Dacus v. Parker

Decision Date10 July 2012
Docket NumberNO. 14-11-00688-CV,14-11-00688-CV
PartiesALLEN MARK DACUS, ELIZABETH C. PEREZ, AND REV. ROBERT JEFFERSON, Appellants v. ANNISE D. PARKER AND CITY OF HOUSTON, Appellees
CourtTexas Court of Appeals

Affirmed and Opinion filed July 10, 2012.

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2010-81591

OPINION

In this election contest, three Houston voters contend that the language used in election ballots to describe a proposed amendment to the City's charter was misleading. They additionally assert that both the proposed amendment and the ballot language used to describe it impermissibly addressed more than one subject. The trial court granted summary judgment to the contestees, Mayor Annise D. Parker and the City of Houston, and denied the contestants' motion for new trial. We affirm.

I. TERMINOLOGY

One of the primary issues in this case is the question of whether, in submitting a proposed city-charter amendment to voters, the City used misleading language in the ballot. Because a comparison of the language used in the proposed charter amendment and the language used in the ballot is central to our review, it is important to distinguish between the two. In accordance with the Election Code, we refer to the proposed charter amendment as "the measure" and to the language used in the ballot as "the proposition." Compare TEX. ELEC. CODE ANN. § 1.005(12) (West 2010) ("'Measure' means a question or proposal submitted in an election for an expression of the voters' will.") with id. § 1.005(15) ("'Proposition' means the wording appearing on a ballot to identify a measure.").

II. FACTUAL AND PROCEDURAL BACKGROUND

Houston is a home-rule municipality, and in 2010, a petition containing a proposed amendment to the City's charter was circulated and signed by a sufficient number of qualified voters to be included on the ballot. See TEX. LOC. GOV'T CODE ANN. § 9.004(a) (West 2008). The record does not include the petition, but it does include copies of the notices publicizing the election.

The full text of the measure is as follows:

CHARTER AMENDMENT - PROPOSITION 1

[Relating to the Creation of a Dedicated Funding Source to Enhance, Improve and Renew Drainage Systems and Streets]
The City Charter of the City of Houston shall be amended by adding a new Section 22 to Article IX to read as follows:
"Section 22. Dedicated Pay-As-You-Go Fund for Drainage and Streets.
To provide for the enhancement, improvement and ongoing renewalof Houston's drainage and streets, a dedicated, pay-as-you-go fund entitled the 'Dedicated Drainage and Street Renewal Fund' shall be established, applied and funded as follows:
(a) The Dedicated Drainage and Street Renewal Fund shall be established as a dedicated, pay-as-you-go source of funding for the City's drainage and streets.
(b) To ensure the continued availability of the Dedicated Drainage and Street Renewal Fund as a pay-as-you-go source for the capital cost of future drainage and street needs, no more than 25% of each annual appropriation to the Fund may be used for maintenance and operation expenses, except where third[-]party contracts, grants or payments may provide otherwise. The balance shall be used exclusively on a pay-as-you-go basis for capital costs of drainage and streets, including planning, engineering and right-of-way acquisition. The Fund may not be used to pay debt service. Beginning in the budget for fiscal year 2012, the Dedicated Drainage and Street Renewal Fund shall be funded annually in each budget adopted by the city council from the following sources, the first two of which are intended to supplement and not replace historic funding sources and the third and fourth of which are intended to confirm the City's commitment to continue historic funding:
(i) All proceeds of developer[-]impact fees, which beginning in fiscal year 2012, and continuing thereafter shall be imposed in an equitable manner as provided by law to recover allocable costs of providing drainage and streets for properties under development.
(ii) All proceeds of drainage charges, which beginning in fiscal year 2012, and continuing thereafter shall be imposed in an equitable manner as provided by law to recover allocable costs of providing drainage to benefitting properties, with drainage charges initially set at levels designed to generate at least $125 million for fiscal year 2012.
(iii) An amount equivalent to proceeds from $0.118 of the City's ad valorem tax levy minus an amount equal to debt service for drainage and streets for any outstanding bonds or notes:
(A) Issued prior to December 31, 2011, and
(B) Bonds or notes issued to refund them.
(iv) All proceeds from third[-]party contracts, grants or payments of any kind earmarked or dedicated to drainage or streets.
(c) This Section is subject to modification as permitted by law or termination at the end of fiscal year 2031 (i.e., after 20 years of operation) if during fiscal year 2030 (i.e. 19th year of operation) such modification or termination is authorized by an affirmative vote of two-thirds of the City Council following a public hearing on the matter. If not so terminated, this Section shall continue in full force and effect for successive 20[-]year periods, subject in each case to modification or termination in the same manner.
(d) Funding for the Dedicated Drainage and Street Renewal Fund that is not derived from ad valorem taxes levied by the City (i.e., that portion derived from fees, charges and third[-]party payments) shall not be included in those revenues limited by this Charter."

