       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-18-00598-CV


                                  Thomas G. Kilgore, Appellant

                                                  v.

   City of Lakeway, Texas, and Sandy Cox, Ron Massa, Bridge Bertram, Dwight Haley,
           Steve Smith, and Keith Trecker, in their Official Capacities, Appellees




                FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
        NO. D-1-GN-18-004411, THE HONORABLE TIM SULAK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Thomas G. Kilgore sued appellees City of Lakeway, Texas; Sandy

Cox, in her official capacity as Mayor; and Ron Massa, Bridge Bertram, Dwight Haley, Steve

Smith, and Keith Trecker, in their official capacities as members of the Lakeway City Council.

He sought declaratory and injunctive relief, asserting that appellees had through ordinances

changed the way council members were elected, thus “effectively amending” the City’s home-

rule charter without voter approval. Appellees responded with a plea to the jurisdiction, which

the trial court granted, dismissing Kilgore’s claims. This appeal presents the limited question of

whether Kilgore lacked standing to bring his suit. As explained below, we will affirm the trial

court’s order granting appellees’ plea to the jurisdiction.
                                   STANDARD OF REVIEW

               “Standing is a prerequisite to subject-matter jurisdiction, and subject-matter

jurisdiction is essential to a court’s power to decide a case.” M.D. Anderson Cancer Ctr. v.

Novak, 52 S.W.3d 704, 708 (Tex. 2001). “As a general rule of Texas law, to have standing,

unless it is conferred by statute, a plaintiff must demonstrate that he or she possesses an interest

in a conflict distinct from that of the general public, such that the defendant’s actions have

caused the plaintiff some particular injury.” Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001).

A plea to the jurisdiction questioning a trial court’s jurisdiction raises a question of law that we

review de novo, asking whether the plaintiff alleged sufficient facts to affirmatively demonstrate

jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). We construe the pleadings

liberally, looking to the plaintiff’s intent, and even if the factual allegations are insufficient to

establish jurisdiction, if they do not affirmatively demonstrate an incurable defect, the plaintiff

should be allowed to replead. Id. at 643. In some instances, a trial court may have to consider

evidence before ruling on a plea to the jurisdiction. Id. If there is a fact issue as to jurisdiction,

the plea should be denied, but if the relevant undisputed evidence negates jurisdiction, the plea

must be granted. Id.


                                  FACTUAL BACKGROUND

               The Texas Constitution provides that cities of the size of the City of Lakeway

“may, by a majority vote of the qualified voters of said city, at an election held for that purpose,

adopt or amend their charters.” Tex. Const. art. XI, § 5(a). The local government code similarly

provides that the governing body of such a city, known as a “home-rule municipality,” “may

submit a proposed charter amendment to the municipality’s qualified voters for their approval at

an election” and that a proposed change to a charter “is adopted if it is approved by a majority of
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the qualified voters of the municipality who vote at an election held for that purpose.” Tex. Loc.

Gov’t Code §§ 9.004(a), .005(a); see id. § 5.004 (“A municipality is a home-rule municipality if

it operates under a municipal charter that has been adopted or amended as authorized by Article

XI, Section 5, of the Texas Constitution.”).

               The City’s home-rule charter was approved by the citizens in 1990 and

established a six-person city council with council members running for two-year terms under a

plurality-vote, at-large election system. In 2014, voters approved an amendment to the City’s

charter that extended the mayoral and city council terms from two to three years but did not

make any changes to the voting system. Unbeknownst to the City at the time, that change was in

violation of the Texas Constitution, which provides that a home-rule city may allow its council

terms to exceed two years, but only if the council members are elected by majority vote. Tex.

Const. art. XI, § 11(a).

               In 2018, the City learned of the problem with its amended charter and contacted

the Secretary of State for advice. The Secretary of State’s office responded, recommending that

the City pass an ordinance postponing implementation of the three-year terms until the at-large

system could be replaced with a place system, necessary to facilitate a majority-vote system.

The Secretary of State also provided advice on how to manage elections and council member

positions from the 2018 election forward, recommending that an ordinance be passed to assign

place numbers to the council members. Once place numbers were assigned, the Secretary

advised, the charter amendment could be implemented and council members (and the mayor)

could be “elected by majority to three year terms.”

