Kissam v. Williamson

• Decision Date: 16 December 1976
• Docket Number: No. 1032,1032
• Citation: 545 S.W.2d 265
• Court: Texas Court of Appeals
• Parties: W. L. KISSAM et al., Relators, v. Billy WILLIAMSON, County Judge, Respondent.

Page 265

545 S.W.2d 265

W. L. KISSAM et al., Relators, v. Billy WILLIAMSON, County Judge, Respondent.

No. 1032.

Court of Civil Appeals of Texas,

Tyler.

Dec. 16, 1976.

J. Byron Saunders, Saunders, Caldwell & Schmidt, Tyler, for relators.

Mary Endres, Asst. Dist. Atty., Tyler, for respondent.

PER CURIAM.

This is an original proceeding for mandamus. Relators, W. L. Kissam, on behalf of himself individually and others similarly situated, moved for and was granted leave to file a petition seeking a writ of mandamus commanding Honorable Billy Williamson, County Judge of Smith County, Respondent, to rule on Relators' petition to call an election to incorporate a town to be known as 'Jackson Heights' in Smith County, Texas.

By verified pleadings, Relators alleged that on September 12, 1975, they filed a petition with the County Clerk of Smith County requesting the County Judge to call an election to incorporate the area known as 'Jackson Heights' under the authority conferred on the County Judge by Tex.Rev.Civ.Stat.Ann. arts. 1133--1136 (1925). They alleged that the said petition was duly signed by 78 residents and qualified voters of the area sought to be incorporated and was accompanied by a list containing the names of more than 200 persons residing in the area, as well as a legal description of the area and a plat showing the area to be incorporated in compliance with the statutes. In response to the petition the County Judge of Smith County held a hearing on November 12, 1975, at which time relators presented evidence in support of the petition. At the conclusion of the hearing, the County Judge announced that he would take the matter under advisement. Relators allege that shortly thereafter the County Judge summoned counsel for Relators and opposing counsel to his office and announced to them that he would neither call nor refuse to call the election, but that he would keep the matter under advisement for a 'long time.'

In response to Relators' petition for mandamus, Respondent alleged that under Articles 1133--36, supra, he was authorized to make a prerequisite determination, independent of the proof submitted, as to whether or not there were the required number of inhabitants residing in the proposed area to be incorporated. He alleged that he had exercised his discretion in determining that the number in the area was below the 200 inhabitants required by the statute. No contention is made that the petition or the proof submitted by Relators did not comply with the statutory requirement, and nowhere in his answer does Respondent challenge Relators' allegation that no order has been entered either granting or denying the petition for incorporation. The unchallenged averments are accepted as true. Hidalgo County Water Improvement Dist. No. 2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593, 596 (1957); DeLeon v. Periman, 530 S.W.2d 174, 175 (Tex.Civ.App.--Amarillo 1975, no writ).

By statute the legislature has selected and delegated to the County Judge the authority to set in motion the election procedure to incorporate a town or city or to deny it. Tex.Rev.Civ.Stat.Ann. arts. 1133, 1134 & 1136 (1925). The narrow question presented, therefore, is whether a writ of mandamus will issue to a County Judge to compel the performance of a purely ministerial act of ruling one way or another on Relators' request for an order calling an election to incorporate.

In proceedings of this character, a Court of Civil Appeals has jurisdiction to compel the judges of the County Courts 'to proceed to trial and judgment in a cause,' and in a proper case may direct the character of judgment to be entered....