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 274th Judicial District Court of Hays County, Texas 

Honorable R. Bruce Boyer, Judge Presiding 

Trial Court Cause Number 15-1266

RESPONSE BRIEF OF APPELLEES 

COMMUNITIES FOR THRIVING WATER – FLOURIDE-FREE SAN 

MARCOS, MORGAN KNECHT, and KATHLEEN O’CONNELL

Brad Rockwell Craig Young 

State Bar No. 17129600 State Bar No 00786367 

FREDERICK, PERALES, 108 San Antonio 

ALLMON & ROCKWELL, P.C. San Marcos, Texas 78666 

707 Rio Grande, Suite 200 (512) 847-7809

Austin, Texas 78701 (512) 353-1219 facsimilie 

Telephone (512) 469-6000 cyoung@lawyer.com 

Facsimile (512) 482-9346

COUNSEL FOR COUNSEL FOR MORGAN 

KATHLEEN O’CONNELL, KNECHT 

and COMMUNITIES 

FOR THRIVING WATER 

– FLUORIDE-FREE SAN MARCOS 

October 20, 2015 

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

03-15-00518-CV

7481510

THIRD COURT OF APPEALS

AUSTIN, TEXAS

10/21/2015 3:55:10 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/21/2015 3:55:10 PM JEFFREY D. KYLE Clerk
i

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 Young

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) 393- 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.com
ii

TABLE OF CONTENTS

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

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

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

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

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

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

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

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

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

I. THE MANDAMUS CLAIMS ARE MOOT SO THE COURT OF 

APPEALS HAS NO JURISDICTION OVER THIS APPEAL OF 

THE APPELLANT’S PLEA TO THE JURISDICTION........................4

II. TRIAL COURTS HAVE CONCURRENT JURISDICTION WITH 

APPELLATE COURTS OVER MANDAMUS PROCEEDINGS.........6

III. MANDAMUS PROCEEDINGS MAY BE BROUGHT AGAINST 

THE CITY OF SAN MARCOS ..............................................................6

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

INDEX OF AUTHORITIES

Cases

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

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

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

writ).......................................................................................................................8

City of Corpus Christi v. Unitarian Church of Corpus Christi, 436 S.W.2d 923 

(Tex. Civ. App.—Corpus Christi 1969, writ ref’d n.r.e.).....................................8

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

denied)...................................................................................................................8

City of San Antonio v. Routledge, 102 S.W. 756 (Tex. Civ. App. 1907, writ 

ref’d) .....................................................................................................................8

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

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

2006, pet. denied)..................................................................................................5

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

pet.) .......................................................................................................................5

Olenick v. City of Austin, No. 03–14–00339–CV, 2015 WL 4077245 (Tex. 

App.—Austin 2015, no pet. h.).............................................................................8

Orr v. University of Texas at Austin, No. 03–14–00299–CV, 2015 WL 5666200 

(Tex. App.—Austin 2015, no pet. h.)...................................................................5

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

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

writ).......................................................................................................................5

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

Statutes

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

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

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

STATEMENT OF THE CASE

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

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

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

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

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

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

STATEMENT REGARDING ORAL ARGUMENT

Appellees do not believe oral argument is necessary as the jurisdictional 

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

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

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

provided an opportunity to present oral argument. 
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 relief moot thereby warranting dismissal of this 

interlocutory appeal?

2. Do trial courts have non-exclusive original jurisdiction over mandamus 

proceedings concerning the placement of measures on election ballots? 

3. Can a writ of mandamus issue against a municipal defendant, ordering that 

city to place a measure on the ballot, when no individual public official is 

named as a defendant in the mandamus proceeding?
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 may be counted.” CR 62. 

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

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

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

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

CR 62. 

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

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

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

63. 

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

fees, injunctive relief and a petition for mandamus relief. CR 20. Appellees also 
2

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

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

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

summary judgment hearing. 

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

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

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

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

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

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

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

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

District Court. 

