Supreme Court of Texas

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No. 23-0595

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In re David Rogers, Jennifer Pakenham, and Kristi Powell,

Relators

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On Petition for Writ of Mandamus

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PER CURIAM

Qualified voters petitioned the local Board of an emergency 

services district for a ballot proposition at the next available election to 

alter the sales tax rates within the district. The Board, believing the 

petition to be legally deficient, refused to place it on the ballot. Relators, 

three signatories of the petition, seek a writ of mandamus compelling 

the Board to determine whether the petition contains the statutorily 

required number of signatures or, alternatively, ordering the Board to 

call an election on the petition. Because we conclude that the Board has

a ministerial duty to determine whether the petition contains the 

required number of signatures for placement on the ballot, we 

conditionally grant the writ.

I

Emergency services districts are political subdivisions that 

provide emergency services to residents within the district’s boundaries. 
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See TEX. HEALTH & SAFETY CODE § 775.031. They are created when 

requested and approved by the voters of a county (or counties) in which 

the district is to be located. See id. §§ 775.011-.026. Each such district 

is overseen by a five-member board of emergency services 

commissioners. See id. §§ 775.034-.036.

An emergency services district may impose a sales and use tax to 

raise revenue. Id. § 775.0751(a). Once a tax rate is established, an 

election is required to change or abolish it. Id. The board may call for 

such an election by adopting a resolution. Id. § 775.0752(b). 

Alternatively, the district’s voters can petition for an election. 

Section 775.0752 states that “[t]he board shall call an election if a 

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

the number of registered voters in the district petitions the board to call 

the election.” Id. (emphasis added).

Once an election is called, it is generally governed by the same 

provisions that govern elections to adopt or abolish county sales taxes. 

Id. § 775.0752(a) (citing TEX. TAX CODE §§ 323.401-.408). In addition, 

Section 775.0752 specifies the required ballot language, depending on 

the type of action sought. Those provisions state:

(c) At an election to adopt the tax, the ballot shall be 

prepared to permit voting for or against the proposition: 

“The adoption of a local sales and use tax in (name of 

district) at the rate of (proposed tax rate) percent.”

(d) At an election to abolish the tax, the ballot shall be 

prepared to permit voting for or against the proposition: 

“The abolition of the local sales and use tax in (name of 

district).”

(e) At an election to change the rate of the tax, the ballot 

shall be prepared to permit voting for or against the 
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proposition: “The (increase or decrease, as applicable) in 

the rate of the local sales and use tax imposed by (name of 

district) from (tax rate on election date) percent to 

(proposed tax rate) percent.”

Id. § 775.0752(c)-(e).

In the fall of 2022, voters in Travis County Emergency Services 

District No. 2 began circulating a petition to change the sales and use 

tax rates in their District. The District includes the City of Pflugerville 

and some surrounding areas. The District currently imposes a 

1.0 percent sales tax rate in some parts of the District but a 0.5 percent

sales tax rate in other parts. The petition called for an election to change 

the tax rates as follows:

This is a petition for “The decrease in the rate of the local 

sales and use tax imposed by Travis County Emergency 

Services District #2 from 0.5 percent to 0 percent in the 

City of Pflugerville, and 1.0 percent to 0.5 percent in those 

areas of the District subject to 1.0 percent taxation.”

The petition includes 5,752 signatures, or around 6.5 percent of 

the registered voters in the District, which is greater than the 5 percent

threshold the statute requires. Id. § 775.0752(b). Yet the District’s 

Board rejected the petition during a public meeting, claiming it was

“legally insufficient.” Though it gave no explanation at the time, the 

Board now claims the petition is deficient in at least two ways: (1) it 

combines two separate propositions into one, which would contradict the 

mandatory ballot language set forth in Section 775.0752, and (2) it 

misleads voters by calling for a “decrease” to a zero percent tax rate 
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instead of an “abolishment” of the tax.1 The Board has never contended 

any of the petition signatures is invalid for any reason.

Relators here are three of the petition signatories: David Rogers, 

Jennifer Pakenham, and Kristi Powell. They originally sued in 

February 2023 in district court, seeking a writ of mandamus directing 

the Board to hold an election no later than November 2023. During 

discovery, relators filed a petition for writ of mandamus in May 2023 in 

the court of appeals. The court of appeals denied relief without 

substantive opinion. ___ S.W.3d ___, 2023 WL 4748846 (Tex. App.—

Austin July 25, 2023). Thereafter, relators filed their mandamus 

petition in this Court and then nonsuited their claims in the district

court.

