NUMBER 13-24-00404-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE MANUEL O. MORENO
ON PETITION FOR WRIT OF MANDAMUS
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Benavides
On August 13, 2024, relator Manuel O. Moreno filed a petition for writ of mandamus
seeking to compel the City Council for the City of Donna to order a municipal election
pursuant to § 3.004(b) of the Texas Election Code. See TEX. ELEC. CODE ANN. § 3.004(b).
Relator also filed a motion requesting this Court to consider the petition for writ of
mandamus on an expedited basis on grounds that the deadline to call an election is
Monday, August 19, 2024. We grant relator’s motion for expedited consideration. After
examining the petition for writ of mandamus and the response filed by the City of Donna, we conditionally grant the petition for writ of mandamus.
I. BACKGROUND
The City of Donna is a home rule municipality in Hidalgo County, Texas. Its City
Charter contains various provisions relevant to the election of its mayor and council
members. Prior to 2021, the City Charter provided in relevant part:
ARTICLE II
THE COUNCIL
Section 1. NUMBER AND TERM OF OFFICE
Except as otherwise provided in this Charter, all powers of the City of Donna shall be vested in the Council composed of four Council Members and a Mayor except that the present Council Members shall serve as such until the elections hereinafter provided in Section 2 of this Article.
Section 2. ELECTION AND TERM OF OFFICE OF COUNCILMEN
(a) Except as otherwise provided in this Charter, the Councilmen of the City shall be elected to and occupy a place on the Council, such places being number 1, 2, 3, and 4, respectively. The Mayor shall be elected and occupy the post of Mayor. All shall hold office for three year terms and shall be elected from the City at large.
(b) On the first Saturday of April, 1981, a general election shall be held for the purpose of electing the Mayor and Council members for places 1 and 3 for three year terms.
(c) On the first Saturday in April, 1982, and every three years thereafter, Councilmen for places 2 and 4 shall be elected at a general election to be held for said purpose to succeed the Councilmen whose terms of office expire as provided in this Charter.
Donna, Tex., CITY CHARTER art. II, § 2(a) (1981) (former law) (internal formatting omitted).
Thus, the City Charter formerly provided that the mayor and city council members would
be elected for three-year terms.
2 On August 16, 2021, the City ordered an election for two purposes. The “Order of
Election” for November 2, 2021, stated that the purpose of the election was:
(a) To elect Two (2) Councilmembers: one for Place 2 and one for Place 4 for the City of Donna [and]
(b) To amend the city charter of the City of Donna to extend the terms of office of the City of Donna Mayor and Councilmen from three year terms to four year terms and extend the terms of office of the City of Donna Municipal Judge from three year terms to four year terms.
The “Preview Ballot” for this election stated that this proposed change was “TO SAVE
MUNICIPAL FUNDS.” The “Notice of Special Election” stated that the 2019 special
election would include “Proposition A,” which would amend the City Charter. Proposition
A provided: “THE EXTENSION OF TERMS OF OFFICE FOR THE CITY OF DONNA
MAYOR AND COUNCILMEN FROM THREE YEAR TERMS TO FOUR YEAR TERMS
TO SAVE MUNICIPAL FUNDS.” The City’s voters approved this change to the City
Charter and elected Oscar Gonzales for Place 2 and Joey Garza for Place 4.
Thereafter, with the November 2024 election approaching, the Mayor and City
Council began considering whether the two council members elected in 2021, Gonzales
and Garza, had been elected for three-year terms, as provided in the existing City Charter,
or four-year terms, as provided by the amendment to the City Charter approved by voters
in the 2021 election. Thus, the Council asked the City Attorney for Donna, Robert J.
Salinas, for an opinion regarding this matter. In a July 21, 2022 letter directed to the
Mayor, Salinas provided the following opinion:
You have requested a legal opinion on the applicability of a referendum election held in Donna on November 2, 2021, extending the terms of office of its governing body from 3 years to 4 years. You particularly ask ‘must the members of said body stand for election held after the referendum to
3 approve the extension in order for their respective length of their terms to office to be that of the newly enacted term length . . . .