Appellees and Shannon Dorn sought relief from the Texas Supreme Court 

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

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

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

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

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

giving the City Council of San Marcos an opportunity to place the measure on the 
3

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

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

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

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

Appellees. Appendix C.

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

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

and place the measure on the ballot. 

SUMMARY OF THE ARGUMENT

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

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

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

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

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

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

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

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

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

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

appeal, the district court’s denial of the City’s Plea to the Jurisdiction should be 
4

affirmed because trial courts have original jurisdiction over mandamus proceedings 

in election disputes and because pursuant to the longstanding common law 

governing the right to mandamus and pursuant to statutory duties and 

responsibilities imposed on municipalities with regard to charter amendment 

petitions, municipalities are proper defendants in such mandamus proceedings. 

ARGUMENT

I. THE MANDAMUS CLAIMS ARE MOOT, SO THE COURT OF 

APPEALS HAS NO JURISDICTION OVER THIS APPEAL OF THE 

APPELLANT’S PLEA TO THE JURISDICTION.

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

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

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

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

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

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

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

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

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

jurisdiction over this interlocutory appeal. 

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

be issued in time for election officials to comply with the statutory deadlines for 
5

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

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

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

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

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

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

this appeal should be dismissed. 

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

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

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

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

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

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

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

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

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

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

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

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

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

over Appellees’ claims for mandamus relief. 

The Texas Supreme Court has consistently recognized the right to bring 

original mandamus proceedings in district court against a governmental entity or 

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

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

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

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

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

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

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

arbitrarily.” Id. (citations omitted). 

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

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

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

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

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

mandamus proceeding to compel public officials to put something on the ballot 
7

may start in district court” and “may also originate in the appellate courts.” In re 

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

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

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

City’s Plea to the Jurisdiction be affirmed. 

III. MANDAMUS PROCEEDINGS MAY BE BROUGHT AGAINST THE

CITY OF SAN MARCOS.

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

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

in its suit for a writ of mandamus. 

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

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

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

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

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

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

can be defendants in a claim for mandamus relief. 

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

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

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

mayor ... and the city of Seven Points ‘to perform all legal requirements for the 
8

holding of a valid election’”); City of Corpus Christi v. Unitarian Church of 

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

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

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

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

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

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

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

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

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

mandamus). 

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

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

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

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

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

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

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

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

in response to Appellees’ submission of a signed petition. 
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. Loc. Gov’t Code § 9.004(a). Appellees’ suit for mandamus relief was 

properly directed to the City. 

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

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

City’s Plea to the Jurisdiction be affirmed. 

PRAYER

Appellees Kathleen O’Connell, Communities for Thriving Water – FluorideFree San Marcos, and Morgan Knecht ask the Court to dismiss as moot the City of 

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

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

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

be affirmed. 

Respectfully submitted,

/s/ Brad Rockwell 

Brad Rockwell

SBT No. 17129600

FREDERICK, PERALES, ALLMON 

& ROCKWELL, P.C.
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

MARCOS, and KATHLEEN 

O’CONNELL

/s/ Craig Young 

Craig Young

SBT No 00786367

108 San Antonio

San Marcos, Texas 78666

(512) 847-7809

(512) 353-1219 facsimile

COUNSEL FOR MORGAN 

KNECHT
11

CERTIFICATE OF COMPLIANCE

I certify that this document is in compliance with Tex. R. App. P. 9.4 (e) and 

(i). It contains 2,054 words excluding the exempted parts of the document. The 

body text is in 14 point font, and the footnote text is in 12 point font.

CERTIFICATE OF SERVICE

By my signature, below, I certify that on October 20, 2015, a true and correct copy 

of the foregoing document was served upon the parties below by email. 

