In re Robinson, 01-04-01276-CV
| Decision Date | 14 April 2005 |
| Docket Number | No. 01-04-01276-CV,01-05-00374-CV.,01-04-01276-CV |
| Citation | 175 S.W.3d 824 |
| Parties | In re Carroll G. ROBINSON, Bruce R. Hotze and Jeffrey N. Daily, Relators. |
| Court | Texas Court of Appeals |
Amanda Eileen Staines Peterson, W. Andy Taylor, Houston, for relators.
Catherine B. Smith, Randy L. Pourteau II, Senior Asst. City Atty., Patrick W. Mizell, Scott J. Atlas, Arturo G. Michel, City of Houston, City Atty., Patrick Zummo, Zummo & Midkiff, L.L.P., Stephen Douglas Pritchett, Houston, for respondents.
Panel consists of Chief Justice RADACK and Justices NUCHIA and HIGLEY.
In these original proceedings, relators seek writs of mandamus to compel the Mayor and the City Council of Houston, Texas (collectively, "the City") to (1) enter an order declaring the adoption of three propositions as new amendments to the city charter, and (2) certify these new amendments to the Texas Secretary of State. We grant the requested relief.
On November 2, 2004, the registered voters of the city of Houston voted on three propositions to amend the city charter. Proposition One was endorsed by the Mayor and placed limits on annual increases in city property taxes and utility rates without prior voter approval. The ballot language of Proposition 1 provided:
The Charter of the City of Houston shall be amended to require voter approval before property tax revenues may be increased in any future fiscal year above a limit measured by the lesser of 4.5% or the cumulative combined rates of inflation and population growth. Water and sewer rates would not increase more than the cumulative combined rates of inflation and population growth without prior voter approval. The Charter Amendment also requires minimum annual increases of 10% in the senior and disabled homestead property tax exemptions through the 2008 tax year.
Proposition Two was placed on the ballot after relators drafted a referendum petition, organized and underwrote a petition drive, and obtained the necessary signatures to have the petition placed on the ballot. Proposition 2 placed limits on increases in combined city revenues without prior voter approval. The ballot language of Proposition 2 provided:
The City Charter of the City of Houston shall be amended to require voter approval before the City may increase total revenues from all sources by more than the combined rates of inflation and population, without requiring any limit of any specific revenue source, including water and sewer revenues, property taxes, sales taxes, fees paid by utilities and developers, user fees, or any other source of revenue.
Proposition Three provided:
The City Charter of the City of Houston shall be amended to provide for the City Controller to conduct internal audits of City departments, offices, agencies and programs.
In the November 2 election, voters were permitted to vote "FOR" or "AGAINST" each of the three propositions. After the election was completed, the City Counsel canvassed the vote and declared the results of the election as follows:
PROP 1 PROP 2 PROP 3
FOR 280,596 242,697 352,063
63.95% 56.46% 84.7%
AGAINST 158.152 187,169 63,596
36.05% 43.54% 15.3%
As shown above, each proposition passed by greater than 50% of the vote cast on that proposition.1
In these original proceedings, relators complain that the Mayor has failed to comply with his ministerial duty under article 9.007 of the Local Government Code2 to certify to the secretary of state authenticated copies of the amendments showing that they have been approved by the voters of the municipality. The original proceeding in which the Mayor is the respondent has been docketed in the court under cause number 01-04-01276-CV. Relators also contend the City Council has not complied with its ministerial duty under section 9.005(b) of the Local Government Code3 to enter an order in the records of the city declaring that the amendments were adopted. The original proceeding in which the City Council is the respondent has been docketed in the court under cause number 01-05-00374-CV.
Our jurisdiction to consider an election mandamus is found in article 273.061 of the Election Code, which 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.
TEX. ELEC.CODE ANN. § 273.061 (Vernon 2003) (emphasis added).
The City contends that the duties of entering an order declaring the amendment adopted and certifying its adoption to the secretary of do not involve duties imposed "in connection with the holding of an election." We disagree.
The supreme court has stated "that an election in this state is not a single event, but a process, and that the entire process is subject to contest." Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012, 1018 (1924). Although this case does not involve an election contest, it does involve the enforcement by mandamus of duties involved with the "holding of an election," an election being the entire process by which amendments to the municipal code are voted on, enacted, and made effective. See Grant v. Ammerman, 437 S.W.2d 547, 548-49 (Tex.1969) (). Like the duty to canvass votes, which occurs after an election is held, we are of the opinion that the duty to certify and make effective laws that have been validly adopted by the voters is a necessary component of the election process. The "holding of an election" would be a "vain proceeding" if an amendment validly adopted by the voters of the city never becomes law. See City of Dallas v. Dallas Consol. Elec. St. Ry. Co., 105 Tex. 337, 148 S.W. 292, 294 (1912) (). As such, we hold that mandamus will lie to enforce ministerial duties arising in connection with an election, even though those duties may not arise until after the results of the election have been canvassed.
The City also claims that the relators do not have standing to bring these mandamus proceedings. Relying on Brown v. Todd, 53 S.W.3d 297 (Tex.2001), the City argues that the relators, as voters on propositions 1, 2, and 3, do not have standing to bring these proceedings because they have suffered no injury that is distinct from that of any other voter.
In Brown, the plaintiff brought suit against the mayor of the city of Houston, seeking a judgment declaring that an executive order issued by the mayor was invalid because it effectively nullified the result of a previous referendum election. Id. at 299. The plaintiff claimed standing based solely on his status as a voter in the referendum election. Id. at 302 n. 2. In holding that the plaintiff did not have standing, the supreme court stated, "In no way does plaintiff's status as a voter give him an interest sufficiently peculiar to satisfy our standing requirements." Id. at 302.
In Brown, the court acknowledged that there was a narrow exception to the general rule that voters do not have standing. Id. In Blum v. Lanier, the court held that a voter who signed an initiative petition had standing to challenge the form in which a referendum was put before the public. 997 S.W.2d 259, 262 (Tex.1999). Similarly, in Glass v. Smith, the court recognized petition signers standing to seek a writ of mandamus against municipal authorities to hold a voter-initiated election after the requisite number of signatures had been obtained on the petition. 150 Tex. 632, 244 S.W.2d 645, 648 (1951). As the Brown court recognized, Blum and Glass stand for the proposition that petition signers have standing to challenge the referendum process, although they do not have standing to challenge the results of the election. 53 S.W.3d at 301-01.
These cases are more like Blum and Glass than Brown because the relators are not challenging the results of the election by way of this mandamus. Instead, they are challenging the process of the election, i.e., the City's refusal to see that the results of the election are certified to the secretary of state and recorded in the City's records so that they might become effective. Also like Blum and Glass, relators claim that their standing is not based solely on their status as voters. Instead, relators argue that they have a particular interest in the outcome of this case because they organized and financed a petition drive to get Proposition 2 on the ballot, helped draft the wording of the referendum petition, signed the petition, and voted for Proposition 2. We agree that relators have a particular interest in seeking to have a proposition that they "sponsored" enacted as law once it is adopted by the citizens of the city in a referendum election.
Having decided that we have jurisdiction to consider these mandamus proceedings and that relators have standing to bring them, we turn next to the issue of whether mandamus will lie, i.e., whether respondents have failed to perform ministerial duties for which relators have no adequate remedy at law. We examine the statutory basis of the two duties alleged as the basis of this original proceeding.
The first statute on which relators rely in seeking mandamus relief is section 9.007 of the Local Government Code, which provides:
(a) As soon as practicable after a municipality adopts a charter or charter amendment, the mayor or chief executive officer of the municipality shall certify to the secretary of state an authenticated...
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