NUMBER 13-24-00404-CV

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG

 

IN RE MANUEL O. MORENO

 

ON PETITION FOR WRIT OF MANDAMUS

 

MEMORANDUM OPINION 

Before Justices Benavides, Longoria, and Silva

Memorandum Opinion by Justice Benavides

On August 13, 2024, relator Manuel O. Moreno filed a petition for writ of mandamus 

seeking to compel the City Council for the City of Donna to order a municipal election 

pursuant to § 3.004(b) of the Texas Election Code. See TEX. ELEC. CODE ANN. § 3.004(b). 

Relator also filed a motion requesting this Court to consider the petition for writ of 

mandamus on an expedited basis on grounds that the deadline to call an election is 

Monday, August 19, 2024. We grant relator’s motion for expedited consideration. After 

examining the petition for writ of mandamus and the response filed by the City of Donna, 
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we conditionally grant the petition for writ of mandamus.

I. BACKGROUND

The City of Donna is a home rule municipality in Hidalgo County, Texas. Its City 

Charter contains various provisions relevant to the election of its mayor and council 

members. Prior to 2021, the City Charter provided in relevant part:

ARTICLE II

THE COUNCIL

Section 1. NUMBER AND TERM OF OFFICE

Except as otherwise provided in this Charter, all powers of the City 

of Donna shall be vested in the Council composed of four Council Members 

and a Mayor except that the present Council Members shall serve as such 

until the elections hereinafter provided in Section 2 of this Article.

Section 2. ELECTION AND TERM OF OFFICE OF COUNCILMEN

(a) Except as otherwise provided in this Charter, the Councilmen of the

City shall be elected to and occupy a place on the Council, such 

places being number 1, 2, 3, and 4, respectively. The Mayor shall be 

elected and occupy the post of Mayor. All shall hold office for three

year terms and shall be elected from the City at large.

(b) On the first Saturday of April, 1981, a general election shall be held 

for the purpose of electing the Mayor and Council members for 

places 1 and 3 for three year terms.

(c) On the first Saturday in April, 1982, and every three years thereafter, 

Councilmen for places 2 and 4 shall be elected at a general election 

to be held for said purpose to succeed the Councilmen whose terms 

of office expire as provided in this Charter.

Donna, Tex., CITY CHARTER art. II, § 2(a) (1981) (former law) (internal formatting omitted).

Thus, the City Charter formerly provided that the mayor and city council members would 

be elected for three-year terms.
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On August 16, 2021, the City ordered an election for two purposes. The “Order of 

Election” for November 2, 2021, stated that the purpose of the election was:

(a) To elect Two (2) Councilmembers: one for Place 2 and one for Place 

4 for the City of Donna [and]

(b) To amend the city charter of the City of Donna to extend the terms of 

office of the City of Donna Mayor and Councilmen from three year 

terms to four year terms and extend the terms of office of the City of 

Donna Municipal Judge from three year terms to four year terms.

The “Preview Ballot” for this election stated that this proposed change was “TO SAVE 

MUNICIPAL FUNDS.” The “Notice of Special Election” stated that the 2019 special 

election would include “Proposition A,” which would amend the City Charter. Proposition 

A provided: “THE EXTENSION OF TERMS OF OFFICE FOR THE CITY OF DONNA 

MAYOR AND COUNCILMEN FROM THREE YEAR TERMS TO FOUR YEAR TERMS 

TO SAVE MUNICIPAL FUNDS.” The City’s voters approved this change to the City 

Charter and elected Oscar Gonzales for Place 2 and Joey Garza for Place 4.

Thereafter, with the November 2024 election approaching, the Mayor and City 

Council began considering whether the two council members elected in 2021, Gonzales 

and Garza, had been elected for three-year terms, as provided in the existing City Charter, 

or four-year terms, as provided by the amendment to the City Charter approved by voters 

in the 2021 election. Thus, the Council asked the City Attorney for Donna, Robert J. 