/s/ Brad Rockwell 

Brad Rockwell

FOR THE CITY OF SAN MARCOS:

WILLIAM M. McKAMIE

941 Proton Rd.

San Antonio, Texas 78258

210.546.2122

210.546.2130 (Fax)

mick@mckamiekrueger.com

Michael J. Cosentino

San Marcos City Attorney

630 East Hopkins

San Marcos, Texas 78666

(512) 393- 8151

(855) 759- 2846 fascimile

mcosentino@sanmarcostx.gov

FOR SAM BRANNON:

Lynn Peach

174 S. Guadalupe Street, No. 101

(512) 393-9991

(888) 428-0468 facsimile

lynn@lynnpeachlaw.com
APPENDIX A

JUDGE BOYER LETTER


APPENDIX B

EMERGENCY PETITION FOR WRIT 

OF MANDAMUS
i

No. ______________

IN THE SUPREME COURT 

OF THE STATE OF TEXAS

In re Shannon Dorn et al.

Original Proceeding pursuant to Election Code § 273.061

EMERGENCY PETITION FOR WRIT OF MANDAMUS

OF SHANNON DORN, KATHLEEN O’CONNELL, 

COMMUNITIES FOR THRIVING WATERS – FLOURIDE-FREE SAN 

MARCOS, AND MORGAN KNECHT

EXPEDITED CONSIDERATION REQUESTED

Brad Rockwell

State Bar No. 17129600

FREDERICK, PERALES,

ALLMON & ROCKWELL, P.C.

707 Rio Grande, Suite 200

Austin, Texas 78701

Telephone (512) 469-6000

Facsimile (512) 482-9346

ATTORNEYS FOR RELATORS 

SHANNON DORN, KATHLEEN 

O’CONNELL, and COMMUNITIES 

FOR THRIVING WATERS –

FLUORIDE-FREE SAN MARCOS.
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, 2015
iii

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 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

Relator Morgan Knecht

Craig Young

108 San Antonio

San Marcos, Texas 78666

(512) 847-7809

(512) 353-1219 facsimile

cyoung@lawyer.com

Respondent Mayor Daniel Guerrero Michael J. Cosentino

City Attorney

City of San Marcos

630 E. Hopkins 

San Marcos, TX 78666

(512) 393- 8151

(855) 759- 2846 facsimile

mcosentino@sanmarcostx.gov

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 Marcos
iv

630 E. Hopkins 

San Marcos, TX 78666

(512) 393- 8151

(855) 759- 2846 facsimile

mcosentino@sanmarcostx.gov
v

TABLE OF CONTENTS

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

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

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

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

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

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

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

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

II. The San Marcos City Charter Does Not Require an Oath or 

 Affirmation in Charter Amendment Petitions.............................. 6

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

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

 Here................... .................................................................... 11

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

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

INDEX OF AUTHORITIES

Cases

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

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

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

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

pet. denied).................................................................................................... 11

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

dism’d )............................................................................................................6

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

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

ref’d n.r.e.) .................................................................................................... 12

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

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

Withers v. Commissioners Court of Bandera County, 75 S.W.3d 528, 530-531 

(Tex. App. – San Antonio 2002, orig. proceeding).........................................9

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

Statutes

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

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

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

ELECTION CODE § 277.002.....................................................x, 3, 7
vii

ELECTION CODE § 277.021..........................................................3

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

Constitutions

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

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

Other

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

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

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

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

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

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

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

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

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

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

submitted for the petition for the City Charter Amendment. 

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

Marcos seeking declaratory relief and attorneys fees against Relators

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

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

Relators who were defendants in that lawsuit counterclaimed for mandamus, 
ix

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

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

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

all but one of the Relators here, ordering 

the City of San Marcos, through its appropriate official, to review the 

submitted petition to ascertain if it contains the original signatures of 

the percentage of qualified voters required by Section 9.004(a) of the 

Local Government Code. The Codes do not require or prescribe a 

particular form of verification or affirmation, only that the signatures 

not be copies or reproductions. 

If the petition qualifies, the City of San Marcos shall be required to 

follow the ministerial duty of calling for an election on the issues.

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

the Jurisdiction.

1

 San Marcos then immediately filed an interlocutory 

appeal which stayed all proceedings in the District Court.2

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

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

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

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

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

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

November 3, 2015. 

