                                                                                       ACCEPTED
                                                                                   03-15-00518-CV
                                                                                           7481510
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                             10/21/2015 3:55:10 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                         Case No. 03-15-00518-CV

                   IN THE THIRD COURT OF APPEALS        FILED IN
                                                 3rd COURT OF APPEALS
                            AUSTIN, TEXAS             AUSTIN, TEXAS
                                                         10/21/2015 3:55:10 PM
                         City of San Marcos, Texas,         JEFFREY D. KYLE
                                  Appellant                       Clerk


                                     v.

 Sam Brannon, Communities for Thriving Water—Fluoride-Free San Marcos,
                 Morgan Knecht, and Kathleen O’Connell,
                                  Appellees
 ________________________________________________________________
    On Appeal from the 274th Judicial District Court of Hays County, Texas
                 Honorable R. Bruce Boyer, Judge Presiding
                    Trial Court Cause Number 15-1266

             RESPONSE BRIEF OF APPELLEES
  COMMUNITIES FOR THRIVING WATER – FLOURIDE-FREE SAN
    MARCOS, MORGAN KNECHT, and KATHLEEN O’CONNELL

Brad Rockwell                                 Craig Young
State Bar No. 17129600                        State Bar No 00786367

FREDERICK, PERALES,                           108 San Antonio
ALLMON & ROCKWELL, P.C.                       San Marcos, Texas 78666
707 Rio Grande, Suite 200                     (512) 847-7809
Austin, Texas 78701                           (512) 353-1219 facsimilie
Telephone (512) 469-6000                      cyoung@lawyer.com
Facsimile (512) 482-9346

COUNSEL FOR                                   COUNSEL FOR MORGAN
KATHLEEN O’CONNELL,                           KNECHT
and COMMUNITIES
FOR THRIVING WATER
– FLUORIDE-FREE SAN MARCOS

October 20, 2015
                   ORAL ARGUMENT NOT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL

              Parties                     Name & Address of counsel
                                     Brad Rockwell
                                     Frederick, Perales, Allmon &
                                     Rockwell, P.C.
Appellees Communities for            707 Rio Grande, Ste. 200
Thriving Water – Fluoride-Free San   Austin, TX 78701
Marcos, and Kathleen O’Connell       Telephone: 512-469-6000
                                     Facsimile: 512-482-9346
                                     Brad@lf-lawfirm.com
                                     Craig Young
                                     108 San Antonio
                                     San Marcos, Texas 78666
Appellee Morgan Knecht                (512) 847-7809
                                     (512) 353-1219 facsimile
                                     cyoung@lawyer.com

Appellant City of San Marcos         Michael J. Cosentino
                                     City Attorney
                                     630 E. Hopkins
                                     San Marcos, TX 78666
                                     (512) 393- 8151
                                     (855) 759- 2846 facsimile
                                     mcosentino@sanmarcostx.gov
                                     Lynn Peach
                                     174 S. Guadalupe Street, No. 101
Appellee Sam Brannon                 (512) 393-9991
                                     (888) 428-0468 facsimile
                                     lynn@lynnpeachlaw.com




                                      i
                                        TABLE OF CONTENTS


1.    Identity of Parties and Counsel .........................................................................i

2.    Table of Contents ............................................................................................ ii

3.    Index of Authorities ....................................................................................... iii

4.    Statement of the Case ...................................................................................... v

5.    Statement Regarding Oral Argument .............................................................vi

6.    Issues Presented ............................................................................................ vii

7.    Statement of Facts............................................................................................ 1

8.    Summary of the Argument .............................................................................. 3

9.    Argument            ..................................................................................................... 4

      I.   THE MANDAMUS CLAIMS ARE MOOT SO THE COURT OF
           APPEALS HAS NO JURISDICTION OVER THIS APPEAL OF
           THE APPELLANT’S PLEA TO THE JURISDICTION. ....................... 4
      II. TRIAL COURTS HAVE CONCURRENT JURISDICTION WITH
           APPELLATE COURTS OVER MANDAMUS PROCEEDINGS......... 6
      III. MANDAMUS PROCEEDINGS MAY BE BROUGHT AGAINST
           THE CITY OF SAN MARCOS .............................................................. 6

10.   Prayer ............................................................................................................... 9




                                                            ii
                                         INDEX OF AUTHORITIES

Cases

Allstate Ins. Co. v. Hallman, 159 S.W.3d 640 (Tex. 2005) ....................................... 5

Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) ............................ 6,7

City of Austin v. Gregory, 616 S.W.2d 329 (Tex. Civ. App.—Austin 1981, no
   writ) ....................................................................................................................... 8

City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923
   (Tex. Civ. App.—Corpus Christi 1969, writ ref’d n.r.e.) ..................................... 8

City of El Paso v. Abbott, 444 S.W.3d 315 (Tex. App.—Austin 2014, pet.
   denied)................................................................................................................... 8

City of San Antonio v. Routledge, 102 S.W. 756 (Tex. Civ. App. 1907, writ
   ref’d) ..................................................................................................................... 8

In re Woodfill, No. 14–0667, 2015 WL 4498229 (Tex. 2015) (per curiam) .......... 4,7

Krohn v. Marcus Cable Associates, L.P., 201 S.W.3d 876 (Tex. App.—Waco
  2006, pet. denied).................................................................................................. 5

Labrado v. County of El Paso, 132 S.W.3d 581 (Tex. App.—El Paso 2004, no
  pet.) ....................................................................................................................... 5

Olenick v. City of Austin, No. 03–14–00339–CV, 2015 WL 4077245 (Tex.
   App.—Austin 2015, no pet. h.)............................................................................. 8

Orr v. University of Texas at Austin, No. 03–14–00299–CV, 2015 WL 5666200
  (Tex. App.—Austin 2015, no pet. h.) ................................................................... 5

Sepulveda v. Medrano, 323 S.W.3d 620 (Tex. App.—Dallas 2010, no pet.) ........... 5

Texas Dept. of Health v. Hejl, 607 S.W.2d 34 (Tex. App.—Austin 1980, no
   writ) ....................................................................................................................... 5

Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981) .... 6
                                                               iii
Statutes

Tex. Election Code § 3.005(c)(2) .............................................................................. 4

Tex. Gov’t Code § 552.321........................................................................................ 8

Tex. Loc. Gov’t Code § 9.004 ...........................................................................1, 4, 9




                                                        iv
                        STATEMENT OF THE CASE

      This is an interlocutory appeal from a denial of the City of San Marcos’ Plea

to the Jurisdiction, contesting the District Court’s jurisdiction over Appellees’

mandamus claims. In the underlying lawsuit, Appellants and Appellees have

cross-claims for declaratory relief and attorneys fees regarding the City’s failure to

put a City Charter Amendment on the November 2015 ballot after Appellees

submitted a petition for the Amendment to the City of San Marcos.




                                          v
              STATEMENT REGARDING ORAL ARGUMENT


      Appellees do not believe oral argument is necessary as the jurisdictional

issues are not novel or complex, and the facts are simple and not in dispute. If,

however, the Court determines that oral argument would assist the Court in

resolving the issues presented by this appeal, then, Appellees request that they be

provided an opportunity to present oral argument.




