
IN THE SUPREME COURT OF 
TEXAS
 
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No. 
04-0619
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In re Dr. 
Robert Fitzgerald, MD
 
 
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On Petition for Writ of 
Mandamus
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PER 
CURIAM
 
 
On 
June 21, 2004, 
residents of a community known as Quihi, Texas filed a 
petition requesting the constitutional county court judge of Medina County to 
order an election on the proposed incorporation of the community.  On Friday, July 9, 2004 the county judge denied the 
petition for the incorporation election.  
One of the residents, Dr. Robert Fitzgerald, petitioned this Court to 
issue a writ of mandamus requiring the county judge to order the incorporation 
election.[1]
Section 
8.003 of the Texas Local Government Code prescribes the county judge=s 
duty to order an incorporation election: AIf 
a county judge receives the petition and if satisfactory proof is made that the 
community contains the requisite number of inhabitants, the judge shall order an 
incorporation election to be held on a specified date and at a designated place 
in the community.@  To incorporate as a Type C general-law 
municipality, the area to be incorporated must contain between 201 and 4,999 
inhabitants.  Tex. Loc. Gov=t Code ' 
8.001(a)(2).  Here, the county 
judge=s 
order recited that the petition=s 
documentation and the records of Medina County constituted satisfactory proof 
that A[t]he 
area sought to be incorporated contains between 201 and 4,999 inhabitants.@  The order did not cite any statutory 
defects in the petition=s 
contents but denied the petition and did not order the election because the 
judge was Aunable 
to find that the area sought to be incorporated meets a threshold criteria [sic] 
for incorporation as a Type C general law city.@  The order explained that the area to be 
incorporated extends beyond Aa 
core area that is historically and currently known as and shown on some maps as 
Quihi@ 
and includes Aprimarily 
a rural community with residences scattered over the country, connected only by 
stretches of county and state roads, with significant distances of five miles or 
more between them.@
When 
a county judge is presented with a petition for an incorporation election that 
contains the statutorily required elements and proof satisfactory to the judge 
that the community to be incorporated contains the requisite number of 
inhabitants, the county judge must order the election.  Tex. Loc. Gov=t Code ' 
8.003; Perkins v. Ingalsbe, 347 S.W.2d 926, 930 
(Tex. 1961) (AWhen 
the county judge is presented with a statutory petition, and proof satisfactory 
to him has been made that the territory sought to be incorporated contains the 
requisite number of resident qualified electors, then the county judge has no 
discretion as to whether or not he will call the election, but he must do 
so.  If the county judge should 
refuse to call an election under these circumstances, he can be forced to do so 
by writ of mandamus.@).  As long as the area to be incorporated 
is not part of another incorporated city or town, questions regarding the 
boundaries of the area to be incorporated as a municipality are not for the 
county judge to decide.  Todd v. 
Helton, 495 S.W.2d 213, 215 (Tex. 1973) (AQuestions 
pertaining to fixing the boundaries of the town are not for the county judge to 
decide.  He may be compelled by 
mandamus to order an election even though he regards the area not to constitute 
a town . . . .@) 
(citing Reagan v. Beck, 474 S.W.2d 935 (Tex. Civ. App.BTyler 
1971, writ ref=d 
n.r.e.); Perkins, 347 S.W.2d at 930-32.  Therefore, we conditionally grant the 
writ of mandamus and order the MedinaCounty judge to call the 
incorporation election before 5:00 
p.m. today, July 
12, 2004.
 
OPINION 
DELIVERED:  July 12, 2004
