In Re Donald Ray LEE, Latricia Doyal, Paulette Savage and Jonathan Chase

412 S.W.3d 23, 2013 WL 812048, 2013 Tex. App. LEXIS 2044
CourtCourt of Appeals of Texas
DecidedFebruary 28, 2013
Docket03-13-00087-CV
StatusPublished
Cited by5 cases

This text of 412 S.W.3d 23 (In Re Donald Ray LEE, Latricia Doyal, Paulette Savage and Jonathan Chase) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Donald Ray LEE, Latricia Doyal, Paulette Savage and Jonathan Chase, 412 S.W.3d 23, 2013 WL 812048, 2013 Tex. App. LEXIS 2044 (Tex. Ct. App. 2013).

Opinions

OPINION

SCOTT K FIELD, Justice.

Donald Ray Lee, Latricia Doyal, Paulette Savage, and Jonathan Chase, the Re-lators, are residents and registered voters of Brady, Texas. The Relators seek a writ of mandamus ordering the Brady City Council and the Brady City Secretary, the Respondents, to order the recall election of the Mayor of Brady, Gail Lohn. The Respondents have filed a response. See Tex. R.App. P. 52.4. Pursuant to section 278.061 of the Texas Election Code, this Court has jurisdiction “to compel the performance of any duty imposed by law in connection with the holding of an election .... ” See Tex. Elec.Code Ann. § 273.061 (West 2010). Upon considering the arguments presented in the petition and the response, we conditionally grant the writ.

The City of Brady is a home-rule municipality. See Brady, Tex., Home Rule Charter, §§ 1.01-14.03 (2011). Under the Brady City Charter, qualified voters may remove their elected City officials from office through a recall election “for reason of incompetence, noncompliance with this Charter, misconduct or malfeasance in office.” Id. § 8.01. The recall process is initiated when any qualified voter in the City files with the City Secretary an affidavit naming the person or persons to be recalled and the reasons therefor. Id. § 8.03. Within two working days of the filing of the affidavit, the Secretary must issue to the affiant a “petition blank” in the form prescribed by section 8.04 of the Charter and signed by the Secretary. Id.

Next, the recall petition is circulated for signatures. The Charter provides that the petition must be “signed by qualified voters of the City equal in number to at least twenty percent (20%) of the number of votes cast in the last regular municipal election of the City or 250, whichever is greater.” Id. § 8.02. Each person signing the recall petition shall “affix his residence address and the date of signing.” Id. The petition must also “be addressed to the Council and must distinctly and specifically state the reason(s) for removal. The petition shall specifically state each reason [25]*25with such certainty as to give the official to be removed notice of such matters and things with which he is charged.” Id. § 8.04.

Upon circulation, the recall petition is filed with the City Secretary, who reviews the petition to determine if it is sufficient or insufficient. See id. §§ 8.05 (“The City Secretary shall follow the certification procedures as described in Section 9.04.”), 9.04 (regarding determination of sufficiency). The City Secretary must “complete a certification as to the sufficiency of the petition within ten (10) days.” Id. § 9.04. The Secretary then “present[s] the certified petition to the Council at the next regular meeting,” and “if the accused official does not resign, the Council shall order an election for the earliest lawful date in accordance with State election laws.” Id. §§ 8.06, 8.08 (emphasis added).

In this case, the Relators, along with other qualified voters in the City of Brady, initiated the recall-election process. On January 25, 2018, the Relators filed a petition for a recall election -with the City Secretary seeking to remove the Mayor. Attached to the petition was the eight-page affidavit of a qualified voter, detailing specific factual allegations in support of the recall. On January 31, 2013, the City Secretary issued a “Certification of City Secretary,” stating that the recall petition was insufficient. According to the certification, the recall petition had the required number of signatures of qualified voters.' The certification' went on to state that “after consultation with the Interim City Attorney” the Secretary had concluded that “none of the allegations provided by the affiant ... constitute legally sufficient grounds for recalling Mayor Lohn.” The next day, at its next regular session, the City Council approved the City Secretary’s certification of insufficiency and refused to order a mayoral recall election.

This Court may compel, by writ of mandamus, a public official to perform a ministerial act. Walker v. Packer, 827 S.W.2d 833 (1992). “An act is ministerial when the law clearly -spells out the duty to be performed by the official with sufficient specificity that nothing is left to the exercise of discretion.” Anderson v. City of Seven Points, 806 S.W.2d 791, 793- (Tex.1991). The Relators contend that the City Secretary and City Council violated ministerial duties established in the City Char-: ter. Specifically, the Relators contend that because it is undisputed that the recall petition contained the correct numbers of signatures, the Secretary was obligated to certify the petition as sufficient and the Council was obligated to. order the recall election.

In response, the Respondents do not contend that the recall petition lacks the required number of valid signatures. Instead, the Respondents contend that the Charter authorizes the City Secretary to review the factual allegations supporting the recall and to determine, in his or her discretion, if the allegations .are sufficient to give rise to a claim “for reason of incompetence, noncompliance with this Charter, misconduct or malfeasance in office.” Further, the Respondents contend that in this case, the allegations in the recall petition fail to constitute sufficient grounds for recalling the Mayor.

In support of their argument, the Respondents rely on section 9.04 of the Charter. Specifically, the Respondents argue that section 9.04 requires the City Secretary to review the recall petition and affidavit and to confirm that legally adequate grounds for recall authority have been alleged. Further, the Respondents contend that this evaluation necessarily requires judgment and discretion. Upon review of the City Charter, we disagree that section 9.04, or any other provision in the Charter, [26]*26gives any official of the City of Brady the discretionary right or duty to determine the factual or legal sufficiency of a recall petition.

Section 9.04 is entitled “Determination of Sufficiency” and applies not only to recall petitions, but also to initiative and referendum petitions. Brady, Tex., Home Rule Charter, art. IX, § 9.04 (2011); see id. § 9.03 (regarding requirements for initiative and referendum petitions). Section 9.04 provides, in relevant part, the following:

[ (a) ] Certificate of City Secretary. The City Secretary shall complete a certificate as to the sufficiency of the petition within (10) ten days after it is filed. The petitioners’ committees will be notified by registered mail of any insuffi-ciencies in the petition.
[ (b) ] Sufficient Petition, Final Determination. If the petition is certified sufficient, the City Secretary shall present the certificate to the Council by the next regular council meeting and the certificate shall be final.
[ (c) ] Insufficient Petition, Final Determination.

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Bluebook (online)
412 S.W.3d 23, 2013 WL 812048, 2013 Tex. App. LEXIS 2044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-donald-ray-lee-latricia-doyal-paulette-savage-and-jonathan-chase-texapp-2013.