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HomeMy WebLinkAboutColleyville Charter Review Committee-Agenda Packets-12/29/2004 CUy Of . Ie ~- l'exa5 PUBLIC NOTICE COLLEYVILLE CITIZEN'S CITY CHARTER REVIEW COMMITTEE AGENDA DECEMBER 29, 2004 7:00 P.M. CITY HALL 100 MAIN STREET CITY MANAGER'S CONFERENCE ROOM THIRD FLOOR I. Call to Order II. Approval of December 15, 2004 Minutes III. Review and discussion of possible modifications of the Colleyville City Charter IV. Discussion of items to be placed on the next agenda V. Adjournment I certify that this notice was posted on the bulletin boards at City Hall on Friday, December 17, 2004, at 5' Cynthia Singleton, TRMC City Secretary - 100 MAIN STREETCOLLEYVILLE. TEXAS 76034 (817) 503-1000 MEMORANDUM Office of City Manager TO: FROM: SUBJECT: DATE: City Charter Committee Bill Lindley December 29,2004 meeting December 21, 2004 Please find enclosed a copy of modifications discussed to the last City Charter meeting. In addition are the minutes from the December 15 meeting. Lastly, a copy of the Oath of Office, used by the City Secretary, is included. As a follow up to a committee question, included is a response by the City Attorney on the authority of a County Judge related to recall petitions. ~..-.., MINUTES OF THE COLLEYVILLE CITIZEN'S CITY CHARTER REVIEW COMMITTEE DECEMBER 15, 2004 I. Call to Order Chair Jim Moore called the meeting to order on December 15, 2004 at 7:05 p.m. ROLL CALL: Chair Jim Moore, Linda Bond, Louis Miller, Richard Newton, Brad Rice, Frank Whitmire, City Manager Bill Lindley, Financial Analyst, Kacey Bess Steve Magee arrived at 7:10 p.m, Mike Taylor arrived at 7:13 p,m. II. Approval of December 8, 2004 Minutes Steve Magee moved to approve the December 8, 2004 meeting minutes and seconded by Frank Whitmire. Approved unanimously. III. Review and discussion of possible modifications of the Colleyville City Charter Committee reviewed charter changes from the previous meeting and articles IV and V. ,-~- The Committee requested the dates that must be adhered to in order to place the charter changes on the election ballot. Regarding charter changes from the previous meeting, Richard Newton moved to modify the last sentence in Sec. 1.02 and seconded by Louis Miller. Approved unanimously, It was noted that Sec. 1.03 should read "alteration" not "alternation." Frank Whitmire moved to leave Sec. 2,03 in its original language and was seconded by Steve Magee. Approved unanimously, Linda Bond suggested removing "Powers" from the title of Sec. 2,04, Brand Rice reiterated that all references to laws of the State should read "State laws." Steve Magee moved to approve all changes as noted and seconded by Mike Taylor. Approved unanimously. Regarding Article IV, Mike Taylor asked whether the oath of office binds Council members to the Charter. Mike Taylor and Steve Magee requested inclusion of the oath of office in the section on Election Procedures. City Manager Lindley indicated that he believes the ordinance calling an election describes the oath of office. .......-' Committee agreed unanimously to strike the following language from Sec. 4,01: "No informalities in conducting a City election shall invalidate said election." _. Brad Rice moved to insert the following language in the first sentence of Sec. 4.02, following "first Saturday in May:" "unless specifically required to be held on another day pursuant to State law." Approved unanimously. Committee agreed unanimously to insert "or within any contiguous city" following "all property owned within the City" in Sec. 4.07(a). Committee agreed to create a new Sec. 4,08 using language found in South lake's Charter, Sec. 7,24 (Oath of Office). Regarding Article V, Richard Newton requested information on the limitations on recall of appointed officials. Committee agreed to reword Sec. 5,01 to read "all elected City officials" and to strike the following language: "whether elected to office by the qualified voters of the City or appointed by the City Council to fill a vacancy," Steve Magee requested information on the Attorney General opinion related to the recall election at Haltom City. Brad Rice also requested more information on what City Attorney Ross Foster meant by "substantial question of validity." Mike Taylor will present a list of definitions that can be included in the charter. ,"."- IV. Discussion of items to be placed on the next agenda For next Charter Review Committee meeting, the Committee will begin with a review of Article VI. v. Adjournment Chairman Moore adjourned the meeting at 9:06 p.m. c'~~ HOME RULE CHARTER for the C I T Y 0 F C 0 L LEY V ILL E, T E X A S ,- December 16. 2004 Modifications 1 - Preamble ,,~. We, the citizens of Colleyville, Texas, in order to establish a Home Rule municipal government, provide for the future progress of our City, and obtain more fully the benefits of local self-government, do hereby adopt this Home Rule Charter in accordance with the Statutes of the State of Texas and do hereby declare the residents of the City of Colleyville in Tarrant County, Texas, living within the legally established boundaries of said City, to be a political subdivision of said City, to be a political subdivision of the State of Texas, incorporated forever under the name and style of the "City of Colleyville" with such powers, rights, authority, privileges, obligations and immunities as are herein provided. 2 ,- ARTICLE I FORM OF GOVERNMENT AND BOUNDARIES Section 1.01 Form of Government: The Municipal Government provided by this Charter shall be known as the "Council-Manager Government". Pursuant to its provisions, and subjec, only to the limitations imposed by the State Constitution, the laws of this State, and by this Charter, all powers of the City Council shall be vested in an elective City Council, hereinafter referred to as the "City Council". I, which shall enact local legislation, adopt budgets, determine policies, and appoint tho City M3nager, who in turn, sh:::lll be held responsible to the City Council for the execution of the laws :::lnd the adminiGtr:::ltion of rc~;~;;t~T.hi~.~ii.j;;;;~~;;;;t; Art.l tho govornment of the City.l. j\1I. P~YYElr~. ~ttl:l~. (;jty. ~I:lClII. R~ .ElXE:lr~[~Eld. .il1 JI:lEl. rn.al1n.er J)r~sc:riR~d. RY. . - . -. L~:07 ______m.m.__._.~.~~J this Charter, or, if the manner be not prescribed, then in such manner as may be prescribed by Ordinance, the State Constitution, or by the laws of this State. Section 1.02 Boundaries of the City: The Inhabitants of the City of Colleyville, Tarrant County, Texas, residing within its corporate limits, as heretofore or hereafter established, are hereby constituted and shall continue to be a municipal - body politic and corporate, in perpetuity, under the name of the "City of Colleyville" which boundaries are more fully set out and described by metes and bounds. 11~'m)IdIIII BIBB are on file in the Office of City Secretary. Section 1.03 Boundary Adiustment~.. Comment: City Attorney to provide a memo on the State prescribed process for a cny to annex or disannex The City Council shall have the power by ordinance to fix the boundaries of the City and to provide for the alteration or the extension of said boundaries, pursuant to the !llll[tI State III now or hereinafter enacted where the same is not inconsistent with .ate law. 3 - ARTICLE II POWERS OF THE CITY ..,"~ - Section 2.01 General Powers Adopted: a) The City Council shall have the powers, functions, rights, privileges and immunities of every name and nature, that are now or hereafter may be granted to a Home Rule City by the Constitution and laws of this State, together with all implied powers necessary to carry into execution all such powers granted. b) Among such powers, the City Council shall have police powers, the power to adjust boundaries, to contract and to co-operate with the government of any state or any agency or subdivision thereof, or with the federal government or any agency thereof to accomplish any lawful purpose. The City may use a corporate seal; may acquire property within or without its corporate limits for any municipal purpose in fee simple, or in any lease interest or estate by purchase, gift, devise, lease, exchange, condemnation, and subject to the provisions of this Charter, may sell, lease mortgage, hold, manage, improve, exchange and control property as may now or hereafter be owned by it; may sue and be sued; may fumish municipal services, both within and without its corporate limits; may implead and be impleaded in all courts and places and in all matters whatever; may provide for the expenditure of public funds for a retirement system, group health, life and accident insurance coverage, and surety bonds for City employees or officers; may pass ordinances, resolutions, and enact such regulations as may be expedient for the maintenance of good government, order and peace of the City and the interest, welfare, health, morals, comfort, safety, security and convenience of the City for its inhabitants consistent with the provisions of this Charter. c) The enumeration of particular powers of this Charter shall not be held or deemed exclusive, but in addition to the powers enumerated herein or implied hereby or appropriate to the exercise of such powers, the City Council shall have and may exercise all powers of local 4 self government and all powers which under the Constitution and State law would be competent for this Charter to specifically enumerate. - Section 2.02 Eminent Domain: The City shall have the full right, power and authority to exercise the power of eminent domain when necessary or desirable to carry out any of the powers conferred upon it by this Charter, or by the Constitution or [_Jrfll State II. The power of eminent domain hereby conferred shall include the right of the City to take the fee title and easement interests in the lands so condemned and such power and authority shall include the right to condemn, for any municipal or public purpose. The City shall have the power through eminent domain proceedings to acquire any public utility operating with or without a franchise and furnishing a public service to the citizens of Colleyville. Section 2.03 Establishment and Control of Public Property: The City of Colleyville shall have the power to layout, establish, open, alter, widen, lower, raise, extend, grade, abandon, discontinue, abolish, close, care for, pave, supervise, maintain and improve streets, alleys, sidewalks, parks, squares, public places and bridges; and regulate the use thereof; require the removal from streets, sidewalks, alleys, and other public property or places of all obstructions and encroachments of every nature or character upon any of said streets and sidewalks, and the power to regulate, control and/or prohibit the moving of any type of objects over, along, or upon, under or across streets, alleys, sidewalks, parks, squares, public places and bridges, of every kind and character in such places and at such time as public need shall dictate. Section 2.04 Street Development and Improvements: The City shall have the power to develop and improve, or cause to be developed and improved, any and all public streets or ways within the corporate limits of the City by laying out, opening, narrowing, widening, straightening, extending, lighting, and establishing building lines along the 5 ,- same by purchasing, condemning, and taking property therefore; by filling, grading, raising, lowering, paving, repaving and repairing in a permanent manner, the same, and by constructing, reconstructing, altering, repairing, and realigning curbs, gutters, drains, sidewalks, culverts and other appurtenances and incidentals in connection with such development and improvement authorized hereinabove, or any combination or parts thereof. The cost of such development and improvement may be paid partly by assessments levied as a lien against the property abutting thereon and against the owners thereof, subject, however, to the limitations imposed by State law I.