               The City passed an ordinance in April 2018 that (1) suspended the charter

amendment until the City either established a place system or amended the charter again and

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(2) provided that the May 2018 election would be conducted under the plurality system. In May

2018, the City passed another ordinance observing that it had just conducted an election for the

City’s mayor and two council seats and stating that its purpose was to “realign the terms for the

mayoral and council seats.” Under the May ordinance, the mayor was declared to be serving as a

holdover since 2017, two council members would serve as holdovers until their seats were filled

by a special election in November 2018, two council members were realigned from three- to

two-year terms ending in May 2019, and two terms did not require realignment. The ordinance

also provided that: the mayoral candidate who received the highest number of votes in the just-

held election would serve as mayor through the end of a two-year term ending in May 2019; the

council candidate receiving the highest number of votes would serve a full two-year term; and

the council candidate receiving the next highest number of votes would serve the remainder of a

two-year term ending in May 2019.        Finally, the ordinance provided that the two council

candidates receiving the highest number of votes in the November 2018 special election would

serve two-year terms ending in May 2020 and that an election in May 2019 would elect the

mayor and three council members for two-year terms.           In July 2018, the City passed an

ordinance ordering a special election in November 2018 to elect two council members. The City

never implemented a place system for its council, as recommended by the Secretary of State.

               Kilgore sued to enjoin the November 2018 election, and appellees filed a plea to

the jurisdiction asserting in relevant part that Kilgore lacked standing to bring his suit. Kilgore

testified before the trial court that he and his wife moved to Lakeway from Boston in 2016 and

that in deciding where to live, they took into account the kind of house they could buy, how they

could be involved in the community, and “the way the community was run and managed.” He

said that he reviewed the City’s charter before deciding to move to Lakeway and liked the

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structure, partly because the City “ran its government much like the City of Boston currently

[does] with the mayor and city council. And it was a very familiar system in the way elections

would be continued.” He said that one of the things he considered “was the form of government,

how many council members there would be, that there was a mayor and that how they were

elected and the terms.” Asked how the ordinances’ postponement of the charter amendment had

affected him, Kilgore answered:



       The city has personally stripped me of my right to vote for charter amendments.
       The city has done that in violation of the constitution by overturning a prior
       charter amendment without putting anything to a vote of the citizens. The city
       has a charter the words of which do not prevent majority voting. The city has a
       charter which does not prevent the establishment of place. The city has a charter
       which allows the city to conduct an election, particularly a special election, and
       have majority voting for that place without any change. This—this action I’m
       taking is an opportunity for the city to return to a constitutional path at a very low
       cost.


He also said that his voting would change based on whether the election was a plurality or

majority vote because:



       if you’re trying to pick from a scrum, that’s different than trying to pick the best
       candidate for a position. And in picking by a plurality type system, you end up
       seating votes in control [sic] to small minorities that try to push one particular line
       across, which may or may not represent the community at large. And I find that
       offensive to my vote.


The trial court signed an order granting the plea to the jurisdiction and dismissing Kilgore’s

claims, which Kilgore now appeals.




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                                          DISCUSSION

               Kilgore filed his petition seeking to enjoin the November 2018 election, arguing

that the 2018 ordinances suspending the 2014 charter amendments “were not presented to the

qualified voters, such as Mr. Kilgore, for approval as required by the Texas Constitution.” He

asserted that the ordinances amounted to a “de facto amendment” of the charter that should have

been approved by the voters. Kilgore sought a declaration that appellees had violated the Texas

Constitution and the local government code by refusing to present the “de facto amendment” to

the voters, had violated the election code by calling a special election to elect council members,

and had violated Kilgore’s rights by “negating his right to vote for all positions on his city

council.” He sought to enjoin the November 2018 special election, which was to be held under

the plurality voting system, and asked the trial court instead to order that the November election

be conducted using majority voting; that only a vacant council seat be filled, for a three-year

term, by the November election; and that the non-vacant seat be filled by a later election,

conducted “on a place basis using majority voting.”