II

Before examining the merits, we address the Board’s argument 

that the Court lacks jurisdiction to grant mandamus relief against the 

Board, which is the only named respondent. As a political subdivision 

of the State, see TEX. HEALTH & SAFETY CODE § 775.031(a), an 

emergency services district is entitled to governmental immunity, which 

operates like sovereign immunity. See generally Wichita Falls State 

Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003) (discussing this 

concept); see also Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 

2004) (“Governmental immunity operates like sovereign immunity to 

afford similar protection to subdivisions of the State, including counties, 

cities, and school districts.”); El Paso County v. El Paso Cnty. Emergency 

1 We express no opinion on the merits or validity of these claims.
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Servs. Dist. No. 1, 622 S.W.3d 25, 38 (Tex. App.—El Paso 2020, no pet.) 

(“A county’s immunity is derived from the state’s sovereign immunity 

because it is a unit of state government, but its immunity is referred to 

as ‘governmental immunity.’”). The Board, as the governing entity of 

the District, also retains immunity. See Rosenberg Dev. Corp. v. 

Imperial Performing Arts, Inc., 571 S.W.3d 738, 749 (Tex. 2019).

But governmental immunity can be waived, of course. See City of 

LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995) (“A city is immune 

from liability for its governmental actions, unless that immunity is 

waived.”); Oncor Elec. Delivery Co. v. Dall. Area Rapid Transit, 369 

S.W.3d 845, 849 (Tex. 2012) (“[A] waiver of governmental immunity 

must be clear and unambiguous.”). And Section 273.061 of the Election 

Code waives any claim to immunity from mandamus relief by 

authorizing this Court or a court of appeals to compel the performance 

of a duty in connection with an election: “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 . . . regardless of whether the person responsible for performing 

the duty is a public officer.” TEX. ELEC. CODE § 273.061(a). Here, 

relators seek to compel performance of a duty that the Health and Safety 

Code expressly assigns to the “board” of an emergency services district. 

See TEX. HEALTH & SAFETY CODE § 775.0752(b) (“The board shall call an 

election if a number of qualified voters of the district equal to at least 

five percent of the number of registered voters in the district petitions 

the board to call the election.” (emphasis added)). By authorizing the 

Court to issue mandamus relief to compel the performance of that duty, 
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which the Legislature expressly assigned to the Board, the Legislature 

waived the Board’s immunity from relators’ claim for relief.

The Board responds that Election Code Section 273.061

authorizes mandamus relief in connection with an election only if the 

respondent is an individual. First, the Board reads Section 273.061’s 

reference to the “person” responsible for performing a duty as a limiter 

and, on that basis, argues that the statute authorizes mandamus relief 

against individuals who comprise the board but not the Board itself. 

Second, the Board points out that although the Government Code 

defines “person” to include a “government or governmental subdivision 

or agency,” TEX. GOV’T CODE § 311.005(2), it also states that “the use of 

‘person,’ as defined by Section 311.005 to include governmental entities, 

does not indicate legislative intent to waive sovereign immunity unless 

the context of the statute indicates no other reasonable construction,” 

id. § 311.034.

Given that the Legislature has expressly required identified 

individuals as well as entities (such as the board of an emergency 

services district) to carry out certain duties in connection with elections, 

we conclude that the only reasonable construction of Section 273.061 is 

that the Legislature intended a “person” against whom mandamus relief 

is available to include an entity like the Board. The Board’s proposed 

alternate reading would condition availability of mandamus relief on the 

composition or structure of the governing body that failed to carry out 

an election-related duty—a clear contravention of the Legislature’s 

stated intent that this Court “issue a writ of mandamus to compel the 

performance of any duty imposed by law in connection with the holding 
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of an election.” TEX. ELEC. CODE § 273.061(a) (emphasis added). 