~.. Such assessments may be levied in any amounts and under any procedures not prohibited by State law, but such assessments may not be levied in excess of thirty-three and one-third percent (331/3%) of the costs of such improvements for property abutting one side of said street or public way, or sixty-six and two-thirds percent (66 2/3%) of the cost of such improvements for property abutting both sides of said street or way. In no case shall any property owner be assessed in excess of the cost of like improvements or repairs for a two (2) lane Collector Street as defined by City Ordinance. /---. ARTICLE IV ELECTIONS Section 4.01 Laws Governinq Citv Elections: All City elections shall be governed, except as otherwise provided by this Charter, by 11IIIII II State ''1 of Texas governing general and municipal elections, so far ~ State II may be applicable thereto. In the event there should be any failure of IIIIIIIIII State II of Texas or this Charter to provide for some feature of the City elections, the City Council shall have the power to provide for or correct such deficiency. _.IIJi~1I;~li1iffil!'l~!)!~iI If the election is conducted fairly and in substantial compliance with State l~lJ, 11!I1I1t!llLl!~ll and the Charter and ordinances of the 6 ,'-' City Section 4.02 General Elections: .- The regular City elections shall be held annually on the first Saturday in MayR......, 1III.1It1r.l1.il1lII1.~ at which time officers shall be elected to fill those offices as required by this Charter. The same shall be conducted and the results canvassed and announced in accordance with ."I'II:f! State _III regulating all municipal elections and in accordance with the ordinances adopted by the City Council for the conduct of elections. (Amended January 18, 1992) Section 4.03 Special Elections: The City Council may by ordinance or resolution call such Special Elections as are authorized by II!I.I~!II State .[.111 or by this Charter, fix the date and place of holding same, and provide all means for holding such Special Election. Section 4.04 Publishino City Elections: It is the responsibility of the City Council to inform the registered voters of the City as to the time, ...- place, date and purpose of any forthcoming City election, and the City Council shall establish such rules and procedures, in addition to those required by State law, to adequately inform the qualified voters of the City. Section 4.05 Run-Off Election: In the event that no candidate for a designated office received a majority of all votes cast for that position in the regular or special election, a run off election shall be held as required by State III IIIt..'nt:!n[l~ ,<~. _ "~~ ",_",,~, *'.' '" ,,' , "" "', '_ :' ,,'::Ii''''''., , 7 Section 4.06 Election by Maiority: The candidate for each position on the ballot who shall have received the majority of all votes cast for such position shall be declared elected. Section 4.07 Public Disclosure: At the time of filing of a candidate for a City office, the candidate shall deliver to the City Secretary a disclosure statement containing the following information: Ili*rhe location, size, and current use of all property owned within _..~.. City or held in trust by the candidate, their spouse, and any dependent minor children _ __lIf__llIt.~.ll-dfltfillllmmaEluttlt_tj (b) The name and address of any person or corporation which currently has or during the preceding twelve (12) months has had a contractual relationship with the City and from which the candidate, their spouse or dependent minor children have receive a fee, salary, or gift of a value exceeding one hundred dollars ($100.00) (c) The name and address of any corporation or business, which currently has or in the preceding twelve (12) months has had a contractual relationship with the City, of which the candidate, their spouse, or any dependent minor children own more that two percent (2%) of the outstanding equity interest or more than two percent (2%) of the assets. (Amended January 18, 1992) i'.tM'iiWi\~_iJfil!lm mFlmwm*'iii'Wltl ' - - ~ - 'NfAUIr&e '5iiiiiV;oWgei7.mlil_lil'tI!\Bieti(Et..iJaooittlOOfSnm__11a1rmlE(fg_I.lf~6m olliia[}tiojntn:tePt~kt'aj{Ela:rr€lsj}fiiS<ll~ti:YAthg;;f6jlbWiffQrlfot{l.jflr.ol3ttfit3>>!fi_tfWellIIElfdoo;'aliti 8 ,,,,- ~- 1.&I)'11"'IIIB.11'1~~kl:lflft.tll"8__i1IBIf'j~ill_.r"'I1!'~i 1l..1...._lt~0_...I1iI~'ltl_lllli__.m~~ %t.'''ii ~~WmIMWr'_'aw"r""'>!iW8M~!lWi@lt41'l!iibllI!i~W8_1W!IWiIMiWW~Wd!!!iii!@I"'WMi"~i"Rm.. ~~~~Il!~!!~illlm~tal~l!l!em~~em~~g~l$.I~jf\;Jilt;rn~. .lrmn[*,1WI:I~di)tilJlattltl1'e1il\ita'A~fii:lInr~~~.tG'Wt~.lil l:1.liiOtri61tf!8;~o1tils.fo'lIintrfBtiltbl1~.ilWeW&~faa'.mmtiff~l.m~av l1frJ5jic~Qffi~'1b'ilefrt5rt5~merol;;i:~fm:~B.{:\~m~1l~lff_liitn1\'i)lIr~.WMQt'~~Bil1'e lI.__~_tl.tfII.ml_.IiIl.oma.i~_ 1.~.I__IIfl~II~IIl~~IiImll!lrm" .__.lImii_.-_I'.llllillll1r'._"'~.li.mI"l .1IIItIIflrrll"'iI~1__.~I_ft~_;;ilBll !lM%lt1IWJlli!@ili~"'t~~:Wdg!t1i_1!!!l8'filii~~~""'iW~iW@j@&M..4MW ml1lIi)JI!lIiiUUilbw;l\'lRMemlill_#IelllJliWt2~ClfflIe.walurnl,wlSeli!tl[m;fJi)V&!iilI!)llU,nIilUIle1!lUili!mm~tllllifJilt!Umlll _oo~NS'lRlflf'.alJMJ ARTICLE V RECALL OF OFFICERS BY THE PEOPLE Section 5.01 Scope of Recall: ~tIIIIII_~h-;;:i~m~~'I9.lllII.!~ ....rllllllJlll..lll.~J1IIIIilliill~ra,~~ mw ,0< . "'" .-.[$-", IlBl~aEI.A"'_~~IlE-~~:i<,JI..~_. __m~_g,'iimlW! auaJU_IfiU&uhtQt.t3J~tttit%ua~tmiw 9 ~,- Section 5.02 Petitions for Recall: Before the question of recall of such officer shall be submitted to the qualified voters of the City, a petition demanding such question to be submitted, shall first be signed by the qualified voters of ,,"- the City equal in number to at least forty percent (40%) of the number of votes cast in the last regular municipal election of the City, and in no event less than five hundred (500) such petitioners. Each signer of such recall petition shall personally sign their name thereto in ink or indelible pencil, using their normal signature. In addition, each signer shall print their name, street address of their residence in Colleyville, voter registration and the day, month and year that their signature was affixed to the recall petition. (Amended April 7, 1984) Section 5.03 Form of Recall Petition: The recall petition mentioned above must be addressed to the :II Council of the City of Colleyville, must distinctly and specifically point out the ground or grounds upon which such petition for removal is predicated, and if there be more than one (1) ground, such as for incompetency, misconduct, or malfeasance in office, shall specifically state each ground with such certainty as to give the officer sought to be removed, notice of the matters and things with which he is charged. ~. The signature shall be verified by oath in the following form: STATE OF TEXAS COUNTY OF TARRANT , being first duly sworn, on oath deposes and says that I am one (1) of the signers of the above petition and that the statements made therein are true, and that each signature appearing thereto was made in my presence on the day and date it purports to have been made, and I solemnly swear that the same is the genuine signature of the person whose name it purports to be. 10 - SWORN AND SUBSCRIBED TO before me this _ day of ,19_. Notary Public in and for The State of Texas Section 5.04 Various Papers Constitutinq Petition: 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 said petition is signed by the requisite number of qualified voters, and, if necessary, the II Council shall allow him extra help for that purpose, and he shall attach to said petition a certificate showing the result of such examination. If by the 1"11 Secretary's certificate the petition is shown to be insufficient, it may be amended within ten (10) days from the date of said certificate. The. Secretary shall, within ten (10) days after such amendment is filed, in case one (1) is filed with him, make a like examination of said amended petition, and if his certificate shall show the same to be insufficient, it shall be returned to the person filing same without prejudice, however, to the filing of a new petition based upon new and different grounds, and not upon the same grounds. (Amended April 7, 1984) .- Section 5.05 Presentation of Petition to the 1/1 Council: Within fifteen (15) days after the date of filing of the papers constituting the recall petition, the person performing the duties of the City Secretary shall present such petition to the II Council of the City of Colleyville at a special meeting called for this purpose, or at the next regular meeting of the City Council. (Amended April 7, 1984) Section 5.06 Public Hearinq to be Held: The officer whose removal is sought may, within five (5) days after such recall petition has been 11 - presented to the City Council, request that a public hearing be held to permit him to present facts pertinent to the charges specified in the recall petition. In this event, the City Council shall order such public hearing to be held not less than ten (10) days nor more than twenty (20) days after receiving such request for a public hearing. Section 5.07 Election to be Called: If an officer whose removal is sought does not resign, the City Council shall order an election and fix a date for holding such recall election within thirty (30) days of the date of the petition; provided, however, if an election cannot be called within said thirty (30) day period, then the date of the election shall be the first date an election may be called under State law. (Amended January 18, 1992) Section 5.08 Ballots in Recall Election: Ballots used at recall elections shall conform to the following requirements: (a) With respect to each person whose removal is sought, the question shall be submitted: "Shall (name of person) be removed from the office of (name of office) by recall?" - (b) Immediately below each such question there shall be printed the following words, one (1) above the other, in the order indicated: _FOR the recall of (name of person). _AGAINST the recall of (name of person). 12 - Section 5.09 Result of Recall Election: If the majority of the votes cast at a recall election shall be against the recall of the person named on the ballot, he shall continue in office for the remainder of his unexpired term, subject to recall as f'- specified in this Charter. If a majority of the votes cast at such election be for the recall of the person named on the ballot, he shall, regardless of any technical defects in the recall petition, be deemed removed from office and the vacancy shall be filled as provided in Section 3.05 of this Charter. Section 5.10 Recall, Restrictions Thereon: I.. __ __ __. __ __ __. __. __ __. ___ __ __ __. __ __ __ __ __ __.. __. __ __. __ __. __ __ __ __./ No recall petition shall be filed against any officer of the City within six (6) months after his election, nor within six (6) months after an election for such officer's recall. Nothing herein shall prevent impeachment of an officer of the City nor removal for other causes as provided for herein. Section 5.11 Failure of Council to Call an Election: In case all of the requirements of this Charter shall have been met and the II Council shall fail or refuse to receive the recall petition, or order such recall election, or discharge other duties imposed upon said Council by the provisions of this Charter with reference to such recall, then the County Judge of Tarrant County, Texas, may discharge any such duties herein provided to be discharged by the City Secretary or by the II Council. 13 .r-_._.......__..___._.__m___......._.._.__....._m.__..__.___._-, , ' jCClmment: Review if Committee [ ! determines to extend term of elected i Loffice ! ,.._...___...................__...................._...._.___.............:.........:..____......1 Page 1 of 1 William Lindley From: William Lindley Sent: Tuesday, December 21,20041:04 PM To: dkendrick@xspediusmail.net Cc: Cynthia Singleton Subject: City Charter Committee questions Ross, During last week's City Charter Committee meeting, the group discussed various points presented in your 12-08-04 memo ("Response to City Charter Review Committee Inquiry"). As a follow up from their discussion, it was requested that you elaborate more fully on the fifth point raised in the memo: 5. Section 5.1 provides that the County Judge may perform the duties of the Council and the City Secretary with regard to a recall petition if the foregoing parties refuse to act. There is substantial question as to the validity of this provision. It would be helpful for the Committee to better understand what issues you see raised by this provision with respect to its validity. A discussion of what duties are generally identified with a recall election by the Council and or City Secretary is needed for clarity for the Committee. Last, in the absence of a County Judge performing the various duties, please advise who would have the authority to compel a Council to perform requirements of the Charter or State law. "- Please give me a call should you have any questions with the Committee discussion. Thanks, Bill 12/21/2004 12/22/2004 10:31 8174852836 ROSS T FOSTER P C PAGE 01/21 R 0 S S T. Fa S T E R, P. c. ArTORNEYSATLAW 9001 Airport Freeway. Suite 675 Fort Worth. Te."