Opinion issued June 25, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00400-CV
                           ———————————
   PHILLIP PAUL BRYANT AND JAMES SCARBOROUGH, Appellants
                                        V.
ANNISE D. PARKER, MAYOR, AND THE CITY OF HOUSTON, Appellees


                   On Appeal from the 333rd District Court
                            Harris County, Texas
                      Trial Court Case No. 2015-69353


                                  OPINION

      In this election contest, contestants/appellants Phillip Paul Bryant and James

Scarborough challenge a ballot measure concerning term limits for City of Houston

elective offices. Following the November 3, 2015 election in which Houston

voters approved a measure to amend the City Charter’s term limits provisions,
Bryant filed this election contest, and Scarborough intervened. Bryant,

Scarborough, and contestees/appellees, the City of Houston and former mayor

Annise D. Parker (collectively “the City”), filed cross-motions for summary

judgment. The trial court denied the motions of Bryant and Scarborough and

granted the City’s motion, dismissing all claims.

       In four issues, both Bryant and Scarborough argue that the trial court erred

in granting the City’s motion for summary judgment and in denying their own

motions for summary judgment because the ballot language “affirmatively

misrepresented” and “omitted” the “true character, purpose, and chief feature of

the Charter Amendment.”

       We affirm.

                                   Background

       In the months leading up to the November 3, 2015 election, the City sought

to amend Article V of the Houston City Charter, governing the number of terms

and length of each term for City elective office. The proposed Charter amendment

stated, in relevant part:

       (a) For the purposes of term limits, City elective offices are Mayor,
       City Controller, and City Council Member (either At-Large or
       District). The term of office for a City elective office shall be four
       years. Except as otherwise provided herein, no person shall be eligible
       to be elected to more than two four-year terms in the same City
       elective office.



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      (b) For positions to be elected at the City General Election to be held
      in November 2015, the eligibility of persons then holding City
      elective office to seek reelection to a City elective office shall be as
      follows:

             1. A person serving his or her first two-year term shall be
             eligible to seek two additional terms of four years’ duration in
             that same office. A person having then served two additional
             terms of four years’ duration shall not be eligible to seek re-
             election to the same office.

             2. A person serving his or her second two-year term shall be
             eligible to seek one additional term of four years duration in
             that same office. A person having then served one additional
             term of four years duration shall not be eligible to seek re-
             election to the same office.

             3. A person serving his or her third two-year term shall not be
             eligible to seek election to that same office.

Thus, the Charter amendment sought to establish four-year terms of office for City

elective offices and to set a two-term limit for holding elective office.            The

proposed Charter amendment also included specific provisions for transitioning

from the then-existing Charter terms, which had provided for two-year terms of

office and a limit of three terms in office, to the provisions in the proposed Charter

amendment.

      None of the parties dispute that the City met the publication requirements for

notifying voters of the substance of the proposed Charter amendment.1 In the


1
      “Election notices for city charter amendments must be published in the newspaper
      before the election, and the notice must ‘include a substantial copy of the proposed
      amendment.’” Dacus v. Parker, 466 S.W.3d 820, 825 (Tex. 2015) (quoting TEX.
                                           3
November 2015 election, this measure was submitted to voters as Proposition 2.

The ballot language for Proposition 2 read:

      (Relating to Term Limits for City Elective Offices) Shall the City
      Charter of the City of Houston be amended to reduce the number of
      terms of elective offices to no more than two terms in the same office
      and limit the length for all terms of elective office to four years,
      beginning in January 2016; and provide for transition?2

The measure was approved by voters and implemented. The Charter amendment

took effect November 13, 2015, and it affected the terms of elected officials

beginning in January 2016.

      On November 19, 2015, Bryant filed his election contest, asserting that the

ballot language was misleading in multiple ways. Scarborough subsequently

intervened, also asserting that the ballot language was insufficient to submit the

issue of the proposed Charter amendment to voters.

