Case No. 03- 15 -00518- CV
IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS City of San Marcos, Texas, Appellant

v. Sam Brannon, Communities for Thriving Water

— Fluoride-Free San Marcos, Morgan Knecht, and Kathleen O’Connell,

Appellees

________________________________________________________________ On Appeal from the 274 th 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 ACCEPTED 03-15-00518-CV 7481510 THIRD COURT OF APPEALS

AUSTIN, TEXAS 10/21/2015 3:55:10 PM JEFFREY D. KYLE

CLERKi IDENTITY OF PARTIES AND COUNSEL
Parties Name & Address of counsel

Appellees Communities for Thriving Water

– Fluoride

- Free San Marcos, and Kathleen O’Connell Brad Rockwell Frederick, Perales, Allmon & Rockwell , P.C. 707 Rio Grande, Ste. 200 Austin, TX 78701 Telephone: 512

- 469

- 6000 Facsimile: 512

- 482

- 9346 Brad@lf

- lawfirm.com

Appellee Morgan Knecht Craig Y oung 108 San Antonio San Marcos, Texas 78666 (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) 3 93

- 8151 (855) 759

- 2846 facsimile mcosentino@sanmarcostx.gov
Appellee Sam Brannon Lynn Peach 174 S. Guadalupe Street, No. 101 (512) 393

- 9991 (888) 428

- 0468 facsimile lynn@lynnpeachlaw.comii 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

. Sta tement Regarding Oral Argument

................................ ............................. vi
6

. Issues Presented

................................ ................................ ............................ vii
7

. Statement of Facts

................................ ................................ ............................ 1
8

. Summ ary 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 COUR TS OVER MANDAMUS PROCEEDINGS

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

................................ .............................. 6
10

. Prayer

................................ ................................ ................................ ............... 9iii 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.2 d 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.

— C orpus Christi 1969, writ ref’d n.r.e.)

................................ ..... 8 City of El Paso v. Abbott , 444 S.W.3d 315 (Tex. App.

— A ustin 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 449822 9 (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 , N o . 03

– 14

– 00339

– CV , 2015 WL 4077245 (Tex. App.

— Austin 2015, n o p et . 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.

— D allas 2010, no pet.)

........... 5 Texas Dept. of Health v. Hejl , 607 S.W .2d 34 (Tex. App.

— A ustin 1 980, no writ )

................................ ................................ ................................ ....................... 5 Vondy v. Commissio ners Court of Uvalde County , 62 0 S.W.2d 104 (Tex. 1981)

.... 6iv

Statutes
Te x. Election Cod e § 3.005(c)(2)

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

................................ ................................ ........................ 8
T ex. Loc. Gov’t Code § 9.004

................................ ................................ ........... 1, 4, 9v STATEMENT OF THE CASE This is an interlocutory a ppeal 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 attorne ys 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.vi STATEMENT REGARDING ORAL ARGUMENT
Appellees do not believe oral argument is necessary as the jurisdictional
issue s 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.vii 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 re lief 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 mun icipal 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?1 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 ma y 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 S ection 9.004(a) of the Texas Local Government C ode.
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 submi tted 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 also2

filed a motion for summary judgment and sought and secured an expedited hearing before Hays Co unty 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 signatu res , 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 appea l, suspending further action in the
District Court. Appellees and Shannon Dorn sought relief from the Texas Supreme Court by requesting an emergency w rit of mandamus. Appendix B. The Texas Supreme
Court denied the mandamus wit hout an opinion of the Cour t. 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 r ather than giving the City Council of San Marcos an opportunity to place the measure on the3

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 sub ject 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 jur isdiction and free itself from complying with a pe nding 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 fo r 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 be4

affirmed b ecause 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 municipalitie s with regard to charter amendment petitions, municipalities are proper defendants in such mandamus proceedings.
ARGUMENT
I. T HE MANDAMUS CLAIMS ARE MOOT , SO THE COURT OF APPEALS HAS NO JURISDICTION OVER THIS APPEAL OF THE APPELLANT’S PLEA TO THE JURISDICT ION. 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). T he statutory deadline for the City to order this election was August 2 4 , 2015. In re Woodfill , 2015 WL 4498229 *6 , n.11 (Tex. 2015) (citing Tex. Election Code § 3.005(c)(2)); CR 11

. Because this dead line 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 manda mus governing an election and the contents of a ballot cannot be issued in time for election officials to comply with the statutory deadlines for5

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 th e claim. Orr v. University of Texas at
Austin , 2 015 WL 5666200 *2 (Tex. App.