                                          vi
                          ISSUES PRESENTED

1. When the deadline for Appellant City of San Marcos to place Appellees’
   proposed charter amendment on the ballot has long passed, is Appellees’
   claim for mandamus relief moot thereby warranting dismissal of this
   interlocutory appeal?

2. Do trial courts have non-exclusive original jurisdiction over mandamus
   proceedings concerning the placement of measures on election ballots?

3. Can a writ of mandamus issue against a municipal defendant, ordering that
   city to place a measure on the ballot, when no individual public official is
   named as a defendant in the mandamus proceeding?




                                     vii
                            STATEMENT OF FACTS

      On or about April 2, 2015, Appellees submitted to the City Clerk of

Appellant City of San Marcos a petition with over 1,634 signatures of San Marcos

voters for a proposed amendment to the City Charter. This amount of signatures

significantly exceeded the 5% of registered voters required on a city charter

amendment petition. CR 61.

      The Clerk did not count the number of signatures on the petition, but on May

6, announced that “none of the petition papers contains an oath or affirmation [and

therefore] none of the signatures may be counted.” CR 62.

      On May 18 and June 16, Appellees O’Connell and Communities for

Thriving Water – Fluoride-Free San Marcos sent letters to the Mayor and City

Council of San Marcos asking them to place the charter amendment measure on

the ballot as required by Section 9.004(a) of the Texas Local Government Code.

CR 62.

      On or about June 18, 2015, the City of San Marcos filed suit against

Appellees seeking attorneys fees and declaratory relief that a circulator’s oath was

required for each signature on the petition submitted by Appellees to the City. CR

63.

      On July 17, Appellees filed counterclaims for declaratory relief, attorneys

fees, injunctive relief and a petition for mandamus relief. CR 20. Appellees also


                                          1
filed a motion for summary judgment and sought and secured an expedited hearing

before Hays County District Judge R. Bruce Boyer. The City filed a Plea to the

Jurisdiction and presented argument to Judge Boyer at the beginning of the

summary judgment hearing.

      On August 12, Judge Boyer signed an Order denying Appellants’ Plea to the

Jurisdiction, and this Order was filed on August 13. CR 20. On August 14, Judge

Boyer signed and sent to Counsel a letter ruling against the City and affirming

Appellees’ contention that no circulator’s affidavit was required, and requiring the

City to count the signatures, and if there are enough signatures, requiring the City

to call an election on the charter amendment measure. Appendix A.

      Rather than complying with the letter ruling of the District Court, on August

17, the City filed a notice of interlocutory appeal, suspending further action in the

District Court.

      Appellees and Shannon Dorn sought relief from the Texas Supreme Court

by requesting an emergency writ of mandamus. Appendix B. The Texas Supreme

Court denied the mandamus without an opinion of the Court. A concurring opinion

by two judges did not reach the merits but suggested that Appellees (1) should

have collected signatures at an earlier date to allow more time for post-submission

litigation, (2) should have filed suit immediately after submission rather than

giving the City Council of San Marcos an opportunity to place the measure on the


                                          2
ballot, and (3) should have proceeded more quickly in litigation once the City filed

suit. Appendix G to Appellants’ brief. Two Supreme Court justices dissented.

Reaching the merits, they agreed with Appellees’ contention that a circulator’s

affidavit was not required, and they would have granted mandamus relief to

Appellees. Appendix C.

      Thus, every judge who considered the merits of Appellees’ claims agreed

with Appellees and rejected the City’s reasons for refusing to count the signatures

and place the measure on the ballot.

                       SUMMARY OF THE ARGUMENT

      The statutory deadline for the City of San Marcos to order an election on the

charter amendment that was the subject of Appellees’ petition was August 24,

2015. Appellees’ claims for mandamus relief are moot. The City knew its appeal

would soon be moot when it filed the notice of appeal, and it sought the

interlocutory appeal only to deprive the trial court of jurisdiction and free itself

from complying with a pending judgment of that court. Because Appellees’ claims

for mandamus relief are moot, the City’s interlocutory appeal challenging these

claims for mandamus relief should be dismissed. Appellees’ claims for declaratory

relief are not moot because they include a request for attorneys fees.

      Alternatively, if the Court decides to consider the merits of the City’s

appeal, the district court’s denial of the City’s Plea to the Jurisdiction should be


                                           3
affirmed because trial courts have original jurisdiction over mandamus proceedings

in election disputes and because pursuant to the longstanding common law

governing the right to mandamus and pursuant to statutory duties and

responsibilities imposed on municipalities with regard to charter amendment

petitions, municipalities are proper defendants in such mandamus proceedings.

                                    ARGUMENT

I.    THE MANDAMUS CLAIMS ARE MOOT, SO THE COURT OF
      APPEALS HAS NO JURISDICTION OVER THIS APPEAL OF THE
      APPELLANT’S PLEA TO THE JURISDICTION.

      The City’s Plea to the Jurisdiction is directed solely to Appellees’ claim for a

writ of mandamus. By writ of mandamus, Appellees asked for the City of San

Marcos to be ordered to put the measure Appellees submitted to the City on the

November 2015 election ballot. See Tex. Loc. Gov’t Code § 9.004(b). The

statutory deadline for the City to order this election was August 24, 2015. In re

Woodfill, 2015 WL 4498229 *6, n.11 (Tex. 2015) (citing Tex. Election Code §

3.005(c)(2)); CR 11. Because this deadline has come and gone and this very

interlocutory appeal interrupted the trial court’s jurisdiction over the mandamus,

the mandamus claim is moot, and the Court of Appeals has no subject matter

jurisdiction over this interlocutory appeal.

      When a mandamus governing an election and the contents of a ballot cannot

be issued in time for election officials to comply with the statutory deadlines for


                                           4
conducting the general election, the mandamus claim is moot. See Sepulveda v.

Medrano, 323 S.W.3d 620, 623-24 (Tex. App.—Dallas 2010, no pet.). When one

seeks relief on a claim that can no longer have any practical legal effect, the parties

lack a legally cognizable interest in the outcome. There is no case or controversy,

and the court loses jurisdiction over the claim. Orr v. University of Texas at

Austin, 2015 WL 5666200 *2 (Tex. App.—Austin 2015, no pet. h.). Accordingly,

this appeal should be dismissed.

      The declaratory judgment claims remaining in trial court, however, are not

moot because the parties seek attorneys fees. Compare Texas Dept. of Health v.

Hejl, 607 S.W.2d 34, 35-36 (Tex. App.—Austin 1980, no writ) (dismissing claim

for injunctive relief as moot & leaving the claims on the merits, including a claim

for attorneys fees pending), and Krohn v. Marcus Cable Associates, L.P., 201

S.W.3d 876 (Tex. App.—Waco 2006, pet denied). A “claim for attorneys fees

under the UDJA . . . prevents it from being moot when the substantive claims are

mooted during the pendency of the case.” Orr, at *4 (citing Allstate Ins. Co. v.

Hallman, 159 S.W.3d 640, 642-43 (Tex. 2005); Labrado v. County of El Paso, 132

S.W.3d 581, 589-590 (Tex. App.—El Paso 2004, no pet.).