Salinas, for an opinion regarding this matter. In a July 21, 2022 letter directed to the 

Mayor, Salinas provided the following opinion:

You have requested a legal opinion on the applicability of a referendum 

election held in Donna on November 2, 2021, extending the terms of office 

of its governing body from 3 years to 4 years. You particularly ask ‘must the 

members of said body stand for election held after the referendum to 
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approve the extension in order for their respective length of their terms to 

office to be that of the newly enacted term length . . . . 

The Answer to your question is ‘YES.’ The extension of the term of office is 

not applicable to the office holders elected at the election in which the 

referendum calling for the extending of the terms of office. That is, UNLESS 

the referendum wording specifically made the extension applicable to the 

current office holders. The referendum approved by Donna voters at the 

election of November 2, 2021, does not contain such specificity. . . . The 

Texas Constitution specifically provides that ‘a city, town or village may 

provide by majority vote of qualified voters for a longer term of office than 

two (2) years for its officers . . . but not to exceed four (4) years. . . . It has 

been held that common law protects the integrity of the election with a 

minimum standard for the ballot language [(See Dacus v. Parker, 466 S.W. 

3d 820, 824 (Tex. 2015)] this is to ascertain that the voters are not 

misled . . . . 

The issue then rests on whether the referendum extending the terms of 

office as approved by the voters in Donna at the election of November 2, 

2021, is applicable prospectively or retrospectively. [Texas Government 

Code § 311.022] reads ‘A statute is presumed to be Prospective in its 

operation unless expressly made retrospective. . . .’ I find no law stating that 

a ‘referendum’ should be given a different interpretation. This same issue 

appeared on a ballot referendum in the City of Combes, Texas. The Hon. 

Luis Saenz, District Attorney for Cameron County, Texas, issued an opinion 

on the issue holding that the referendum is prospective and not 

retrospective and elected officials must therefore stand for election after the 

referendum is held. . . . I find no Texas law nor Attorney General Opinions 

that says otherwise.

You requested that I seek an opinion from the Legal Department at [the 

Texas Municipal League (TML)] on the issue. TML legal was of the opinion 

that ‘unless the ballot language was clear that it applied to that election 

when it passed, it is likely prospective.’ [A] Staff Attorney stated that TML 

will not issue a formal opinion on issue[s] involving charter interpretation 

and will defer to the city attorney. . . . 

CONCLUSION

Unless a referendum extending the length of terms of office 

specifically reads to the contrary, an election referendum by a majority of 

the electorate extending the length of terms of office for its officers is 

prospective and all members of said body must stand for election on a date 

after the election approving the lengthening of the terms of office.
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Salinas referenced and attached various items to his opinion, including the TML opinion 

and email. In the email, Amber McKeon-Mueller, the Assistant Director of Legal Services, 

provided Salinas the following information which was “not intended to constitute legal 

advice”:

Local Government Code § 9.006 would have allowed councilmembers 

elected in the same election as the charter amendment increasing the terms 

to be subject to the increased terms:

Sec. 9.006. CONCURRENT ELECTIONS. This chapter does 

not prevent the voters at an election to adopt a charter or an 

amendment to a charter from electing at the same election 

persons to hold office under the charter or amendment.

However, the ballot language should have been clear if the city wanted the 

increased terms to apply in the concurrent election. Because the ballot 

language was not clear, the increased terms should not apply to those 

councilmembers elected in the same election as the charter amendment. 

Those councilmembers would need to run for reelection at the end of the 

old terms.

McKeon-Mueller also advised that the TML would “always defer to the city attorney when 

it comes to charter interpretation.”

On August 5, 2024, the City Council met. The notice for the meeting provided that 

two of the “Regular Items” to be discussed included:

1. Discussion and possible action to adopt a resolution and order of the 

City of Donna, Texas, ordering a general municipal election to be 

held in the City of Donna, on Tuesday, November 5, 2024, for the 

election of Commissioner, Place 2, for the City of Donna, and 

Commissioner, Place 4, for the City of Donna, Texas.

2. Discussion and possible action on retaining the legal services of The 

Law Office of Gilberto Hinojosa & Associates, P.C to render legal 

opinion in reference to the adoption and application of Proposition A 

passed by majority vote by the citizens of Donna in the November 

2021 Election.
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At that meeting, the City Council voted not to call an election.

