## IN THE SUPREME COURT OF TEXAS

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### No. 21

- 0 170

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### I N R E 

### L INDA 

### D URNIN 

### , E RIC 

### K ROH N 

### , AND 

### M ICHAEL 

### L OVINS 

### , R ELATORS

══════════════════ ════════════════════════ O N P ETITION FOR W RIT OF M ANDAMUS

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J USTICE B LACKLOCK delivered the opinion of the Court , in which C HIEF J USTICE H ECHT , J USTICE G UZMAN , J USTICE L EHRMANN , J USTICE B LAND , and J USTICE H UDDLE joined

. J USTICE B OYD filed a dissenting opinion , in which J USTICE D EVINE and J USTICE B USBY joined

. Voters in t he City of Austin will soon decide whether to adopt a citizen

- initiated ordinance regarding camping in public spaces, sitting and lying down on public sidewalks, and the aggressive solicitation of money. The Austin City Council recently approved a description of the proposed ordinance for placement on the ballot. In response, s everal voters who signed the petition supporting the ordinance br ough t this mandamus proceeding seek ing changes to th e Council’s ballot language

. We conclude the relators have clearly established their entitlement to mandamus relief in one respect. T he Council’s ballot language says the proposed ordinance “create[s] a criminal offense and a penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors [in or near downtown] ” and for “anyone camping in a public area not designated by the Parks and Recreation Department

. ” The ordinance itself, however, does not apply to anyone who engages in the listed activities. To the contrary, the ordinance contains several exceptions covering a2 variety of common uses of the sidewalk that the ordinance does not criminalize. Thus, only a subset of those who engage in the covered behavior

— not just anyone

— can be penalized under the ordinance. Although “anyone” is just one word, it is quite an important word in this context. Including it on the ballot as directed by the Council would suggest to vote rs that the ordinance criminalizes and penalizes a much wider swath of conduct than it actually does. In this regard, the word “anyone” in the Council’s ballot language threatens to “mislead the voters” by “misrepresent[ing] the measure’s character and pu rpose or its chief features.” Dacus v. Parker , 466 S.W.3d 820, 826 (Tex. 2015). The defect can be remedied with minimal judicial interference by striking the word “anyone” in the two places it appears. As explained below, t he petition for writ of mandam us is conditionally granted in part, and the City Council is directed to delete both uses of the word “anyone” from the proposition before placing it on the ballot.
I. Background Relators Linda Durnin, Eric Krohn, and Micha el Lovins, along with many o thers , signed a petition seeking a voter

- initiated city ordinance regarding camping, sitting or lying down o n public sidewalks , s leeping outdoors , and the aggressive solicitation of money

. The ordinance would amend sections 9

- 4

- 11, 9

- 4

- 13, and 9

- 4

- 14 of the City Code. The petition was submitted to the Austin City Clerk on January 19, 2021 , who certified it for a vote at the City’s May 1, 2021 election. The City Council was then put to a choice of agreeing to the proposed ordinance or submittin g it to the voters. A USTIN C HARTER art. iv, § 4. The City Council decided to submit the3 ordinance to the voters . On February 9 , the Council approved the following language for use on the May ballot: Shall an ordinance be adopted that would create a criminal offense and a penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors in and near the Downtown are a and the area around the University of Texas campus; create a criminal offense and penalty for solicitation, defined as r equesting money or another thing of value , at specific hours and locations or for solicitation in a public area that is deemed aggressive in manner ; create a criminal offense and penalty for anyone camping in a public are a not designated by the Parks and Recreation Department? Up on approval of th is ballot language, relators on February 16 simultaneously sought mandamus relief in the Third Court of Appeals and the Supreme Court

. They lodge three primary objections to the ballot language . First, they argue that it violates the Austin City Charter , which they contend requires the ballot language to come from the ordinanc e’s caption provided by the petition ’s proponents. Second, they argue the ballot language is mislea ding because it over

emphasizes the ordinance’s criminal aspects. Third, they argue the ballot language’s use of the word “anyone” is misleading because the ordinance contains several exceptions and therefore does not penalize “anyone” who engage s in the listed activities. The court of appeals denied relief without opinion. The City filed a response to the mandamus petition in this Court, which we have considered along with the parties’ court of appeals filings

. II. Discussion
T his Court has jurisdiction to “issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election.” T EX
. E LEC