— A ustin 2015, no pet

. h.). Accordingly,

t his appeal should be dismissed. The declaratory judgment claims remaining in trial court, however, are not moot because the parties see k attorneys fees. Compare Texas Dept. of Health v. Hejl , 607 S.W.2d 34, 35

- 36 (Tex. App.

— A ustin 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.

— W aco 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 Allsta te 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 Ap pellees’ mandamus claims should be dismissed for lack of jurisdiction.6

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, App ellees 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 governm ental entity or government officials. In Vondy v. Commissio ners 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 discreti on,” 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 a nd 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 pu t something on the ballot7

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 ap peal for lack of jurisdic tion, Appellees request that the District Court order denying the City’s Plea to the Jurisdiction be affirmed.
III. MANDAMUS PROCEEDINGS MAY BE BRO UGHT AGAINST THE CITY OF SAN MARCOS . In the alternative, in the event that the Court determines it has jur isdiction 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’ m easure 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 claim s 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 the8

holding of a valid election ’ ” ); Ci ty 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 iss uance of a writ of mandamus against the City of Corpus Christi); City of Austin v. Gregory , 61 6 S.W.2d 329 (Tex. Civ. App.

— A ustin 1981, no writ) (affirming writ of mandamus against the City of Austin based on error committed by Civil Service Commission); C ity of San Antonio v. Routledge , 102 S.W. 75 8, 759 & 773 (Tex. Civ. App. 1 907, writ ref’d) (in case where only the City of San Antonio was municipal defendant, appellate court upheld part of mandamu s against the City and reversed part of mandamus).
“Texa s law authorizes mandamus relief to compel a public o fficial or body to either perform a ministerial duty or to correct a clear abuse of discretion.” Olenick v. City of Austin , 2 015 WL 4077245 *1 (Tex. App.

— A ustin 2015, no pet. h.) (emphasis add ed) . Simi lar 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

. — A ustin 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.9

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. L oc. 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 th e City’s Plea to the Jurisdiction be affirmed.
PRAYER Appellees Kathleen O’Connell, Communities for Thriving Water

– Fluoride

Free San Marcos, and Morgan Knecht as k the Court to dismiss as moot the City of San Marcos’ interlocuto ry appeal of the denial o f its Plea to the J urisdiction. 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

.10 707 Rio Grande , Ste. 200 Austin, Texas 78701 (512) 469

- 6000 (512) 482

- 9346 (facsimile)
COUNSEL FOR APPELLEES COMMUNITIES FOR THRIVING WATER

– FLUORIDE

- FREE SAN MAR COS, 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 KNECHT11 CERTIFICATE OF COMPLIANCE I certify that this document is in com pliance 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, be low, I certify tha t on October 20 , 2015 , a true and correct copy of the foregoing document was served upon th e parties below by email

. /s/ Brad Rockwell Brad Rockwell

FOR THE CITY OF SAN MARCOS:
WILLIAM M. McKAMIE 941 Proton Rd. San Antonio, Texas 7 8258 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

# APPENDIX A

JUDGE BOYER LETTER

# APPENDIX B EMERGENCY PETITION FOR WRIT

OF MANDAMUSi 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 THRIVIN G 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
ATTORNEY S FOR RELATOR S SHANNON DORN, KATHLEEN O’CONNELL, and COMMUNITIES FOR THRIVING WATERS

– FLUORIDE

- FREE SAN MARCOS.ii 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 , 2015iii IDENTITY OF PARTIES AND COUNSEL
Parties Name & Address of counsel