On August 7, 2024, relator sent a letter to the Donna City Manager requesting the 

manager to “send [him] all documents necessary for [him] to file for office and be placed 

on the ballot for the upcoming November 2024 elections.” However, relator “became 

aware” that the City Council had refused to call the election.

This original proceeding ensued. By one issue, relator contends that the term of 

office for Place 4, and Place 2, was the three-year term originally provided by the City 

Charter, and thus the City Council had a ministerial duty to order the election. This Court 

requested and received a response to the petition for writ of mandamus from the City, 

which contends: (1) fact issues preclude mandamus relief; (2) the mandamus is moot; 

(3) relator has not met his burden to obtain mandamus relief; and (4) the “plain reading”

of the amendment makes it applicable to the candidates who were elected on the day 

that the amendment was passed.

II. MANDAMUS

Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. 

Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836, 

840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 

S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). We “may issue a writ of mandamus to 

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

election.” TEX. ELEC. CODE ANN. § 273.061(a); see In re Rogers, 690 S.W.3d 296, 299 

(Tex. 2024) (orig. proceeding) (per curiam); In re Dominguez, 621 S.W.3d 899, 904 (Tex. 

App.—El Paso 2021, orig. proceeding) (per curiam). However, “[i]n a mandamus relating 
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to an election proceeding, we must be careful to avoid undue interference with the 

electoral process and the people’s right to self-governance, including their choice of 

candidates.” In re Anthony, 642 S.W.3d 588, 589 (Tex. 2022) (orig. proceeding) (per 

curiam).

Mandamus may issue to compel public officials to perform ministerial acts or “to 

correct a clear abuse of discretion by a public official.” In re Williams, 470 S.W.3d 819, 

821 (Tex. 2015) (orig. proceeding) (per curiam) (quoting Anderson v. City of Seven 

Points, 806 S.W.2d 791, 793 (Tex. 1991)); In re Dominguez, 621 S.W.3d at 904. “An act 

is ministerial when the law clearly spells out the duty the official must perform with 

sufficient certainty that it leaves nothing to the official’s discretion.” In re City of Galveston, 

622 S.W.3d 851, 855 (Tex. 2021) (orig. proceeding); see In re Williams, 470 S.W.3d at 

821; In re Dominguez, 621 S.W.3d at 904. An act is a clear abuse of discretion if it is “so 

arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re K & 

L Auto Crushers, LLC, 627 S.W.3d 239, 247 (Tex. 2021) (orig. proceeding) (quoting 

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (cleaned up); see 

In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig. proceeding).

To obtain a writ of mandamus, the relator bears the burden of showing that it has 

a clear legal right to the performance of the act sought to be compelled and the duty of 

the officer sought to be compelled must be clearly fixed and required by the law. In re 

Dominguez, 621 S.W.3d at 904; In re Watkins, 465 S.W.3d 657, 659 (Tex. App.—Austin 

2014, orig. proceeding); In re Cercone, 323 S.W.3d 293, 295 (Tex. App.—Dallas 2010, 

orig. proceeding). In addition to showing that an election official had a legal duty to 
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perform a non-discretionary act, a relator must also show he made a demand for 

performance on the election official and the election official refused to perform. In re 

Dominguez, 621 S.W.3d at 904; In re Cercone, 323 S.W.3d at 297.

III. CONSTRUCTION OF THE CITY CHARTER

The analysis in this case revolves around the appropriate construction and 

interpretation of the City Charter and the amended City Charter. “City charters are 

construed according to general rules of statutory interpretation.” Powell v. City of Hous., 

628 S.W.3d 838, 843 (Tex. 2021); see Jones v. Whitmire, 691 S.W.3d 685, 693 (Tex. 

App.—Houston [14th Dist.] 2024, no pet. h.); Hunt v. City of Diboll, 574 S.W.3d 406, 422 

(Tex. App.—Tyler 2017, pet. denied). We review issues regarding statutory interpretation 

as a question of law. See Tex. Health & Hum. Servs. Comm’n v. Estate of Burt, 689 

S.W.3d 274, 279 (Tex. 2024). Our primary objective is to ascertain and give effect to the 

enacting body’s intent, and we do so by looking to the plain meaning of the statutory 

terms, informed by the terms’ context. Morath v. Lampasas Indep. Sch. Dist., 686 S.W.3d

725, 734 (Tex. 2024).