      The City of San Marcos’ interlocutory appeal of the denial of its plea to the

jurisdiction regarding Appellees’ mandamus claims should be dismissed for lack of

jurisdiction.


                                           5
II.   TRIAL COURTS HAVE CONCURRENT JURISDICTION WITH
      APPELLATE COURTS OVER MANDAMUS PROCEEDINGS.

      Alternatively, in the event that the Court determines that this appeal is not

moot, Appellees contend that the Hays County trial court had original jurisdiction

over Appellees’ claims for mandamus relief.

      The Texas Supreme Court has consistently recognized the right to bring

original mandamus proceedings in district court against a governmental entity or

government officials. In Vondy v. Commissioners Court of Uvalde County, the

Supreme Court upheld the right to bring an original mandamus proceeding in

district court against a County Commissioners Court. 620 S.W.2d 104, 109 (Tex.

1981). “[O]riginal mandamus jurisdiction . . . is vested in the district court.” Id.

The “performance of a clear statutory duty which is ministerial and

nondiscretionary should be mandated by the district court. Even in matters

involving some degree of discretion,” a government entity “may not act

arbitrarily.” Id. (citations omitted).

      In Anderson v. City of Seven Points, the Supreme Court upheld the original

jurisdiction of a district court over a lawsuit where a writ of mandamus was sought

against a City and its Mayor over the refusal to order an election requested by a

citizen petition. 806 S.W.2d 791, 792-794 (Tex. 1991).

      And as recently as July of this year, the Texas Supreme Court ruled that “a

mandamus proceeding to compel public officials to put something on the ballot
                                          6
may start in district court” and “may also originate in the appellate courts.” In re

Woodfill, 2015 WL 4498229 *6 (Tex. 2015).

       For this reason, if the Court does not dismiss the City’s interlocutory appeal

for lack of jurisdiction, Appellees request that the District Court order denying the

City’s Plea to the Jurisdiction be affirmed.

III.   MANDAMUS PROCEEDINGS MAY BE BROUGHT AGAINST THE
       CITY OF SAN MARCOS.

       In the alternative, in the event that the Court determines it has jurisdiction

over the City’s appeal, Appellees contend that the City was the proper Defendant

in its suit for a writ of mandamus.

       The City of San Marcos filed suit against Appellees asserting it was the

proper party in the dispute over whether Appellees’ measure should be put on the

ballot and subjecting itself to the trial court’s jurisdiction on that issue. Appellees

filed counterclaims against the City, including a claim for a writ of mandamus. The

City of San Marcos now claims that no mandamus may issue against it or any other

cities to mandate compliance with the law. It claims that only individual officials

can be defendants in a claim for mandamus relief.

       There are many examples of Texas courts issuing writs of mandamus against

cities. See, e.g., Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.

1991) (the “trial court granted the petition for writ of mandamus and ordered the

mayor … and the city of Seven Points ‘to perform all legal requirements for the
                                            7
holding of a valid election’”); City of Corpus Christi v. Unitarian Church of

Corpus Christi, 436 S.W.2d 923, 925 & 930 (Tex. Civ. App.—Corpus Christi

1969, writ ref’d n.r.e.) (after City Council of Corpus Christi refused to approve a

plat, Court of Civil Appeals affirmed trial court’s issuance of a writ of mandamus

against the City of Corpus Christi); City of Austin v. Gregory, 616 S.W.2d 329

(Tex. Civ. App.—Austin 1981, no writ) (affirming writ of mandamus against the

City of Austin based on error committed by Civil Service Commission); City of

San Antonio v. Routledge, 102 S.W. 758, 759 & 773 (Tex. Civ. App. 1907, writ

ref’d) (in case where only the City of San Antonio was municipal defendant,

appellate court upheld part of mandamus against the City and reversed part of

mandamus).

      “Texas law authorizes mandamus relief to compel a public official or body

to either perform a ministerial duty or to correct a clear abuse of discretion.”

Olenick v. City of Austin, 2015 WL 4077245 *1 (Tex. App.—Austin 2015, no pet.

h.) (emphasis added). Similar language in section 552.321 the Public Information

Act authorizing a suit for a writ of mandamus against “a government body” has

been interpreted to authorize suits against cities. See, e.g., City of El Paso v.

Abbott, 444 S.W.3d 315, 322 (Tex. App.—Austin 2014, pet. denied).

      It is the City Council on whom the Local Government Code imposes a duty

in response to Appellees’ submission of a signed petition.


                                           8
      The governing body shall submit a proposed charter amendment to
      the voters for their approval at an election if the submission is
      supported by a petition signed by a number of qualified voters of the
      municipality equal to at least five percent of the number of qualified
      voters of the municipality or 20,000, whichever number is the
      smaller.

Tex. Loc. Gov’t Code § 9.004(a). Appellees’ suit for mandamus relief was

properly directed to the City.

      For this reason, if the Court does not dismiss the City’s interlocutory appeal

for lack of jurisdiction, Appellees ask that the District Court order denying the

City’s Plea to the Jurisdiction be affirmed.

                                      PRAYER

      Appellees Kathleen O’Connell, Communities for Thriving Water – Fluoride-

Free San Marcos, and Morgan Knecht ask the Court to dismiss as moot the City of

San Marcos’ interlocutory appeal of the denial of its Plea to the Jurisdiction. If the

Court does not dismiss the City’s interlocutory appeal for lack of jurisdiction,

Appellees ask that the District Court’s denial of the City’s Plea to the Jurisdiction

be affirmed.

                                               Respectfully submitted,


                                               /s/ Brad Rockwell
                                               Brad Rockwell
                                               SBT No. 17129600

                                               FREDERICK, PERALES, ALLMON
                                               & ROCKWELL, P.C.
                                          9
     707 Rio Grande, Ste. 200
     Austin, Texas 78701
     (512) 469-6000
     (512) 482-9346 (facsimile)

     COUNSEL FOR APPELLEES
     COMMUNITIES FOR THRIVING
     WATER – FLUORIDE-FREE SAN
     MARCOS, and KATHLEEN
     O’CONNELL


     /s/ Craig Young
     Craig Young
     SBT No 00786367

     108 San Antonio
     San Marcos, Texas 78666
     (512) 847-7809
     (512) 353-1219 facsimile
     COUNSEL FOR MORGAN
     KNECHT




10
                      CERTIFICATE OF COMPLIANCE

        I certify that this document is in compliance with Tex. R. App. P. 9.4 (e) and
(i). It contains 2,054 words excluding the exempted parts of the document. The
body text is in 14 point font, and the footnote text is in 12 point font.

                         CERTIFICATE OF SERVICE

By my signature, below, I certify that on October 20, 2015, a true and correct copy
of the foregoing document was served upon the parties below by email.

