Dacus v. Parker

Decision Date12 June 2015
Docket NumberNo. 13–0047,13–0047
Citation466 S.W.3d 820
PartiesAllen Mark Dacus, Elizabeth C. Perez, and Rev. Robert Jefferson, Petitioners, v. Annise D. Parker and City of Houston, Respondents
CourtTexas Supreme Court

Robert B. Gilbreath, Hawkins Parnell Thackston & Young LLP, Dallas, TX, for Houston Area Pastor Council: Amicus Curiae.

Shane Pennington, Baker Botts LLP, Houston, TX, Thomas R. Phillips, Baker Botts LLP, Austin, TX, for Houston Building Owners and Managers Association, National Association of Industrial and Office Properties Houston: Amici Curiae.

Brandon M. Barchus, Faulk Barchus, PLLC, Houston, TX, for Little Nell Apartment, LP, HFI Regency Park Apartments, LP, and Windshire Apartment, LP: Amicus Curiae.

Scott N. Houston, Texas Municipal League, Austin, TX, for Texas City Attorneys Association, Texas Municipal League: Amici Curiae.

Dylan B. Russell, Joseph O. Slovacek, Hoover Slovacek LLP, Houston, TX, William A. 'Andy' Taylor, Andy Taylor & Associates, P.C., Brenham, TX, for Allen Mark Dacus: Petitioners.

Dylan B. Russell, Joseph O. Slovacek, Hoover Slovacek LLP, Houston, TX, for Elizabeth C. Perez and Rev. Robert Jefferson: Petitioners.

C. Robert Heath, Gunnar Seaquist, Bickerstaff Heath Delgado Acosta LLP, Austin, TX, David M. Feldman, City of Houston Legal Department, Houston, TX, Denise Lastnick Miller, Assistant City Attorney, John B. Wallace, Senior Assistant City Attorney, Judith Lee Ramsey, Chief, General Litigation Section, Lynette Fons, City of Houston Legal Department, Houston, TX: for Annise D. Parker: Respondent.


JUSTICE DEVINE delivered the opinion of the Court.

In this election contest, we consider whether a ballot proposition for a proposed city charter amendment meets the common law standard preserving the integrity of the ballot. The court of appeals upheld the proposition in this case. 383 S.W.3d 557, 571 (Tex.App.–Houston [14th Dist.] 2012). Even though the ballot did not make clear that the amendment imposed charges directly on many voters, the court concluded it still described the amendment's character and purpose and enabled voters to distinguish it from other propositions on the ballot. See id. at 566. In so doing, the court departed from the applicable standard, which requires that proposed amendments be submitted with such definiteness and certainty that voters are not misled. Though the ballot need not reproduce the text of the amendment or mention every detail, it must substantially identify the amendment's purpose, character, and chief features. Widespread charges are such a chief feature. Accordingly, we reverse the judgment of the court of appeals and remand to the trial court for further proceedings.

I. Background and Procedural History

A narrow majority of voters in the City of Houston adopted an amendment to their City Charter creating a “Dedicated Pay–As–You–Go Fund for Drainage and Streets.” The amendment—approved in the November 2, 2010 election—required the City to obtain funding from several sources. One source was drainage charges to be imposed on properties benefitting from the drainage system.1 Prior to the election, the text of the proposed amendment (and the text of two others), a fiscal impact summary, and the text of the proposition to be placed on the ballot were published in the Houston Chronicle . The fiscal impact summary and the text of the amendment indicated that drainage charges would be imposed. The language on the ballot, however, merely stated the amendment was “Relating to the Creation of a Dedicated Funding Source to Enhance, Improve and Renew Drainage Systems and Streets.” It asked, “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?” It did not mention the drainage charges.

Shortly after the election, several voters (the Contestants)2 filed an election contest. They sought a declaration that the proposition was “illegal and invalid as a matter of law,” and a determination that the adoption of the amendment was invalid. The Contestants named the City of Houston and the Mayor, Annise Parker, as the contestees.3 The City filed a motion for summary judgment, which the trial court granted, denying the Contestants all relief. The Contestants thereafter filed a motion to modify the judgment or enter judgment nunc pro tunc, as well as a motion for a new trial. The trial court denied the Contestants' motions, and the court of appeals affirmed. Here, the Contestants argue that the court of appeals erred in affirming the trial court's summary judgment in favor of the City and denying their motion for new trial.