The Texas Constitution prohibits retroactive laws. See TEX. CONST. art. I, § 16 (“No 

bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of 

contracts, shall be made.”); see generally In re M.C.C., 187 S.W.3d 383, 384 (Tex. 2006) 

(per curiam); Prater v. Owens, 667 S.W.3d 363, 373 (Tex. App.—Houston [1st Dist.] 

2022, no pet.). “A retroactive law is one that extends to matters that occurred in the past.”

Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 707 (Tex. 2014); see City of Grapevine v. 

Muns, 651 S.W.3d 317, 344 (Tex. App.—Fort Worth 2021, no pet.).
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In accordance with this constitutional directive, our legislature has determined that 

“[a] statute is presumed to be prospective in its operation unless expressly made 

retrospective.” TEX. GOV’T CODE ANN. § 311.022; City of Austin v. Whittington, 384 S.W.3d 

766, 790 (Tex. 2012); In re M.C.C., 187 S.W.3d at 384; San Jacinto Title Servs. of Corpus 

Christi, LLC. v. Kingsley Props., LP, 452 S.W.3d 343, 350 (Tex. App.—Corpus Christi–

Edinburg 2013, pet. denied). Statutory amendments are also presumed to apply 

prospectively. In re G.R.B., 582 S.W.3d 483, 485 (Tex. App.—San Antonio 2018, pet. 

denied); Bair Chase Prop. Co. v. S & K Dev. Co., Inc., 260 S.W.3d 133, 143 (Tex. App.—

Austin 2008, pet. denied); Bates v. Tesar, 81 S.W.3d 411, 427 (Tex. App.—El Paso 2002, 

no pet.). However, applying procedural, remedial, or jurisdictional statutes retroactively 

does not violate the constitution’s prohibition on retroactive laws because procedural and 

remedial laws generally do not affect vested rights acquired under existing law. City of 

Austin, 384 S.W.3d at 790; Prater, 667 S.W.3d at 373; In re G.R.B., 582 S.W.3d at 485.

IV. ANALYSIS

Relator asserts that the City Council failed to perform its ministerial duty under the 

Texas Election Code by failing to call an election for November 2024. Section 3.004 of 

the Texas Election Code governs the elections for political subdivisions and provides:

(a) The following authority shall order an election:

(1) the county judge, for the general election for officers of the 

county government;

(2) the mayor, for the general election for city officers in a city with 

a population of 1.9 million or more; and

(3) the governing body of a political subdivision, other than a 

county or a city described by Subdivision (2), that has elective 
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offices, for the general election for those officers.

(b) If a law providing for an election relating to the affairs of a political 

subdivision does not designate the authority responsible for ordering 

the election, the governing body of the political subdivision shall 

order the election.

TEX. ELEC. CODE ANN. § 3.004. We have held that this section imposes a duty by law. See 

Estrada v. Adame, 951 S.W.2d 165, 167 (Tex. App.—Corpus Christi–Edinburg 1997, no 

writ). The use of “shall” in the statutory language reflects a mandatory, ministerial duty. 

See TEX. GOV’T CODE ANN. § 311.016(2) (stating that the statutory language of “‘[s]hall’

imposes a duty”); In re Rogers, 690 S.W.3d at 300 (discussing the duty to call an election 

based on a petition with the required number of signatures).

We examine whether the City Charter, as amended in the 2021 election, applies 

to the City Council members elected in that same election. In this regard, the Texas Local 

Government Code allows for a charter or an amendment to be made in the same election

which fills offices created by the charter of amendment. See TEX. LOC. GOV’T CODE ANN.

§ 9.006 (“This chapter does not prevent the voters at an election to adopt a charter or an 

amendment to a charter from electing at the same election persons to hold office under 

the charter or amendment.”).