The measure was submitted on the ballot as the following proposition:

City of Houston
PROPOSITION NO. 1
CHARTER AMENDMENT PROPOSITION
Relating to the Creation of a Dedicated Funding Source to Enhance, Improve and Renew Drainage Systems and Streets.
Shall the City Charter of the City of Houston be amended to provide for the enhancement, improvement and ongoing renewal of Houston's drainage and streets by creating a Dedicated Pay-As-You-Go Fund for Drainage and Streets?

This text was followed by boxes labeled "For" and "Against." The City canvassed the results of the election on November 15, 2010. Of the 398,337 people who voted in the election, 174,080 voted for the measure and 166,867 voted against it.

A. The Election Contest

Allen Mark Dacus, Elizabeth C. Perez, and Rev. Robert Jefferson ["the contestants"] filed an election contest against the City of Houston and its mayor, the Honorable Annise D. Parker (collectively, "the City"), and sought a declaration "stating that [the measure] is illegal and invalid as a matter of law." They contested the election on the grounds, first, that the City used misleading language in the proposition submitting the measure to voters, and second, that the proposition and measure violate a statute prohibiting the use of a single charter amendment to address more than one subject.

The City moved for traditional summary judgment, and the trial court sent copies of the signed order granting the motion to the parties' counsel. In the order, the trial court did not state the grounds on which the motion was granted, but instead stated only that "the Court is of the opinion that the Motion for Summary Judgment should be granted, and it is therefore ORDERED that the Motion for Summary Judgment filed herein by Movants is hereby in all things GRANTED. All relief requested by the Contestants is DENIED." The order was accompanied by a cover letter in which the trial court stated as follows:

The ballot should contain a description of the measure in such language as to constitute a fair portrayal of its chief features in words of plain meaning so that it can be understood by persons entitled to vote. Using this statement as a guide, my first impression was that the ballot language in the present case was in fact misleading. It was my belief that the proposal voted on by the people of Harris County[1] authorized the city to assess a drainage fee to help in financing the street and drainage work, and without approval by the voters, such fee could not be imposed. It was my opinion that the wording in the legal notice published in the newspaper was not adequate to advise the voters that they were in fact voting to assess their property with a drainage fee.
I have learned that [the measure] did not authorize the assessment of a drainage fee, as that had been authorized by state law in Sec. 552.047 of the Local Government Code, and the failure to include the drainage fee assessment in the wording of the ballot was in fact not misleading.
The Court finds that the wording of the ballot as a whole was not misleading, and that the other matters urged to set aside the results of the election should be denied.
B. Motion for New Trial

The contestants filed a motion for new trial in which they argued that the trial court erred in considering the effect of section 552.047 of the Local Government Code because the City did not rely on the statute, which was not relevant to the issues. See TEX. LOC. GOV'T CODE ANN. § 552.047 (West Supp. 2011) (authorizing municipalities to charge for drainage service). In the alternative, they asked the trial court to sign a judgment nunc pro tunc specifying that the summary-judgment motion was granted based on this statute.

In a supplement to their new-trial motion, the contestants additionally asked the trial court to reverse based on newly discovered evidence. Specifically, they cited a document entitled "Proposed Principles that the Administration Will Use to Implement Proposition 1 If Passed," which was posted on the City's website. In the document, the City included an example of a drainage-fee calculation. The example was based on a "typical" lot size of 5,000 square feet and in which 1,900 square feet of the lot were impervious to water. Given these measurements, the "typical" homeowner's drainage fee was calculated to be $5.07 per month. The contestants produced evidence that in June 2011, after summary judgment...

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