II. Jurisdiction

This is an election contest with special jurisdictional considerations. The court of appeals' decision in an election contest is generally final. Tex. Gov't Code § 22.225(b)(2). There are exceptions, however, such as when “one of the courts of appeals holds differently from a prior decision of another court of appeals or of the supreme court.” Id. §§ 22.001(a)(2); 22.225(c). Courts hold differently from each other “when there is inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.” Id. § 22.225(e). As discussed in more detail below, the decisions of the courts of appeals conflict regarding the common law standard for describing a measure on the ballot. This inconsistency should be clarified, and we have jurisdiction.

III. Sufficiency of Ballot Language

The parties dispute whether the ballot sufficiently described the charter amendment when it did not mention that drainage charges would be imposed.4 The Texas Election Code grants discretion to “the authority ordering the election [to] prescribe the wording of a proposition unless otherwise provided by law. Tex. Elec. Code § 52.072(a). The proposition is “the wording appearing on a ballot to identify a measure,” and the “measure” is “a question or proposal submitted in an election for an expression of the voters' will”—in this case, the proposed Charter amendment. See id. § 1.005(12), (15). The proposition must be printed “in the form of a single statement.” Id. § 52.072(b).

The common law protects the integrity of the election with a minimum standard for the ballot language, but the parties disagree over what the standard requires. In 1888, we held that the proposition must “substantially submit [ ] the question ... with such definiteness and certainty that the voters are not misled.” Reynolds Land & Cattle Co. v. McCabe, 72 Tex. 57,12 S.W. 165, 165 (1888).5 Beyond summarizing parties' arguments about the standard in 1999, Blum v. Lanier, 997 S.W.2d 259, 262 (Tex.1999), and commenting on the standard for ballot descriptions of state constitutional amendments in 1949, R.R. Comm'n v. Sterling Oil & Ref. Co., 147 Tex. 547, 218 S.W.2d 415, 418 (1949), we have not elaborated on the standard since then. In the meantime, the courts of appeals have articulated several additional rules. Some have said that the proposition should “constitute a fair portrayal of the chief features of the proposed law ... in words of plain meaning, so that it can be understood by persons entitled to vote.”6 Under this standard, the ballot language “is sufficient if enough is printed on the ballot to identify the matter and show its character and purpose.”7 Some have said that the test of a description's sufficiency is not the level of detail, but “whether from the ballot wording a voter of average intelligence can distinguish one proposition from another on the ballot.”8 And, at least in cases involving state constitutional amendments, some have said that the ballot should disclose the amendment's “intent, import, subject matter, or theme.”9

The Contestants assert that the ballot must do more than merely enable voters to identify and distinguish the different propositions from each other, as the court below, 383 S.W.3d at 566, and some other courts of appeals have held, see, e.g., Hardy, 849 S.W.2d at 358 ; Hill, 414 S.W.2d at 692. Instead, it must “substantially submit” the amendment with “definiteness and certainty.” See Reynolds Land & Cattle Co., 12 S.W. at 165. The ballot in this case should have mentioned the drainage charges required by the amendment; by ignoring the charges, the ballot obscured the amendment's “chief features” and its “character and purpose.”

The City responds that because of election notices and publication requirements, voters are presumed to be familiar with the measure before the election. See Sterling Oil & Ref. Co., 218 S.W.2d at 418. The ballot need not educate voters about what they are already familiar with; it need only identify and distinguish which proposition refers to which measure so that voters know which is which on the ballot. See Hardy, 849 S.W.2d at 358. According to the City, requiring the ballot to identify a measure's “chief features” is just another way of saying that the proposition must sufficiently identify the measure so that the different propositions can be distinguished on the ballot.

It is true that voters are presumed to be familiar with every measure on the ballot.10 Election notices for city charter amendments must be published in the newspaper before the election, and the notice must “include a substantial copy of the proposed amendment.” Tex. Loc. Gov't Code § 9.004(c)(1). Accordingly, the amendment need not be printed in full on the ballot–not all details must be there. See Sterling Oil & Ref. Co., 218 S.W.2d at 418. The proposition on the ballot, according to the Election Code, serves to “identify a measure.” Tex. Elec. Code § 1.005(15).

But how must the ballot identify the measure? Does anything go as long as the voters will manage to distinguish the different propositions on the ballot and which measures they refer to? Our...

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