      All parties filed motions for summary judgment. The City moved for

traditional summary judgment on the ground that the Proposition 2 ballot language




      LOC. GOV’T CODE ANN. § 9.004(c)(1)). The record reflects that the City complied
      with this provision in this case.
2
      “[T]he amendment need not be printed in full on the ballot—not all details must be
      there.” Dacus, 466 S.W.3d at 825 (observing that election notices require
      publication of proposed amendment and that “voters are presumed to be familiar
      with every measure on the ballot”). Dacus further instructs that ballot language
      nevertheless “must capture the measure’s essence,” stating that “though neither the
      entire measure nor its every detail need be on the ballot, the importance and
      formality of an election still demand a threshold level of detail.” Id.
                                           4
was not misleading as a matter of law.3 The City’s motion set out the undisputed

facts of the case—the language of Proposition 2, the former Charter provisions,

and the terms of the Charter amendment—and argued that, in light of Texas

Supreme Court precedent and other relevant law, the ballot language of

Proposition 2 “meets the requirements for validity in Texas.”

      Scarborough then filed his own combined traditional motion for summary

judgment and response to the City’s summary-judgment motion. He set out the

same undisputed facts as the City. Scarborough further referenced his own

affidavit, in which he averred that he read the ballot language carefully before

voting, that he was aware of the current term limits and terms of office for City

officials, and that he “believed that a vote in favor of Proposition 2 would reduce

the total number of terms from three terms to two terms” and would limit “the total

amount of time that a city official could hold the same office [to] a maximum of

four years, meaning that each term would have a lifespan of only two years.” He

argued that, as a matter of law, the ballot language failed to substantially submit

the proposed Charter amendment with definiteness and certainty and was

misleading. Aside from his affidavit, Scarborough’s motion for summary judgment

contained substantially the same evidence as the City’s motion (i.e., it referenced

3
      The City also filed a no-evidence motion for summary judgment that the trial court
      subsequently determined was moot in light of its ruling on the City’s traditional
      summary judgment motion. None of the parties raise any issues on appeal
      regarding the no-evidence motion.
                                           5
the terms of the proposed Charter amendment and the ballot language of

Proposition 2).

      Like Scarborough, Bryant filed a motion for summary judgment on his

claims and a response to the City’s motion for summary judgment. Bryant again

referred to the same undisputed facts—the terms of the Charter amendment and the

language of Proposition 2 as it appeared on the ballot. Like Scarborough, Bryant

argued that the ballot language was misleading as a matter of law. His motion for

summary judgment was not accompanied by any evidence.

      Following a hearing, the trial court denied both Bryant’s and Scarborough’s

motions for summary judgment, and it granted the City’s motion, ordering that

Bryant and Scarborough take nothing on their election-contest claims. This appeal

followed.

                        Sufficiency of Ballot Language

      Both Bryant and Scarborough argue that the trial court erred in denying their

own motions for summary judgment and granting the City’s motion for summary

judgment because the Proposition 2 ballot language was “misleading and deceptive

as a matter law” in that the ballot language “affirmatively misrepresented” and

“omitted” the “true character, purpose, and chief feature of the Charter

Amendment.”




                                        6
A.    Standard of Review

      A movant for traditional summary judgment has the burden of showing that

there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc.

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de

novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003). If the movant initially establishes a right to summary judgment on the issues

expressly presented in the motion, then the burden shifts to the nonmovant to

present to the trial court any issues or evidence that would preclude summary

judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–

79 (Tex. 1979).

      When both parties move for summary judgment on the same issues and the

trial court grants one motion and denies the other, we must consider the summary

judgment evidence presented by both sides, determine all questions presented, and

if we determine that the trial court erred, render the judgment the trial court should

have rendered. See S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676,

678 (Tex. 2013); Fielding, 289 S.W.3d at 848. We may affirm if any of the

theories presented to the trial court and preserved for review are meritorious.

Fielding, 289 S.W.3d at 848.