                                                    /s/ Brad Rockwell
                                                    Brad Rockwell


FOR THE CITY OF SAN MARCOS:

WILLIAM M. McKAMIE
941 Proton Rd.
San Antonio, Texas 78258
210.546.2122
210.546.2130 (Fax)
mick@mckamiekrueger.com

Michael J. Cosentino
San Marcos City Attorney
630 East Hopkins
San Marcos, Texas 78666
(512) 393- 8151
(855) 759- 2846 fascimile
mcosentino@sanmarcostx.gov

FOR SAM BRANNON:
Lynn Peach
174 S. Guadalupe Street, No. 101
(512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com



                                         11
  APPENDIX A
JUDGE BOYER LETTER
       APPENDIX B
EMERGENCY PETITION FOR WRIT
      OF MANDAMUS
                       No. ______________

                  IN THE SUPREME COURT
                  OF THE STATE OF TEXAS


                    In re Shannon Dorn et al.


      Original Proceeding pursuant to Election Code § 273.061


    EMERGENCY PETITION FOR WRIT OF MANDAMUS
      OF SHANNON DORN, KATHLEEN O’CONNELL,
COMMUNITIES FOR THRIVING WATERS – FLOURIDE-FREE SAN
           MARCOS, AND MORGAN KNECHT



         EXPEDITED CONSIDERATION REQUESTED

                                    Brad Rockwell
                                    State Bar No. 17129600

                                    FREDERICK, PERALES,
                                    ALLMON & ROCKWELL, P.C.
                                    707 Rio Grande, Suite 200
                                    Austin, Texas 78701
                                    Telephone (512) 469-6000
                                    Facsimile (512) 482-9346

                                    ATTORNEYS FOR RELATORS
                                    SHANNON DORN, KATHLEEN
                                    O’CONNELL, and COMMUNITIES
                                    FOR THRIVING WATERS –
                                    FLUORIDE-FREE SAN MARCOS.




                              i
                       Craig Young
                       State Bar No 00786367

                       108 San Antonio
                       San Marcos, Texas 78666
                       (512) 847-7809
                       (512) 353-1219 facsimile
                       cyoung@lawyer.com

                       ATTORNEY FOR MORGAN
                       KNECHT


August 20, 2015




                  ii
                 IDENTITY OF PARTIES AND COUNSEL

              Parties                      Name & Address of counsel
                                    Brad Rockwell
                                    Frederick, Perales, Allmon &
Relators Shannon Dorn,              Rockwell, P.C.
Communities for Thriving Waters –   707 Rio Grande, Ste. 200
Fluoride-Free San Marcos, and       Austin, TX 78701
Kathleen O’Connell.                 Telephone: 512-469-6000
                                    Facsimile: 512-482-9346
                                    Brad@lf-lawfirm.com
                                    Craig Young
                                    108 San Antonio
                                    San Marcos, Texas 78666
Relator Morgan Knecht                (512) 847-7809
                                    (512) 353-1219 facsimile
                                    cyoung@lawyer.com

Respondent Mayor Daniel Guerrero    Michael J. Cosentino
                                    City Attorney
                                    City of San Marcos
                                    630 E. Hopkins
                                    San Marcos, TX 78666
                                    (512) 393- 8151
                                    (855) 759- 2846 facsimile
                                    mcosentino@sanmarcostx.gov
                                    Michael J. Cosentino
                                    City Attorney
Respondents Lisa Prewitt, Jude
                                    City of San Marcos
Prather, John Thomaides, Jane
                                    630 E. Hopkins
Hughson, Ryan Thomason, and
                                    San Marcos, TX 78666
Shane Scott
                                    (512) 393- 8151
                                    (855) 759- 2846 facsimile
                                    mcosentino@sanmarcostx.gov
                                    Michael J. Cosentino
Respondent City Clerk Jamie Lee
                                    City Attorney
Pettijohn
                                    City of San Marcos

                                     iii
630 E. Hopkins
San Marcos, TX 78666
(512) 393- 8151
(855) 759- 2846 facsimile
mcosentino@sanmarcostx.gov




 iv
                                      TABLE OF CONTENTS


1.   Table of Contents .................................................................................. v

2.   Index of Authorities ............................................................................. vi

3.   Statement of the Case ........................................................................ viii

4.   Statement of Jurisdiction ...................................................................... x

5.   Issues Presented .................................................................................... x

6.   Statement of Facts................................................................................. 2

7.   Argument           .......................................................................................... 5

     I.     Mandamus ..................................................................................... 5

     II.    The San Marcos City Charter Does Not Require an Oath or
            Affirmation in Charter Amendment Petitions .............................. 6

     III. Other Requirements of State Law Have Been Met by Relators. 11

     IV. A Circulator’s Oath Would be Unconstitutional as Applied
         Here………………. .................................................................... 11

8.   Prayer .................................................................................................. 12

9.   Certification ........................................................................................ 13




                                                          v
                                      INDEX OF AUTHORITIES

Cases

In re Bell, 91 S.W.3rd 784 (Tex. 2002) .............................................................. 10

Blume v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999). ......................................... 10

Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980) ...... 9, 11

Cook v. Tom Brown Ministries, 385 S.W.3d 592, 608 (Tex. App. – El Paso 2012,
  pet. denied) .................................................................................................... 11

Edwards v. Murphy, 256 S.W.2d 470 475 (Tex. Civ. App. – Fort Worth 1953, writ
  dism’d ) ............................................................................................................6

In re Gamble, 71 SW.3d 313, 318 (Tex. 2002); ................................................ 10

Green v. City of Lubbock, 627 S.w.2d 868, 871 (Tex. App. – Amarillo 1982, writ
  ref’d n.r.e.) .................................................................................................... 12

Pilcher v. Rains, 853 F.2d 334, 337 (5th Cir. 1988) ........................................... 12

Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998) ............................... 9, 11

Withers v. Commissioners Court of Bandera County, 75 S.W.3d 528, 530-531
   (Tex. App. – San Antonio 2002, orig. proceeding) .........................................9

In re Woodfill, 2015 WL 4498229 (Supreme Court July 24, 2015). ....................x


Statutes

ELECTION CODE § 3.005(c)(2) ............................................................ viii, xi, 4

ELECTION CODE § 273.061…………………………………………..viii, x, 5

ELECTION CODE § 273.081………………………………………viii, x, 6, 10

ELECTION CODE § 277.002……………………………………………..x, 3, 7
                                                            vi
ELECTION CODE § 277.021………………………………………………….3

LOCAL GOVERNMENT CODE § 9.004 ........................ x, 3, 4, 6, 7, 10, 11, 12

Constitutions

TEXAS BILL OF RIGHTS §§ 2, 8, & 27 ......................................................... 12

UNITED STATES CONSTITUTION First Amendment ................................ 12

Other

SAN MARCOS CITY CHARTER § 6.01……………………………………7, 8

SAN MARCOS CITY CHARTER § 6.02 ……………………………………...9

SAN MARCOS CITY CHARTER § 6.03 ……………….……..3, 5, 8, 9, 11, 12

SAN MARCOS CITY CHARTER § 12.11................................... x, 5, 7, 8, 9, 11




                                                vii
                           STATEMENT OF THE CASE

   By this petition for writ of mandamus, Relators Shannon Dorn, Communities

for Thriving Waters – Fluoride-Free San Marcos (“Communities”), Kathleen

O’Connell, and Morgan Knecht seek an order pursuant to Election Code sections

273.061 and 273.081 and Local Government Code section 9.004(a) & (b) to

compel Respondents (City of San Marcos, San Marcos City Clerk Jamie Lee

Pettijohn, San Marcos Mayor Daniel Guerrero, and San Marcos City Council

members Lisa Prewitt, Jude Prather, John Thomaides, Jane Hughson, Ryan

Thomas, and Shane Scott ) to order an election placing Relators’ City Charter

Amendment measure on the November 3, 2015 ballot. Pursuant to Election Code

section 3.005(c)(2), the order for this election must occur on or before August 24,

2015. In addition, Relators seek an order compelling San Marcos City Clerk

Jamie Lee Pettijohn, the San Marcos City Clerk, to review the petition submitted

by Relators and certify that the requisite number of signatures have been

submitted for the petition for the City Charter Amendment.