Consistent with this reasoning, this Court and others have granted 

conditional mandamus relief under Section 273.061 to compel a body 

comprised of multiple individuals to perform an election-related duty as 

required by statute or ordinance. See, e.g., In re Durnin, 619 S.W.3d 

250, 255 (Tex. 2021) (conditionally granting mandamus relief directing 

the Austin City Council to delete language from a ballot proposition); In 

re Petricek, 629 S.W.3d 913, 921 (Tex. 2021) (conditionally granting 

mandamus relief directing “the Austin City Council” to revise ballot 

language of a citizen-initiated ordinance); In re Williams, 470 S.W.3d 

819, 823 (Tex. 2015) (conditionally granting mandamus relief directing 

the Houston City Council to revise ballot language in accordance with 

the Houston City Charter); see also In re Reed, No. 02-22-00113-CV, 

2022 WL 1405520, at *9 (Tex. App.—Dallas May 4, 2022, orig. 

proceeding) (conditionally granting mandamus relief and ordering “the 

[Burleson Independent School] District to conduct a special election”); 

In re Neil, No. 09-13-00144-CV, 2013 WL 3929230, at *1 (Tex. App.—

Beaumont Mar. 28, 2013, orig. proceeding) (granting mandamus relief 

and ordering the Beaumont Independent School District to accept a 

candidate’s application for election); In re Link, 45 S.W.3d 149, 156 (Tex. 

App.—Tyler 2000, orig. proceeding) (granting mandamus relief and 

ordering the Anderson County Commissioners Court to hold an election 

on a citizen-initiated petition). We conclude that we have jurisdiction to 

do the same here.
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III

Turning to the merits, relators contend that the Board’s decision 

to reject their petition as “legally insufficient” was improper because the 

Board has a ministerial, nondiscretionary duty to call an election based 

on a petition with the statutorily required number of signatures. We 

agree. The Board, once it has determined that a petition has a valid 

number of signatures, must place the petition on the ballot.

Section 775.0752(b) of the Health and Safety Code states that the 

board “shall” call an election if an appropriate number of qualified voters 

petition the board to call the election. The plain meaning of this 

statutory text—and, in particular, the use of “shall”—reflects that the 

Board has no discretion to deny a petition calling for an election if it 

contains the requisite signatures. See TEX. GOV’T CODE § 311.016(2)

(stating that the statutory language of “‘[s]hall’ imposes a duty”); see also 

In re Caballero, 272 S.W.3d 595, 599 (Tex. 2008) (applying the 

Government Code’s definition of “shall”). But, as the statute makes 

clear, the duty to call the election arises only if the petition includes the 

requisite signatures. While there may be some discretion to be exercised 

in making that preliminary determination, once it is determined that 

the requisite signatures were included, the mandatory duty to call the 

election arises, leaving no room for the exercise of any discretion.

In this sense, this case resembles Schroeder v. Escalera Ranch 

Owners’ Ass’n, in which we concluded a city zoning and planning 

commission had a nondiscretionary duty to approve a plat once it had

been established that the plat met the applicable regulations. 646 

S.W.3d 329, 332 (Tex. 2022) (“‘[P]lat approval is a discretionary function 
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that only a governmental unit can perform.’ But once the relevant 

governmental unit determines that a plat conforms to applicable 

regulations, it has a ministerial duty to approve that plat.” (footnote 

omitted) (quoting City of Round Rock v. Smith, 687 S.W.2d 300, 303 

(Tex. 1985))). Likewise, here, once the Board determines that the 

petition has been signed by the requisite number of qualified voters, it 

has a nondiscretionary duty to call an election and place the petition on 

the ballot.

The Board raises the specter of being forced to place a legally 

defective petition on the ballot. It argues that Texas law mandates that 

any changes in tax rates must be “in increments of one-eighth of one 

percent,” TEX. HEALTH & SAFETY CODE § 775.0751(a), whereas relators’ 

proposal would lower the tax rate by a greater increment. The Board 

also argues that the wording of relators’ petition does not match the 

mandatory ballot language to be used in an election to “abolish” the tax, 

which is what the Board contends relators’ proposal would do, at least 

in part.

