      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00087-CV



        In re Donald Ray Lee, Latricia Doyal, Paulette Savage and Jonathan Chase


                  ORIGINAL PROCEEDING FROM MCCULLOCH COUNTY



                                          OPINION


               Donald Ray Lee, Latricia Doyal, Paulette Savage, and Jonathan Chase, the Relators,

are residents and registered voters of Brady, Texas. The Relators seek a writ of mandamus ordering

the Brady City Council and the Brady City Secretary, the Respondents, to order the recall election

of the Mayor of Brady, Gail Lohn. The Respondents have filed a response. See Tex. R. App. P.

52.4. Pursuant to section 273.061 of the Texas Election Code, this Court has jurisdiction “to compel

the performance of any duty imposed by law in connection with the holding of an election . . . .” See

Tex. Elec. Code Ann. § 273.061 (West 2010). Upon considering the arguments presented in the

petition and the response, we conditionally grant the writ.

               The City of Brady is a home-rule municipality. See Brady, Tex., Home Rule Charter,

§§ 1.01-14.03 (2011). Under the Brady City Charter, qualified voters may remove their elected City

officials from office through a recall election “for reason of incompetence, noncompliance with this

Charter, misconduct or malfeasance in office.” Id. § 8.01. The recall process is initiated when any

qualified voter in the City files with the City Secretary an affidavit naming the person or persons

to be recalled and the reasons therefor. Id. § 8.03. Within two working days of the filing of the
affidavit, the Secretary must issue to the affiant a “petition blank” in the form prescribed by section

8.04 of the Charter and signed by the Secretary. Id.

                Next, the recall petition is circulated for signatures. The Charter provides that the

petition must be “signed by qualified voters of the City equal in number to at least twenty percent

(20%) of the number of votes cast in the last regular municipal election of the City or 250, whichever

is greater.” Id. § 8.02. Each person signing the recall petition shall “affix his residence address and

the date of signing.” Id. The petition must also “be addressed to the Council and must distinctly and

specifically state the reason(s) for removal. The petition shall specifically state each reason with

such certainty as to give the official to be removed notice of such matters and things with which he

is charged.” Id. § 8.04.

                Upon circulation, the recall petition is filed with the City Secretary, who reviews the

petition to determine if it is sufficient or insufficient. See id. §§ 8.05 (“The City Secretary shall

follow the certification procedures as described in Section 9.04.”), 9.04 (regarding determination of

sufficiency). The City Secretary must “complete a certification as to the sufficiency of the petition

within ten (10) days.” Id. § 9.04. The Secretary then “present[s] the certified petition to the Council

at the next regular meeting,” and “if the accused official does not resign, the Council shall order an

election for the earliest lawful date in accordance with State election laws.” Id. §§ 8.06, 8.08

(emphasis added).

                In this case, the Relators, along with other qualified voters in the City of Brady,

initiated the recall-election process. On January 25, 2013, the Relators filed a petition for a recall

election with the City Secretary seeking to remove the Mayor. Attached to the petition was the eight-

page affidavit of a qualified voter, detailing specific factual allegations in support of the recall. On

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January 31, 2013, the City Secretary issued a “Certification of City Secretary,” stating that the recall

petition was insufficient. According to the certification, the recall petition had the required number

of signatures of qualified voters. The certification went on to state that “after consultation with the

Interim City Attorney” the Secretary had concluded that “none of the allegations provided by the

affiant . . . constitute legally sufficient grounds for recalling Mayor Lohn.” The next day, at its next

regular session, the City Council approved the City Secretary’s certification of insufficiency and

refused to order a mayoral recall election.

                This Court may compel, by writ of mandamus, a public official to perform a

ministerial act. Walker v. Packer, 827 S.W.2d 833 (1992). “An act is ministerial when the law

clearly spells out the duty to be performed by the official with sufficient specificity that nothing is

left to the exercise of discretion.” Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.