 

1

 Exhibit 2 to Record.

2

 Exhibit 3 to Record.
x

STATEMENT OF JURISDICTION

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

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

supreme court or a court of appeals may issue a writ of mandamus to compel the 

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

election or a political party convention, regardless of whether the person 

responsible for performing the duty is a public officer.” 

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

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

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

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

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

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

ISSUES PRESENTED

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

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

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

2015? 
xi

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

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

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

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

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

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

amendment to determine whether these qualified voters equal at least five 

percent of the number of qualified voters of the municipality? 

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

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

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

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

measure after August 24, 2015?
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 specifically rejected all of the arguments advanced by Respondent City of 

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

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

thereby staying the District Court proceedings. 

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

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

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

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

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

procedural maneuvers of Respondents. 

.
2

STATEMENT OF FACTS

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

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

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

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

Marcos and a qualified voter.

3

 The petition sought an election on the amendment 

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

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

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

proposed by the Petition reads:

The City of San Marcos ... shall not fluoridate the public 

water supply or accept any fluoridated water for use in the 

San Marcos water system, including but not limited to the 

addition of Hydrofluorosilicic Acid, Hexafluorosilicic Acid, 

Sodium Silicofluoride, or any other fluoride derivative. The 

City of San Marcos shall not purchase, install, or allow the 

installation of fluoridation equipment to be used in relation to 

the San Marcos municipal water supply or its distribution 

system.4

Before submitting the petition, Relators conducted three verifications of the 

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

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

 

3

 Exhibit 4 to Record & exhibit B to Exhibit 4.

4

 Id.
3

voters.5 Respondent Pettijohn informed Relators that the requisite number of 

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

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

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

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

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

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

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

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

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

number of signatures by qualified voters pursuant to Local Government Code 

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

measure on the ballot.

8

 In response, the City of San Marcos filed suit against 

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

attorneys fees against them.9

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

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

 

5

 Exhibit 4 to Record & Exhibit C to Exhibit 4.

6

 Exhibit 4 to Record and Exhibit B to Exhibit 4.

7

 Exhibit 18 to Record and Exhibit A to Exhibit 14.

8

 Exhibit 4 to Record and Exhibit F and G to Exhibit 4.

9

 Exhibit 10 to Record.
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 relief to 

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

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

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

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

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

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

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

 

10 Exhibit 11 to Record.

11 Exhibit 13 to Record.

12

 Exhibit 1 to Record.

13

 Exhibit 2 to Record.

14

 Exhibit 3 to Record.

15

 Exhibit 17 to Record.
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 City Council set elections on City Charter amendments 

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

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

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

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

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

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

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

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

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

is correct. 

ARGUMENT

I. Mandamus

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

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

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

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

 

16

 Exhibit 18 to the Record and exhibit B to Exhibit 18. 
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 1090.18 The City has refused

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

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

19

 

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

required by law. 

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

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

Texas Election Code section 271.083.

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

in Charter Amendment Petitions. 

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

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

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

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

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

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

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

dism’d ). 

 

17 Exhibit 4 to Record.

18

 Exhibit 4 to Record and Exhibit E to Exhibit 5.

19

 Exhibit 10 to Record.
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 Charter 

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

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

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

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

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

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

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

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

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

The state law provision regarding validity of petition signatures is 

section 277.002 of the Election Code. This section enumerates specific 

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

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

 

20

 Exhibit 7 to Record.
8

signer’s residential address, and the date of signing. No other specific requirement 

is enumerated. No circulator’s affidavit is required.

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

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

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

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

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

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

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

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

person’s presence.” 

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

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

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

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

Charter. 

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

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

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

 

21

 Exhibit 10 to Record. 
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 amendment but rather an ordinance that complies with the preexisting Charter. Section 6.02 is titled “Power of referendum.” Referendum is 

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

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

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

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

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

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

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

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

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

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

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

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

requirements of state law. 

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

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

found under state law) would violate common sense rules of construction. Cf. In 
10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Local Government Code section 9.004(d). 

