is operative.

        Under section 42.041(a), “[a] municipality may not be incorporated in the

extraterritorial jurisdiction of an existing municipality unless the governing body of the

existing municipality gives its written consent by ordinance or resolution.” TEX. LOCAL


In re Bouse                                                                          Page 4
GOV’T CODE ANN. § 42.041(a) (Vernon 2008). If consent is refused, “a majority of the

qualified voters of the area of the proposed municipality and the owners of at least 50

percent of the land in the proposed municipality may petition the governing body to

annex the area.” Id. at § 42.041(b). The governing body’s failure to act within six

months constitutes consent to incorporation. See id. Consent is merely “authorization

to initiate incorporation proceedings.” Id. at § 42.041(c).

        Relators argue that section 42.041(a) “only require[s] that consent come from the

governing body through an ordinance or resolution” and does not limit the “method for

providing that ordinance or resolution…to the sole discretion of the governing body

without input from its resident voters.” He maintains that, because the City refused to

acknowledge requests for consent to incorporate, Wellborn residents petitioned the City

for consent. In an amicus curiae brief supporting Relators’ position, the Law Offices of

Rusty Adams, PLLC argues that the City charter provides the initiative process as a

means for Wellborn to incorporate pursuant to section 42.041.

        The First and Fourteenth Courts have addressed this issue in the context of

annexation and disannexation.       In Hitchcock v. Longmire, 572 S.W.2d 122 (Tex. Civ.

App.—Houston [1st Dist.] 1978, writ ref’d n.r.e), the trial court issued a writ of

mandamus directing the City of Hitchcock to repeal an annexation ordinance or call,

conduct, and canvass a referendum election. Hitchcock, 572 S.W.2d at 124. The First

Court held, “‘[T]he governing body of the city does not have the right to repeal an

annexation ordinance or to adopt a disannexation ordinance without following the




In re Bouse                                                                        Page 5
specific procedural requirements established in Art. 970a [the Municipal Annexation

Act]; a popular referendum would be subject to the same limitation.”1 Id. at 127.

        In Vara v. Houston, 583 S.W.2d 935 (Tex. Civ. App.—Houston [14th Dist.] 1979,

writ ref’d n.r.e.), Houston residents filed a petition to initiate a city ordinance to

disannex the Clear Lake City area. See Vara, 583 S.W.2d at 936. Although procedural

requirements had been met, the City refused to either pass the ordinance or submit the

proposed ordinance to the electorate. Id. at 937. The Fourteenth Court explained that

the Municipal Annexation Act provides procedural requirements for disannexation. Id.

at 938. Thus, the subject matter of the ordinance, disannexation, had been withdrawn

from the “field in which the initiatory process is operative.” Id.

        Relators contend that the initiative ordinance does not involve annexation, but

merely seeks the City’s consent for an incorporation election or presentation of the

consent issue to the electorate.                However, like annexation and disannexation,

incorporation involves boundary issues that Chapter 42 has withdrawn from the field in

which the initiatory process is operative. See Hitchcock, 572 S.W.2d at 127; see also Vara,

583 S.W.2d at 938.          Relators are required to follow Chapter 42’s procedures for

incorporation of Wellborn.            Thus, even assuming that Relators met all procedural

1        The Legislature repealed Article 970a and codified the statute in Chapter 42 of the Local
Government Code. See Act of May 1, 1987, 70th Leg., R.S., ch. 149, §§ 1, 49(1), 1987 Tex. Gen. Laws 707,
741, 1306 (current version at TEX. LOCAL GOV’T CODE ANN. §§ 42.001 et. seq. (Vernon 2008)). Like section
42.021, Article 970a provided that incorporation required the “written consent of the governing body.”
See Act of April 29, 1963, 58th Leg., R.S., ch. 160, 1963 Tex. Gen. Laws 447, 450-51, repealed by Act of May 1,
1987, 70th Leg., R.S., ch. 149, §§ 1, 49(1), 1987 Tex. Gen. Laws 707, 741, 1306 (current version at TEX. LOCAL
GOV’T CODE ANN. § 42.001 et. seq. (Vernon 2008)). If consent were not granted, “a majority of the resident
voters, if any, in the territory of such proposed city and the owners of fifty percent (50%) or more of the
land in such proposed city” could petition the governing body and request annexation. Id. The
governing body’s failure to act within six months resulted in “authorization for the incorporation.” Id.
Written consent or authorization only meant “authorization to initiate incorporation proceedings.” Id.


In re Bouse                                                                                            Page 6
requirements for the initiative process, an initiative petition is not a procedure for

incorporation outlined in section 42.041. See TEX. LOCAL GOV’T CODE ANN. § 42.041.

        Accordingly, we conclude that Respondents did not fail to perform a purely

ministerial duty by refusing to certify the initiative petition and approve the proposed

ordinance or submit the ordinance to the electorate.        Because Relators have not

established their right to mandamus relief, we deny their petition.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray dissenting)
Writ denied
Opinion delivered and filed August 17, 2010
[OT06]




In re Bouse                                                                       Page 7