The Answer to your question is ‘YES.’ The extension of the term of office is not applicable to the office holders elected at the election in which the referendum calling for the extending of the terms of office. That is, UNLESS the referendum wording specifically made the extension applicable to the current office holders. The referendum approved by Donna voters at the election of November 2, 2021, does not contain such specificity. . . . The Texas Constitution specifically provides that ‘a city, town or village may provide by majority vote of qualified voters for a longer term of office than two (2) years for its officers . . . but not to exceed four (4) years. . . . It has been held that common law protects the integrity of the election with a minimum standard for the ballot language [(See Dacus v. Parker, 466 S.W. 3d 820, 824 (Tex. 2015)] this is to ascertain that the voters are not misled . . . .
The issue then rests on whether the referendum extending the terms of office as approved by the voters in Donna at the election of November 2, 2021, is applicable prospectively or retrospectively. [Texas Government Code § 311.022] reads ‘A statute is presumed to be Prospective in its operation unless expressly made retrospective. . . .’ I find no law stating that a ‘referendum’ should be given a different interpretation. This same issue appeared on a ballot referendum in the City of Combes, Texas. The Hon. Luis Saenz, District Attorney for Cameron County, Texas, issued an opinion on the issue holding that the referendum is prospective and not retrospective and elected officials must therefore stand for election after the referendum is held. . . . I find no Texas law nor Attorney General Opinions that says otherwise.
You requested that I seek an opinion from the Legal Department at [the Texas Municipal League (TML)] on the issue. TML legal was of the opinion that ‘unless the ballot language was clear that it applied to that election when it passed, it is likely prospective.’ [A] Staff Attorney stated that TML will not issue a formal opinion on issue[s] involving charter interpretation and will defer to the city attorney. . . .
CONCLUSION
Unless a referendum extending the length of terms of office specifically reads to the contrary, an election referendum by a majority of the electorate extending the length of terms of office for its officers is prospective and all members of said body must stand for election on a date after the election approving the lengthening of the terms of office.
4 Salinas referenced and attached various items to his opinion, including the TML opinion
and email. In the email, Amber McKeon-Mueller, the Assistant Director of Legal Services,
provided Salinas the following information which was “not intended to constitute legal
advice”:
Local Government Code § 9.006 would have allowed councilmembers elected in the same election as the charter amendment increasing the terms to be subject to the increased terms:
Sec. 9.006. CONCURRENT ELECTIONS. This chapter does not prevent the voters at an election to adopt a charter or an amendment to a charter from electing at the same election persons to hold office under the charter or amendment.
However, the ballot language should have been clear if the city wanted the increased terms to apply in the concurrent election. Because the ballot language was not clear, the increased terms should not apply to those councilmembers elected in the same election as the charter amendment. Those councilmembers would need to run for reelection at the end of the old terms.
McKeon-Mueller also advised that the TML would “always defer to the city attorney when
it comes to charter interpretation.”
On August 5, 2024, the City Council met. The notice for the meeting provided that
two of the “Regular Items” to be discussed included:
1. Discussion and possible action to adopt a resolution and order of the City of Donna, Texas, ordering a general municipal election to be held in the City of Donna, on Tuesday, November 5, 2024, for the election of Commissioner, Place 2, for the City of Donna, and Commissioner, Place 4, for the City of Donna, Texas.
2. Discussion and possible action on retaining the legal services of The Law Office of Gilberto Hinojosa & Associates, P.C to render legal opinion in reference to the adoption and application of Proposition A passed by majority vote by the citizens of Donna in the November 2021 Election.
5 At that meeting, the City Council voted not to call an election.
On August 7, 2024, relator sent a letter to the Donna City Manager requesting the
manager to “send [him] all documents necessary for [him] to file for office and be placed
on the ballot for the upcoming November 2024 elections.” However, relator “became
aware” that the City Council had refused to call the election.