Relators Shannon Dorn, Communities for Thriving Waters

– Fluoride

- Free San Marcos, and Kathleen O’Connell. Brad Rockwel l Frederick, Perales, Allmon & Rockwell , P.C. 707 Rio Grande, Ste. 200 Austin, TX 78701 Telephone: 512

- 469

- 6000 Facsimile: 512

- 482

- 9346 Brad@lf

- lawfirm.com

Relator Morgan Knecht Craig Young 108 San Antonio San Marcos, Texas 78666 (512) 847

- 7809 (512) 35 3

- 1219 facsimile cyoung@lawyer.com

Re spondent Mayo r 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
Respondents Lisa Prewitt , Jude Prather, John Thomaides, Jane Hughson, Ryan Thomason, and Shane Scott 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 Respondent City Clerk Jamie Lee Pettijohn Michael J. Cosentino City Attorney City of San Marcosiv 630 E. Hopkins San Marcos, TX 78666 (512) 393

- 8151 (855) 759

- 2846 facsimile mcosentino@sanmarcostx.govv TABLE OF CONTENTS

1

. Table of Contents

................................ ................................ .................. v 2

. Index of Autho rities

................................ ................................ ............. 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 Amendme nt Petitions

.............................. 6
III. Other Requirements of State Law Have Been Met by Relators

. 11
IV

. A Circulator’s Oath Would be U nconstitutional as Applied Here

................... ................................ ................................ .... 11
8

. Prayer

................................ ................................ ................................ .. 12
9

. Certification

................................ ................................ ........................ 13vi INDEX OF AUTHORITIES
Cases
In re Bell , 91 S.W.3 rd 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 (5 th 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 449822 9 (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, 7vii

ELECTION C ODE § 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, 11vii i STATEMENT OF THE CASE By this petition for writ of mandamus, Relator s Shann on Dorn, Communities for Thriving Waters

– Fluoride

- Free San Marcos (“Communities”), Kathleen O’Connell, and Morgan Knecht seek an order pursuant to Election Code section s 273.061 and 273.081 and Local Government Code section 9.004(a) & (b) to compel Respo ndent s ( 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 pla cing 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 C ity 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 r elated 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

- 12 66 in the 22 nd Judicial District Court in Hays County. Those
Relators who were d efendants in that lawsuit counterclaimed for mandamus,ix

declaratory, and injunct ive relief, seeking identical and nearly identical relief to what is sought here. On an expedited hearing on summary judgment, Distric t 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 s ignatures 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 imme diately 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 Re cord.x STATEMENT OF JURISDICTION This Court has jurisdictio n to grant the requested relief under the Texas
Election Code section s 273.081 and 273.061 . Section 273.061 provides: “The supreme court or a co urt 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 th is 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.

ISSUE S PRESENTED
1. Does the Mayor and City Coun cil 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?xi

2. Pursuant to Local Government Code section 9.004, San Marcos Cit y 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 accompan ied 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, i s 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 Novem ber 3, 2015 election on Relators’ ballot measure after August 24, 2015?1

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 specific ally 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

s ame 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.

.2 STATEMENT OF FACTS On April 2, 2015, Relators Communities f or 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 resi dent of San Marcos and a qualified voter

. 3 Th e petition sought an election on the amend ment 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 addi tion 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 Mar cos municipal water supply or its distribution system. 4 Before submitting t he 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 pet ition were valid

– i.e. of registered San Marcos

3 Exhibit 4 to Re cord & exhibit B to Exhibit 4.
4 Id.3

voters. 5 Respondent Pettijohn informed Relators that the requisite number of signatures required under Local Governme nt Code section 9.004(a) was 109 0. 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, mandamu s, and injunctive relief asking for a declaration that no

5 Exhibit 4 to Record & Exhibit C to Exhibit 4.
6 Exhibit 4 to Reco rd 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 Reco rd.4

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 reli ef 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 Relator s 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.5

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 Ci ty 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 o n 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 pro vision 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 Char ter 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 18.6