{:.!s 76180 (817) 788-1111 Fax: (817) 485-2836 ROIl.~ T. FQ~~ K8l11'leth E. East FACSIMILE COVER SHEET TO: Mr. Bill Lindlev. City Manager. City of Collevville FROM: Ross T. Foster/Debi RE: City Charter Committee OuestionsIReca11 FAX NO: (817) 503-1129 DATE: December 22. 2004 NUMBER OF PAGES (including cover sheet): 2] NOTICE: TIME: THl~ INFORMATION CONT AlNED.IN l1nS FACSIMILE MESSAOE IS ATTORNEY PRIVILEGED ANDCONFIDENTIALA.'ID IS INTENDED ONLY FOR THE RECJPlENT NAMED ABOVE. YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DIsTRffitmON OR CO!"Y!NGOF THIS COMMUNICATION OTHER THAN BY THE INTJ:;NDED RECIPIENT IS STRICTLY PROHIBITED. IF YOlj ii."VE RECEIVED TillS COMMtINICATION IN Ji:RROR. PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND PLEASE RETURN THE ORIGINAL MESSAGE TO us AT THE ABOVE ADDRESS VIA THE u.s. POSTAl.. SERVICE. MESSAGE: ,,~- ~ Original will NOT follow o Original will follow o Via First Class Mail o Via o Please call upon recejpt o Response needed by (Date) o For your review o Attachment is letter / memorandum D Per our discussion (Time) IF YOU HA VB RECEIVED TIllS CO:MrvfiJNICATION IN ERROR PLEASE NOTIFY US IMMEDIAlEL Y BY TELEPHONE. 12/22/2004 10:31 8174852835 ROSS T FOSTER P C PAGE 02/21 - MEMORANDUM PRIVILEGED - DO NOT GENERALLY DISTRIBUTE TO: Bill Lindley, City Manager City of Colleyville FROM: Ross T. Foster, City Attorney City of Colleyville DATE: December 22,2004 s{rBJECT: City Charter Committee Questions/Recall You forwarded to me a m.emo in which you seek o~ behalf of the Charter Review Committee (1) a better understanding of the issue raised by my previous memo referring to sec:tion of 5.11 of the Charter, (2) an identification of the duties of the Council and/or City - Se<;retary in the Charter with regard to a recall election, and (3) if the county judge cannot pelform these duties as referred to in Section 5.11, who has the authority to compel the Council to perform the duties? There are two reported cases involving charter language similar to Colleyville's, which states that the county judge may perform the duties of the Council and the City Secretary with re2ard to a recall. petition if the foregoing parties refuse to act. Although in each of those cases the county judge refused to act, the cases explicitly question the validity of such charter provisions sim:e there is no statutory or constitutional authority for the provision. The two cases are attached for your review. It is believed their reasoning with regard to the matter is self~ explanatory. With regard to a recall petition, Section 5.04 requires the City Secretary to examine the - petition and determine whether the Tequisite number of voters have signed the petition. The City 12/22/2004 10:31 8174852835 ROSS T FOSTER P C PAGE 03/21 - Secretary is required to certify the petition as either containing the requisite number of voters or not. Section 5.05 requires the City Secretary to present the petition to the City Council. Section 5.06 requires the City Coun.cil to conduct a public hearing on the matter ifan appropriate request is made. Section 5.07 requires the City Council to order an election if the officer whose removal is :lought does not resign. As the Charter is currently fonnulated if the Council or City Secretary fail or refuse to pelform their duties with regard to a recall election then they may be ordered to perform those dudes by a court of competent jurisdiction. Generally, an application for such a writ would be filed with the Court of Appeals as an original proceeding. The two cases previously referred to als.o discuss thi.s matter. I have also attached a case with regard to the issue wbich arose in Colleyville. ",,- If you have any questions, please contact me. RTF Rl'F:dk Attachments - 12/22/2004 10:31 8174852835 - '^~ 82j~ S.W.2d211 82l~ S.W.2d 2] I (Ote as: 828 S.W.2d 21 t) Court of Appeals of TCX8S. Dallas. Jim DUFFY, et al.. Relators, v. John BRANCH, et af.. Respondent!;. No. 05~92-00468-CV. March 20, 1992. Relators moved for writ of mandamus ordering city council to call recall election for city council member. Thl~ Court of Appeals, Baker. J.. held that issuance of wril of mandamus was appropriate to compel city council to order recall election after recall petition was filed with city secretary and certified to city council. .......... Writ conditionally granted. West Headnotes [11 Mandamus €;=12 250:'d2 Most Cited Cases Thl! issuance of writ of mandamus lies to compel the performance of ministerial act or duty. 121 Municipal Corporations ~159(1) 268l<159(1) Most Cited Cases Re(:all provision of city charter required city council member to vote affinnatively for his own n~eall election upon receipt of a recall petition, and permitted city coutlcil member no discretion either to vote against the recall election or to abstain from voting. V.T.C.A., Election Code ~~ 4 LOOI(a)(2), 273.061. (31 Municipal Corpontions ~159(1) 268l,159(1) Most Cited Cases Calling of recall election for city council memberto be held on May 2nd was not moot while city council member remained in office on the date of the election, though his term would expire on May 12th. l4JMandsmus ~3(8) 2S0k3(8) Most Cited Cases If c:ity charter required petitioners to exhaust their ROSS T FOSTER P C PAGE 04/21 Page 1 administrative remedies before seeking mandamus relief for failure of city council to call recall election once petition was filed, they did S(l by asking county Judge to order recall election, though the judge refu.-.ed, and writ of mandamus could be issued. 151 Mandllmus €=>>3(4) 250k3(4) Most Cited Cases 151 M.IIIndamus €:=74(2) 250k74(2} Most Cited Cases City council had ministerial duty, enforceable by writ of mandamus, to call recall election after the city secretary presented recall petition, and petitioners lack,ed adequate legal remedy, despite pendency of declaratory judgment action tiled by city in district court. 16) Mandamus ~168(3) 250k 168(3) Most Cited Cases Assertion that allegations in recaJl petition were insufficient was irrelevant in action for writ of mandamus to compel calling of a recall election, where city charter did not give city officials right to review petition for validity, though sufficiency arguments could be heard in district court, which could enjoin election if petition wa.~ insufficient. *211 Dwight A. Shupe, Kim J. Askew, Dallas, for relators. John Branch, Lynn Spruill, Mary Dolan, Riley Reinker, Addison, RobertL. McCallum, Dallas, for respondents. Before STEWART, BAKER and KAPLAN, JJ. OP1NrON BAKER, Justice. Relators seek a writ of mandamus ordering the Addison City Council to call a'recall election for council member John Branch. We conditionally grant the writ, '- JURISDICTION This mandamus proceeding involves an election - Copr. to 2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852836 82~~ S.W.2d 2]] 828 S.W.2d 21 I (Cite as: 828 S. W.2d 2J J) disi?ute. This Court has jurisdiction pursuant to section 273.06\ ofthe Texas E]ection Code, which provides: The supreme court or a court of appeals may issue a ...wit of mandamus to compel the perfonnance of any duty imposed by Jaw in connection with the holding of an election or a political party convention, n~gard)ess of whether the person responsible for perfonning the duty is a public officer. *212 Tex.Elec,Code Ann. ~ 273.061 (Vernon 1986). n. Tf-TE RECALL PROVISIONS Th~ underlying election dispute involves the Addison Ci~' Council's failure to order a recall election of council member 8ranch. The recall provisions (sections 10.07 and 10.11) of the Addison City Charter provide the fuunework of this dispute. Section 10.07 provides: [Upon the city secretary's presentation of a recall ~~tition. if) the officer whose removal is sought does not resign, then it shall become the duty of the Council to order an election.... Addison City Charter ~ 10.07. Section 10.11 provides: In case all of the requirements of this Charter shall h.we been met and the Council shall fail or refuse to receive the recall petition, or order such rccall election, or discharge any other duties imposed upon s"Iid Council by the provisions of thi!; Charter with reference to such recall, then the county judge of D.alJas County, Texas, shall discharge any of such duties herein provided to be discharged by the person )X:rfonning the duties of City Secretary or by the Council. Addison City Charter ~ 10.11. ITL BACKGROUND OF THE DISPUTE The Addison City Council consisted offivc members: William Akin. John Branch, MaT)' Dolan, David Granoff, and Riley Reinker. The Addison City Charter requires three affirmative votes for the city council to act. Addison Mayor Lynn Spruill votes only ifthere is a tie, Relz.tors are residents and qualified voters of the Town of Addison. They and many other Addison voters ROSS T FOSTER P C PAGE OS/21 Page 2 signed petitions to recall city council members Akin, Branch, and Granoff. Relators fUed their petitions with the city secretary on December 27, 1991. On January 14, ] 992, the city secretary certified to the city council that the petitions complied with the city charter requirements. The city council unanimously accepted the pctitions, At its next regular meeting on January 28, 1992, the city council did not call a recall election for Akin, Branch, and Granoff. However, Akin. Branch, and Granoff voted to have the Town of AddiSOn file a declaratory judgment suit against relators. On February 6, 1992. the Town of Addison filed suit in the 95th District Court. Re]ying upon section 10.11 of the Addison charter, relators asked Dallas County Judge Lee Jackson to order the re(:all elections. On February 7, 1992, Judge Jackson informed relators' counsel that he refUsed to order the recall elections. Judge Jackson ~tated he could not find any Texas law authorizing a constitutional county judge to order a city or town to hold an election. Granoff resigned February I], ] 992. Akin resigned February 12, 1992. On February 15, 1992, thc three remaining council members (Branch, Dolan. and Reinker) again voted on rolators' petition to recall Branch. Dolan and Reinker voted for the recaIJ, but Branch abstained. The city council was one vote shy of the three votes necessary to confinn any city council action. Because the vote was not a tie, Mayot Spruill could not cast the decisive third vote. Relators argue that the city council has the ministerial duty to call the recall election pursuant to section 10.07. They contend the duties imposed by section 10.07 are unambiguous and mandatory. Because both the city council and Judge Jackson refused to order the recall election, relators maintain that this Court is the only court with the authority to compel the city council to call the recall election. Respondents are the three remaining members of the Addison City CO,l.Incil an,d Mayor SpmilI. Only council member Branch opposes the issuance of the writ of man dam liS. Copr. <0 2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852836 - 828 S.W.2d 211 82l! S.W.2d 211 (Cjte 8S: 828 S,W.2d 211) IV. ANALYSIS A. Refusal to Perform Ministerial Duty [1][2] If, after the filing ofa recall petition, the affected council member refuses to resign, section 10.07 of the Addison City Charter provides that the city council mU~lt order a recall election. This provision is *213 mandatory and allows for no discretion. It is a purely ministerial duty. See Blanchard v. Fulbright, 633 S.W.2d 617, 619 (Tex,App.--Houston [14th Dist.] 1982. orig, proceeding) (per curiam)~ [FN1] Howard v. Clack, 589 S.W.2d 748, 752 (Tex.Civ.App.--Dallas 1919, orig. proceeding). Mandamus lies to compel the pcr1~nnance of a ministerial act or duty. Walker v. Packer, 427 S.W.2d 833, 838-39 (Tex. 1992). Although Branch is the subject of the recall petition, we hold that Branch's ministerial duty as a city council member, as set out in charter section 10.07, is to vote affilmatively for his own recall clcction. Section 10.07 permits no discretion either to vote against the recall election or to abstain from voting. .- FN]. The Texas Supreme Court dismissed an application for writ of error for want of jurisdiction. B. Whether the Recall Election will be Moot [3] Both Branch and relators agree that if the city council calls a recall election, the date for the election must be May 2. 