1991). The Relators contend that the City Secretary and City Council violated ministerial duties

established in the City Charter. Specifically, the Relators contend that because it is undisputed that

the recall petition contained the correct numbers of signatures, the Secretary was obligated to certify

the petition as sufficient and the Council was obligated to order the recall election.

                In response, the Respondents do not contend that the recall petition lacks the required

number of valid signatures. Instead, the Respondents contend that the Charter authorizes the City

Secretary to review the factual allegations supporting the recall and to determine, in his or her

discretion, if the allegations are sufficient to give rise to a claim “for reason of incompetence,

noncompliance with this Charter, misconduct or malfeasance in office.” Further, the Respondents

contend that in this case, the allegations in the recall petition fail to constitute sufficient grounds for

recalling the Mayor.

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                In support of their argument, the Respondents rely on section 9.04 of the Charter.

Specifically, the Respondents argue that section 9.04 requires the City Secretary to review the recall

petition and affidavit and to confirm that legally adequate grounds for recall authority have been

alleged. Further, the Respondents contend that this evaluation necessarily requires judgment and

discretion. Upon review of the City Charter, we disagree that section 9.04, or any other provision

in the Charter, gives any official of the City of Brady the discretionary right or duty to determine the

factual or legal sufficiency of a recall petition.

                Section 9.04 is entitled “Determination of Sufficiency” and applies not only to recall

petitions, but also to initiative and referendum petitions. Brady, Tex., Home Rule Charter, art. IX,

§ 9.04 (2011); see id. § 9.03 (regarding requirements for initiative and referendum petitions).

Section 9.04 provides, in relevant part, the following:


                 [(a)] Certificate of City Secretary. The City Secretary shall complete a
        certificate as to the sufficiency of the petition within (10) ten days after it is filed. The
        petitioners’ committees will be notified by registered mail of any insufficiencies in
        the petition.

                [(b)] Sufficient Petition, Final Determination. If the petition is certified
        sufficient, the City Secretary shall present the certificate to the Council by the next
        regular council meeting and the certificate shall be final.

                [(c)] Insufficient Petition, Final Determination. If a petition is certified
        insufficient and the petitioners’ committee does not elect to amend or request
        Council review under subsections (d) and (e) of this section, the City Secretary shall
        present a certificate to the Council by the next regular council meeting which shall
        be final.

                [(d)] Insufficient Petition, Appeal. If a petition has been certified insufficient
        and the petitioners’ committee does not file notice of intention to amend it as in
        Section 9.04(e), the committee may, within two (2) working days after receiving
        notice of insufficiency, file a request that it be reviewed by the Council. The Council
        shall review the certificate at its next regular meeting following the filing of such

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       request and approve it or disapprove it, and the determination of the Council shall
       then be final.

               [(e)] Insufficient Petition, Amending. A petition certified insufficient for
       lack of required number of valid signatures may be amended one (1) time if the
       petitioners’ committee files a notice of intention to amend with the City Secretary
       within two (2) working days after receiving notice of insufficiency and files a
       supplementary petition with additional names within two (2) weeks after receiving
       such notice. Such supplementary petition shall comply with the requirements of 9.03.


Id. § 9.04. Section 9.04 clearly gives authority to the City Secretary to certify a recall petition as

insufficient for lack of required signatures, subject to a right to amend.

               The Respondents contend that section 9.04 is not limited to review for lack of

required signatures but instead contemplates that petitions may be certified as insufficient for

other reasons, including insufficient allegations. In making this argument, the Respondents point

to language in section 9.04(a) referring to “any insufficiencies in the petition.” See id. § 9.04(a).

Considering the Charter as a whole, we cannot conclude that section 9.04 clearly gives the City

Secretary any authority to certify a recall petition as “insufficient” with regard to the factual or

legal allegations made in the affidavit and recall petition. Rather, the language of section 9.04 is

ambiguous, at best, concerning what review, if any, the Secretary can perform with regard to the

sufficiency of the petition beyond verifying the number of signatures of qualified voters.