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 109 0. 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 in terlocutory notice of appeal

re nders 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 Af firmation 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 , 6 10 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 R ecord an d Exhibit E to Exhibit 5

. 19 Exhibit 10 to Record.7

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 Charte r 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 subm ission 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 Ma rcos 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.8

signe r’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 Ma rcos and Relator Pettijohn instead have contended that the petition signatures are invalid because they are n ot accompanied by a circulators’ affidavit. 21 Specifically, San Marcos claims that section 6.03 of the City Charter governs the City Charter Amendm ent 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 th ereon 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 requirem ents involved in a Charter amendment . This is a require ment 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 a mendments at all but instead is titled “Initiative, Referendum and Recall.” Each of these terms is defi ned within Article VI. Section 6.01 is titled: “Power of initiative” a nd 6.01 defines “initiative” to be

21 Exhibit 10 to Record.9

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 a mendment 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 legisla tion 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 voter s. 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

a mendments, 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 C harter Amendment ( when no such requirement is found under state law) would violate com mon sense rules of construction. Cf. In10

re Bell , 91 S.W.3 rd 784 (Tex. 2002) ; Withers v. Commissioners Court of Bandera County , 75 S.W.3d 528, 530

- 531 (Tex. App.

– San A ntonio 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.
R espondents as a whole violated their duties under the City Charter and section 9.004(a) and (b) of the Local Government Co de, when they failed and refused to count the signatures on the petition submitted to it by Relators and when
it failed and refuse d 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 Di strict Court requiring Respondents to count the signatures and place thei r 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 C ode § 273.081; se e In re Gamble , 71 SW.3d 313, 318 (Tex. 2002);11

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 M et 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 electi on must be included within the charter amendment petition. The enactment of an ordinance setting the ele ction is a duty of Respondents, not
Relators.
And as the Dist rict Court ruled, it is Respondents who ha ve the duty to
include a fiscal note in the C harter Amendment election notice, and there is no requirement that it be in the charter amendment petition.
I V. A Circulators’ Oath Would Be Unconstitutional as Applied H ere. 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 Resp ondents’ misleading legal advice with respect to the requirement of the circulator’s oath and in two previous petition drives failed to collect enough12

signatures. The circulator’s oath therefore imposed a significant burden on Relators’ constitutional rig hts under section s 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 (5 th 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 agains t 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
Novembe r 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 Governme nt 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 relie f to which they may be entitled including but not limited to injunctive relief that would extend the August 24, 2015 deadline.13 Respectfully submitted,

/s/ Brad Rockwell Brad Rockwell SBT No. 17129600 LOWERRE, FREDERICK, PERALES, ALLMON & ROCKWELL 707 Rio Grand e., 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 7 8666 (512) 847

- 7809 (512) 353

- 1219 facsimile ATTORNEY FOR MORGAN KNECHT14 CERTIFICATION By my signature, below, I certify that I have reviewed th is petition for writ of mandamus and concluded that every factual statement in th is petition is supported by competent evidence included in the appendix or record.

/s/ Brad Rockwell Brad Rockwell1 CERTIFICATE OF SERVICE By my signature, be low, 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

# APPENDIX C

SUPREME COURT DENIAL ON PETITION FOR WRIT OF MANDAMUS

## IN THE SUPREME COURT O F TEX AS

4 4 4 4 4 4 4 4 4 4 4 4 N O
. 15-0632

4 4 4 4 4 4 4 4 4 4 4 4 I N R E S H A N N O N D O R N E T A L
. , R E L A T O R S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4

O N P E T I T I O N F O R W R I T O F M A N D A M U S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4

J U S T I C E D E V I N E , joined by J U S T I C E L E H R M A N N , dissent i n g from the denial of the petit ion for wr it of mandamus.