      This mandamus petition is related to another lawsuit filed by the City of San

Marcos seeking declaratory relief and attorneys fees against Relators

Communities, O’Connell, and Knecht: City of San Marcos v. Sam Brannon et al.,

Cause No. 15-1266 in the 22nd Judicial District Court in Hays County. Those

Relators who were defendants in that lawsuit counterclaimed for mandamus,


                                         viii
declaratory, and injunctive relief, seeking identical and nearly identical relief to

what is sought here. On an expedited hearing on summary judgment, District

Judge Bruce Boyer ruled in favor of Counterclaimants/Defendants who included

all but one of the Relators here, ordering

        the City of San Marcos, through its appropriate official, to review the
        submitted petition to ascertain if it contains the original signatures of
        the percentage of qualified voters required by Section 9.004(a) of the
        Local Government Code. The Codes do not require or prescribe a
        particular form of verification or affirmation, only that the signatures
        not be copies or reproductions.

        If the petition qualifies, the City of San Marcos shall be required to
        follow the ministerial duty of calling for an election on the issues.

Exhibit 1 to Record. The District Court also denied San Marcos’ Plea to

the Jurisdiction.1         San Marcos then immediately filed an interlocutory

appeal which stayed all proceedings in the District Court.2

        The District Court stay invoked by the City of San Marcos will prevent

Relators from securing the relief they are entitled to under the District Court’s

ruling and under the law. Relator’s here seek a writ of mandamus issued against

Respondent City of San Marcos, Respondent Jamie Lee Pettijohn, and

Respondents Mayor and City Council members of San Marcos so that relief can be

granted in a manner timely enough for an election on the measure to be held on

November 3, 2015.

1
    Exhibit 2 to Record.
2
    Exhibit 3 to Record.
                                             ix
                       STATEMENT OF JURISDICTION

      This Court has jurisdiction to grant the requested relief under the Texas

Election Code sections 273.081 and 273.061. Section 273.061 provides: “The

supreme court or a court of appeals may issue a writ 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.”

      Relators complain of the actions of the City of San Marcos, the City Clerk

and the City Council of San Marcos, from which there is no timely remedy by

appeal. In re Woodfill, 2015 WL 4498229 (Supreme Court July 24, 2015).

      Because of this same urgency and deadline, Relators have a compelling

reason to submit this petition to the Supreme Court to secure finality now rather

than first going to the Austin Court of Appeals for mandamus relief.



                                ISSUES PRESENTED

1.    Does the Mayor and City Council members have a duty pursuant to Local

      Government Code section 9.004(a) to submit Relators’ proposed charter

      amendment to the voters for their approval at an election on November 3,

      2015?




                                          x
2.   Pursuant to Local Government Code section 9.004, San Marcos City Charter

     section 12.11, and Election Code section 277.002, does the City of San

     Marcos and in particular its Respondents City Clerk Pettijohn and/or Mayor

     and City Council members, have a duty to consider signatures valid even

     though they are not accompanied by a circulator’s oath and to count the

     number of qualified voters who have signed Relators’ petition for a charter

     amendment to determine whether these qualified voters equal at least five

     percent of the number of qualified voters of the municipality?

3.   And as a possible alternative issue, is it appropriate in this instance for the

     Supreme Court to override the deadline in Election Code section 3.005(c)(2)

     for ordering an election on Relators’ charter amendment, and compel

     Respondents’ to call a November 3, 2015 election on Relators’ ballot

     measure after August 24, 2015?




                                        xi
TO THE HONORABLE JUSTICES OF THE TEXAS SUPREME COURT

       Relators who submitted and/or signed a petition for an amendment to the

Charter for the City of San Marcos containing more than 50% more valid

signatures than necessary to trigger a duty on the part of Relators to call an election

on November 3, 2015 for the matter. Relators, however, have failed and refused to

put the measure on the ballot. Relators sought emergency relief in Hays County

District Court and the court issued a ruling ordering Respondent City of San

Marcos to count the number of valid signatures on the petition and order an

election on the measure if the number of signatures is sufficient. The District

Court specifically rejected all of the arguments advanced by Respondent City of

San Marcos as to why the signatures were invalid. Respondent City of San Marcos

initiated an interlocutory appeal of the District Court’s ruling on jurisdiction

thereby staying the District Court proceedings.

       For the reasons given below, Relators ask that the Texas Supreme Court

uphold and protect their rights to a City Charter amendment election provided by

the Texas Constitution, the San Marcos City Charter and the laws of Texas in the

same manner those rights were recognized by the Hays County District Court and

grant Relators a remedy that the District Court was stymied to provide due to

procedural maneuvers of Respondents.

   .


                                           1
                               STATEMENT OF FACTS

          On April 2, 2015, Relators Communities for Thriving Water—Fluoride Free

San Marcos (“Communities”), Kathleen O’Connell, and Morgan Knecht submitted

to Respondent Pettijohn, City Clerk of the City of San Marcos, a petition signed by

about 2000 people including Relator, Shannon Dorn, who is a resident of San

Marcos and a qualified voter.3 The petition sought an election on the amendment

of the San Marcos City Charter to prevent the fluoridation of the City of San

Marcos water supply. The Petition was titled a “PETITION to BAN

FLOURIDATION in CITY OF SAN MARCOS WATER.” The Charter language

proposed by the Petition reads:

                   The City of San Marcos … shall not fluoridate the public
                   water supply or accept any fluoridated water for use in the
                   San Marcos water system, including but not limited to the
                   addition of Hydrofluorosilicic Acid, Hexafluorosilicic Acid,
                   Sodium Silicofluoride, or any other fluoride derivative. The
                   City of San Marcos shall not purchase, install, or allow the
                   installation of fluoridation equipment to be used in relation to
                   the San Marcos municipal water supply or its distribution
                   system.4

          Before submitting the petition, Relators conducted three verifications of the

signatures using voter registration lists of San Marcos, and determined that at least

1634 of the signatures on this petition were valid – i.e. of registered San Marcos



