In re Rogers

• Court: Texas Supreme Court
• Writing for the Court: PER CURIAM
• Citation: In re Rogers, 690 S.W.3d 296 (Tex. 2024)
• Docket Number: 23-0595
• Decision Date: 24 May 2024
• Parties: IN RE David ROGERS, Jennifer Pakenham, and Kristi Powell, Relators
• topic: Administrative Law,Public Sector Law

690 S.W.3d 296

IN RE David ROGERS, Jennifer Pakenham, and Kristi Powell, Relators

No. 23-0595

Supreme Court of Texas.

OPINION DELIVERED: May 24, 2024

On Petition for Writ of Mandamus

Bill Aleshire, Austin, for Relators.

Beverly Gayle Reeves, Manasi Rodgers, Ryan Pierce, Austin, Caroline Merideth, for Respondent.

PER CURIAM

Qualified voters petitioned the local Board of an emergency services district for a ballot proposition at the next available election to alter the sales tax rates within the district. The Board, believing the petition to be legally deficient, refused to place it on the ballot. Relators, three signatories of the petition, seek a writ of mandamus compelling the Board to determine whether the petition contains the statutorily required number of signatures or, alternatively, ordering the Board to call an election on the petition. Because we conclude that the Board has a ministerial duty to determine whether the petition contains the required number of signatures for placement on the ballot, we conditionally grant the writ.

I

Emergency services districts are political subdivisions that provide emergency services to residents within the district’s boundaries. See Tex. Health & Safety Code § 775.031. They are created when requested and approved by the voters of a county (or counties) in which the district is to be located. See id. §§ 775.011-.026. Each such district is overseen by a five-member board of emergency services commissioners. See id. §§ 775.034-.036.

An emergency services district may impose a sales and use tax to raise revenue. Id. § 775.0751(a). Once a tax rate is established, an election is required to change or abolish it. Id. The board may call for such an election by adopting a resolution. Id. § 775.0752(b). Alternatively, the district’s voters can petition for an election. Section 775.0752 states that "[t]he board shall call an election if a number of qualified voters of the district equal to at least five percent of the number of registered voters in the district petitions the board to call the election." Id. (emphasis added).

Once an election is called, it is generally governed by the same provisions that govern elections to adopt or abolish county sales taxes. Id. § 775.0752(a) (citing Tex Tax Code §§ 323.401-.408). In addition, Section 775.0752 specifies the required ballot language, depending on the type of action sought. Those provisions state:

(c) At an election to adopt the tax, the ballot shall be prepared to permit voting for or against the proposition: "The adoption of a local sales and use tax in (name of district) at the rate of (proposed tax rate) percent."

(d) At an election to abolish the tax, the ballot shall be prepared to permit voting for or against the proposition: "The abolition of the local sales and use tax in (name of district)."

(e) At an election to change the rate of the tax, the ballot shall be prepared to permit voting for or against the proposition: "The (increase or decrease, as applicable) in the rate of the local sales and use tax imposed by (name of district) from (tax rate on election date) percent to (proposed tax rate) percent."

Id. § 775.0752(c)-(e).

In the fall of 2022, voters in Travis County Emergency Services District No. 2 began circulating a petition to change the sales and use tax rates in their District. The District includes the City of Pflugerville and some surrounding areas. The District currently imposes a 1.0 percent sales tax rate in some parts of the District but a 0.5 percent sales tax rate in other parts. The petition called for an election to change the tax rates as follows:

This is a petition for "The decrease in the rate of the local sales and use tax imposed by Travis County Emergency Services District #2 from 0.5 percent to 0 percent in the City of Pflugerville, and 1.0 percent to 0.5 percent in those areas of the District subject to 1.0 percent taxation."

The petition includes 5,752 signatures, or around 6.5 percent of the registered voters in the District, which is greater than the 5 percent threshold the statute requires. Id. § 775.0752(b). Yet the District’s Board rejected the petition during a public meeting, claiming it was "legally insufficient." Though it gave no explanation at the time, the Board now claims the petition is deficient in at least two ways: (1) it combines two separate propositions into one, which would contradict the mandatory ballot language set forth in Section 775.0752, and (2) it misleads voters by calling for a "decrease" to a zero percent tax rate instead of an "abolishment" of the tax.¹ The Board has never contended any of the petition signatures is invalid for any reason.