1992. See Tex.Eke.Code Ann. ~ 41.00] (a)(2)(Vemon Supp.1992). Branch claims his teTlIl expires May 2, 1992. Branch contends because his term expires May 2, 1992, a recall election on that date would be moot. Branch maintains that this Court should not issue writ of mandamus. See Blanchard, 633 S.W.2dat6IS. At oral argument, both sides agreed that the Addison City Charter provides that a councilman's tenn expires at tbe next regular city council meeting following the election date. In this case, Branch's tenn would expire May 12, 1992. This date is the next council meeting following the May 2, 1992 election. Tn Blanchard. thre(: of the council members against whom the voters sought recall elections were out of office by the time th~ cour: rendered its decision. Blanchard. 633 S. W.2d at - ROSS T FOSTER P C PAGE 06/21 Page 3 6]8. In the present case, Branch remains in office. While Branch remains in office, the calling of a recall election is not a moot issue. C. Adequate Remedy at Law Branch contends that relators have adequate legal remedies. Branch argues that under section 10.11 of the Addison City Charter, Judge Jackson is the proper authority to order the recall election. Additionally, Branch contends that the declaratory judgment action pending in the 95th District Court affords relators au adequate legal remedy. The adequacy of other legal remedies applies to violations of ministerial duties. See Abor v. Black. 695 S. W.2d 564, 567 (Tex.1985, orig. proceeding); State Bar of Texas v. Heard, 603 S.W.2d 829, 834 (Tex. I 980, orig. proceeding); H1.lffstutlar v. Koons, 789 S.W.2d 707, 709 (Tex.App.~-Danas 1990, orig. proceeding). 1. Section 10.11 and Judge Jackson [4] The Houston court of appeals encountered a provision similar to section 10.1 J in the Angleton City Charter in Bf anchard.. The 810nchard court questioned whether the Angleton charter cou Id impose that duty on a county judge absent statutory or constitutional authority. See Blanchard, 633 S.W.2d at 624. The Blanchard court granted writ of mandamus despite this provision. In a similar situation, the Fort Worth coun of appeals also granted the writ. See Burm; v. Kelly. 658 S.W.2d 731, 733 (Tex.App.-Fort Worth 1983, orig. proceeding) (op. on reh'g). As did the Blanchard court, we question whether the Town of Addison can impose this duty upon the Dallas County Judge. c:f. Tex, Local Gov't Code Ann. ~ 7.003 (Vernon 1988). As in Blanchard, the County Judge here refused to order a recall election. Blanchard, 633 S. W.2d at 624. Assuming the Addison charter requires relators to exhaust their administrative remedies, they have done so. See Gonzal(!z v. King, 548 S.W.2d 66,70-71 (Tex.Civ.App.--Corpus Christi 1970, orig. proceeding) (Nye, J., concurring). [FN2] FN2. Although Gonzalez involved a recall election, it did not involve a mandamus COpt. ~ 2004 West. No Claim to Orig. U.S. GoV!. Works. 12/22/2004 10:31 8174852836 82:~ S.W.2d 211 82:~ S.W.2d 211 (Ciite a~: 828 S.W,2d 211) proceeding under the statutory predecessor of section 273.061 of the Texas El'ection Code, but a writ of injunction under the statutory predecessor of section 22.221(8) ofthe Texas Government Code. Gonzalez. 548 S.W.2d at 67; Tex.Govtt Code Ann. ~ 22.221(a) (Vernon 1988). *214 2. The Pending Declaratory Judgment Action /~-< [51 Branch contends that relators have an adequate remedy at law because of the declllratory judgment action pending in the 95th District Court. We disagree. Th'3 narrow issue before this Court is whether thc city council had the ministerial duty to call the recall election once the city secretary presented tbe recall petition and Branch refused to resign. Burns. 658 S. W.2d at 734. We have held that the city council has the ministerial duty to call the recall election. The pendency of the declaratory judgment action does not haw any bearing on the issues before us in this man.damus proceeding. Bumf, 658 S.W.2d at 733-34. [FN3) FN3. We express no opinion on whether the Town of Addison i~ the proper party to contest the sufficiency of the recall petition. Cj. Burns. 658 S, W.2d at 733 (suit filed by cdul'Ici1 member); Blanchard, 633 S.W.2d at 620 (suit filed by city iOn and through individual council members who were the subject of recall petitions). D. Sufficiency of the Petition [6] Branch asserts that the allegations in the recall petition are insufficient. He argues the city council properly refused [0 call a recall election. See Burns, 658 S.W.2d at 734-35 (Jordan, J., dissenting). In BlaTlchard. the city charter required the city secretary to prCslmt the recall petitions to the council. Blanchard. 633 S.W.2d at 62]-22. The court held that the city chan:er did not give the city officials the tight to review the J~etjtion for validity. Blanchard, 633 S.W.2d at 622; see also Burns.. 658 S. W .2d at 733; Howard, 589 S.W.2d at 750-52. ROSS T FOSTER P C PAGE 07/21 Page 4 Secti~n 10.05 of the Addison chartcr is substantially the same as the Angleton charter. Blanchard. 633 S. W.2d at 621-22. The opinion states that the council members could make the suffiCiency arguments in a district court. Blanchard, 633 S.W.2d at 622; accord Burn,f. 658 S.W.2d at 733. Branch may do that here. The only issue before this Court is whether section 10.07 compelled the city council to call a recall election when the city secretary presented the recall petition and Branch refused to resign. The district court is the forum to argue the sufficiency issues. If the district court detcnnines that the recall petition is insufficient, then it may enjoin the recall election. See Bums, 658 S.W.2d at 734. V. CQNCLUSJON We direct respondents Branch, Dolan, and Reinker, in their capacities as members of the City Council of the Town of Addison. to vote to calt a recall election for Btanch. Respondents Branch, Dolan, Reinl<er. and Mayor Spruill, in their capacities as members of the City Council of the Town of Addison, are further directed to file in this Court a certified copy of respondents' official action calling a recall election for Branch. Tfrespondcnts do not comply with this Court's directive, the writ shall issue. 828 S.W.2d 21 1 END OF DOCUMENT -- COpt. ~ 2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852836 ,~- '^~ 63:~ S. W.2d 61,7 63:1 S.W.2d617 (Cite a~: 633 S.W.2d 617) Court of Appeals of Texas, Houston (14th Dist.). Steve BLANCHARD. et aI, Appellant, v. M. L "Hank" FULBRIGHT, et ai, Appellee. No. A 14-82-043CV. April ]5, 1982. Relator tiled an original mandamus proceeding seeking to c1)mpel recall election of mayor and four city council mernbers. The Court of Appeals held that: (I) the city cou:lcil does not have the duty and authority to determine the sufficiency of recall elections by discretionary "judicial review," 50 as to preclude mandamus relief; (2) the action was rendered moor as to three city council members who were defeated in the' genl~ral election; (3) the suit did not constitute an impermissible collateral attack on prior judgment that cert:lin recall petitions were insufficient and were based on frivolous and untrue grounds; (4) the relators were not precluded from bringing the suit by failure to designate a campaign treasurer and file campaign exp<mse reports; (5) the county judge was not a necf:ssary party to the action; and (6) conclusory stat<:'ments that factual issues existed were insufficient to dc:feat mandamus. Writ of mandamus granted. West Headnotes II) Mandamus €=J76 250k76 Most Cited Cases Court of Appeals may compel by writ of mandamus the perlhrmance by city officials of any duty imposed upon them in connection with holding of recall election. Vernon's Ann.Civ.St art. ] 735a. (2) Mandamus €=>12 250kl2 M05t Cited Cases Generally speaking, mandamus will lie only where the duty to act is clear and there is no disputed issue offset. ROSS T FOSTER P C PAGE 08/21 Page 1 [3] Municipal Corporatiollll ~lS9(1) 268k 159(1 ) Most Cited Cases City charter did not delegate or give discretionary authority to city oouncil to reveal sufficiency of recall petitions. [41 Mandamus €:=>76 250k76 Most Cited Cases As city council did not have duty and authority to detennine sl.lfficicncy ofl'ecall petition by discretionary "judicial review," residents of city could file mandamus petition seeking to compel r.ecall of mayor and city council members. Vernon's Ann.Civ.St. art. 1735a. 15) Mandamus €o=>l6(2) 250k 16(2) Most Cited Cases Original mandamus proceeding seeking to compel recall election ofrnayor and fom city council members was rendered moot as to three council members when those three were defeated at regular election. Vemon's Ann.Civ.St. art. t 735a. [6].Judgment €=o644 228k644 Most Cited Cases Judgment in declaratory judgment action that recall petitions were insufficient and were based on frivolous and untrue grounds was not res judicata on subsequent mandamus proceeding seeking to compel recall election of mayor and four city council members. Vernon's Ann.Civ.St. arts. 1735a, 2524" I, ~ 11. 171 Mandamus €=76 250k76 Most Cited Cases Relators were not barred from bringing original mandamu.<; proceeding seeking to compel recall election of mayor and four city council members based on noncompliance with section ofEtection Code by failing to designate campaign treasurer and file campaign expense reports. Vernon's Ann.Civ.St. art. ] 735a; V-A.T.S. Election Code, an. ]4.01 et ~eq. 18) Mandamus ~lS2 250k152 Most Cited Cases County judge was not nooessary party in original mandamus proceeding seckingto compel recall election of mayor and four city council m.embers, as no purpose would be served in requiring presence of judge as party in order to issue mandamus to city council td order recall election. Vernon's Ann.Civ.St. art. 1735~. I Copr. Cl 2004 West. No Claim to Orig. U.S. Govt. Worl<s. 12/22/2004 10:31 8174852836 63J S,W.2d 617 633 S.W.2d 6] 7. (Oite liS: 633 S.W,2d 617) 191 Mandamus ~lS5(2) 250k155(2) Most Cited Cat;es Conclusory allegations of existence of fact issues did not preclude issuance of writ of mandamus to compel recall election of mayor and four city council members. Vernon's Ann.Civ.St. art. 1735a. 1101 Mandamus ~13 250k I 3 Most Cited Cases Re:latot'!i were not required to file additional recall pet:tions Or file suit in district court as prerequisites to maintaining in Court of Appeals original mandamus proceeding seeking to compel recall election of mayor and four city council members. VemOl1's Ann.Civ.St. art, 1735a. *6'18 George M. Kirk, Jr., Houston, for appellant. David Bonnen. Sam Lee, Angleton, for appellee. Before BROWN, C. .Y., and JUNELL and PRICE, JJ. PER CURJAM. Thi.s is an original mandamus proceeding filed in this COll~ under art 1735a to compel a recall election of the mayor and four city council members ('If the City of Angleton. It is our conclusion that the man.damus should be denied as to the recall election of city council menbers, Charles Cole, Gene Mitchell and Arthur Alexander because the issue of recall is rendered mOot by the results ofa regular April 3, 1982, Angleton city election in which these three council members were defe ated for reelection. It is further our cone lusion that mandamus should issue for a city recall election as to Maror M_ L. "Hank" Fulbrightand council member Sue Hensley. We deny petitioner's claim for attorneys fees_ The relators Steve Blanchard, et aI, arc sixteen residents of the City of Angleton who are duly qualified voters and are circulators and signers of petitions requesting a recall election of the mayor and four ofche five city council members. Respondent M. L. "Hank" Fulbright is the mayor of Angleton, having been elected in a runoff election of the city on May 2, 1981. Respondents Charles Cole, Gene Mitchell, Arthur Ale}I:ander, Sue Hensley, and Vine Pavlas are all the members of the Angleton City Council. No recall elecl'ion is sought as to Vine pavlas, but recalls are ROSS T FOSTER P C PAGE 09/21 Page 2 sought of the other four council members. Council member Sue Hensley was elected to the council in a city nmoff election on May 2, 1981, and council members Charles Cole, Gene Mitchell and Arthur A lexander are incumbent council members who were defeated for re-election in the April 3, 1982, regular city elections. The city of Angleton is a Home R.ule City, 'having accepted a Home Rule Charter on February 17,1967. The County Judge of Brazoria County, E. E. "Red" Brewer, is also named as a respondent in this mandamus suit, but relators concede this respondent was not served by them and he has failed to otherwise answer or appear in this