I would h av e gra

nted t he writ of m andamus. The Ci ty of S an Marcos di sreg arde d its own laws reg arding char

ter amendments, i gn o ri n g the leg islative prer og ative of the people throug h
citizen-initi ated petitions. This is a power protec ted by our laws, our prec edent, and the City ’s own 1 2
Charter

. Her e, the City Clerk of San Marc os ref used to revie w the signa tures on a petition calling 3
for a char ter amendment. The Cl erk reasone d that the petit ion was invalid beca use t he si g nature s

wer e not acc ompanied by any oath or aff irmation confirming their authenticity

. Be cause neither the City Charter nor Texas law imposes this requir em en t , I believe the City Clerk should have been
direc ted to revie w the sig nature s on the petition.

S e e T E X
. E L E C

. C O D E § 2 7 7

. 0 0 1

– . 0 0 4

. 1

S e e , e
. g
. , I

n r e W o o d f i l l ,

_ _ S

. W

. 3 d

_ _ ,

_ _ , 2 0 1 5 W L 4 4 9 8 2 2 9 , a t * 1 ( T e x
. 2 0 1 5 ) ( p e r c u r i a m )

. 2

S e e S a n M a r c o s , C h a r t e r , a r t

. X I I , § 1 1 ( “ A m e n d m e n t s t o t h i s C h a r t e r m a y b e f r a m e d a n d s u b m i t t e d t o t h e 3
v o t e r s o f t h e c i t y i n t h e m a n n e r p r o v i d e d b y s t a t e l a w
. ” )

.The City claims the petition does not satisfy section 6.03 of the City ’s Charter

. This section,

howeve r, per

tains exclusively

to petitions reg arding ordinances :
I nitiative petition paper s shall contain the full text of the proposed leg islation in the form of an ordinance , including a descr iptive c aption. Refer endum petition paper s shall contain a sufficie nt descr iption of the ordinance soug ht to be ref err ed to identify it, or if the ordinance has bee n passed by the counc il, the full tex t of the ordinance sough t t o b e re fer

red shall be included in such paper s. Be fore signa tures on any petition paper may be counted, one of the signe rs of such petition paper , a qualified voter, shall make oath or aff irmati o n b ef

o re t he city cler

k or any other office r competent to administer oaths or aff irmations, tha

t the statements made the rein a re true, that eac h signa ture to the paper appende d is the g enuine signa ture of the person wh o s e name purports to be signe d there to, and that such signa tures wer e plac ed there on in that person’s pr esenc e. San Marc os, Charter , art. VI , § 3 (empha sis added)

. Any require ment that signa tures on p eti tions
be verifie d applies only to c itiz en-initiated leg islation on ordinanc es. I ndeed, the Charter does not contemplate these provisions apply ing to any thing else. J ust one example: under the Charter , if an initiative pe tition ca lls for the adoption of the ordinanc e, the City may choose betwee n passing the
ordinanc e itself or submitting it to a vote. Id. art. VI , § 4(a) . I f a refe rendum pe tition calls for the
repe al of an ordinanc e, the City may either repe al the ordinanc e itself, or call an elec tion. Id. art. VI , § 4(b). But beca

use cha rt er am en dments always require an elec tion—the City cannot amend the
char ter on its own—this section obviously does not apply to char ter amendments. T E X
. E L E C
. C O D E § 9.004; San Marcos, Char ter, a rt. XI I , § 11.
W h en it comes to Charter amendments, the Charter relies solely on state l aw to define the
proper proce dure: “ Amendments to this Charter may be framed and submitt ed to the vot ers of the city in the manner provided by state law.” San Marc os, Charter , art. XI I , § 11. State law, howeve r, does not require the verific ation the City Clerk demands. “The g overning body shall submit a

2proposed char ter amendment to the voters for their approva l at an elec tion i f t h e submissi on is supported by a petition sig ned by a number of qualified vote rs of the municipality equal to a t le ast five perc ent of the number of qualified voters of the municipality

. . . .” T E X
. L O C
. G O V ’ T C O D E § 9.004(a)

