                                   NUMBER 13-08-00179-CV

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG

                                     IN RE: TIMOTHY RYAN


                             On Petition for Writ of Mandamus


                                   MEMORANDUM OPINION

                     Before Justices Yañez, Rodriguez, and Vela
                         Per Curiam Memorandum Opinion1

        Through this original proceeding, relator, Timothy Ryan, seeks to compel the City

of El Campo to either revoke three annexation ordinances or submit them to a city-wide

vote. According to relator, the City’s failure to take one of these two actions will result in

an invalid election to be held on May 10, 2008, because voters from these annexed areas

will be allowed to vote and a candidate from the annexed area will be allowed to run for an

at-large seat on El Campo’s City Council. We deny the petition for writ of mandamus for



        1
          See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinion but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
the reasons stated herein.

                                       I. Background

       The City of El Campo, acting through its City Council, issued four annexation

ordinances on December 11, 2007. On January 10, 2008, pursuant to section 7.03 of the

El Campo City Charter, citizens of the City filed three petitions asking the City Council to

reconsider three of the annexation ordinances, and, if the City Council chose not to repeal

them, to submit the ordinances to a popular referendum vote. Section 7.03 of the City

Charter, entitled “Referendum,” provides that:

       Qualified voters of the City of El Campo may require that any ordinance or
       resolution passed by the City Council be submitted to the voters of the city
       for approval or disapproval, by submitting a petition for this purpose within
       thirty (30) days after final passage of said ordinance or resolution, or within
       thirty (30) days after its publication . . . . Thereupon the City Council shall
       immediately reconsider such ordinance or resolution and; if it does not
       entirely repeal the same, shall submit it to popular vote as provided in section
       6.07 of this Charter. Pending the holding of such election, such ordinance
       or resolution shall be suspended from taking effect and shall not later take
       effect unless a majority of the qualified voters voting thereon at such election
       shall vote in favor thereof.

Taking the position that annexation ordinances were not subject to the referendum

provision of the City Charter, the City Council took no action on the three petitions.

       Ryan and Ryan Services, Inc., brought suit against the City and City Council in the

329th Judicial District Court of Wharton County, Texas, seeking declaratory, injunctive, and

mandamus relief. They alleged that the El Campo City Charter is valid under Texas law,

the petitions regarding the ordinances complied with the City Charter, and the annexation

ordinances were suspended in accordance with the Charter. In short, Ryan and Ryan

Services, Inc. alleged that the referendum provision in the Charter required the City to

either repeal the ordinances or call a popular election on their validity, and the ordinances

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were not effective unless approved by a majority of the qualified voters at an election.

        The City and Council members answered this suit and filed a plea to the jurisdiction

on grounds that Ryan and Ryan Services, Inc. did not have standing to bring suit and the

trial court, accordingly, lacked jurisdiction. The City and Council alleged that individual

property owners cannot challenge irregularities in a municipality’s annexation; rather, such

challenges may be brought only through a quo warranto proceeding.2 The trial court

granted the plea and dismissed Ryan and Ryan Services Inc.’s claims without prejudice.

Ryan and Ryan Services, Inc., appealed this order, which is currently pending in this Court

as Cause No. 13-08-00105-CV.3

        On April 8, 2008, Ryan individually filed the instant petition for writ of mandamus and

motion for expedited consideration and, in the alternative, emergency temporary relief.

That same day, the Court requested a response to relator's petition for writ of mandamus,

and such response was duly filed on April 16, 2008. Relator’s motion for expedited

consideration and, in the alternative, emergency temporary relief, was ordered to be

carried with the case until further notice from this Court.

        According to the petition for writ of mandamus, the City of El Campo will hold an

election on May 10, 2008, to, inter alia, fill three at-large seats on its City Council. The




        2
         Quo warranto proceedings are used by the State to protect itself and the good of the public through
agents of the State who control the proceedings. City of Rockwall v. Vester, 2008 Tex. LEXIS 71, *12 f.8
(Tex. 2008).


        3
         Appellants have not filed a m otion for expedited consideration or any other m otion seeking an
accelerated briefing schedule in this appeal. W e note that the appellants’ brief will not be due until May 1,
2008, and appellees’ brief will be due thirty days thereafter. See T EX . R. A PP . P. 38.6.

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candidates for that election include relator,4 respondents Phillip Spenrath and Kenneth

Martin, who currently serve on the City Council, and non-parties Jimmy Roppolo, Otha

Edison, Henry Dornak, Jr., and Richard Young. Pursuant to the City Charter, only

residents of the City may run for a City Council seat, only City residents may vote in that

election, and the three candidates who receive the most votes in the election will be

elected to the City Council.            Relator contends that the annexation ordinances are

effectively suspended because the City Council failed to repeal them or submit them to

popular vote, but nevertheless, a candidate who resides in the annexed area, Jimmy

Roppolo, remains on the ballot as a candidate for City Council in the May 10, 2008

election, and voters from the annexed area will be able to vote in that election. Relator

asks this Court to compel respondents to follow the provisions in section 7.03 of the City

Charter before the May 10, 2008, election.