proceeding. Accordingly. no jurisdiction has attached over said respondent. Relators say he is unnecessary for a disposition of the case, but respondents urge that he is an indispensable party and that no mandamus may issue without his joinder. Under the record before us, we do not believe the presence of the County Judge in this suit is necessary as we shall discuss later in the opinion. The city charter provides in pertinent part that the citizenry has reserved to it~elf the power of recall (Section 6.01), that any elected city official shall be subject to recall on grounds of incompetency, misconduct Or malfeasance in office (Section 6.02), that the question of recall may only be submitted in response to a demand petition to be filed with the city secretc'U')' and signed by qualified voters of. the city equal in number to at least 30 percent of the number of votes cast in the last regular municipal E:lection of the city but in no event less than 150 petitioners (Section 6.03), and that each signer shall personally sign his name in ink with his place of residence giving name of street and number or place of residence and the date of signature (Section 6.03). The charter further provides that the petition be addressed to the city counci I, stating grounds with specificity so as'to give the officer for whom removal is sought notice of the matters and things with which he is charged (Section 6_04), one signer of each petition must, by affidavit, indicate that he *619 or she personally circulated the petition and that the signature is genuine (Section 6.04), an.d that the petition is to be filed with the city se<:rct:ary (Section 6.05). Further, Section 6.06 requires the city secretary ,- Copr. 02004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852836 63:3 S.W.2d 617 63J S.W.2d 617 (Ciite as: 633 S.W.2d 617) to immediately present the petition to the council. Se(:tion 6.07 provides for public hearings for the officers whose removal is sought if the request for such hearing is made within five days after receipt of the petition, and in such event the city council shall order such hearing to be held not less than five days nor more than fifteen days after the request for hearing is recl~ivcd, Section 6.08 provides that if the officers do not resign that an election Ttlll5t be ordered by the council, the date of which shall not be less than twenty-five nor mOre than thirty-five days fi'oom the date the petition was presented to city council, or from the dat~' ofthe public hearing. Finally, the charter indicates that if the majority votes for recall that such pernons shan be recalled, regardless of any technical defects ln the petition (Section 6.10) and that if the city council shor.lId fail or refuse to order the recall election that the County Judge of Brazoria County shall discharge the dut)1 (Section 6.12). .'~ ih~ recall petitions in question were tiled with the An@Jeton City Secretary an August 24, 1981. Recall was based upon alleged grounds of incompetence and mis~;onduct in office which are two grounds expressly authorized for recall in the Angleton City Ch~er, As to Mayor Fulbright and councH members Mitchell, Alexander and Hensley, the facts alleged to constitute incompetence and misconduct in office were: (J) the firing of Hope Cameron, chief accountant for the City of Angleton, on July 14, 1981. shonly after she had apJX:ared a.~ a witness for Beckie Archie in a trial against City Secretary Ruth Hertel in State of Texas v. Ruth Henel (2) the approval of the retaliatory elimination of Becky Archie's job in the city accounting offh:e by city administrator Hicks On May 27, 1981. less than one week after a trial was held in which Becky Arch ie was the complainant against City Secretary Ruth Hertel, and (3) the rc-cla.",sification of money paid to city ~ouncil members from "salayY" to "expenses" and failing to require any substantiation for the payment of that "expense" money. As to council member Cole, the facts alleged to constitute his incompetence and mi sconduct in office were that he abused the power and authl~rity of his office as a member of city council on July 30, 1980, by requeSting and authori:ting the City Secr,~tary to call the Angleton Police Department and tequ~st under the guise of "city business" the ROSS T FOSTER P C PAGE 10/21 Page 3 registration information for owners of vehicles gathered at l.eland Kee's law office On July 30, 1980, when the request bad no legitimate relationship to the conduct of city business. The record shows that the number of votes cast at the last regular municipal ejection of the City of Angleton on April 7, 1981, was 1737 votes. There were 1789 votes cast at the May 2. 1981, city runoff election. Relators state that when the peHtions were filed. they each contained 685 to 725 signatures by actual count in substantial compliance with the provisions of the city charter, Copies of these petitions relied on by relators are on file in this court. Each of the petitions filed show the signatures dated from August 7, 1981 to August 23, 198 I . and each of the petitions is sworn to by a carrier of said petition who affinns that he or she is a signer of the petition for recall, that he or she alone personally circulated such petition forrecaJl in Angleton, that each signature appended was made in his or her presence and is the genuine signature of the person whose name it purports to be. A statewide election was already scheduled for N ovember3, 1981. On September 8, 1981, the petitions were presented by the City Secretary to the city council during a regular session. At this council meeting, each of the council members who were subject to recall stated that they wou Id not resign and that they desired a public hearing in accord with Section 6.07 of the City Charter; fourteen days later on September 22, 198 I, the city council granted and ordered separate hearings on each thursday of October to each of the members whose recall was sought, commencing *620 October 1, t 981, and ending October 29, 1981. in addition to scheduling a November 5, 1981, final hearing to give each councll member an opportunity to give a summary of or conclude his 01' her public hearing, the totality of which were presided over by the mayor. AU public hearings were finally concluded on November 5, 1981, a period offifty~eight days after the requests for public hearings were made and received. This period offifty-eight days was contrary to the five to fifteen day timc period provided by Section 6,07 of the charter to hold such public hearings. On November 10, 1981, in a regular meeting of the City Council. the City Attorney stated that he and the City Secretary had examined the ,- Copr. ~ 2004 West_ No Claim to Orig_ U.S. Govt. Works. 12/22/2004 10:31 8174852836 -- 633 S.W.2d 6]7 633 S.W.2d 6]7 (Cite as: 633 S, W.2d 617) .- petitions, had found numerous defects and l'E:commended returning the petitions to the City Scc:retary so that they could be retumed to the cir<mlatots, corrected and brought into compliance with the City Charter. The minutes do not reflect the pointing out of any specific alleged defects. At the same meeting, the City Attorney was granted authorization to file suit on behalf of the city of Angleton with regard to the rec:all petitions to seek injtl!lctive relief and a declaratory judgment for interpretation of the City Charter provisions pertaining to recall. On November I I, 198], all persons who sigtled the petition were individually mailed a Jetter from the city which stated in part as follows: "... this is to fld\lise that if you desire that your name not be considered a part of the petition in the coming court Castl, you may still come by City Hall and have your name removed." The relators were filrther informed that additional corrective information was needed but spedfic tec:hnical irregularities were not described. The petitions were returned to the carriers by the City Secretary, and respondent's counsel represents to the CQul1 that the City Secretary and respondents do not hav~~ the original petitions nor copies of them. On November 11, ] 981, an injunction and declaratory judgment suit was filed in the 149th Judicial District of Bra:roria County, Texas, by the city in and through respondents seeking among other things, to restrain E. E. "Red" Brewer, the County Judge, from ordering the recall petition pursuant to s 6.12 of the City Charter. No other defendant was lJamed or cited in the lawsuit other than tho County Judge. A temporary restraining order without notiee was issued by a visiting Judge on the day of filing, November 11, 1981, and hearing for tempo11l.ry il1iunction and other prayed for relief set on November 20, 198]. Thereafter, the restraining order was extended and the hearing for temporary injunction reset for November 30, 1981. On November 24, 1981, the defendant County Judge filed a motion to dismiss asking the court to dismiss the cause and declare Section 6.12 ofthe City Charter void on the ground that in requiring the County Judge to order a recall ejection with in the City of Anglcton, the charter required an act outside the scope of his constitutional and statutory duti(:s. On the same day of the filing of the motion to diSlTJiss, to wit, November 24, 198], the County Judge's ,~ ROSS T FOSTER P C PAGE 11/21 Page 4 motion to dismiss was granted by a visiting Judge. The court dissolved the restraining order and dismissed the cause of action against the only named defendant, the County Judge. On December 23, 1981, twenty-nine days after the dismissal of the County Judge from the suit the plaintiff (City of Angleton) filed a motion for specific findings and requested dismissal of the city's suit in its entirety. Attached to the motion for sp~ific findings and dismissal of the city's suit were five unverified certifications by tile city secretary Ruth Hertel which stated that she had examined each of the five recall petitions and found that they did not have the required number of valid signatures. This is the first time the record shows there was a contention the petitions lacked the requisite number of signatures and no number of signatures was alleged. The same day, to wit, December 23, 1981, the visiting Judge signed a second order in which the court found as a fact that the recall petitions lacked the appropriate number of valid signatures and that the grounds alleged in the petition to support the recall were frivolous and did not meet the charter requircment~. The petitions were also declared null and ~621 void in the order of December 23, 1981. The petitions themselves were not before the court, None of the named relators was made a party to the aforementioned litigation nor were adversary hearings conducted. Notice was not given of the hearing and no defendant was named or was present in connection with the December 23, 1981, motion, heariog and order. The City Council has refused to call an election in response to the recall petitions. Relator's attorney asserts the petitions were also presented to the County Judge after the city council refused to order the recall election, but candidly admits the record does not show such presentment to the County Judge. In any event, it is clear from the record that the County Judge will not call an election in response to the recall petitions. [1 J[2] This Court may compel by writ ofmandamu.q the performance by the officials of'tIle City of Angleton of any duty imposed upon them by law in connection with the holding of recall elections. Tex.Rev.Civ.Stat.Ann. art. 1735 a (Vernon ] 962). Generally speaking, mandamus will lie only where the duty to act is clear and there is no disputed issue of fact Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887 (Tex.1968); Jessen Associates, Inc. v. Bullock, 53] S.W.2d 593 Copr. @2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852836 633 S.W.2d 617 633 S.W.2d 617 (Cr.te as: 633 S.W.2d 617) (Tf!X.197.5); Taxpayers Political Action Committee, et al. v. City of Houston, et at. 596 S.W.2d 147 (Te1x.Civ.App.-Houl'lton (14th Dist.) 1979, no writ). Respondents in their pleadings and brief urge a number of defenses to the mandamus. They urge relatorn have no ,;lear right to a mandamus because the city council's du~y to order a recall election is not II ministerial fun,~tion. Rather, respondents assert, the city council has been given a discretionary "judicial function" by Section 6.06 of the City Charter to review the sufficiency of the recall petitions. In exercising such tigbt, respondents contend the city council has detmmined. the petitions are insufficient. In addition, respondents argue that the instant mandamus action constitutes a collateral attack on a valid District Court Dec:1aratory Judgment which found the petitions were insllfficient. They further contend an issue of fact is rais.