               In their plea to the jurisdiction, appellees argued in relevant part that Kilgore

lacked standing because he had not suffered any injury distinct from the public at large. See

Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001). Kilgore responded that he had “lost his

individual right to vote in multiple ways,” including his right to vote for a charter amendment,

his right to vote for individual council seats by majority vote, and his right to vote for non-vacant

council seats in a general election. He argued that he was contesting the form of the election, not

the results, and that the election code expressly allowed citizens to seek injunctive relief to avoid

being harmed by violations of the election code. He also claimed that because he presented his

objections to the City before the July ordinance was passed, he had suffered an injury distinct

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from other voters in the area. Kilgore argued that the trial court had jurisdiction to enjoin the

special election, which he argues was in violation of the election code, and that his requested

injunction would “be easy to implement within the timeframe available.”

              Although the parties limit themselves to discussing Kilgore’s standing, we must

note that the lawsuit complained in large part about the City’s calling of the November 2018

special election, but that any issues or complaints specific to that election are now moot. See,

e.g., Pressley v. Casar, 567 S.W.3d 327, 331-32 (Tex. 2019); Perez v. Turner, No. 01-16-00985-

CV, 2019 WL 5243107, at *5 (Tex. App.—Houston [1st Dist.] Oct. 17, 2019, no pet. h.).

However, Kilgore’s broader complaints about the ordinances’ postponement of the charter

amendment are not moot because those complaints—that under the ordinances, the elections are

for council seats that carry two-year terms and are conducted under an at-large, plurality voting

system—are ongoing and continue with each subsequent city council election.             We are

confronted, therefore, with the limited question of whether Kilgore has shown that he has

standing to complain about appellees’ actions, which have effectively undone the charter

amendment that provided for three-year city council terms.

              Initially, we observe that the attempted change to the City’s charter was in

conflict with the Texas Constitution. No one argues that allowing for three-year terms without

changing the at-large, plurality voting system would comport with the Texas Constitution.

Instead, Kilgore argues that, post-amendment, any charter provisions that conflict with the Texas

Constitution “must yield,” meaning that by approving the three-year terms, the voters impliedly

agreed to change how votes are conducted and to switch to a majority place system. 1 The


       1 As support for that argument, Kilgore refers to Estrada v. Adame, in which the city
charter provided for three-year council terms, which, under the Texas Constitution, required
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charter, however, does not indicate such changes were contemplated and instead both provides

for three-year terms and specifies that the mayor and council members “will be elected from the

City at large.” It further provides that after an election is held, the “candidate who receives the

largest number of votes cast for an office shall be declared elected” and that a run-off election

shall be held if “no candidate for an office receives a plurality of the votes cast for that office.”

               We agree that a charter provision that conflicts with the Texas Constitution or the

election code must yield, see Tex. Const. art. XI, § 5 (“no charter or any ordinance passed under

said charter shall contain any provision inconsistent with the Constitution of the State, or of the

general laws enacted by the Legislature of this State”); City of Wink v. Griffith Amusement Co.,

100 S.W.2d 695, 698 (Tex. 1936) (“The rule is definitely established . . . that ordinances in

conflict with the general or state law are void.”); City of Cleveland v. Keep Cleveland Safe, 500

S.W.3d 438, 448 (Tex. App.—Beaumont 2016, no pet.) (city charter “cannot be inconsistent with

the Constitution of the State and general laws of the State”), but that means that the charter

amendment that Kilgore insists should be implemented was instead void and of no legal effect to

the extent that it conflicted with the Texas Constitution and the general laws, see Tex. Att’y Gen.

Op. GA-0433 (2006) (asked about effect of charter amendment that conflicted with constitution,

attorney general answered that “[m]unicipal laws inconsistent with state law are void ab initio”




election by majority vote. 951 S.W.2d 165, 166-167 (Tex. App.—Corpus Christi-Edinburg
1997, orig. proceeding). After an election in which there was no majority winner and Estrada
came in second place, the mayor failed to order a runoff and the plurality winner was sworn into
office. Id. at 167. The court of appeals granted mandamus relief, holding that the mayor
violated her duty to order a runoff election. Id. at 167-68. However, as appellees note, in that
case, the city attempted to have both three-year terms under a place system and a plurality voting
system, and Estrada did not involve the question of a voter’s standing and thus is not relevant to
the question before us.
                                                   8
and that despite amendment attempt, “the City’s charter was not amended” and “continues to

mandate commissioners’ term limits as it did prior to the invalid 1995 amendment”).

