In re Ryan, No. 13-08-00179-CV (Tex. App. 4/18/2008), 13-08-00179-CV.
| Decision Date | 18 April 2008 |
| Docket Number | No. 13-08-00179-CV.,13-08-00179-CV. |
| Parties | IN RE: TIMOTHY RYAN. |
| Court | Texas Court of Appeals |
Before Justices YAÑEZ, RODRIGUEZ, and VELA.
1
Through this original proceeding, relator, Timothy Ryan, seeks to compel the City of El Campo to either revoke three annexation ordinances or submit them to a city-wide vote. According to relator, the City's failure to take one of these two actions will result in an invalid election to be held on May 10, 2008, because voters from these annexed areas will be allowed to vote and a candidate from the annexed area will be allowed to run for an at-large seat on El Campo's City Council. We deny the petition for writ of mandamus for the reasons stated herein.
The City of El Campo, acting through its City Council, issued four annexation ordinances on December 11, 2007. On January 10, 2008, pursuant to section 7.03 of the El Campo City Charter, citizens of the City filed three petitions asking the City Council to reconsider three of the annexation ordinances, and, if the City Council chose not to repeal them, to submit the ordinances to a popular referendum vote. Section 7.03 of the City Charter, entitled "Referendum," provides that:
Qualified voters of the City of El Campo may require that any ordinance or resolution passed by the City Council be submitted to the voters of the city for approval or disapproval, by submitting a petition for this purpose within thirty (30) days after final passage of said ordinance or resolution, or within thirty (30) days after its publication . . . . Thereupon the City Council shall immediately reconsider such ordinance or resolution and; if it does not entirely repeal the same, shall submit it to popular vote as provided in section 6.07 of this Charter. Pending the holding of such election, such ordinance or resolution shall be suspended from taking effect and shall not later take effect unless a majority of the qualified voters voting thereon at such election shall vote in favor thereof.
Taking the position that annexation ordinances were not subject to the referendum provision of the City Charter, the City Council took no action on the three petitions.
Ryan and Ryan Services, Inc., brought suit against the City and City Council in the 329th Judicial District Court of Wharton County, Texas, seeking declaratory, injunctive, and mandamus relief. They alleged that the El Campo City Charter is valid under Texas law, the petitions regarding the ordinances complied with the City Charter, and the annexation ordinances were suspended in accordance with the Charter. In short, Ryan and Ryan Services, Inc. alleged that the referendum provision in the Charter required the City to either repeal the ordinances or call a popular election on their validity, and the ordinances were not effective unless approved by a majority of the qualified voters at an election.
The City and Council members answered this suit and filed a plea to the jurisdiction on grounds that Ryan and Ryan Services, Inc. did not have standing to bring suit and the trial court, accordingly, lacked jurisdiction. The City and Council alleged that individual property owners cannot challenge irregularities in a municipality's annexation; rather, such challenges may be brought only through a quo warranto proceeding.2
The trial court granted the plea and dismissed Ryan and Ryan Services Inc.'s claims without prejudice. Ryan and Ryan Services, Inc., appealed this order, which is currently pending in this Court as Cause No. 13-08-00105-CV.3
On April 8, 2008, Ryan individually filed the instant petition for writ of mandamus and motion for expedited consideration and, in the alternative, emergency temporary relief. That same day, the Court requested a response to relator's petition for writ of mandamus, and such response was duly filed on April 16, 2008. Relator's motion for expedited consideration and, in the alternative, emergency temporary relief, was ordered to be carried with the case until further notice from this Court.
According to the petition for writ of mandamus, the City of El Campo will hold an election on May 10, 2008, to, inter alia, fill three at-large seats on its City Council. The candidates for that election include relator,4 respondents Phillip Spenrath and Kenneth Martin, who currently serve on the City Council, and non-parties Jimmy Roppolo, Otha Edison, Henry Dornak, Jr., and Richard Young. Pursuant to the City Charter, only residents of the City may run for a City Council seat, only City residents may vote in that election, and the three candidates who receive the most votes in the election will be elected to the City Council. Relator contends that the annexation ordinances are effectively suspended because the City Council failed to repeal them or submit them to popular vote, but nevertheless, a candidate who resides in the annexed area, Jimmy Roppolo, remains on the ballot as a candidate for City Council in the May 10, 2008 election, and voters from the annexed area will be able to vote in that election. Relator asks this Court to compel respondents to follow the provisions in section 7.03 of the City Charter before the May 10, 2008, election.
The Texas Election Code grants authority to the Supreme Court and the intermediate appellate courts to issue writs 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. See Tex. Elec. Code Ann. § 273.061 (Vernon 2003). Accordingly, we have jurisdiction to consider this petition for writ of mandamus.
In deciding whether a writ of mandamus is appropriate, we recognize that mandamus relief is available to correct a clear abuse of discretion or the violation of a legal duty when there is no adequate remedy at law, such as by appeal. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding) (per curiam) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). "In determining whether appeal is an adequate remedy, appellate courts consider whether the benefits outweigh the detriments of mandamus review." In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). In this case, our jurisdiction to issue a writ of mandamus is confined to compelling the performance of any duty imposed by law in connection with the holding of an election. See Tex. Elec. Code Ann. § 273.061; In re Armendariz, 245 S.W.3d 92, 94 (Tex. App.-El Paso 2008, orig. proceeding). The issue before us is whether the Council was required to revoke the ordinances or submit the ordinances to a city-wide...
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