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B.    Law Governing Challenges to Sufficiency of Ballot Description

      “The Texas Election Code grants discretion to ‘the authority ordering the

election [to] prescribe the wording of a proposition’ unless otherwise provided by

law.” Dacus v. Parker, 466 S.W.3d 820, 823 (Tex. 2015) (quoting TEX. ELEC.

CODE ANN. § 52.072(a)). Municipalities have “broad discretion” in wording

propositions; however, this discretion is not unlimited. Id. at 826. The proposed

Charter amendment or measure need not be printed in full on the ballot, but the

proposition or ballot language must “substantially submit[] the question” with

“definiteness and certainty.” Id. at 825 (quoting Reynolds Land & Cattle Co. v.

McCabe, 12 S.W. 165, 165 (Tex. 1888)). “In other words, the ballot must identify

the measure by its chief features, showing its character and purpose.” Id. (emphasis

in original) (citing Wright v. Bd. of Trs. of Tatum Indep. Sch. Dist., 520 S.W.2d

787, 792 (Tex. App.—Tyler 1975, writ dism’d), and Turner v. Lewie, 201 S.W.2d

86, 91 (Tex. App.—Fort Worth 1947, writ dism’d)).

      Thus, the ballot description must “substantially submit[ the measure] with

such definiteness and certainty that the voters are not misled.” Id. at 826 (quoting

Reynolds Land & Cattle Co., 12 S.W. at 165).           The Texas Supreme Court

identified two ways that a proposition’s ballot language may fail this test: (1) “it

may affirmatively misrepresent the measure’s character and purpose or its chief




                                         8
features,” or (2) “it may mislead the voters by omitting certain chief features that

reflect its character and purpose.” Id.

      In considering the sufficiency of the ballot language, we examine the

proposed measure and the language of the proposition as presented on the ballot.

See id. at 828–29 (stating that decision was based “solely on the failure of the

proposition to present the measure’s chief features and its character and purpose”).

“[W]e do not consider the Contestant’s evidence that some voters were

subjectively confused about the nature of the measure.” See id. at 828 (“Those who

oppose election results will always be able to find voters who claim to have been

misled.”). When, as here, there is no dispute regarding the language used in the

measure or the language used in the ballot, the determination of whether the ballot

language substantially submitted the measure with definiteness and certainty is a

question of law. See City of Houston v. Dacus, No. 14-16-00123-CV, 2017 WL

536647, at *4 (Tex. App.—Houston [14th Dist.] Feb. 9, 2017, pet. denied) (mem.

op.); see also Dacus, 466 S.W.3d at 824, 828–29 (considering sufficiency of ballot

language on motion for summary judgment, refusing to consider evidence that

some voters were subjectively confused, and basing ruling solely on its

determination that proposition failed to present measure’s chief features and its

character and purpose); cf. Sheller v. Corral Tran Singh, LLP, 551 S.W.3d 357,

362 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (“If the issue raised is


                                          9
based on undisputed and unambiguous facts, then we may determine the question

presented as a matter of law.”).

C.    Analysis

      Here, the City proposed a Charter amendment to provide that “[t]he term of

office for a City elective office shall be four years” and further providing that,

“Except as otherwise provided herein, no person shall be eligible to be elected to

more than two four-year terms in the same City elective office.” The proposed

Charter amendment made exceptions to the new two-term limit for people holding

City elective office during the transitional period while the new term lengths and

limits were implemented, stating, in relevant part, that “[a] person serving his or

her first two-year term shall be eligible to seek two additional terms of four years’

duration in that same office.”

      This measure was presented on the ballot as Proposition 2, which stated:

      (Relating to Term Limits for City Elective Offices) Shall the City
      Charter of the City of Houston be amended to reduce the number of
      terms of elective offices to no more than two terms in the same office
      and limit the length for all terms of elective office to four years,
      beginning in January 2016; and provide for transition?

Thus, the language of Proposition 2 as set out on the ballot communicated the two

chief features of the proposed Charter amendment—“the number of terms of

elective offices [was reduced] to no more than two terms in the same office” and

“the length for all terms of elective office [was limited] to four years.” The ballot


                                         10
language of Proposition 2 also informed voters that the amendment of the Charter

would “provide for transition.”