As required by Texas law, we begin with the presumption that the 2021 

amendment to the City Charter applies prospectively unless the amendment was 

expressly made to apply retroactively. See TEX. GOV’T CODE ANN. § 311.022; City of 

Austin, 384 S.W.3d at 790; In re M.C.C., 187 S.W.3d at 384. To review, Proposition A 

stated: “THE EXTENSION OF TERMS OF OFFICE FOR THE CITY OF DONNA MAYOR 

AND COUNCILMEN FROM THREE YEAR TERMS TO FOUR YEAR TERMS TO SAVE 
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MUNICIPAL FUNDS.” The proposition does not contain any language expressly making 

the amendment retroactive. Thus, we presume that the amendment is prospective in its 

application. See TEX. GOV’T CODE ANN. § 311.022; City of Austin, 384 S.W.3d at 790; In 

re G.R.B., 582 S.W.3d at 485. Because the 2021 amendment to the City Charter applied 

prospectively, the current terms for Places 2 and 4 on the City Council remain three years 

rather than four. The City Council is bound by the terms of its amended charter as written. 

See In re Porter, 126 S.W.3d 708, 711 (Tex. App.—Dallas 2004, orig. proceeding [mand. 

denied]).

V. THE CITY’S RESPONSE

In its response to the petition for writ of mandamus, the City asserts that we should 

deny relief on various grounds. First, the City contends that fact issues preclude 

mandamus relief. Its contention is premised on the doctrine that mandamus may not issue 

in a case involving disputed issues of fact. See In re Woodfill, 470 S.W.3d 473, 478 (Tex. 

2015) (orig. proceeding) (per curiam) (“Disputed facts, however, prevent the Court from 

resolving issues in a mandamus proceeding.”); see also In re CDM Constructors, Inc., 

No. 13-23-00216-CV, 2023 WL 5500002, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 

24, 2023, orig. proceeding) (mem. op.). Specifically, the City alleges that “[r]elator’s 

interpretation of how the term extension ordinance applies to the Place 2 and Place 4 

Councilmen creates a fact issue that is not grounds for mandamus relief.” However, the 

interpretation and construction of the City Charter and its amendment is performed as a 

matter of law. See Tex. Health & Hum. Servs. Comm’n, 689 S.W.3d at 279; Powell, 628 

S.W.3d at 843. Accordingly, under our required standard of review, we must reject the 
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City’s contention that the interpretation of the Charter and its amendments is a question 

of fact.

Second, the City contends that mandamus should not issue because this matter 

is moot “because it will interfere with the election schedule.” It contends that the 78th day 

deadline for the November 5, 2024 election falls on August 19, 2024, and after that date, 

the ballots and election cannot be changed; thus, this mandamus is moot. Mootness

implicates subject matter jurisdiction, and appellate courts are prohibited from deciding 

controversies that have become moot. Elec. Reliability Council of Tex., Inc. v. Panda 

Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 634 (Tex. 2021) (app. & 

orig. proceeding). A matter becomes moot when:

(1) a justiciable controversy no longer exists between the parties, (2) the 

parties no longer have a legally cognizable interest in the case’s outcome, 

(3) the court can no longer grant the requested relief or otherwise affect the 

parties’ rights or interests, or (4) any decision would constitute an 

impermissible advisory opinion.

Id. at 634–35. However, the deadline for the City to call the election is Monday, August 

19, 2024, and this memorandum opinion is being issued in time for the City to act. 

Accordingly, this mandamus is not moot.

The City further contends that “[r]elator could have brought his mandamus months 

before the election deadline but instead decided to file it at the last minute,” thus the 

mandamus should be denied based on delay. We agree with the City’s general contention 

that delay in seeking relief may defeat the right to mandamus relief. “[F]or a court to 

resolve an election dispute, the court must receive the case early enough to order relief 

that would not disrupt the larger election.” In re Khanoyan, 637 S.W.3d 762, 764 (Tex. 
13

2022) (orig. proceeding). And, in the larger sense, delay in general may bar relief in an 

original proceeding. “[A] relator who unduly or unreasonably delays filing a petition for 

mandamus relief may waive its right to such relief unless the delay is justified.” In re Am. 