               We now consider whether Kilgore had standing to complain of the City’s actions

in passing the ordinances that postponed the charter amendment. A citizen generally “lacks

standing to bring a lawsuit challenging the lawfulness of governmental acts” because

“governments cannot operate if every citizen who concludes that a public official has abused his

discretion is granted the right to come into court and bring such official’s public acts under

judicial review.” Andrade v. Venable, 372 S.W.3d 134, 136 (Tex. 2012). “No Texas court has

ever recognized that a plaintiff’s status as a voter, without more, confers standing to challenge

the lawfulness of governmental acts. Our decisions have always required a plaintiff to allege

some injury distinct from that sustained by the public at large.” Brown, 53 S.W.3d at 302; see

Venable, 372 S.W.3d at 137 (citizen complaining of governmental action generally “must show

that he has suffered a particularized injury distinct from the general public”). Relying heavily on

Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex. 2011), Kilgore asserts that the ordinances

operate to “dilute or outright deny his individual right to vote” for all charter amendments and

for individual council positions by majority votes. 2     He further notes that he opposed the

ordinances before their passage and that he testified before the trial court that part of the reason

he moved to the City was the electoral system as described in the charter. Thus, he argues, he

established standing to bring this challenge complaining of the election process. See id. at 8.




       2  Kilgore also asserts that by setting two council seats for the special election in
November 2018, he was stripped of his right to vote for certain council positions during general
elections that are supposed to occur in May. However, that complaint is specific to elections that
occurred in November 2018 and May 2019 and thus is moot.
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               In NAACP, the plaintiffs were voters complaining of being required to use a

certain electronic voting machine that did not provide a paper record of each vote. Id. at 5-6, 10-

11. The supreme court discussed standing and the particularized-harm requirement, noting that

harm is not based on “the number of people affected” and that a plaintiff can have standing even

when “a harm is concrete, though widely shared.” Id. at 7-8 (cleaned up). In determining

whether a plaintiff has standing, “the proper inquiry is whether the plaintiffs sue solely as

citizens who insist that the government follow the law.” Id. “The line between a generalized

grievance and a particularized harm is difficult to draw,” however, and the court observed that it

had been “careful to suggest that challenges to the election process may be different” from the

usual standing analysis. Id. at 8.

               The supreme court concluded that the plaintiffs had standing to bring their equal-

protection claims because in raising concerns about whether their votes would be properly

counted, “they assert a plain, direct and adequate interest in maintaining the effectiveness of their

votes, not merely a claim of the right, possessed by every citizen, to require that the Government

be administered according to law.” Id. at 11 (cleaned up). The court also explained that because

the plaintiffs were required to use the machines while other voters in the county or in other parts

of the state were not, “this disparity gives them standing to sue for an equal protection violation.”

Id. at 12. The court went on to explain, however, that although the plaintiffs had standing to

assert their equal-protection claims, they did not have standing to bring claims asserting

violations of the Texas Constitution or the election code. Id. at 14-18. As to those claims, the

court concluded that the plaintiffs had not asserted a “concrete, particularized harm” and instead

raised “only generalized grievances about the lawfulness of government acts.” Id. at 15, 18.



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               Kilgore is complaining about City ordinances that postponed the implementation

of the charter amendment—an amendment that brought the charter into conflict with the Texas

Constitution. Although the ordinances affect the City’s election process, the supreme court’s

holdings in NAACP do not mean that Kilgore can establish standing to bring his constitutional

and elections-code claims simply by asserting that his vote was diluted.          To the contrary,

Kilgore’s vote will be counted in the same way as every other resident of the City, and his vote

has a weight or effect identical to votes cast by any other citizen in the City. 3 The fact that he

wants a different system does not change the fact that he is raising only a generalized grievance

about the ordinances and has not suffered a concrete, particularized harm. 4 See id.; Hotze v.