This original proceeding ensued. By one issue, relator contends that the term of
office for Place 4, and Place 2, was the three-year term originally provided by the City
Charter, and thus the City Council had a ministerial duty to order the election. This Court
requested and received a response to the petition for writ of mandamus from the City,
which contends: (1) fact issues preclude mandamus relief; (2) the mandamus is moot;
(3) relator has not met his burden to obtain mandamus relief; and (4) the “plain reading”
of the amendment makes it applicable to the candidates who were elected on the day
that the amendment was passed.
II. MANDAMUS
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). We “may issue a writ of mandamus to
compel the performance of any duty imposed by law in connection with the holding of an
election.” TEX. ELEC. CODE ANN. § 273.061(a); see In re Rogers, 690 S.W.3d 296, 299
(Tex. 2024) (orig. proceeding) (per curiam); In re Dominguez, 621 S.W.3d 899, 904 (Tex.
App.—El Paso 2021, orig. proceeding) (per curiam). However, “[i]n a mandamus relating
6 to an election proceeding, we must be careful to avoid undue interference with the
electoral process and the people’s right to self-governance, including their choice of
candidates.” In re Anthony, 642 S.W.3d 588, 589 (Tex. 2022) (orig. proceeding) (per
curiam).
Mandamus may issue to compel public officials to perform ministerial acts or “to
correct a clear abuse of discretion by a public official.” In re Williams, 470 S.W.3d 819,
821 (Tex. 2015) (orig. proceeding) (per curiam) (quoting Anderson v. City of Seven
Points, 806 S.W.2d 791, 793 (Tex. 1991)); In re Dominguez, 621 S.W.3d at 904. “An act
is ministerial when the law clearly spells out the duty the official must perform with
sufficient certainty that it leaves nothing to the official’s discretion.” In re City of Galveston,
622 S.W.3d 851, 855 (Tex. 2021) (orig. proceeding); see In re Williams, 470 S.W.3d at
821; In re Dominguez, 621 S.W.3d at 904. An act is a clear abuse of discretion if it is “so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” In re K &
L Auto Crushers, LLC, 627 S.W.3d 239, 247 (Tex. 2021) (orig. proceeding) (quoting
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (cleaned up); see
In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex. 2017) (orig. proceeding).
To obtain a writ of mandamus, the relator bears the burden of showing that it has
a clear legal right to the performance of the act sought to be compelled and the duty of
the officer sought to be compelled must be clearly fixed and required by the law. In re
Dominguez, 621 S.W.3d at 904; In re Watkins, 465 S.W.3d 657, 659 (Tex. App.—Austin
2014, orig. proceeding); In re Cercone, 323 S.W.3d 293, 295 (Tex. App.—Dallas 2010,
orig. proceeding). In addition to showing that an election official had a legal duty to
7 perform a non-discretionary act, a relator must also show he made a demand for
performance on the election official and the election official refused to perform. In re
Dominguez, 621 S.W.3d at 904; In re Cercone, 323 S.W.3d at 297.
III. CONSTRUCTION OF THE CITY CHARTER
The analysis in this case revolves around the appropriate construction and
interpretation of the City Charter and the amended City Charter. “City charters are
construed according to general rules of statutory interpretation.” Powell v. City of Hous.,
628 S.W.3d 838, 843 (Tex. 2021); see Jones v. Whitmire, 691 S.W.3d 685, 693 (Tex.
App.—Houston [14th Dist.] 2024, no pet. h.); Hunt v. City of Diboll, 574 S.W.3d 406, 422
(Tex. App.—Tyler 2017, pet. denied). We review issues regarding statutory interpretation
as a question of law. See Tex. Health & Hum. Servs. Comm’n v. Estate of Burt, 689
S.W.3d 274, 279 (Tex. 2024). Our primary objective is to ascertain and give effect to the
enacting body’s intent, and we do so by looking to the plain meaning of the statutory
terms, informed by the terms’ context. Morath v. Lampasas Indep. Sch. Dist., 686 S.W.3d
725, 734 (Tex. 2024).