      Considering both the language of the Charter amendment and the ballot

language of Proposition 2, we conclude that the ballot language substantially

submitted the measure with such definiteness and certainty that voters were not

misled. See Dacus, 466 S.W.3d at 826. Proposition 2 stated to voters that the

Charter would be amended to allow elective officials to serve no more than two

four-year terms in the same office. That is substantially what the proposed Charter

amendment provided. It was not necessary that the ballot language include every

detail contained in the proposed measure. See id. Rather, this short description

identified the measure for what it was—a change to the length and number of

terms for City elective officials—and it accurately represented the proposed

measure. See id.

      Accordingly, we conclude that the City established that it was entitled to

judgment as a matter of law. See id. at 829; Fielding, 289 S.W.3d at 848.

      Bryant and Scarborough nevertheless argue that the trial court erred in

granting the City’s motion and denying their own motions because the language of

Proposition 2 was misleading and deceptive. In their first two issues, Bryant and

Scarborough assert that Proposition 2 “affirmatively misrepresented the true

character, purpose, and chief feature of the Charter Amendment (e.g., to increase,


                                        11
rather than decrease, the total potential time an officeholder may serve in the same

office from 6 years to 8 years).” They argue that the phrase “and limit the length

for all terms of elective office to four years” from the ballot language of

Proposition 2 “caused [them] to believe that passage of Proposition 2 would then

limit the total length of time a specific officeholder can hold the same office to a

maximum of four years.” Bryant and Scarborough assert that “[t]he clear meaning

of the ballot language is that a person was limited to four years for all terms,”

which was inconsistent with the language of Charter amendment, which allowed

for an official to serve for up to eight years. They argue, “Had the City simply

inserted the word ‘each’ instead of ‘all,’ i.e., ‘. . . limit the length for each term of

elective office to four years,’ the ballot language would have been accurate and

consistent with the language of the charter amendment.”

      This interpretation by Bryant and Scarborough is contrary to the plain

language of Proposition 2. When read in its entirety, the ballot language provided

that elective City officials could serve “no more than two terms in the same office”

and that the length of those terms would be four years. By referencing “all terms

of elective office,” the complained-of ballot language identified a chief feature of

the proposed Charter amendment—i.e., that it would apply to all City elective

offices.   Furthermore, this complaint—that the City should have used “each”

instead of “all”—addresses discretionary choices about wording but does not


                                           12
materially impact the substance of the measure being conveyed. See Dacus, 466

S.W.3d at 826 (holding that “municipalities generally have broad discretion in

wording propositions” so long as ballot description “substantially submit[s] the

question . . . with such definiteness and certainty that the voters are not misled”);

Beeman v. Mays, 163 S.W. 358, 359 (Tex. App.—Dallas 1914, writ ref’d) (holding

election valid where ballot allowed voting “For School Tax” and “Against School

Tax,” where language should have said, “For increase of school tax” and “Against

increase of school tax”). Scarborough also points to his own affidavit testimony

that he was confused by the measure.4 However, such subjective evidence of

confusion is not relevant to our consideration of this issue. See Dacus, 466 S.W.3d

at 828–29 (“[W]e do not consider the Contestant’s evidence that some voters were

subjectively confused about the nature of the measure. Those who oppose election

results will always be able to find voters who claim to have been misled.”).

      We overrule Bryant’s and Scarborough’s first two issues.

      In their third and fourth issues, Bryant and Scarborough argue that the

language of Proposition 2 was “misleading and deceptive as a matter of law

because it affirmatively omitted the true character, purpose, and chief feature of the


4
      In both his motion for summary judgment and his brief on appeal, Bryant
      references various comments allegedly made by former Mayor Parker or other
      officials and concerns raised in other elections. However, he presented no
      evidence supporting these statements with his motion for summary judgment and
      thus we do not consider them on appeal. See TEX. R. CIV. P. 166a(c).
                                         13
Charter Amendment (e.g., to increase, rather than decrease, the total potential time

an incumbent officeholder may serve in the same office from 6 years to 10

years).”5   Bryant and Scarborough assert that the City made an “egregious

omission as it relates to the ‘transition’ rules contained” in the Charter amendment.