~d in the affidavit of Ruth Hertel, City Secretary. whkh precludes mandamus; that relators have no stalldin,g because of noncompliance with secrion r 4.0 I et S~!q. of the Election Code which respondents contend reqtlires relators to designate a campaign treasurer and file .:ampaign expense report.'l~ and that relators have an adequate remedy at law by presenting petitions to the County Judge, a District Court or to refile other recall peti1:ions. [3][41[5] As to the respondent's contention that section 6.06 ofthe City Charter gives the city council tbe duty and authority to detennine the sufficiency of the recall petitions by discretionary "judicial review," we hold that section 6,06 of the Angleton City Charter does not delegate or give such discretionary authority to the city cowlcil. Nor do we find any other section of the City Chll:J.1cr delegating such right or duty. Actually, it appE:ats from the minutes and affidavits on file in this case to have been the City Secretary and the City Attorney who made such examination and review of the reca'l1 petitions, and rhen rec<?mmended to the city coullcil, after the public hearings were held, for the recall petitions to be returned to the carriers. The city oolitcil in turn then voted in favor of such recommendation based upon the examination, review and investigation by the City Secretary and City Attorney. Irrespective of whether SlJch action could be deemed to be an exercise of discretionary judicial ROSS T FOSTER P C PAGE 12/21 Page 5 review by the city councilor whether it was an examination and review by the City Secretary or City Attorney oftherecall petitions to detenn ine sufficiency, we do not find any provision in the Angleton City Charter giving any of the city officials a discretionary right of review. Respondents also agree that none of the City Charter provisions give the City Secretary the right to judge the validity ofthe petitions. Section 6.06 of the Angleton City Charter provides: "Immediately, but not Tater than the next regular meeting after the date of the filing of the papers constituting the recall *622 petition, the person perfonning the duties of City Secretary shall present such petition to the City Council of the City of Angleton." Tn our view, the charter provision does not provide for any discretionary "judicial review" of such recall petitions by the City Council, City Seeretary or City Attorney to determine factual sufficiency. In the instant case. the charter merely provides for the recall petitions to be presented to the City Council by the City Secretary. The "presentation" by the City Secretary to the City Council docs not infer or reserve the right or duty of "judicial review" by the City Council, as contended by respondents. If the City of Angleton had desired that a de legation of authority and duty to review the faerual sufficiency of the petitions be reserved in irs city council, City Attorney or City Secretary, it could have easily so provided in its City Charter, Section 6.08 provides that if the officers do not resign, then an election must be ordered by thc Council after a public hearing. The city council or other city official has no such right or authority of discretionary review absent a charter provision reserving such right and authority. In Howard v. Clack, 589 S. W.2d 748 (Tex.Civ.App.-Dalla.~ 1979) the Garland City Charter provided that the City Secretary was to examine the recall petitions to ascertain if they were signed by the requisite number of qualified voters and to attach a certificate showing the result of such examination and if sufficient "to submit" the same to city council which "shall" order and fix the date for holding the election. The court there held that the City Charter did not give the city council authority and discretion to review the sufficiency of the recall petition and decline to call an election if it determined the petition did not have the Copr. 02004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852835 633 S.W.2d 617 633 S.W.2d617 (Cite as: 633 S. W.2d 617) requisite number of genuine signatures, and even If the charter failed to confer on any agency authority to dct'~TlT1ine whether any signatures were fTaudulent, such cir<lutnstances would not justifY judicial recognition of such authority in the council. In Howard v, Clack, supra at 752, tbe court stated: "Good reason exists to explain why the people of Garland granted no such power to their city council ... Moreover, to imply authority on the part of council to make the ultimate detennination of sufficiency of the petition would commit the decision to a body that COli Id not be considered impartial." W~! believe a similar interpretation should be made in the instant case. No amhority to dctennine sufficiency of fJ~call petitions should be inferred to exist in the city coutlcil, in the absence of an express provision in the City Charter. The city council is not an impartial body, particularly in view of the fact that the subjects of recall weri;l the mayor and four of the five council members. A similar case to Howard v. Clack, supra, is found in Yotmg et a1. v. State, 87 S.W.2d 520, 522 (Te;(.Civ.App."Fort Worth 1935, writ rerd) where the cOl,ll1 held the board of aldermen of Wichita Falls had no discretion in the matter of calling a recall election bcclluse a similar charter provision as was found in Howard v. Clack, supra, imposed the duty of detennining and certifying the sufficiency ofthc recall peti1~on in the city clerk rather than on the board of aldermen. The Angleton City Charter in the instant case did not confer the discretionary right or duty to determine the factual sufficiency of the petitions to any city official. Tn the absence of any such charter pro, isi on giving the discreti onary right to determine the sufficiency of the petitions, we believe due process give~ the respondents the right to tile a suit in the Distict Court naming and citing interested parties and thefllby obtaining ajudicial detennination of sufficiency of the petitions in an adversary proceeding after proper netiee of hearing. Gonzalez v, King, 548 S.W.2d 66 (Tex.Civ.App.-Corpus Christi t 970, no writ). No such remE:dy was properly pursued in the instant case, howl~"er. We have serious doubts as to whether the facts alleged to constinlte incompetency and misconduct in office as to Respondent Cole would be sufficient in law and we doubt that jt is, but that que!ition is rendered moot because of the April 3 ROSS T FOSTER P C PAGE 13/21 Page 6 ,regular city election in which Respondent Cole was a "'623 candidate for election but was defeated, We are unable to say as a matter of law that the facts alleged to constitute incompetence and misconduct in office as to the other Respondents are not a sufficient legal basis for thc Subject of recall. We, of course, have no opinion and express none, of the tnlth ot falsity of the allegations. That is a matter for the people to detennine in an election. Gonzalez v. King, supra at p. 69; Howard v. Clack, supra at p. 751. Also see Weatherly v. Fulgham, 153 Tex. 481. 271 S.W.2d' 938 (1954) for an an~)ogous situation where the court held the Secretary of State, who had the statutory duty to examine the petition and certify the candidate fOT a place on the ballot. had no authority to inquire into the facts outside the record for the purpose of determining whether any of the signatures were forged or procured by fraud. Other city official recall suit situations are found in Miller v. State ex reI. Meyers, 53 S.W.2d 838 (Tex.Civ.App.-Amarillo 1932, no writ), Vetters v. State ~ reI. Murray. 2SS S.W.2d 588 (Tex.Civ.App.-San Antonio 1953. no writ), City Commission of Pampa v. Whatley, 366 S. W.2d 620 (Tex.Civ.App.] 963, no writ); Leggitt v. Ne!lbitt, 415 S.W.2d 696 (Tex.Civ,App,- Tyler 1.967, no writ). and Holt v. Trantham, 575 S.W.2d 83 (Tex.Civ.App.~Fort Worth 1979, no writ). These cases involve intttpretaiions of various charter provisions, but we do not find any of them inconsistent with Out holding here. [6) We do not agree with respondent's contention that the present mandamus suit constitutes an impermissible collateral attack on the District Court order of December 23, 1981, to the effect that the petitions were insufficient and were based on mvolous and untrue grounds. We do not believe that such order can be given any binding effect in the instant proceeding. Tex.R.cv.Civ.Stat.Ann. art. 2524-1 s 11 (Vernon 1965), the Declaratory Judgment Statute under which respondent's suit was originally filed in November, 1981, expressly provides in part: "When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not ,- Copr. €} 2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852835 633 S. W.2d 617 633 S,W.2d 617 (Cr.te as: 633 S. W.2d 617) parties to the proceeding.'! None of the relators was made a party or given any notice of the December 23, J 981. order. In fact, no one wa:\ made a pa.rty to such proceeding. The only defendant ever named in the su it was the County Judge who obtained an order of dismissal on November 24, 19~:l, the same day he filed his Motion to Dismiss. We do 'not believe any binding effect can be given in the instant ca'Se to the December 23, 1981, District Court ord,~ which was an ex parte nonadversary hearing without notice to anyone and without any party def~mdant even being named or cited in the suit. The recall petitions were not before the District Court at its Dec;ember 23, 198 J, hearing since respondents say the petitions were returned to the carriers on November 10, 1981, and that respondents have since had no copies of thern. Further, no copy of any recall petition was attached to the petition in the District Court injunction and declaratory judgment suit. Respondents further say the allegations in the rooall petitions were held frivolous by the District Court in its ex parte December 23, 1981, ordl~r "obviously on the premise that there was no evid.ence to establish the allegations." It i!'O equally obvious there was no one named or given notice of such hearing to be given the opportunity to present evidence. Further, the function of the District Court in such event would not bave been to establish the truth or the falsity of the allegations, but to determine whether the recall petitions sufficiently complied with City Charter provisions relating to the requirements of recall procedures. Respondents did not avail themselves of this judicial procedure, however, by maintaining and pursuing such a suit against any of the relators or any interested party individually or in a representative capa.city . [7J We also do not agree with respondent's contention that the relators have no standing to bring this mandamus because of "'624 noncompliance with Section 14.01 et seq. of the Election Code in failing to designate a campaign treasurer and tile campaign expense reports. Respondents contend the definition of "ele<:tion" in the election code makes no distinction bem.een a city recall election and any other election held pursuant to the code. We do not construe the Elcc.tion Code to require the designation of a campaign - ROSS T FOSTER P C PAGE 14/21 Page 7 treasurer or the filing of campaign contribution and expense reports on a recall petition made and filed by residents of a Horne Rule municipality to recall members of the city council. We do not fmd such election code provisions to be applicable in such a city recall election procedure. [8] We likewise do not find the presence of the County Judge, E. E. "Red" Brewer, to be necessary to a disposition of this case. While Section 6.12 of the City Charter provides that in the event the city council fails or refuses to order a recall election the County Judge of Brazoria County shall discharge such duty, it is clear from the record that the County Judge of Brazoria will not do so and in fact contends be is without constitutional or :$tatutory authority to do so. He has obtained a cowt order in the District Court pursuant to such contention. Respondents urge what seems to be the irreconcilable position that we are bound by this District Court order on the one hand, but afe required to join the County Judge in this proceeding before issuing a mandamus on the oth~ hand. We believe there is considorable question as to the authority of the City of Angleton through adoption ofa City Charter to impose on the County Judge of Brazoria County the duty and obligation to order a recall election when there is otherwise no statutory or constitutional authority for doing so. There seems to be a posl>ible question of separation of legislative and judicial poweT5. Without deciding this question, however, we do not believe it is necessaJ)' to require relators to act in vain and incur additional delay in doing so; that is, we do not require relators to submit formal proof of presentation of the recall petitions to the County Judge and obtain his refusal to do so in order for us to issue mandamus to the County Judge and the City Council to order the election. A sufficient remedy is for the City Council to order the recall election. No purpose would be served by also issuing a mandamus to the County Judge, particularly when there does not appear to be a clear duty to do so, and also in view of the clea.t refusal and unwillingness of the County Judge to order such a recall election. Likewise, where it is clear the County Judge will not order such a recall election, no purpose would be served in requiring the presence of the County Judge as a party to this proceeding in order to issue mandamus to the City Council to order a recall election. Copr. ~ 2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852835 ,- 633 S. W,2d 617 633 S.W.2d 617 (ei:te as: 633 S.W.2d 617) (9) With respect to respondent's contention that a fact issue exists precluding mandamus, respondents rely on the ,affidavit of City Secretary. Ruth Hertel, attached to respondent's Motion to Dismiss and Answers to Mandamus wherein she states: It... The copies of the petitions filed on the Court of Appeals in Houston in the suit filed by Steve Blanchard, et al asking for a Writ of Mandamus are not the same petitions that were flied with me as City Sl~cretary nor are they a true copy of said petitions... Tbe petitions filed in the Court of Appeals in Houston, Texas are not the same petitions which I received as City SecTetary, some carriers did not witness the signing of the petitions." (empha..<;is added) ^,,'-' We hold that such conclusory statements without any. fuctlJal statements setting out or supporting in what manner or nature the petitions filed with the City Secretary allegedly differ from the petitions relied on by relators on file in this court, or without the presentation of pl~itions for comparison purposes do not raise a fact issuj~ of this conclusion. We liken it to an analogous summary judgment situation where if there otherwise app':ars to be no existence of a material fact issue, the resp ()ndent has the burden to come forward and raise an issu~~ of di$puted fact. City of Houston v. Clear Creek Basin Authority, 589 S. W .2d 67 1 (T ex.1979). Here, resp ondents do not in any affidavit or exh ibit attempt tn factually'" 625 support the conclusory statcmentthatthe petitions on file in our court are not the same as the petitions filed with the City Secretary on August 24, 198;.. There is only the single conclusory statement to support such a contention. The petitions on file in our COUJ1 contain the signatures ofpersons which appear to be r~~gular. The signatures are dated consistent with the time prior to filing with the City Secretary and are not shovm to be numerically insufficient. Some do contain post office box numbers or route numbers as distinguished from number and name of street residences, but cven if such signatures were disl'C::sarded, tbey do not appear to be in sufficient num bel' to reduce the number of requirer;) signatures below 30 percent of the last general election. Further, Section 6.10 of the Angleton City Charter provides that ifthe: mll,jority votes fot" recall tl'iat such persons shall be recalled, regardless of any technical defects in the ROSS T FOSTER P C PAGE 15/21 Page 8 petition. We regard the listing of a post office box number or route number as a technical defect in the petition. Furthennore, respondents do not contend or allege that this is a point of ditferentation from the petitions filed with the City Secretary. [10) Finally, we believe the relators are entitled to the remedy of man darn uS withollt reflling additional recall petitions or filing a suit in District Court. We know of no procedure which would require the filing ohuit in District Court by relators a..'l a prerequisite to obtaining mandamus relief in this Court under art. 1 735a. Further, we kn.ow of no requirement for the tiling of additional recall petitions under the circumstances of the instant case and we do not believe either of these avenues would provide' relators with an adequate remedy at law under the filcts and circumstances in this case. As pointed out in the beginning of this opinion council members Cole, Mitchell and Alexander were up for re-election in the regulat Angleton City elections of April 3, 1982, and were defeated in that election. The results of that election as to these three Respondents, whether favorable or unfavorable, render moot the question ofrecalt fur the conduct alleged by relators to have occurred prior to August 24, 1981. However, as to Mayor M. L. "Hank" Fulbright and council member Sue Hensley, it is our view that mandamus should issue to tbe Angleton City Council ordering such recall election to be held not less than twenty.five days nor more than thirty-five days from the date thejudgment of this court became tinal. Contrary t() the contentions of respondents, there is no requirement for compliance with 42 U.S.C. 1973c in giving 60 days advance notice to the U.S. Department of Justice before a city recall election may be held. Our examination of the statute reveals that this provision does not apply to a city recall election under the procedure provided by a prior existing City Chartel;' provision. The federal statute,42 U.S.CA 1973c, is not applicable to the filets of this case. Relators have asked. for recovery of attorneys fees made necessary in the prosecution of their Mandamus action, but have presented no argument or authority for such recovcl)'. Likewise. we know of no authority for #~ Copr. CO 2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852836 ROSS T FOSTER P C PAGE 16/21 633 S,W.2d 617 63:1 S.W.2d6J7 (Cite as: 633 S.W.2d 617) Page 9 rec:>\lery ofattomeys fees in this mandamu.... action and we accordingly deny any claim for attornoys fees. The writ of mandamus will be issued ordering the Angleton Ci~y Council to submit to the electorate of the city of AnJ~leton a city recall election as to Mayor M. L, "Hunk" Fulbright and council member Sue Hensley not 1 es~. than twenty-five days nor more than th irty-five days from the date this judgment becomes final. 633 S.W.2d617 END OF DOCUMENT COpT. (;) 2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852835 <- V\~ 1,,0.01'" 65a S.W.2d 731 65l~ S. W.2d 731 (Cite as: 658 S.W.2d 731) Court of Appeals of Texas, Fort Worth. Randall E. BURNS, et al., Relators, v. Philip KELLY, et a!., Respondents. No.2-83-1l4-CV. Sept. 2, 1983. ,,~ Eleven voters and city residents sought writ of m:mdamus to compel recall election of city council member. The Court of Appeals, Fender, C.I., held that: (1) certificate signed by city secretary certifYing nllTnber of voters in city's 11ISt election was sufficient to establish number of votes cast for purposes of charter reqllirement that question of recall may only be subTnitted to voters in response to demand petition signed by at least 20 percent of number of votes cast in last regular municipal election; (2) coun was not required to abate mandamus proceeding to await O\lt(;:ome of suit filed by council member who was subject to recall challenging factual suffioiency of recall petidon; and (3) there was no authority in city charter for determination by city council of sufficiency of charges contained in petition. Ordered accordingly. Jordan, J., filed dissenting opinion, West Headnotes [II Mandamus ~74(2) 250k74(2) Most Cited Cases Court of Appeals may compel, by writ of mandamus, perf.::mnance by officials of city of any duty imposed upon them by law in connection with holding ofrecaIl eleC1;ions. 121 Mandamu~ ~12 250kt2 Most: Cited Cases Generally, mandamus will lie only where duty to act is ROSS T FOSTER P C PAGE 17/21 Page I cleaT and there is no disputed issue of fact. Vernon's Ann.Texas Civ.St. art. 1735a. 131 Munidpal Corporations €=>159(1) 268k I S9(l) Most Cited Cases Certificate signed by city secretary certifYing number ofvotern in last city election was sufficient to establish number of votes cast in last municipal election for purposes of city charter requirement that question of recall of any city official may only be submitted to voters in response to demand petition signed by at teast 20 percent of number of votes cast in last regular municipal election. 14] Constitutional Law ~78,4(5) , 92k278.4(5) Most Cited Cases In absonce of any provision in city charter giving city council, city secretary or anyone else discretionary right or duty to determine factual sufficiency of recall petition, due process gave counsel member who was subject of recall petition right to file such ~uit and get judicial determination of sufficiency of petition in adversary proceeding after proper notice and hearing. U.S.C.A. Const.Amcnda. 5, 14. [51 Mandamus ~18 250k18 Most Cited Ca.~es Court of Appeals was not required to abate mandamus procceding to compel recall election, to await outeome of suit filed by council member who was subject of recall petition challenging factual sufficiency of recall petition, because recall petition contained signatures in substantial compliance with requirements of city's charter, and Court of Appeals had no more authority to look behind record to determine factual sufficiency of those signatures than city council. l61 Municipal Corporation~ ~lS9(1) 268k 159( I) Most Cited Cases There was no authority in city charter for determination by city councll of sufficiency of charges contained in recall petition. 171 orn~ers and Public Employees ~70.7 283k70.7 Most Cited Cases (Formerly 283k701/2) A recall election is a "special election" as defined by Election Code and as such, must be held on dates specified in Code. V.A.T,S. Election Code, arts. 1.01, ,,~, Copr. (C 2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852836 _. 658 S.W.2d 73 I 658 S.W.2d 73 I (Cite as: 658 S.W.2d 731) 1.0 l a(a)(52), 2.0 I b. *7~52 John Groce, Fort Worth, for relators. Ross T. Foster, Staples & Poster, Hurst, for respondents. Before FENDER. C.l., and ASHWORTH and JORDAN, .11. ORIGINAL PROCEEDJNG IN MANDAMUS OPINION ON MOTION FOR REHEARING FENDER, Chief Justice. OUl' original opinion of August lO, 1983, is withdrawn and the following is substituted. - WI~ first note that respondents urged in their first motion for rehearing that this court denied them their right to oral argument. Full oral argument was granted at tb.e hearing held on the motion for rehearing which should satisfy this requirement This is an original mandamus proceeding filed in this court under Tex.Rev.Civ.Stat.Ann. art. 1 735a (Vernon 1962) to compel a recall election of a city council member oftbe City ofCoIleyviIle. It is our conclusion that mandamus should issue for the election. Thl~ relators, Randall E. Bums, et al., are eleven residents of the City of Colleyville who aTe duly qualified voters and are circulators and signers of petitions requesting a recall election of city council member Philip Kelly. The respondents are members or officers of the city council of the City ofCoIleyville. The City of Colleyvi!le is a "home role city". having accepted a city charter on November 1 I, 1976. The city charter provides that any city official shall be 911b}~ to recall by the q\laJified voters of the ci~ but that the question of recall may only be submitted to the votel~S in response to a demand petition signed by at least twenty percent (20010) of the number of votes cast in the last regular municipal election. but in no event less than two hundred (200) such petitioners. Also, each signer shall personally sign his name in ink or inde;jble pencil, showing voter registration ll\lmber, ROSS T FOSTER P C PAGE 18/21 Page 2 place of residence, name of street, number of place of residence and the date signed. City of Colleyville, Texas, Charter 88 5.01 and 5.02 (1976). The charter also provides that the recall petition must be addressed to the Council