Neither argument justifies the Board’s refusal to perform its 

ministerial duty. Indeed, consistent with the statutory mandate that an 

election “shall” be called if sufficient signatures are presented, our 

precedents reflect a strong preference in favor of holding elections on 

qualified ballot measures even where there is some question about 

whether the measure, if passed, would be subject to valid legal 

challenge. In re Morris, for example, notes that the City Council had a 

“statutory duty to place the proposition on the ballot at the earliest 

available election . . . even in the face of colorable arguments that the 
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proposition under consideration was constitutionally infirm.” 663 

S.W.3d 589, 597 (Tex. 2023); see also Coalson v. City Council of Victoria, 

610 S.W.2d 744, 747 (Tex. 1980) (noting that complaints about whether 

a proposed charter amendment would be invalid were premature until 

after the election because the proposed amendment could be rejected).

Beyond that, the Board may have discretion to adjust the details 

of the proposed ballot-measure language if necessary to produce an 

accurately worded ballot measure. See Durnin, 619 S.W.3d at 253 

(“‘[M]unicipalities generally have broad discretion in wording 

propositions.’ Ballot language ‘must capture the measure’s essence,’ but 

‘neither the entire measure nor its every detail need be on the ballot.’” 

(citation omitted) (quoting Dacus v. Parker, 466 S.W.3d 820, 825, 826 

(Tex. 2015))). In other words, the Board may choose to place on the 

ballot language that it determines, in its discretion, hews more closely 

than relators’ proposed measure to the language prescribed by

Sections 775.0752(c)-(e).2 What the Board lacks discretion to do is 

conduct its own unauthorized legal analysis to keep an otherwise 

qualified petition off the ballot entirely.

IV

Finally, we hold that mandamus relief is an appropriate remedy. 

Mandamus relief is an “extraordinary remedy,” In re USAA Gen. Indem. 

Co., 624 S.W.3d 782, 787 (Tex. 2021), which we issue “only to correct a 

2 In this instance, any discretion to change the ballot language arises

from Section 775.0752’s mandatory requirements. We reiterate that ballot 

language for an initiative not subject to such a statute and otherwise 

complying with the law should not materially differ from the language in the

petition. See, e.g., Petricek, 629 S.W.3d at 916.
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clear abuse of discretion or the violation of a duty imposed by law when 

there is no other adequate remedy by law.” Walker v. Packer, 827 

S.W.2d 833, 839 (Tex. 1992) (quoting Johnson v. Fourth Ct. of Appeals, 

700 S.W.2d 916, 917 (Tex. 1985)).

The Board protests that mandamus is not appropriate because 

factual questions remain. See Brady v. Fourteenth Ct. of Appeals, 795 

S.W.2d 712, 714 (Tex. 1990) (“It is well established Texas law that an

appellate court may not deal with disputed areas of fact in an original 

mandamus proceeding.”). The only factual question that could possibly 

be in dispute is the validity of the signatures. But, as noted, the Board 

has never challenged the qualifications or validity of any of the 5,752 

signatures.

The Board also contests the necessity of mandamus because, it 

contends, the issue is not urgent and relators would therefore have an 

adequate remedy on appeal had they continued to pursue their claims 

in district court. The Election Code unquestionably authorizes appellate 

courts to grant mandamus relief to compel the performance of an 

election-related duty. TEX. ELEC. CODE § 273.061(a). In the context of 

election disputes, we have held there is no adequate remedy by appeal 

if “the appellate process will not resolve the case in time for the 

referendum to be placed on the [next] ballot.” In re Woodfill, 470 S.W.3d 

473, 480 (Tex. 2015). Relators’ urgency to have the measure placed on 

the ballot is not negated by the fact that they originally pursued their 

claims in district court or that their original petition requested a 

November 2023 election. See In re Khanoyan, 637 S.W.3d 762, 766 (Tex. 

2022) (“[I]f the urgency makes proceeding in a district court 
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impracticable, a litigant with statutory authority to do so may file an 

original mandamus petition in an appellate court . . . .”).

V

For the foregoing reasons, without hearing oral argument, see 

TEX. R. APP. P. 52.8(c), we conditionally grant mandamus relief. We 

direct the Board for Travis County Emergency Services District No. 2 to 

determine and announce whether relators’ petition contains the 

signatures of qualified voters equal to at least five percent of the 

registered voters in the District and, if so, to call an election in 

accordance with Health and Safety Code Section 775.0752. We are 

confident the Board will comply, and our writ will issue only if it does 

not.

OPINION DELIVERED: May 24, 2024