The Texas Constitution prohibits retroactive laws. See TEX. CONST. art. I, § 16 (“No
bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of
contracts, shall be made.”); see generally In re M.C.C., 187 S.W.3d 383, 384 (Tex. 2006)
(per curiam); Prater v. Owens, 667 S.W.3d 363, 373 (Tex. App.—Houston [1st Dist.]
2022, no pet.). “A retroactive law is one that extends to matters that occurred in the past.”
Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 707 (Tex. 2014); see City of Grapevine v.
Muns, 651 S.W.3d 317, 344 (Tex. App.—Fort Worth 2021, no pet.).
8 In accordance with this constitutional directive, our legislature has determined that
“[a] statute is presumed to be prospective in its operation unless expressly made
retrospective.” TEX. GOV’T CODE ANN. § 311.022; City of Austin v. Whittington, 384 S.W.3d
766, 790 (Tex. 2012); In re M.C.C., 187 S.W.3d at 384; San Jacinto Title Servs. of Corpus
Christi, LLC. v. Kingsley Props., LP, 452 S.W.3d 343, 350 (Tex. App.—Corpus Christi–
Edinburg 2013, pet. denied). Statutory amendments are also presumed to apply
prospectively. In re G.R.B., 582 S.W.3d 483, 485 (Tex. App.—San Antonio 2018, pet.
denied); Bair Chase Prop. Co. v. S & K Dev. Co., Inc., 260 S.W.3d 133, 143 (Tex. App.—
Austin 2008, pet. denied); Bates v. Tesar, 81 S.W.3d 411, 427 (Tex. App.—El Paso 2002,
no pet.). However, applying procedural, remedial, or jurisdictional statutes retroactively
does not violate the constitution’s prohibition on retroactive laws because procedural and
remedial laws generally do not affect vested rights acquired under existing law. City of
Austin, 384 S.W.3d at 790; Prater, 667 S.W.3d at 373; In re G.R.B., 582 S.W.3d at 485.
IV. ANALYSIS
Relator asserts that the City Council failed to perform its ministerial duty under the
Texas Election Code by failing to call an election for November 2024. Section 3.004 of
the Texas Election Code governs the elections for political subdivisions and provides:
(a) The following authority shall order an election:
(1) the county judge, for the general election for officers of the county government;
(2) the mayor, for the general election for city officers in a city with a population of 1.9 million or more; and
(3) the governing body of a political subdivision, other than a county or a city described by Subdivision (2), that has elective
9 offices, for the general election for those officers.
(b) If a law providing for an election relating to the affairs of a political subdivision does not designate the authority responsible for ordering the election, the governing body of the political subdivision shall order the election.
TEX. ELEC. CODE ANN. § 3.004. We have held that this section imposes a duty by law. See
Estrada v. Adame, 951 S.W.2d 165, 167 (Tex. App.—Corpus Christi–Edinburg 1997, no
writ). The use of “shall” in the statutory language reflects a mandatory, ministerial duty.
See TEX. GOV’T CODE ANN. § 311.016(2) (stating that the statutory language of “‘[s]hall’
imposes a duty”); In re Rogers, 690 S.W.3d at 300 (discussing the duty to call an election
based on a petition with the required number of signatures).
We examine whether the City Charter, as amended in the 2021 election, applies
to the City Council members elected in that same election. In this regard, the Texas Local
Government Code allows for a charter or an amendment to be made in the same election
which fills offices created by the charter of amendment. See TEX. LOC. GOV’T CODE ANN.
§ 9.006 (“This chapter does not prevent the voters at an election to adopt a charter or an
amendment to a charter from electing at the same election persons to hold office under
the charter or amendment.”).