of the Ci~ ofColleyvilIe, must distinctly and specifically point out tbe ground or grounds for which sueh petition for removal is predicated. Jfthere be more than one ground, such as for incompetency, misconduct, or malfeasance in office. the petition shall :lpecificalIy state each ground with such certainty as to give the officer sought to be removed notice of the "matters aIJd things with which he is charged." (Charter ~ 5.03) The officer whose removal is sought may, within five days after such petition is presented to the city council, request that a public hearing be held to penn it him to present facts pertinent to the charges specified in the recall petition. (Charter 9 5.06). The recall petition in question was filed with the Colleyville city secretary on May 17, 1983, and was based on alleged grounds of incompetence and malfeasance in office. The record shows that 1,320 votes were cast at the last regular municipal election of the City ofColleyvillc, on April 2, 1983. Relators state that the petition filed contained 316 sjgnatures in substantial compliance with the provisions of the city charter. Copies of the petition are on file with this court. The city secretary notified council member Kelly on May 17, 1983 in compliance with the charter, and she presented the recall petition to the city council at a special council meeting on May 24, 1983. The council members questioned her concerning strict compliance with the city charter. She *733 stated that sbe had complied. The council passed a resolution that the petition not be accepted until the city secretary reviewed it in comparison with the voter registration list and that no differences in signatures between the petition and the list be allowed. On June 7, 1983, the council decided to take no action on the petitions. as they did not meet the requirements of 9 5.02 of the charter. On June 23. 1983. relatOT5. in . compliance with ~ 5.11 of the charter, asked Tatrant County Judge Mike Moncrief to call a recall election. Judge Moncriefheld a public hearing on July 6, 1983, .- Copr. {:> 2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852836 - 658 S.W.2d 731 65~: S.W.2d 731 (Cite as; 658 S.W,2d 731) and afterwards deelined to call an election. The relators have now petitioned this court to issue a writ of mandamus compelling the council to call a recall eJec:tion. [1][2] This court may compel, by writ of mandamus, the perfonnance by the officials of the City of Collcyville of any duty imposed upon them by law in connection with the holding of recall elections. Ger..erally, mandamus will lie only where the duty to act is clear and there is no disputed issue of fact. Tex.Rev.Civ.Stat.Ann. art.. 1735a (Vernon 1962); Bla"lchard v. Fulbright, 633 S. W.2d 6 J 7 (Te:<.App.--Houston [14th Dist.] 1982). ,- We note initially that nothing in the city charter gives the city council the authority to review the petitions presented to detennine compliance with the requirements for such petitions in the charter. If the citl2;en$ ofthe City of Col1eyville had wanted the city council to have that authority, they could have included a pr~vjsion to that effect in the city chartC'l'. Section 5.0'7 of the charter provides that, if the official whose reml)val is sought does not resign, the city council shall orde-r a recall election. There is no provision for discretion by the city council in performing this ministerial act, [3] Respondents urge that we have no jurisdiction to iSSUI: a writ of mandamus because facts sufficient to pfO'\'e the duty of the city council to act are not established by this record. Specifically, they argue that the number of votes cast in the last municipaJ election was not established by evidence competent to satisfy ~ .5.02 of the charter. The record reveals a certificate, sigr1J~d by LaVeda Johnson, city secretary, certifying that there were 1,320 voters in the April 2, 1983 city election. There is nothing in the record to show otherwise. We think that this certificate is sufficient to establish th~ number of votes case in the last municipal. election for the purposes of this record. The city secretary pre~~nted the certificate in perfonnance of the function of her duty making it admissible evidence under Tex.Rev.Civ.Stat.Ann. art. 3731a (Vernon 1982). Merl' importantly in the instant case, the certificate was ROSS T FOSTER P C PAGE 19/21 Page 3 not disputed. We think that this situation is analogous to a summary judgment proceeding. Tn such a proceeding, if trnlre otherwise appears to be no exi stence of a fact issue, the respondent has the duty to Come forward and raise an issue of disputed fact. Blanchard v. Fulbright, supra, at p. 624; City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). As the respondents have failed to do so, we hold that the number of voters in the last municipal election is not a disputed fact issue divesting us of jurisdiction in this proceeding. Secondly, respondentll assert that this proceeding should be abated and we shOUld await the outcome ora suit filed by Kelly in the 141st District Court challenging the factual sufficiency of the recall petition before we proceed to rule on the petition for mandamus. [4][5] As noted above, nothing in the charter gives the city counciJ, the city secretary, or anyone else the discretionary right or duty to determine the factual sufficiency of the recall petition. Tn the absence of any such provision, we believe that due process gives council member Kelly the right to file such a suit and get a judicial detennination of the sufficiency of the petitions jJl an adversary proceeding after proper notice and heari.ng. Blanchardv. Fulbright. supra, at p. 622; Gonzale:z \t. King, 548 S.W.2d 66 (Tex.Civ.App.-Corpus Christi 1970, no writ). However, we do not think that this "'734 district court suit has any bearing on the issues presented to uS by the instant mandamus proceeding and we express no opinion concerning such collateral proceeding.. The recall petition in the record before this court contains the signatures of 316 persons and those signatures appear to be in substantial compliance with the requirements of the charter. We have no more authority to look beyond this record to detennine the factual sufficiency of these signatures than the city council. Thirdly, respondents assert that the recall petition does not, as a matter of law, meet the requirements of the chatter of the City ofCol1eyville. In this regard they contend that the sworn grounds for removal contained in the petition an: not specific and certain enough to give the council member sought to be removed notice ,- Copr. @ 2004 West. No Claim to Orig. U.S. Govt. Works. 12/22/2004 10:31 8174852836 6SS. S.W.2d 731 6SS S. W.2d 731 (Cite as: 658 S.W.2d 731) of the matters and things with which he is charged. Cit)' ofColle.yville, Texas, Charter. .95.03 (1976). W~: first note that respondents do not claim that no grounds fOT removal are contained in the petition. The claim is that such grounds are insufficient and that the city council in the first place a.nd this court ultimately should test such sufficiency before an election be ordm'ed. [6J Just as we found that the city charter contains no provision authorizing the city council (or the city secretary or anyone else) to examine the signatures. etc., for authenticity, we also find no authority in the city charter for a determination by the city council of the lmfficiency of the charges contained in the petition. On petition for mandamus we must simply determine whether or not the respondent should have performed a ministerial duty and we can not exercise any greater power of discretionary review than the respondent. Lastly, respondents assert that any relief grant.ed relators must comply with Tex.Elec.Code Ann. art. 2.01b (Vernon 1982). We agree. [7] The Texas Election Code applies to all elections held in Texas unless otherwise provided in the code. Tex.Elec.Code Ann. art. 1.01 (Vernon 1982). A "special election" is defIned as "an election other than a general orprimal)'election." Tex.Elec.Code Ann. art. 1.01a(a)(52) (Vernon 1982). A recall election is then:fore a special election and, as it is not specifically exempted by statute, it must be held on one of the foll()wing dates: the third Saturday in January, the first Saturday in April, the seeond Saturday in August, or the first Tuesday after the first Monday in November. A writ of mlUldamus shall issue ordering the ColI,~yvi1le City Council to call a recall election on Novl~mber 8, 1983, on the bases set forth in the recall petitions, unless such election be stayed by a court of competent jurisdiction. This writ is issued without prejudice to the rights of the parties to pursue their remedies in the 141 st District Court of Tarrant County, Texas. JORDAN. Justice, dissenting. ROSS T FOSTER P C PAGE 20/21 Page 4 I respectfully dissent from the majority opinion which by writ of mandamus orders a recall election for Councilman Philip Kelly by the City Council of the City ofCol1eyville. I fully recognize that under Tex.Rev.Civ.Stat.Ann. art, 1735a (Vernon Supp. 1982.83), this court may compel by writ of mandamus the performance of tbe duties imposed upon the City Council by law in connection with tfJe holding of recall elections. However, as noted in the Blanchard ca.~E: relied upon by the majority, generally speaking, mandamus will lie only where the duty to act is clear and there is no disputed i.,sue of fact. Blanchard v. Fulbright, 633 S. W.2d 6 17. 621 (Tex.App.-Houston [14th Di$t.] 1982, writ dism'd.). (Emphasis added). In the case at bar, it cannot be said that the duty of the City Council to call the recall election is clear. The City Charter of Colleyville recites the following requirements for a petition to be sufficient to impose upon the City Council the duty to order a recall election: The recall petition mentioned above must be addressed to the Council of the City of ColIeyville, must distinctly and specifically po;"t out the ground or groundv upon which such petition for removal is predicated, "735 and if there he mnre than one ground, such a., for incompetency, mi.,conduct, or malfeasance in office, ,~hall specifically state each ground with such certainty as to give the officer sought to be remflVed. notice of the matters and things with which he is charged... Charter, sec. 5.03. (Emph~is added). The petition presented to the City Council in the case at bar is predicated on the following "grounds"; I. Councilman K.elly has consistantly (sic) led, encouraged and participated in improper and incompetent minority opposition to the governing body of the City of Colleyville and in aiding and abetting the filing of litigation against the City of Colleyville with fun knowledge of the cost to be borne by the citizen5 of Colleyville and cQntrary to the wishes of the majority of the citi7.ens of Colleyville. 2. Councilman Kelly has repeatedly been mean, Copr. <<;:) 2004 West. No Claim to Orlg. U.S. Govt. Works. 12/22/2004 10:31 8174852836 ROSS T FOSTER P C PAGE 21/21 ~..-' 65:~ S.W.2d 731 65g S.W.2d 731 (Ciite as: 658 S.W.2d 731) Page 5 (IVerbearing and obnoxious in forcing himself, his thoughts and verbosity upon citizens for the purpose cf creating unrest and dissension within the City of Colleyville. 3. Councilman Kelly has on numerous occasions. asked for the professional advice of the city attorney and city engineer regarding city ordinance interpretation and clarification and then blatantly ignored the advice he received and made decisions and voted contrary to that advice to the detriment of the city and in malfeasance of his office. After reviewing this petition, 1 am forced to conclude that these so-called "grounds" for the recall of COl,lncilman Kelly are, as a matter of law. insufficient under sec. 5_03 of the City Charter to impose a clear duty upon the City Council to order the election. -- It is my opinion that these "grounds" for recall of CotJ.nciIman Kelty in reality allege only general condusiolJs of discontent and disagreement with the Councilman's performance in office and a dislike for him personally. Th!l application for Writ of Mandamus should be denied. 658 S. W_2d 731 END OF DOCUMENT Copr.!P 2004 West. No Claim to Orig. U.S. Govt. Works. I n the name and by the authority of The State of Texas OATH OF OFFICE I, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God. ~- Affiant SWORN TO and subscribed before me by affiant on this day of Signature of Person Administering Oath (Se81) Printed Name Title Form #2204