. C ODE § 273.061. As always, mandamus relief is appropriate if the relator establishes a clear abuse of discretion for4 which there is no adequate appellate remedy. In re AutoNation, Inc. , 228 S.W.3d 663, 667 (Tex. 2007) (orig. proceeding). Sig ners of a n initiative petition have standing to seek mandamus relief against their city council if they can establish the elements for such relief. In re Williams , 470 S.W.3d 819 , 822 (Tex. 2015) (orig. proceeding) (per curiam)

. If a ballot can be corrected prior to the election, a post

- election contest is an inadequate remedy for mandamus purposes. Id. at 823. The City of Austin ’s c harter provides a mechanism by which voters may amend the city ’s ordinances . Voters m a y submit a signed petition to the City Council propos ing a new ordinance.
A USTIN C HARTER art. iv , § 1. After the City Clerk certifies that the petition contains at least the minimum required number of signatures, the Council must either adopt the proposed ordinance itself or order an election whereby the voters decide whether to adopt the ordinance. Id. § 4. In this case , 20,000 signature s we re required

. Id. § 1; T EX
. L OC

. G OV ’ T C ODE § 9.004(a). Under the Election Code, a “measure” is “a question or proposal submitted in an election for an expression of the voters’ will.” T EX
. E LEC

. C ODE § 1.005(12). Here, the measure is the proposed amendment to the City Code submitted by voters via their petition. A “proposition” is “the wording appearing on a ballot to identify the measure.” Id. § 1.005(15). The Election Code grants the City Council , as “the authority ordering the election,” the responsibility to “prescribe the wording of a proposition” unless “otherwise provided by law.” Id. § 5 2 .072(a) ; see also Dacus , 466 S.W.3d at 823

. The relators contend that the Austin City Charter removes the Council’s statutory authority to select ballot proposition language. The charter provides: “The ballot used in voting upon an initiated or referred ordinance shall state the caption of the ordi nance and below the caption shall5 set forth on separate line s the words, ‘For the Ordinance’ and ‘Against the Ordinance.’” A USTIN C HARTER art. iv, § 5

. The City disagrees about the charter’s effect on the Council’s authority. Without resolving the merits of this dispute, we conclude that in this expedited proceeding the relators have not made the clear showing required for emergency mandamus relief on this issue.
Re l ators also contend the Council’s ballot language violates the common

- law standards
govern ing the accuracy of ballot propositions, which this Court most recently articulated in Dacus v. Parker , 466 S.W.3d 820 (Tex. 2015)

. In Dacus , w e held that ballot propositions must “be submitted [to the voters] with such definiteness and certainty that voters are not misled.” Id. at 822. Although “the ballot need not reproduce the text of the amendment or mention every detail , it must substantially identify the amendment’s purpose, character, and chief feature s.” Id. A ballot proposition may mislead the voters “in either of two ways. First, it may affirmatively misrepresent the measure’s character and purpose or its chief features. Second, it may mislead the voters by omitting certain chief features that reflect its character and purpose.” Id. at 826.
In Dacus , the proposed amendment to the City of Houston C harter created a fund for drainage and streets . The source of the funding was t o come in part from charges imposed on property owners. Th is Court held that the ballot language violated the common

- law standard because it described the new fund but did not disclose that property owners would be subjected to

new charges

. Id. at 824, 826. We concluded that omitt ing any mention of the new charges amounted to a failure to disclose “a chief feature” of the measure, thus rendering the proposition misleading to the vote r s. Id. at 828. Despite ordering changes to the proposition, Dacus emphasized that “municipalities generally have broad discretion in wording propositions.” Id. at6 826. B allot language “must capture the measure’s essence,” but “neither the entire measure nor its every detail need be on the ballot.” Id. at 825. Relators make two separate challenges to the Council’s ballot language under the common

law standard. First, they argue the ballot language is misleading because it pl aces undue emphasis on the extent to which the proposed ordinance creates criminal offenses and penalties. R elators do not deny, however, that the ordinance adds to the crimes and penalties currently contained in the City Code. Relators contend the ballo t language should emphasize other feature s of the ordinance, but the Council generally has “broad discretion in wording propositions.” Id . at 826. The proposition correctly stat es that the ordinance creates criminal offenses and penalties. Relators would prefer that this aspect of the ordinance appear less prominently in the proposition, but it is not the courts’ job to micromanage the sentence structure of ballot propositions. O ur job is to ensure voters are not misled by inaccuracies or material omissions in the proposition while preserving the governing body’s discretion to select ballot language.
W e agree with relators, however, that the Council’s proposition is inaccurate and misleading in one important respect. The proposition states that the ordinance creates a criminal offense and a penalty “for anyone sitting or lying down on a public sidewalk ” in the downtown or UT

