HomeMy WebLinkAboutColleyville Charter Review Committee-Agenda Packets-12/29/2004
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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
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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.
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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.
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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.
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Committee agreed unanimously to strike the following language from Sec. 4,01: "No
informalities in conducting a City election shall invalidate said election."
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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.
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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.
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HOME RULE CHARTER
for the
C I T Y 0 F C 0 L LEY V ILL E, T E X A S
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December 16. 2004 Modifications
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Preamble
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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.
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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.
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ARTICLE II
POWERS OF THE CITY
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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
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self government and all powers which under the Constitution and State law would be
competent for this Charter to specifically enumerate.
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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
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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.
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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
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City
Section 4.02 General Elections:
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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~
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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 _
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(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)
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ARTICLE V
RECALL OF OFFICERS BY THE PEOPLE
Section 5.01 Scope of Recall:
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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
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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.
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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.
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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)
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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
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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?"
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(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).
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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
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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.
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.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.
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Please give me a call should you have any questions with the Committee discussion.
Thanks,
Bill
12/21/2004
12/22/2004 10:31
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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:
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~ 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
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ROSS T FOSTER P C
PAGE 02/21
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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
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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
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petition and determine whether the Tequisite number of voters have signed the petition. The City
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ROSS T FOSTER P C
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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.
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[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
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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
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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
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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
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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
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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
,~
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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
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(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
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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
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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
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,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
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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
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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.
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(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
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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
#~
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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
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<-
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
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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,
,,~,
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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,
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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,
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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
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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
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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.
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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,
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(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
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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
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