As required by Texas law, we begin with the presumption that the 2021
amendment to the City Charter applies prospectively unless the amendment was
expressly made to apply retroactively. See TEX. GOV’T CODE ANN. § 311.022; City of
Austin, 384 S.W.3d at 790; In re M.C.C., 187 S.W.3d at 384. To review, Proposition A
stated: “THE EXTENSION OF TERMS OF OFFICE FOR THE CITY OF DONNA MAYOR
AND COUNCILMEN FROM THREE YEAR TERMS TO FOUR YEAR TERMS TO SAVE
10 MUNICIPAL FUNDS.” The proposition does not contain any language expressly making
the amendment retroactive. Thus, we presume that the amendment is prospective in its
application. See TEX. GOV’T CODE ANN. § 311.022; City of Austin, 384 S.W.3d at 790; In
re G.R.B., 582 S.W.3d at 485. Because the 2021 amendment to the City Charter applied
prospectively, the current terms for Places 2 and 4 on the City Council remain three years
rather than four. The City Council is bound by the terms of its amended charter as written.
See In re Porter, 126 S.W.3d 708, 711 (Tex. App.—Dallas 2004, orig. proceeding [mand.
denied]).
V. THE CITY’S RESPONSE
In its response to the petition for writ of mandamus, the City asserts that we should
deny relief on various grounds. First, the City contends that fact issues preclude
mandamus relief. Its contention is premised on the doctrine that mandamus may not issue
in a case involving disputed issues of fact. See In re Woodfill, 470 S.W.3d 473, 478 (Tex.
2015) (orig. proceeding) (per curiam) (“Disputed facts, however, prevent the Court from
resolving issues in a mandamus proceeding.”); see also In re CDM Constructors, Inc.,
No. 13-23-00216-CV, 2023 WL 5500002, at *2 (Tex. App.—Corpus Christi–Edinburg Aug.
24, 2023, orig. proceeding) (mem. op.). Specifically, the City alleges that “[r]elator’s
interpretation of how the term extension ordinance applies to the Place 2 and Place 4
Councilmen creates a fact issue that is not grounds for mandamus relief.” However, the
interpretation and construction of the City Charter and its amendment is performed as a
matter of law. See Tex. Health & Hum. Servs. Comm’n, 689 S.W.3d at 279; Powell, 628
S.W.3d at 843. Accordingly, under our required standard of review, we must reject the
11 City’s contention that the interpretation of the Charter and its amendments is a question
of fact.
Second, the City contends that mandamus should not issue because this matter
is moot “because it will interfere with the election schedule.” It contends that the 78th day
deadline for the November 5, 2024 election falls on August 19, 2024, and after that date,
the ballots and election cannot be changed; thus, this mandamus is moot. Mootness
implicates subject matter jurisdiction, and appellate courts are prohibited from deciding
controversies that have become moot. Elec. Reliability Council of Tex., Inc. v. Panda
Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 634 (Tex. 2021) (app. &
orig. proceeding). A matter becomes moot when:
(1) a justiciable controversy no longer exists between the parties, (2) the parties no longer have a legally cognizable interest in the case’s outcome, (3) the court can no longer grant the requested relief or otherwise affect the parties’ rights or interests, or (4) any decision would constitute an impermissible advisory opinion.
Id. at 634–35. However, the deadline for the City to call the election is Monday, August
19, 2024, and this memorandum opinion is being issued in time for the City to act.
Accordingly, this mandamus is not moot.
The City further contends that “[r]elator could have brought his mandamus months
before the election deadline but instead decided to file it at the last minute,” thus the
mandamus should be denied based on delay. We agree with the City’s general contention
that delay in seeking relief may defeat the right to mandamus relief. “[F]or a court to
resolve an election dispute, the court must receive the case early enough to order relief
that would not disrupt the larger election.” In re Khanoyan, 637 S.W.3d 762, 764 (Tex.
12 2022) (orig. proceeding). And, in the larger sense, delay in general may bar relief in an
original proceeding. “[A] relator who unduly or unreasonably delays filing a petition for
mandamus relief may waive its right to such relief unless the delay is justified.” In re Am.