3
    Exhibit 4 to Record & exhibit B to Exhibit 4.
4
    Id.
                                              2
voters.5 Respondent Pettijohn informed Relators that the requisite number of

signatures required under Local Government Code section 9.004(a) was 1090.6

         After delivering the petitions, Respondent Jamie Lee Pettijohn as City Clerk

refused to count or verify any of the signatures on the petition because none of the

signatures contained an oath or affirmation that “the statements were true, that each

signature … is the genuine signature of the person whose name purports to be

signed thereto, and that such signatures were placed thereon in the person’s

presence” – all requirements for petitions for ordinances and referenda on City

Council legislation found in section 6.03 of the San Marcos City Charter.7

Respondents Communities and O’Connell made demand on the City to count the

number of signatures by qualified voters pursuant to Local Government Code

section 9.004(a) and Election Code sections 277.021 and 277.002 and place the

measure on the ballot.8 In response, the City of San Marcos filed suit against

Relators O’Connell, Communities, and Morgan seeking declaratory relief and

attorneys fees against them.9

         Relators Communities, O’Connell, and Morgan filed counterclaims seeking

declaratory, mandamus, and injunctive relief asking for a declaration that no


5
    Exhibit 4 to Record & Exhibit C to Exhibit 4.
6
    Exhibit 4 to Record and Exhibit B to Exhibit 4.
7
    Exhibit 18 to Record and Exhibit A to Exhibit 14.
8
    Exhibit 4 to Record and Exhibit F and G to Exhibit 4.
9
    Exhibit 10 to Record.
                                             3
verification or oath was required and asking that the City be ordered to put the

measure on the November 3, 2015 ballot. See Tex. Loc. Gov’t Code § 9.004(a) &

(b).10

         Election Code section 3.005(c)(2) establishes a deadline of August 24, 2015

for the City to order an election for November 3, 2015, if one is to occur. Yet after

filing its lawsuit, the City did nothing to resolve its claims in a timely manner.

Relators, however, filed a Motion for Summary Judgment requesting a hearing on

an expedited schedule.11 The expedited hearing was granted and the District Court

also heard the City of San Marcos’ Plea to the Jurisdiction.

         The District Court issued a letter ruling on August 14, granting relief to

Relators and rejecting the arguments made by the City of San Marcos.12 The

District Court also denied the City’s Plea to the Jurisdiction.13 By August 15, the

City had filed a notice of appeal, thereby staying all proceedings in the district

court.14 The Court of Appeals sent notice on August 18 that the City would have

until August 28 to make arrangements for the Record and pay the filing fee.15 This

would be four days past the deadline for the City to comply with the Election Code

and afford Relators the rights they are entitled to under the law. By filing the

10
   Exhibit 11 to Record.
11
   Exhibit 13 to Record.
12
   Exhibit 1 to Record.
13
   Exhibit 2 to Record.
14
   Exhibit 3 to Record.
15
   Exhibit 17 to Record.
                                             4
notice of interlocutory appeal, the City has deprived Relators of the possibility of

getting the relief granted them by the trial court and to which they are entitled.

         On August 18, the City Council set elections on City Charter amendments

for November 3, 2015. On the ballot on these elections was not the anti-fluoride

measure contained in Relators’ petition and which the District Court had ordered to

be on the ballot. What the City put on the ballot was its own loophole-filled

fluoride measure and an amendment to the City Charter that would alter the charter

amendment process.16 The City Council seeks to amend the City Charter

amendment section of the charter, section 12.11, and add a provision that makes

the circulator’s oath requirements of section 6.03 applicable to future petitions to

amend the city charter. This act was all but an admission that Relators’

interpretation and understanding of section 12.11 and 6.03 of the existing Charter

is correct.


                                       ARGUMENT

I.       Mandamus

      This is an original proceeding under section 273.061 of the Election Code

which authorizes the Supreme Court to issue a writ of mandamus to compel the

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

election. Relators submitted a petition with more than 1634 valid signatures of

16
     Exhibit 18 to the Record and exhibit B to Exhibit 18.
                                               5
people registered to vote in San Marcos.17 Five percent of the number of San

Marcos citizens registered to vote on April 2, 2015 is 1090.18 The City has refused

to call an election on the measure requested by the petition as required by section

9.004 of the Local Government Code and instead filed suit in District Court.19

Relators seek to compel the holding of the election on November 3, 2015 as

required by law.

       Time constraints and the City’s filing of an interlocutory notice of appeal

renders inadequate any remedy at law. As an auxiliary remedy, Relators invoke

Texas Election Code section 271.083.

II.    The San Marcos City Charter Does Not Require an Oath or Affirmation
       in Charter Amendment Petitions.

       When the voters of a city take action to amend their charters, this is the

“exercise by the people of a power reserved to them, and not the exercise of a right

granted.” Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980).

In “order to protect the people of the city in the exercise of this reserved legislative

power, such charter provisions should be liberally construed in favor of the power

reserved.” Id. Accord Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998);

Edwards v. Murphy, 256 S.W.2d 470 475 (Tex. Civ. App. – Fort Worth 1953, writ

dism’d ).

17
   Exhibit 4 to Record.
18
   Exhibit 4 to Record and Exhibit E to Exhibit 5.
19
   Exhibit 10 to Record.
                                             6
         Only one section of the City Charter defines the Charter Amendment

process. Section 12.11 is titled “Amending the Charter.”20 It says simply that

“Amendments to the Charter may be framed and submitted to the voters of the city

in the manner provided by state law.” There is no reference to other sections of the

Charter and no indication that other sections of the charter relate to Charter

Amendments. The only relevant provisions are to be found in state law.

             Section 9.004(a) of the State Local Government Code requires the

“governing body to submit a proposed charter amendment to the voters for their

approval at an election if the submission is supported by a petition signed by a

number of qualified voters of the municipality equal to at least five percent of the

number of qualified voters of the municipality….” This state law regarding

charter amendments is in contrast to the San Marcos Charter provisions regarding

ordinances by citizen initiatives, which require petitions for ordinances to be

“signed by at least ten per cent of the qualified voters of the city.” Sec. 6.01.

                The state law provision regarding validity of petition signatures is

section 277.002 of the Election Code. This section enumerates specific

requirements for a petition signature to be valid. It must be accompanied by the

signers printed name, the signer’s date of birth or voter registration number, the




20
     Exhibit 7 to Record.
                                             7
signer’s residential address, and the date of signing. No other specific requirement

is enumerated. No circulator’s affidavit is required.

         The City of San Marcos has never claimed that Relators failed to meet these

requirements laid out in state law. San Marcos and Relator Pettijohn instead have

contended that the petition signatures are invalid because they are not accompanied

by a circulators’ affidavit.21 Specifically, San Marcos claims that section 6.03 of

the City Charter governs the City Charter Amendment process (among other

things) and this section requires an oath or affirmation that “the statements were

true, that each signature … is the genuine signature of the person whose name

purports to be signed thereto, and that such signatures were placed thereon in the

person’s presence.”

         This of course is not a requirement found in state law which the Charter

Amendment section of the City Charter, section 12.11, said defines the process and

requirements involved in a Charter amendment. This is a requirement that Relator

Pettijohn and the City of San Marcos pulled out of section Article VI of the City

Charter.

         Article VI does not reference charter amendments at all but instead is titled

“Initiative, Referendum and Recall.” Each of these terms is defined within Article

VI. Section 6.01 is titled: “Power of initiative” and 6.01 defines “initiative” to be


21
     Exhibit 10 to Record.
                                            8
the power to “propose any ordinance or repeal any ordinance not in conflict with

this Charter.” Thus, as the term “initiative” is used in the Charter it does not have

to do with a charter amendment but rather an ordinance that complies with the pre-

existing Charter. Section 6.02 is titled “Power of referendum.” Referendum is

defined narrowly as the “power to approve or reject at the polls any legislation

enacted by the council.” Referendum petitions are said to require a petition signed

by at least ten per cent of the qualified voters. This is in contrast to the state law

governing Charter Amendments, which only require signatures of 5% of the voters.