Relators here are three of the petition signatories: David Rogers, Jennifer Pakenham, and Kristi Powell. They originally sued in February 2023 in district court, seeking a writ of mandamus directing the Board to hold an election no later than November 2023. During discovery, relators filed a petition for writ of mandamus in May 2023 in the court of appeals. The court of appeals denied relief without substantive opinion. 688 S.W.3d 137 (Tex. App.—Austin July 25, 2023). Thereafter, relators filed their mandamus petition in this Court and then nonsuited their claims in the district court.

II

[1, 2] Before examining the merits, we address the Board’s argument that the Court lacks jurisdiction to grant mandamus relief against the Board, which is the only named respondent. As a political subdivision of the State, see Tex Health & Safety Code § 775.031(a), an emergency services district is entitled to governmental immunity, which operates like sovereign immunity. See generally Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003) (discussing this concept); see also Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) ("Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, and school districts."); El Paso County v. El Paso Cnty. Emergency Servs. Dist. No. 1, 622 S.W.3d 25, 38 (Tex. App.— El Paso 2020, no pet.) ("A county’s immunity is derived from the state’s sovereign immunity because it is a unit of state government, but its immunity is referred to as ‘governmental immunity.’ "). The Board, as the governing entity of the District, also retains immunity. See Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 749 (Tex. 2019).

[3] But governmental immunity can be waived, of course. See City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995) ("A city is immune from liability for its governmental actions, unless that immunity is waived."); Oncor Elec. Delivery Co. v. Dall. Area Rapid Transit, 369 S.W.3d 845, 849 (Tex. 2012) ("[A] waiver of governmental immunity must be clear and unambiguous."). And Section 273.061 of the Election Code waives any claim to immunity from mandamus relief by authorizing this Court or a court of appeals to compel the performance of a duty in connection with an election: "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 regardless of whether the person responsible for performing the duty is a public officer." Tex Elec Code § 273.061(a). Here, relators seek to compel performance of a duty that the Health and Safety Code expressly assigns to the "board" of an emergency services district. See Tex Health & Safety Code § 775.0752(b) ("The board shall call an election if a number of qualified voters of the district equal to at least five percent of the number of registered voters in the district petitions the board to call the election." (emphasis added)). By authorizing the Court to issue mandamus relief to compel the performance of that duty, which the Legislature expressly assigned to the Board, the Legislature waived the Board’s immunity from relators’ claim for relief.

The Board responds that Election Code Section 273.061 authorizes mandamus relief in connection with an election only if the respondent is an individual. First, the Board reads Section 273.061’s reference to the "person" responsible for performing a duty as a limiter and, on that basis, argues that the statute authorizes mandamus relief against individuals who comprise the board but not the Board itself. Second, the Board points out that although the Government Code defines "person" to include a "government or governmental subdivision or agency," Tex Gov’t Code § 311.005(2), it also states that "the use of ‘person,’ as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction," id. § 311.034.

Given that the Legislature has expressly required identified individuals as well as entities (such as the board of an emergency services district) to carry out certain duties in connection with elections, we conclude that the only reasonable construction of Section 273.061 is that the Legislature intended a "person" against whom mandamus relief is available to include an entity like the Board. The Board’s proposed alternate reading would condition availability of mandamus relief on the composition or structure of the governing body that failed to carry out an election-related duty—a clear contravention of the Legislature’s stated intent that this Court "issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election." Tex Elec Code § 273.061(a) (emphasis added). Consistent with this reasoning, this Court and others have granted conditional mandamus relief under Section 273.061 to compel a body comprised of multiple individuals to perform an election-related duty as required by statute or ordinance. See, e.g., In re Durnin, 619 S.W.3d 250, 255 (Tex. 2021) (conditionally granting mandamus relief directing...