       3   In Engelman Irrigation District v. Shields, the court of appeals determined that the
plaintiffs had “established injuries distinct from voters at large” because one was a candidate up
for election and both had filed proxy designation forms that were canceled by the defendant’s
board of directors. No. 13-08-00153-CV, 2008 WL 1974344, at *7 (Tex. App.—Corpus Christi-
Edinburg May 8, 2008, no pet.) (mem. op.). Kilgore has not asserted an injury that is in any way
distinct from the ordinances’ effects on every other voter in the area and thus has not asserted an
injury distinct from the voters at large.
       4  Although Kilgore also asserts that the ordinance diluted his vote, the cases to which he
cites for support involve the effect on minority votes of at-large voting schemes, which “have
been held to impair minority voting rights.” See Lopez v. Abbott, No. 2:16-CV-303, 2017 WL
1209846, at *2 (S.D. Tex. Apr. 3, 2017). However, Kilgore has not alleged that he is a minority
or a member of a class that has suffered past discrimination or vote suppression. See id.; see also
League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 837 (5th Cir.
1993) (discussing history of dilution of minority votes). And although Kilgore notes that “at-
large voting schemes have been held to impair voting rights in cases where voter dilution or
suppression is a concern,” there is no indication that voter suppression or the dilution of minority
voting rights is a concern here.

        Nor has Kilgore been denied his “individual right to vote” as was the complaining voter
in League of United Latin American Citizens, District 19 v. City of Boerne, 659 F.3d 421, 430
(5th Cir. 2011). In that case, a consent decree—entered due to a history of dilution of the voting
strength of Mexican-American voters—established a single-member electoral district system
rather than an at-large, numbered-post system as set out in the city’s charter, meaning that the
voter was “only able to vote for the one council member in whose single-member district he
resides.” Id. at 427-28. Thus, the voter had standing because he was “deprived of his pre-
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White, No. 01-08-00016-CV, 2010 WL 1493115, at *6-7 (Tex. App.—Houston [1st Dist.]

Apr. 15, 2010, pet. denied) (mem. op.) (voter who actively opposed proposition had “particular

interest in ensuring that” proposition was submitted in “properly worded ballot” but did not have

standing to challenge results of election; opposition to current proposition and sponsorship of

earlier proposition did not inflict distinct injury on voter, who instead “is now essentially equal to

all other persons who voted for” earlier proposition and opposed recent proposition). Further,

the amendment itself is void, as we have explained, and it would be contrary to the charter’s

provisions that specifically relate to the election process if the City were to conduct its elections

under a majority place system.

               Kilgore is not raising an equal-protection claim, as did the plaintiffs in NAACP.

Nor has he raised any complaint that his vote, whether alone or with a group of other similarly

situated voters, will be treated differently than any other votes cast in City elections. Kilgore’s

challenge, at heart, is “merely a claim of the right, possessed by every citizen, to require that the

Government be administered according to law.” NAACP, 345 S.W.3d at 10 (cleaned up). And

although Kilgore insists that the City had suspended a “valid charter amendment,” we cannot

ignore the fact that the charter amendment brought the City’s charter into conflict with the Texas

Constitution and that Kilgore’s challenge would require the City to violate either the Texas

Constitution, if it continued with three-year terms under its current voting system, or provisions

of its charter by employing a voting system that varies from the terms provided in the charter.




existing right to vote for all the members of the city council which has jurisdiction over the city
where he lives.” Id. at 429-30.
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               We overrule Kilgore’s arguments on appeal. We hold that Kilgore did not show

any particularized harm resulting from the City’s adoption of its ordinances correcting the

constitutional problem caused by the charter amendment.


                                         CONCLUSION

               Kilgore did not establish that he had standing to bring this lawsuit. Further,

because the facts establish that Kilgore has not been affected differently than any other voter in

the City, “the relevant undisputed evidence negates” Kilgore’s standing to bring suit and we need

not allow an opportunity to replead. See Holland, 221 S.W.3d at 642-43. We affirm the trial

court’s order granting appellees’ plea to the jurisdiction and dismissing Kilgore’s claims.



                                              __________________________________________
                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Triana and Kelly

Affirmed

Filed: February 26, 2020




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