      Section 6.03 of the “Initiative, Referendum and Recall” Article of the

Charter expressly refers to “Initiative petition papers” and “Referendum petition

papers,” just as one would expect. It is in this paragraph that the requirement of a

circulator’s oath is found and it is this paragraph which San Marcos contends

governs the City Charter Amendment process. There is no reference to City

Charter amendments in section 6.03 or anywhere else in Article VI. The one

section of the City Charter that lays out the requirements for City Charter

amendments, section 12.11, makes no reference to section 6.03, but only to the

requirements of state law.

      An interpretation that would impose Charter section 6.03 circulator’s oath

requirements on a petition for a Charter Amendment (when no such requirement is

found under state law) would violate common sense rules of construction. Cf. In


                                            9
re Bell, 91 S.W.3rd 784 (Tex. 2002); Withers v. Commissioners Court of Bandera

County, 75 S.W.3d 528, 530-531 (Tex. App. – San Antonio 2002, orig.

proceeding) . It would also contravene the rule that Charter provisions are to be

construed liberally in favor of the right and power of citizens to amend their own

city charters. Coalson, 610 S.W.2d at 747; Quick, 7 S.W.3d at 124.

      Respondents as a whole violated their duties under the City Charter and

section 9.004(a) and (b) of the Local Government Code, when they failed and

refused to count the signatures on the petition submitted to it by Relators and when

it failed and refused to place the anti-fluoridation charter amendment proposed by

Relators on the ballot for the November 3, 2015 election. Relators ask for a

mandamus consistent with the ruling of the District Court requiring Respondents to

count the signatures and place their proposed charter amendment on the November

3, 2015 election ballot. . “When the requisite number of qualified signatures sign

such a petition, the municipal authority must put the measure to a popular vote.”

Blume v. Lanier, 997 S.W.2d 259, 262 (Tex. 1999).

      In the alternative and only if necessary, Relators ask the Court to grant

modest relief from the August 24 statutory guideline and extend the deadline for

the City Council to order an election with Relators’ measure on the ballot. Texas

Election Code § 273.081; see In re Gamble, 71 SW.3d 313, 318 (Tex. 2002);




                                         10
Cook v. Tom Brown Ministries, 385 S.W.3d 592, 608 (Tex. App. – El Paso 2012,

pet. denied).

III. Other Requirements of State Law Have Been Met by Relators.

   As the District Court ruled, the proposed Charter Amendment addresses one

subject, the fluoridation of San Marcos’ public water supply. Thus it satisfied

Local Government Code section 9.004(d).

      As the District Court ruled, there is no requirement that the ordinance calling

the election must be included within the charter amendment petition. The

enactment of an ordinance setting the election is a duty of Respondents, not

Relators.

      And as the District Court ruled, it is Respondents who have the duty to

include a fiscal note in the Charter Amendment election notice, and there is no

requirement that it be in the charter amendment petition.

IV. A Circulators’ Oath Would Be Unconstitutional as Applied Here.

      Even if it were possible to construe the obligation for a circulator’s oath

found in section 6.03 to be a requirement added to section 12.11 delineation of the

Charter Amendment process, and Relators contend it is not possible, such a

construction as applied to Relators would be unconstitutional. Relators initially

followed Respondents’ misleading legal advice with respect to the requirement of

the circulator’s oath and in two previous petition drives failed to collect enough


                                         11
signatures. The circulator’s oath therefore imposed a significant burden on

Relators’ constitutional rights under sections 2, 8 and 27 of the Texas Bill of

Rights and the First Amendment to the United States Constitution. This burden is

not overcome by any showing of necessity in this circumstance and so is

unconstitutional. See Pilcher v. Rains, 853 F.2d 334, 337 (5th Cir. 1988); Green v.

City of Lubbock, 627 S.w.2d 868, 871 (Tex. App. – Amarillo 1982, writ ref’d

n.r.e.) (“All political power is inherent in the people.”).

                                        PRAYER

   For the reasons described above, Relators respectfully ask the Court to issue a

writ of mandamus against Respondent City of San Marcos, Respondent Jamie Lee

Pettijohn who is City Clerk for San Marcos, and Respondents Mayor and City

Council members of San Marcos, requiring them by August 24, 2015 (or by some

other date chosen by the Court that would provide sufficient time for the

November 3, 2015 election): to review the submitted petition to ascertain whether

it contains the original signatures of the percentage of qualified voters required by

section 9.004(a) of the Local Government Code without concern as to whether

there is compliance with section 6.03 of the City Charter; and issue an ordinance

setting an election on November 3, 2015 on the measure set forth in the petition.

Relators additionally seek any other relief to which they may be entitled including

but not limited to injunctive relief that would extend the August 24, 2015 deadline.


                                           12
     Respectfully submitted,


     /s/ Brad Rockwell
     Brad Rockwell
     SBT No. 17129600

     LOWERRE, FREDERICK,
     PERALES, ALLMON &
     ROCKWELL
     707 Rio Grande., Ste. 200
     Austin, Texas 78701
     (512) 469-6000 / 482-9346
     (facsimile)

     COUNSEL FOR RELATORS
     SHANNON DORN,
     COMMUNITIES FOR THRIVING
     WATERS – FLUORIDE-FREE SAN
     MARCOS, and KATHLEEN
     O’CONNELL.

     Craig Young
     SBT No 00786367

     108 San Antonio
     San Marcos, Texas 78666
     (512) 847-7809
     (512) 353-1219 facsimile
     ATTORNEY FOR MORGAN
     KNECHT




13
                                CERTIFICATION

      By my signature, below, I certify that I have reviewed this petition for writ
of mandamus and concluded that every factual statement in this petition is
supported by competent evidence included in the appendix or record.


                                              /s/Brad Rockwell
                                              Brad Rockwell




                                         14
                         CERTIFICATE OF SERVICE

By my signature, below, I certify that on August 20, 2015, a true and correct copy
of the foregoing document was served upon the parties below by hand delivery.

                                                   /s/ Brad Rockwell
                                                   Brad Rockwell


FOR THE CITY OF SAN MARCOS:
Michael J. Cosentino
San Marcos City Attorney
630 East Hopkins
San Marcos, Texas 78666
(512) 393- 8151
(855) 759- 2846 fascimile
mcosentino@sanmarcostx.gov

FOR MORGAN KNECHT:
Craig Young
108 San Antonio
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile




                                         1
     APPENDIX C
SUPREME COURT DENIAL ON
  PETITION FOR WRIT OF
       MANDAMUS
                    IN THE SUPREME COURT OF TEXAS
                                                    444444444444
                                                         NO . 15-0632
                                                    444444444444


                               IN RE SHANNON DORN ET AL., RELATORS

              4444444444444444444444444444444444444444444444444444
                                      ON PETITION FOR WRIT OF MANDAMUS
              4444444444444444444444444444444444444444444444444444


        JUSTICE DEVINE , joined by JUSTICE LEHRMANN , dissenting from the denial of the petition
for writ of mandamus.