                                              II. Jurisdiction

        The Texas Election Code grants authority to the Supreme Court and the

intermediate appellate courts to issue writs 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. See TEX . ELEC . CODE ANN . § 273.061 (Vernon 2003). Accordingly, we have

jurisdiction to consider this petition for writ of mandamus.

                                         III. Standard of Review

        In deciding whether a writ of mandamus is appropriate, we recognize that


        4
          Relator becam e a candidate for City Council after the trial court denied his plea to the jurisdiction
in the underlying proceeding.

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mandamus relief is available to correct a clear abuse of discretion or the violation of a legal

duty when there is no adequate remedy at law, such as by appeal. In re Dana Corp., 138

S.W.3d 298, 301 (Tex. 2004) (orig. proceeding) (per curiam) (citing Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). “In determining whether appeal is an

adequate remedy, appellate courts consider whether the benefits outweigh the detriments

of mandamus review.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004).

In this case, our jurisdiction to issue a writ of mandamus is confined to compelling the

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

TEX . ELEC . CODE ANN . § 273.061; In re Armendariz, 245 S.W.3d 92, 94 (Tex. App.–El Paso

2008, orig. proceeding). The issue before us is whether the Council was required to

revoke the ordinances or submit the ordinances to a city-wide vote for approval or

disapproval.

                             IV. Applicable Law and Analysis

       According to Ryan, section 7.03 of the City Charter requires the Council to either

revoke the annexation ordinances or submit them to a city-wide vote. Ryan thus requests

this Court to direct the Council to comply with the Charter and choose one of these options.

We disagree with Ryan’s arguments and analysis.

       First, to the extent that Ryan’s challenge is based on the annexations at issue

herein, the proper method to challenge annexation procedures is through quo warranto,

and accordingly, Ryan lacks standing to bring this action. Laidlaw Waste Systems (Dallas),

Inc. v. City of Wilmer, 904 S.W.2d 656 (Tex. 1995); Alexander Oil Co. v. City of Seguin,

825 S.W.2d 434, 436 (Tex.1991); City of Port Isabel v. Pinnell, 161 S.W.3d 233 (Tex.



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App.–Corpus Christi 2005, no pet.); see TEX . CIV. PRAC . & REM . CODE ANN . § 66.002(c)

(Vernon 1997) (quo warranto proceedings may be brought by the attorney general or

county or district attorney on his or her own motion or at the request of an individual).

Unless an annexation is wholly void or the Legislature has expressly granted a private right

to challenge the annexation in some manner, a quo warranto proceeding brought by the

State is the only proper means of attacking a municipality's annexation in court. City of

Rockwall v. Hughes, 51 Tex. Sup. J. 349, ___, 2008 Tex. LEXIS 71, *25 (Tex. Jan. 25,

2008). In this regard, we note that the record fails to indicate that Ryan has a legislatively

granted private right to challenge the annexation, or that the City lacked issue the

annexations, or that the annexations were otherwise void.

       Second, we cannot conclude that the City or the City Council has failed to perform

any duty imposed on them by law. The law is clear that annexation ordinances are not

subject to the referendum provisions in city charters. Vara v. City of Houston, 583 S.W.2d

935, 938 (Tex. Civ. App.–Houston [14th Dist.] 1979, writ ref’d n.r.e.); City of Hitchcock v.

Longmire, 572 S.W.2d 122, 127 (Tex. App.–Houston [1st Dist.] 1978, writ ref’d n.r.e.); see

also Save our Aquifer v. City of San Antonio, 237 F.Supp.2d 721, 729 (W.D.Tex. 2002)

(“Annexation issues are not subject to direct democracy voting through referendum, but

rather are reserved to representative democracy. . . .”).     Accordingly, the City and City

Council were not required to repeal the annexation ordinances or put them to a

referendum.

                                       V. Conclusion

       The Court, having examined and fully considered the petition for writ of mandamus,



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is of the opinion that relator has not shown himself entitled to the relief sought.

Accordingly, the petition for writ of mandamus is DENIED. See TEX . R. APP. P. 52.8(a).

Relator’s motion for expedited consideration and, in the alternative, emergency temporary

relief, which was previously carried with the case, is hereby GRANTED insofar as this

Court has given this proceeding expedited consideration.

                                               PER CURIAM



Memorandum Opinion delivered and
filed this the 18th day of April, 2008.




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