They argue that because Proposition 2 failed to provide voters with notice that, for

some incumbent officials, “the total potential time served would change from the

status quo of 6 years to a grand total of 10 years,” it misled voters “by omitting

certain chief features that reflect [the measure’s] character and purpose.”

      The City, however, argues that the provisions of the Charter amendment that

addressed the transition from the former term limits to the newly-proposed term

limits were not a chief feature of the Charter amendment, and we agree. By its


5
      To the extent that Bryant and Scarborough’s claims can be construed to challenge
      the validity of the Charter amendment itself or the City’s implementation of the
      Charter amendment, we observe that such claims fall outside the limited scope of
      this election contest. See Dacus, 466 S.W.3d at 826 (“In an election contest
      challenging the sufficiency of the ballot description, the issue is whether the ballot
      ‘substantially submits the question . . .with such definiteness and certainty that the
      voters are not misled.’”) (quoting Reynolds Land & Cattle Co. v. McCabe, 12
      S.W. 165, 165 (Tex. 1888)); Hotze v. White, No. 01-08-00016-CV, 2010 WL
      1493115, at *5 (Tex. App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied) (mem.
      op.) (contrasting challenge to election process and challenge to implementation
      and interpretation of election results; observing that challenges to City’s
      interpretation and implementation of election results do not constitute challenges
      to validity of election or election process); Rossano v. Townsend, 9 S.W.3d 357,
      361–62 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (recognizing that election
      contest is not ordinary lawsuit but is special proceeding in which district court’s
      authority to act is limited to subjects or grounds expressly or impliedly authorized
      by Election Code, including any suit in which validity of election itself or some
      aspect of elective process is challenged).
                                            14
plain language, the Charter amendment provided that elective officials could serve

up to two four-year terms in office. A measure’s chief features are those that

convey the measure’s character and purpose. See id. at 829 (ballot language

should “adequately describe the chief features—the character and purpose—of the

charter amendment”).      The transition provision for first-term incumbents

referenced by Bryant and Scarborough was an exception that would only apply in

limited circumstances—i.e, to a person who, at the time the Charter amendment

was approved, had served only one two-year term—and for a limited time—“for

positions to be elected at the City General Election to be held in November 2015.”

Tellingly, neither Bryant nor Scarborough complain that the remainder of the

transition provisions in the Charter amendment, regarding incumbents who had

served two or more terms, should have been included on the ballot.

      Nevertheless, the ballot language did mention, albeit in a generalized

manner, that the measure provided for “transition.” See Wright, 520 S.W.2d at 789,

792 (holding that use of two words, “maintenance tax,” on ballot sufficiently

described school-tax measure); Moerschell v. City of Eagle Lake, 236 S.W. 996,

1000 (Tex. App.—Galveston 1921, writ ref’d) (upholding proposition about

“contin[uing] or discontin[uing]” tax even though election arguably concerned new

tax). We conclude that the provisions governing the “transition” to the new term

limits set by the Charter amendment were not the sort of “chief feature” the


                                        15
supreme court has identified in the past, and, thus, a brief reference to the

“transition” provisions was sufficient. See Dacus, 466 S.W.3d at 826 (holding

ballot language inadequate when it did not specify that drainage charges would be

imposed on properties benefiting from drainage system: “when the citizens must

fund the measure out of their own pockets, this is a chief feature that should be on

the ballot, and its omission was misleading”); Reynolds Land & Cattle Co., 12

S.W. at 165–66 (proposition asking whether taxes “shall be levied for school

purposes” was sufficient even though it did not specify purposes behind levy).

      We overrule Bryant and Scarborough’s third and fourth issues.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Higley, and Landau.




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