- Austin area
. Although the ordinance does criminalize some instances of sitting or lying down on a sidewalk , by using the word “anyone , ” the proposition gives the impression that the ordinance criminalizes all instances of sitting or lying down on a sidewalk. That is not true. The proposed ordinance creates an offense under s ubsection E of section 9

- 4

- 14 of the Code if a person sits or l ies down in certain designated areas , but subsection F simultaneously7 creates six exceptions . Excepted from the ordinance’s criminal penalties is anyone who “sits or lies dow n because of a medical emergency” ; “ operates or patronizes a commercial establishment that conducts business on the sidewalk”; “ participates in or views a parade , festival, performance, rally , demonstration, or similar event”; sits o n a chair or bench supplied by an agency or abutting private property owner; sits at a bus stop; or waits in line for goods, services, or a public event. The se exceptions include a wide array of familiar uses of si dewalks that will not be criminalized under the proposed ordinance. Further, even a person whose use of the sidewalk does not fall under an exception commits the offense only if the person does so “after having been notified by a law enforcement office r t hat the conduct” is illegal. Still further, a person has an affirmative defense if he sits or lies down because of a disability. By failing to mention these exceptions and instead stating that the ordinance penalizes
anyone who sits or lies down on the sidewalk, the Council’s proposition suggests that the ordinance’s prohibition on certain uses of the sidewalk sweeps much more broadly than it truly does

. The proposition’s misleading use of “anyone , ” without qualification, “ affirmatively misrepresent[s] the measure’s character and purpose or its chief features.” Dacus , 466 S.W.3d at 826. At a minimum, the word “anyone” must be struck from the proposition so that voters are not misled about what their vote for or against the ordinance means. Similarly, the proposition states that the ordinance create s criminal liability “for anyone camping in any public area not designated by the Parks and Recreation Department.” Again, the use of the word “anyone” is misleading ly broad . Th e proposed ordinance reimposes a previous city ban on camping under section 9

- 4

- 11 of the Code , but that section retains a significant8 exception . The exception prohibits a law enforcement officer from citing a person for illegal camping before making a re asonable effort to “ (1) advise the person of a lawful alternative place to camp; (2) advise the person, to the best of the law enforcement officer’s knowledge, of available shelter or housing; and (3) contact, if reasonable and appropriate, a city designee who has the authority t o offer to transport the person or provide the person with services.” Thus, not “anyone” who camps in a public area not expressly designated for camping is subject to a penalty

. T he City Council must omit the second use of the word “anyone” from the prop osition to avoid misleading the voters

. The City argues that the proposition’s use of “anyone” is accurate because, despite the ordinance’s many exceptions , anyone who sits or lies down on a sidewalk or impermissibly camps “remains criminally exposed” and “[i]t would be up to those charged to invoke the exception.”
We are not convinced. Subsection F states that the prohibition on sitting or lying down on the sidewalk “does not apply” in the six circumstances provided . Unlike subsection G, which expressly recognizes “an affirmative defense” for a person with a disability, subsection F does not suggest that it would be up to those charged to invoke its exception s
. In any event, whether or not the ordinance’s many exceptions are characterized as affirmative defenses as a matter of criminal procedure, it is not accurate to say the “character and purpose” of the proposed ordinance is to penalize conduct that falls within an exception. Quite the opposite. The “character and purpos e” of the ordinance is to criminalize prohibited conduct that does not fall under an exception and to avoid criminalizing conduct that does fall under an exception. The proposition’s use, in both instances, of the word “anyone” serves no constructive purp ose and creates a false impression that9 the proposed ordinance sweeps more broadly than it truly does. Inclu ding the word “anyone” as directed by the Council results in a proposition that fails to “ capture the measure’s essence .”
Dacus , 466 S.W.3d at 825. The word must be deleted, in both instances, so that the proposition does not impermissibly mislead voters.
III. Conclusion For the foregoing reasons , and without hearing oral argument, see T EX
. R. A PP
. P. 52.8(c) , we conditionally grant mandamus relief directing the City Council to delete from the ballot proposition both uses of the word “any one
. ” We are confident the City Council will comply, and the writ will issue only if it does not.

__________________________________ James D. Blacklock Justice

OPINION DELIVERED: March 2, 20 21