Howard v. Clack

• Decision Date: 03 October 1979
• Docket Number: No. 20196,20196
• Citation: 589 S.W.2d 748
• Parties: Charles HOWARD, Margie Howard, Joe Langfitt, Barbara Langfitt, David Bolton, Gayle Dunn, Robert Dunn, Frank Robertson, Betty Pryon, David Mitchell, Janet Mitchell, Jim Thornhill, and Helene Thornhill, Relators, v. Charles CLACK, George Drum, Corky Crowder, Larry Holley, Charles Palmore, Joe Regian, Gwen Smale, Dale Stringfellow, and Martin Suber, as Members of the City Council of the City of Garland, Texas, Respondents.
• Court: Texas Court of Appeals

Page 748

589 S.W.2d 748

Charles HOWARD, Margie Howard, Joe Langfitt, Barbara Langfitt, David Bolton, Gayle Dunn, Robert Dunn, Frank Robertson, Betty Pryon, David Mitchell, Janet Mitchell, Jim Thornhill, and Helene Thornhill, Relators, v. Charles CLACK, George Drum, Corky Crowder, Larry Holley Charles Palmore, Joe Regian, Gwen Smale, Dale Stringfellow and Martin Suber, as Members of the City Council of the City of Garland, Texas, Respondents.

No. 20196.

Court of Civil Appeals of Texas, Dallas.

Oct. 3, 1979.

John W. Bryant, Bryant & Beaty, Dallas, for relators.

John F. Boyle, Jr., Dallas, for respondents.

Before GUITTARD, C. J., and CARVER and STOREY, JJ.

GUITTARD, Chief Justice.

Relators in this original petition for mandamus are voters in the city of Garland who have sought to invoke the provisions of the city charter for recall of one of the members of the city council. Their petition for recall was certified by the city secretary as containing the names of the requisite number of voters, but the city council has refused to call an election after making its own examination of the petition and determining that some of the purported signatures are not genuine and that others are of persons who have sought to withdraw their names. Relators seek a writ of mandamus under article 1735a, Tex.Rev.Civ.Stat.Ann. (Vernon Supp. 1978-1979), on the ground that after the city secretary certified the petition as containing the requisite number of names, the city council had no discretion to review the sufficiency of the petition and had only a ministerial duty to call an election. We agree with this interpretation of the charter. Accordingly, we grant the writ.

Jurisdiction

Before discussing the merits of the petition for mandamus, we must consider respondents' objection that we have no jurisdiction under article 1735a because duties imposed by the charter are not duties imposed by "the laws of this state." We disagree. The statute gives us jurisdiction to issue the writ against public officers "to compel the performance, in accordance with the laws of this state, of any duty imposed upon them, respectively, by law, in connection with the holding of any general, special, or primary election . . . ." This statute cannot properly be interpreted as limiting our jurisdiction to enforcement of duties imposed by laws of statewide scope. A city with a charter adopted under the Home Rule Amendment, Tex.Const. art. XI § 5, has legislative powers not dependent on the general laws of the state. Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 643-44 (Tex.1975); City of Beaumont v. Bond, 546 S.W.2d 407, 409 (Tex.Civ.App. Beaumont 1977, writ ref'd n.r.e.). Such a charter is declared by statute to be a "public act," and all courts are required to take judicial notice of it. Tex.Rev.Civ.Stat.Ann. art. 1174 (Vernon 1963); City of Dallas v. Megginson, 222 S.W.2d 349, 351 (Tex.Civ.App. Dallas 1949, writ ref'd n.r.e.). Consequently, a duty imposed by such a charter is a duty "imposed by law" within article 1735a, on which our jurisdiction rests. Nelson v. Welch, 499 S.W.2d 927, 928 (Tex.Civ.App. Houston (14th Dist.) 1973, no writ) (appellate court had jurisdiction, but denied mandamus on merits).

Merits

Having determined that we have jurisdiction, we must consider the principal question, that is, whether the city council has authority and discretion to review the sufficiency of the petition for recall and decline to call an election if it determines that the petition does not have the requisite number of genuine signatures. We conclude that it has no such authority.

The pertinent provision of the charter is section 93, which provides:

Any member or all members of the council (including the mayor) may be recalled and removed from office by the electors qualified to vote for a successor of such incumbent by the following procedure:

A petition signed by qualified voters entitled to vote for a successor to each member sought to be removed, equal in number to twenty-five (25) per cent of the number of votes cast at the last regular municipal election for that office which is the subject of the petition, shall be filed with the city secretary; provided that not less then eight hundred (800) signatures shall be required in the case of council members and not less than two thousand (2,000) signatures shall be required in the case of the mayor. Such petition shall contain a general statement of the ground for which the removal is sought. The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the signers to each paper shall make oath before an officer competent to administer oaths that each signature is that of the person whose name it purports to be. Within ten (10) days from the filing of such petition, The city secretary shall examine the same and, from the list of qualified voters, ascertain whether or not the petition is signed by the requisite number of qualified voters, and, if requested to do so, the council shall allow him/her extra help for that purpose. He/she shall attach to said petition a certificate showing the results of such examination. If by the city secretary's certificate, the petition is shown to be insufficient, it may be amended within ten (10) days from the date of such certificate by obtaining additional signatures. The city secretary shall, within ten (10) days after such amendment is filed, in case one is filed with him/her, make like examination of the said amended petition and, if his/her certificate shall show same to be insufficient, shall be returned to the person filing same and shall not be subject to amendment.

If the petition be found sufficient, the city secretary shall submit the same to the council without delay and the council, in the event the mayor or council member named in said petition fails to resign, Shall order and fix a date for holding the election . . . . (Emphasis added)

Respondents contend that this provision limits the city secretary's authority to the purely ministerial task of comparing the names appearing in the petition with the list of qualified voters to ascertain whether the requisite number of qualified names appear and that she has no authority...