               Our sister court of appeals in Houston was presented with a similar issue in

Blanchard v. Fulbright, 633 S.W.2d 617, 622 (Tex. App.—Houston [14th Dist.] 1982, orig.

proceeding). In that case, the court of appeals considered whether a charter that simply provided for

recall petitions to be presented to the city council gave the council the authority to determine the

sufficiency of the petition’s allegations by discretionary “judicial review.” Id. at 621. In holding



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that the charter did not delegate such a right or duty, the court of appeals explained that allowing

the council to “make the ultimate determination of sufficiency of the petition would commit the

decision to a body that could not be considered impartial.” Id. at 622 (quoting Howard v. Clack,

589 S.W.2d 748, 752 (Tex. Civ. App.—Dallas 1979, orig. proceeding)). The court concluded that

“[n]o authority to determine the sufficiency of recall petitions should be inferred to exist in the city

council, in the absence of an express provision in the City Charter.” Id. (emphasis added).

                Similarly, in this case, a review of the sufficiency of the allegations supporting recall

would, in essence, amount to a non-judicial determination by the City Secretary and the City Council

of whether the facts as alleged give rise to a legal basis for recall under the City Charter. If the

Mayor believes that the allegations are insufficient, due process affords her the right to file suit in

district court and obtain a judicial determination of sufficiency of the allegations. See Burns v. Kelly,

658 S.W.2d 731, 733 (Tex. App.—Fort Worth 1983, orig. proceeding) (citing Blanchard, 633 S.W.2d

at 622). Therefore, in the absence of an express provision clearly authorizing the City Secretary or

City Council to make this determination in certifying the petition, we will not infer that such

authority exists. See Blanchard, 633 S.W.2d at 622; see also In re Carla Lee Unson, 120 S.W.3d

477, 480 (Tex. App.—Corpus Christi 2003, orig. proceeding) (refusing to infer from language in

charter that city secretary or commissioners had right or duty to examine sufficiency of recall

petitions). Accordingly, the City Secretary and City Council have no discretion to exercise with

respect to reviewing the sufficiency of the allegations supporting the Relators’ recall petition.

                The Charter for the City of Brady creates a ministerial duty for the City Secretary to

certify a recall petition upon determining that it contains the requisite number of signatures. See

Brady, Tex., Home Rule Charter, art. IX, § 9.04. Likewise, the City Charter creates a ministerial



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duty for the City Council to order a recall election if the official whose removal is sought refuses to

resign. See id. art. VIII, § 8.08. Here, there is no dispute that the recall petition included the correct

number of signatures. Further, there is no explicit discretionary duty relied upon by the City Secretary

for refusing to certify the recall petition as sufficient or by the City Council for refusing to order a

recall election. Under these facts, we conclude that mandamus relief is warranted.

                   We conditionally grant the mandamus relief requested and order the Brady City

Secretary to certify the recall petition as sufficient and forward the petition to the Brady City

Council. We direct the members of the Brady City Council to order a recall election for the earliest

lawful date if Mayor Lohn does not resign, subject to stay by a court of competent jurisdiction. See

Duffy v. Branch, 828 S.W.2d 211, 214 (Tex. App.—Dallas 1992, orig. proceeding) (noting that

district court is “forum to argue the sufficiency issues” and that district court may “enjoin the recall

election”). A writ of mandamus will issue only if the City Secretary and the City Council members

fail to comply by March 1, 2013.1 In addition, the members of the City Council are directed to file

in this Court, as soon as practicable thereafter, a certified copy of their official action ordering a

recall election.



                                                __________________________________________

                                                Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Filed: February 28, 2013


        1
          Both parties agree that if the City Council orders a recall election the date of the election
would be May 11, 2013. See Tex. Elec. Code Ann. § 41.001(a)(2) (West Supp. 2012) (uniform
election dates). In addition, according to the Respondents, the recall election would need to be
ordered no later than March 1, 2013. See id. § 3.005 (West 2010) (ordering of elections).

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