Airlines, Inc., 634 S.W.3d 38, 43 (Tex. 2021) (orig. proceeding) (per curiam); In re Giles,
675 S.W.3d 376, 389 (Tex. App.—Corpus Christi–Edinburg 2023, orig. proceeding).
However, the facts and timeline involved in this original proceeding do not show a delay.
Contrary to the City’s contention that relator could have pursued his right to relief in the
preceding months, the City did not determine that it would not call an election until August
5, 2024. Relator became aware of that decision some unspecified time thereafter, and he
filed this original proceeding on August 13, 2024, eight days after the City rendered its
decision.
Third, the City argues that relator has not met his burden to establish the
substantive requirements for mandamus relief; specifically, that relator has not shown that
the City possessed a ministerial duty such that relator has a clear right to relief. In
connection with this argument, the City contends that relator’s assertion that a ministerial
duty exists to call an election in November 2024 is “flawed” because “the issue is not
whether an election must take place . . . but rather when it must take place,” and Texas
Government Code § 3.004(a)(3) does not address the timing of any required election.
See TEX. GOV’T CODE ANN. § 3.004(a)(3). However, the City’s contention fails to recognize
that its duties arise not only from the election code but also from its City Charter and the
amendments thereto which contain express language regarding the specific terms of
office at issue in this original proceeding. It is abundantly clear that ministerial duties may
13 arise from a city charter. See In re Lee, 412 S.W.3d 23, 27 (Tex. App.—Austin 2013, orig.
proceeding).
The City further asserts that § 311.022 of the government code, regarding the
presumption that we construe statutes to apply prospectively, is inapplicable here
“because it applies to a state statute, not a local ordinance or amendment to a city
charter.” The City’s argument is presumably premised on government code § 311.002
which provides, generally, that the code construction act, of which § 311.022 is a part,
applies to “codes” and “code provisions,” and does expressly apply to other matters such
as ordinances and charters. See TEX. GOV’T CODE ANN. § 311.002. Nevertheless, we look
to the code construction act for guidance regarding the construction of other matters.
State v. Garcia, 823 S.W.2d 793, 798 (Tex. App.—San Antonio 1992, pet. ref’d). And, like
our sister courts, we use it as a general tool for construction. See, e.g., City of Roanoke
v. Town of Westlake, 111 S.W.3d 617, 632 (Tex. App.—Fort Worth 2003, pet. denied)
(applying § 311.022 to the construction of an ordinance). To do otherwise would
potentially run afoul of our constitution’s prohibition regarding retroactive laws. See TEX.
CONST. art. I, § 16; In re M.C.C., 187 S.W.3d at 383.
Finally, the City contends that a “plain reading” of the City Charter’s amendment
to term limits makes it inapplicable to the candidates that were elected on the day that it
was passed by the voters. The City asserts that the election approving the amendment
and electing the new councilmembers occurred on November 2, 2021, yet the terms for
the newly elected councilmembers did not begin until November 8, 2021, when they took
their oaths and began their term of service. The City cites no authority in support of this
14 proposition, and it conflicts with our standard of review and the rules of construction for
the amendment that we have previously examined. Thus, we disagree that the “plain
meaning” of the amendment renders it applicable to the current city councilmembers.
While we appreciate the City’s arguments against granting mandamus relief in this
case, controlling law does not support them.
VI. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
the City’s response, and the applicable law, is of the opinion that relator has met his
burden to obtain mandamus relief. Accordingly, we conditionally grant the petition for writ
of mandamus, in part, and we direct the City to call an election in accordance with its City
Charter. We are confident that the City will comply, and our writ will issue only if it does
not. Because of the exigent deadlines present in this election case, we will not entertain
a motion for rehearing or reconsideration. See TEX. R. APP. P. 2, 49.1, 49.7, 52.9.
GINA M. BENAVIDES Justice
Delivered and filed on the 16th day of August, 2024.