in Re Silsbee Police Association, Joshua Alan Lawrence, Lashawn Brandi McBride Steven Robert McBride, Angela Teresa Rogers, Justin Lynn Rogers, and Taylor Garrett Rogers

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-18-00322-CV _________________

IN RE SILSBEE POLICE ASSOCIATION, JOSHUA ALAN LAWRENCE, LASHAWN BRANDI MCBRIDE, STEVEN ROBERT MCBRIDE, ANGELA TERESA ROGERS, JUSTIN LYN ROGERS, AND TAYLOR GARRETT ROGERS

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Original Proceeding ________________________________________________________________________

MEMORANDUM OPINION

Relators Silsbee Police Association, Joshua Alan Lawrence, Lashawn Brandi

McBride, Steven Robert McBride, Angela Teresa Rogers, Justin Lyn Rogers, and

Taylor Garrett Rogers filed a petition for writ of mandamus. See Tex. Elec. Code

Ann. § 273.061 (West 2010); see also Tex. R. App. P. 52. Relators ask this Court to

compel the respondents, Mayor Jim Willis, City Secretary DeeAnn Zimmerman, the

City of Silsbee, and the Silsbee City Council, which consists of Susan Kay Bard,

Christopher Barnes, Adalaide Cash Balaban, Thomas Tyler, Gary Strahan, and Mark

1 Muckleroy, to immediately perform their respective ministerial duties as required

by the Charter of the City of Silsbee, by placing relators’ proposed charter

amendment on the Texas uniform election date ballot for the November 6, 2018,

Texas uniform election date.

The charter for the City of Silsbee allows its charter to be amended in the

manner provided by Chapter 9 of the Texas Local Government Code. See Silsbee,

Tex. Charter, art. XII, Sec. 12.13 (2018) (available online at

https://library.municode.com/tx/Silsbee/codes/code_of_ordinances). Section 9.004

of the Local Government Code requires the governing body of a municipality to

submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by a number of qualified voters of the municipality equal to at least five percent of the number of qualified voters of the municipality or 20,000, whichever number is the smaller.

Tex. Loc. Gov’t Code Ann. § 9.004(a) (West 2008). Relators assert they satisfied

the requisites for including a charter amendment by submitting a petition signed by

at least five percent of the registered voters of the municipality. Although the

proposed charter amendment was on the agenda for the August 20, 2018, meeting of

the Silsbee City Council, the members of the City Council voted to exclude the

proposed charter amendment from the November 6, 2018, Texas uniform election

date.

2 The respondents filed a response but did not controvert the accuracy and

authenticity of the affidavit and attached documents filed in the appendix to relators’

mandamus petition, nor have they controverted the factual assertions that relators

complied with the requisites for having the proposed Charter amendment submitted

to the voters. Instead, the City asserted that the petition for writ of mandamus was

filed too late for effective compliance, and this Court could not order the requested

relief.

Section 9.004(b) of the Local Government Code states: “[t]he ordinance

ordering the election shall provide for the election to be held on the first authorized

uniform election date prescribed by the Election Code[.]” Id. § 9.004(b). Section

3.005(c) of the Election Code provides that “[f]or an election to be held on a uniform

election date, the election shall be ordered not later than the 78th day before election

day.” Tex. Elec. Code Ann. § 3.005(c) (West Supp. 2017). Relators filed the Original

Emergency Petition for Writ of Mandamus with this Court on August 23, 2018, only

75 days before the uniform election date. Thus, regardless of the merits of relators’

claims, this Court may not grant the requested relief because the time has passed for

ordering the proposed charter amendment to be placed on the November 6, 2018,

ballot. See id. Accordingly, we deny the petition for writ of mandamus.

3 PETITION DENIED.

PER CURIAM

Submitted on September 4, 2018 Opinion Delivered September 5, 2018

Before McKeithen, C.J., Kreger and Horton, JJ.