Airlines, Inc., 634 S.W.3d 38, 43 (Tex. 2021) (orig. proceeding) (per curiam); In re Giles, 

675 S.W.3d 376, 389 (Tex. App.—Corpus Christi–Edinburg 2023, orig. proceeding). 

However, the facts and timeline involved in this original proceeding do not show a delay. 

Contrary to the City’s contention that relator could have pursued his right to relief in the 

preceding months, the City did not determine that it would not call an election until August 

5, 2024. Relator became aware of that decision some unspecified time thereafter, and he 

filed this original proceeding on August 13, 2024, eight days after the City rendered its 

decision.

Third, the City argues that relator has not met his burden to establish the 

substantive requirements for mandamus relief; specifically, that relator has not shown that 

the City possessed a ministerial duty such that relator has a clear right to relief. In 

connection with this argument, the City contends that relator’s assertion that a ministerial 

duty exists to call an election in November 2024 is “flawed” because “the issue is not 

whether an election must take place . . . but rather when it must take place,” and Texas 

Government Code § 3.004(a)(3) does not address the timing of any required election. 

See TEX. GOV’T CODE ANN. § 3.004(a)(3). However, the City’s contention fails to recognize 

that its duties arise not only from the election code but also from its City Charter and the

amendments thereto which contain express language regarding the specific terms of 

office at issue in this original proceeding. It is abundantly clear that ministerial duties may 
14

arise from a city charter. See In re Lee, 412 S.W.3d 23, 27 (Tex. App.—Austin 2013, orig. 

proceeding).

The City further asserts that § 311.022 of the government code, regarding the 

presumption that we construe statutes to apply prospectively, is inapplicable here 

“because it applies to a state statute, not a local ordinance or amendment to a city 

charter.” The City’s argument is presumably premised on government code § 311.002

which provides, generally, that the code construction act, of which § 311.022 is a part, 

applies to “codes” and “code provisions,” and does expressly apply to other matters such 

as ordinances and charters. See TEX. GOV’T CODE ANN. § 311.002. Nevertheless, we look 

to the code construction act for guidance regarding the construction of other matters. 

State v. Garcia, 823 S.W.2d 793, 798 (Tex. App.—San Antonio 1992, pet. ref’d). And, like 

our sister courts, we use it as a general tool for construction. See, e.g., City of Roanoke 

v. Town of Westlake, 111 S.W.3d 617, 632 (Tex. App.—Fort Worth 2003, pet. denied) 

(applying § 311.022 to the construction of an ordinance). To do otherwise would 

potentially run afoul of our constitution’s prohibition regarding retroactive laws. See TEX.

CONST. art. I, § 16; In re M.C.C., 187 S.W.3d at 383.

Finally, the City contends that a “plain reading” of the City Charter’s amendment 

to term limits makes it inapplicable to the candidates that were elected on the day that it 

was passed by the voters. The City asserts that the election approving the amendment 

and electing the new councilmembers occurred on November 2, 2021, yet the terms for 

the newly elected councilmembers did not begin until November 8, 2021, when they took 

their oaths and began their term of service. The City cites no authority in support of this 
15

proposition, and it conflicts with our standard of review and the rules of construction for 

the amendment that we have previously examined. Thus, we disagree that the “plain 

meaning” of the amendment renders it applicable to the current city councilmembers.

While we appreciate the City’s arguments against granting mandamus relief in this 

case, controlling law does not support them.

VI. CONCLUSION

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

the City’s response, and the applicable law, is of the opinion that relator has met his 

burden to obtain mandamus relief. Accordingly, we conditionally grant the petition for writ 

of mandamus, in part, and we direct the City to call an election in accordance with its City 

Charter. We are confident that the City will comply, and our writ will issue only if it does 

not. Because of the exigent deadlines present in this election case, we will not entertain 

a motion for rehearing or reconsideration. See TEX. R. APP. P. 2, 49.1, 49.7, 52.9.

GINA M. BENAVIDES

 Justice 

 

Delivered and filed on the

16th day of August, 2024.