. The Elec tion Code, in turn, specifies the r equire ments “[f]or a petition signature to be
valid.” T E X
. E L E C
. C O D E § 277.002. The verific ation require ment the City arg ues for is not one of the statutorily -imposed re quirements.
I n other words, state law does not impose these verifi cation require ments, and the City
Charter relies solely on state law for the char ter-a mendment proce ss. No liter al rea ding of the
Charter allows the criter ia of section 6.03 to be applied to char ter amendments. I ndeed, mere months
ag o, the Court rec og nized a distinction exis ts betwee n city char ter require ments for citizen-initi ated
char ter a mendments as opposed to ordinanc es. See D acus v. Park er , __ S.W .3d __, __, 2015 WL 3653295, at *6 (Tex. 2015) (“[A]lt houg h the Houston char ter provides no means for amending the
char ter, the Te x as L ocal Gove rnment Code does.” ).
The Court has long held that laws reg arding citizen-initi ated leg islation “should be liberally
construed in favor of the power rese rved” to the people. In re W oodfill , __ 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 differ ent. Moreove r, the Election Code disfavors local technica lities

t h at h amper the people’ s rig ht to amend their char ter: “Any require ments for the validi t y o r verific ation of petition signa tures in addition to those presc ribed by this chapte r that are presc ribed by a home- rule c ity

char ter provision or a

city ordinanc e ar e ef

fec tive only

if the cha rter pr ovision

or ordinanc e was in eff

ect September 1, 1985.” T E X
. E L E C
. C O D E § 277.004. Simpl y put, the City

3cannot amend its char ter to impose the require ments the City Clerk demands, let alone impose them
here

. Thoug h the deadline for order ing elec tions passed, see T E X
. E L E C
. C O D E § 3.005(c) ; In re W oodfill , __ S.W .3d at __ n.11, 2015 WL 4498229, at *5 n.11, the people of San Marc os wer e not without a reme dy . The City should not be able to a void its duty under the Charter —indeed, under
Texas law—mer ely beca

use it fail ed t o timely order the elec tion. I f, as the Election Code states, “[f]ailure to order a g ener al elec tion doe s not a ffe ct the validity of the elec tion,” T E X
. E L E C
. C O D E § 3.007, then neither

should a late orde r in this case.
Her e, a district court deter mined the City Clerk mu s t re v i ew the petition signa tures and perf orm her minist eria l duty

. Rather than comply , the City initiated an interlocutory appea l, assuring
that the deadline would pass befor e relief could be obtained. I would not p er m i t a ci t y to use a direc tory deadline in the Election Code in this manner to either avoid a minist eria l duty or thwart the
will of the people. When the Texas Election Code and L ocal Gover nment Code, as well as the City ’s
own C harter, re q u i re the C ity to act, the City may not hide behind the s tatutory deadline. I ndeed, “[t] he rig ht to vote is so fundame ntal in our form of go v er nment that it should be as zealously

s afe g uarde d as are our natura l rig hts,” and elec tion statutes must be interpre ted “in fa v o r o f t h at rig ht.” Thomas v. Groebl , 212 S.W .2d 625, 630 (Tex

. 1 9 4 8 ). I n W oodfill , we require d a city to comply with its duties befor e the deadline, see In re W oodfill , __ S.W .3d at __ , 2015 WL 4498229, at *1, and I

would have r equire d compliance here as we ll. Thoug h the dea dline does not remove a remedy , it does foreclose any adequate remedy by
appea l. See In re W

illiams , __ S.W .3d __, at __, 2015 WL 4931372, at *3 (Tex. 2015) (per curia m);

4In re W

oodfill , __ S.W .3d at __ , 2015 WL 4498229, at *6. Be cause we did not act, the voters wer e denied a ny timely relief

. As we have held befor e, a City ’s “refusa l to submit t he propose d amendment[] to the vot e of the people thwarts not only the leg islative mandate” of the L ocal Gover nment Code, but also “the
will of t he publi c. ” C o alson v. C ity Council of Victoria , 610 S.W .2d 744, 747 (Tex. 1980). This

case is no differ ent. I would h av e grante d the petition for mandamus relief and direc ted the City
Clerk to count the signa tures. Acc ording ly , I respe ctfully dissent from the denial of the petition for
writ of mandamus.

________________________ J ohn P. Devine J ustice Opinion Delivere d: September 4, 2015

5