        I would have granted the writ of mandamus. The City of San Marcos disregarded its own

laws regarding charter amendments, ignoring the legislative prerogative of the people through

citizen-initiated petitions. This is a power protected by our laws,1 our precedent,2 and the City’s own

Charter.3 Here, the City Clerk of San Marcos refused to review the signatures on a petition calling

for a charter amendment. The Clerk reasoned that the petition was invalid because the signatures

were not accompanied by any oath or affirmation confirming their authenticity. Because neither the

City Charter nor Texas law imposes this requirement, I believe the City Clerk should have been

directed to review the signatures on the petition.




        1
            See T EX . E LEC . C O D E § 277.001–.004.

        2
            See, e.g., In re Woodfill, __ S.W .3d __, __, 2015 W L 4498229, at *1 (Tex. 2015) (per curiam).

        3
           See San Marcos, Charter, art. XII, § 11 (“Amendments to this Charter may be framed and submitted to the
voters of the city in the manner provided by state law.”).
        The City claims the petition does not satisfy section 6.03 of the City’s Charter. This section,

however, pertains exclusively to petitions regarding ordinances:

        Initiative petition papers shall contain the full text of the proposed legislation in the
        form of an ordinance, including a descriptive caption. Referendum petition papers
        shall contain a sufficient description of the ordinance sought to be referred to identify
        it, or if the ordinance has been passed by the council, the full text of the ordinance
        sought to be referred shall be included in such papers. Before signatures on any
        petition paper may be counted, one of the signers of such petition paper, a qualified
        voter, shall make oath or affirmation before the city clerk or any other officer
        competent to administer oaths or affirmations, that the statements made therein are
        true, that each signature to the paper appended is the genuine signature of the person
        whose name purports to be signed thereto, and that such signatures were placed
        thereon in that person’s presence.

San Marcos, Charter, art. VI, § 3 (emphasis added). Any requirement that signatures on petitions

be verified applies only to citizen-initiated legislation on ordinances. Indeed, the Charter does not

contemplate these provisions applying to anything else. Just one example: under the Charter, if an

initiative petition calls for the adoption of the ordinance, the City may choose between passing the

ordinance itself or submitting it to a vote. Id. art. VI, § 4(a). If a referendum petition calls for the

repeal of an ordinance, the City may either repeal the ordinance itself, or call an election. Id. art. VI,

§ 4(b). But because charter amendments always require an election—the City cannot amend the

charter on its own—this section obviously does not apply to charter amendments. TEX . ELEC. CODE

§ 9.004; San Marcos, Charter, art. XII, § 11.

        When it comes to Charter amendments, the Charter relies solely on state law to define the

proper procedure: “Amendments to this Charter may be framed and submitted to the voters of the

city in the manner provided by state law.” San Marcos, Charter, art. XII, § 11. State law, however,

does not require the verification the City Clerk demands. “The governing body shall submit a

                                                    2
proposed charter amendment to the voters for their approval at an election if the submission is

supported by a petition signed by a number of qualified voters of the municipality equal to at least

five percent of the number of qualified voters of the municipality . . . .” TEX . LOC. GOV ’T CODE

§ 9.004(a). The Election Code, in turn, specifies the requirements “[f]or a petition signature to be

valid.” TEX . ELEC. CODE § 277.002. The verification requirement the City argues for is not one of

the statutorily-imposed requirements.

       In other words, state law does not impose these verification requirements, and the City

Charter relies solely on state law for the charter-amendment process. No literal reading of the

Charter allows the criteria of section 6.03 to be applied to charter amendments. Indeed, mere months

ago, the Court recognized a distinction exists between city charter requirements for citizen-initiated

charter amendments as opposed to ordinances. See Dacus v. Parker, __ S.W.3d __, __, 2015 WL

3653295, at *6 (Tex. 2015) (“[A]lthough the Houston charter provides no means for amending the

charter, the Texas Local Government Code does.”).

       The Court has long held that laws regarding citizen-initiated legislation “should be liberally

construed in favor of the power reserved” to the people. In re Woodfill, __ S.W.3d at __, 2015 WL

4498229, at *6 (quoting Taxpayers’ Ass’n of Harris Cnty. v. City of Houston, 105 S.W.2d 655, 657

(Tex. 1937)). This case is no different. Moreover, the Election Code disfavors local technicalities

that hamper the people’s right to amend their charter: “Any requirements for the validity or

verification of petition signatures in addition to those prescribed by this chapter that are prescribed

by a home-rule city charter provision or a city ordinance are effective only if the charter provision

or ordinance was in effect September 1, 1985.” TEX . ELEC. CODE § 277.004. Simply put, the City

                                                  3
cannot amend its charter to impose the requirements the City Clerk demands, let alone impose them

here.

        Though the deadline for ordering elections passed, see TEX . ELEC. CODE § 3.005(c); In re

Woodfill, __ S.W.3d at __ n.11, 2015 WL 4498229, at *5 n.11, the people of San Marcos were not

without a remedy. The City should not be able to avoid its duty under the Charter—indeed, under

Texas law—merely because it failed to timely order the election. If, as the Election Code states,

“[f]ailure to order a general election does not affect the validity of the election,” TEX . ELEC. CODE

§ 3.007, then neither should a late order in this case.

        Here, a district court determined the City Clerk must review the petition signatures and

perform her ministerial duty. Rather than comply, the City initiated an interlocutory appeal, assuring

that the deadline would pass before relief could be obtained. I would not permit a city to use a

directory deadline in the Election Code in this manner to either avoid a ministerial duty or thwart the

will of the people. When the Texas Election Code and Local Government Code, as well as the City’s

own Charter, require the City to act, the City may not hide behind the statutory deadline. Indeed,

“[t]he right to vote is so fundamental in our form of government that it should be as zealously

safeguarded as are our natural rights,” and election statutes must be interpreted “in favor of that

right.” Thomas v. Groebl, 212 S.W.2d 625, 630 (Tex. 1948). In Woodfill, we required a city to

comply with its duties before the deadline, see In re Woodfill, __ S.W.3d at __ , 2015 WL 4498229,

at *1, and I would have required compliance here as well.

        Though the deadline does not remove a remedy, it does foreclose any adequate remedy by

appeal. See In re Williams, __ S.W.3d __, at __, 2015 WL 4931372, at *3 (Tex. 2015) (per curiam);

                                                  4
In re Woodfill, __ S.W.3d at __ , 2015 WL 4498229, at *6. Because we did not act, the voters were

denied any timely relief.

       As we have held before, a City’s “refusal to submit the proposed amendment[] to the vote

of the people thwarts not only the legislative mandate” of the Local Government Code, but also “the

will of the public.” Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980). This

case is no different. I would have granted the petition for mandamus relief and directed the City

Clerk to count the signatures. Accordingly, I respectfully dissent from the denial of the petition for

writ of mandamus.



                                                              ________________________
                                                              John P. Devine
                                                              Justice

Opinion Delivered: September 4, 2015




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