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

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

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

Relators. 

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

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

requirement that it be in the charter amendment petition. 

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

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

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

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

construction as applied to Relators would be unconstitutional. Relators initially 

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

the circulator’s oath and in two previous petition drives failed to collect enough 
12

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

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

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

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

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

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

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

PRAYER

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

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

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

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

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

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

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

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

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

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

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

but not limited to injunctive relief that would extend the August 24, 2015 deadline.
13

Respectfully submitted,

/s/ Brad Rockwell 

Brad Rockwell

SBT No. 17129600

LOWERRE, FREDERICK, 

PERALES, ALLMON & 

ROCKWELL

707 Rio Grande., Ste. 200

Austin, Texas 78701

(512) 469-6000 / 482-9346 

(facsimile)

COUNSEL FOR RELATORS 

SHANNON DORN, 

COMMUNITIES FOR THRIVING 

WATERS – FLUORIDE-FREE SAN 

MARCOS, and KATHLEEN 

O’CONNELL.

Craig Young

SBT No 00786367

108 San Antonio

San Marcos, Texas 78666

(512) 847-7809

(512) 353-1219 facsimile

ATTORNEY FOR MORGAN 

KNECHT
14

CERTIFICATION

By my signature, below, I certify that I have reviewed this petition for writ 

of mandamus and concluded that every factual statement in this petition is 

supported by competent evidence included in the appendix or record.

/s/Brad Rockwell

Brad Rockwell
1

CERTIFICATE OF SERVICE

By my signature, below, I certify that on August 20, 2015, a true and correct copy 

of the foregoing document was served upon the parties below by hand delivery. 

/s/ Brad Rockwell 

Brad Rockwell

FOR THE CITY OF SAN MARCOS:

Michael J. Cosentino

San Marcos City Attorney

630 East Hopkins

San Marcos, Texas 78666

(512) 393- 8151

(855) 759- 2846 fascimile

mcosentino@sanmarcostx.gov

FOR MORGAN KNECHT:

Craig Young

108 San Antonio

San Marcos, Texas 78666

(512) 847-7809

(512) 353-1219 facsimile
APPENDIX C

SUPREME COURT DENIAL ON 

PETITION FOR WRIT OF 

MANDAMUS
IN THE SUPREME COURT OF TEXAS

444444444444

NO. 15-0632

444444444444

IN RE SHANNON DORN ET AL., RELATORS

4444444444444444444444444444444444444444444444444444

ON PETITION FOR WRIT OF MANDAMUS

4444444444444444444444444444444444444444444444444444

JUSTICE DEVINE, joined by JUSTICE LEHRMANN, dissenting from the denial of the petition

for writ of mandamus.

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

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

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

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

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

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

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

directed to review the signatures on the petition.

See TEX. ELEC. CODE § 277.001–.004.

1

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

2

See San Marcos, Charter, art. XII, § 11 (“Amendments to this Charter may be framed and submitted to the

3

voters of the city in the manner provided by state law.”).
The City claims the petition does not satisfy section 6.03 of the City’s Charter. This section,

however, pertains exclusively to petitions regarding ordinances:

Initiative petition papers shall contain the full text of the proposed legislation in the

form of an ordinance, including a descriptive caption. Referendum petition papers

shall contain a sufficient description of the ordinance sought to be referred to identify

it, or if the ordinance has been passed by the council, the full text of the ordinance

sought to be referred shall be included in such papers. Before signatures on any

petition paper may be counted, one of the signers of such petition paper, a qualified

voter, shall make oath or affirmation before the city clerk or any other officer

competent to administer oaths or affirmations, that the statements made therein are

true, that each signature to the paper appended is the genuine signature of the person

whose name purports to be signed thereto, and that such signatures were placed

thereon in that person’s presence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the statutorily-imposed requirements.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

denied any timely relief.

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

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

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

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

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

writ of mandamus.

________________________

John P. Devine

Justice

Opinion Delivered: September 4, 2015

5