Dallas Court of Appeals dismisses referendum/mandamus claims against council but allows mandamus claims to go forward to trial against City Secretary

City of Plano, Texas, et al. v. Elizabeth Carruth, et al.  05-16-00573-CV (Tex. App— Dallas, February 23, 2017)

This is a referendum case where the Dallas Court of Appeals dismissed all but one of the Plaintiffs’ claims under a plea to the jurisdiction.  It held the trial court had jurisdiction to consider the merits of the remaining mandamus/ultra-vires claim against the City Secretary.

The City adopted a comprehensive plan and zoning ordinance. The City Charter permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance. Citizens submitted a referendum petition to change the ordinance adopting a change in the comprehensive plan to the City Secretary. The City Secretary did not act on the referendum petition.  The City took the position that zoning and comprehensive plans have been removed from the referendum scope by state law. So no action is required.  The citizens filed a writ of mandamus seeking a court order directing the City Secretary to present the petition to the City Council and directing the City Council to reconsider the Plan and submit it to popular vote if the council did not entirely repeal it. In addition, they sought a declaratory judgment that pending approval by the voters in a referendum the Plan is suspended. The City filed a plea to the jurisdiction which the trial court denied. The City appealed.

The Court of Appeals first held the Plaintiffs properly plead jurisdiction against the City Secretary. The court held there is a difference between the merits of whether mandamus should be issued with whether the trial court has jurisdiction to hear those merits. “Whether the trial court should ultimately grant or deny the petition for mandamus is not the issue before [the court]. “ Based on the language in the pleadings, the trial court has jurisdiction to hear the merits of the mandamus claim. However, no mandamus can be issued against the remaining officials since the City Secretary has not submitted the petition to the Council. Their duty is not triggered unless and until the petition is submitted, therefore the claims are not ripe. Finally, the court dismissed the declaratory judgment claims noting the charter does not provide that an ordinance is suspended immediately upon the filing of a referendum petition.  The Charter is clear that a suspension applies only upon the subject being submitted to popular vote. Until the Council is presented with the petition and acts on it, any declaration about the effect of that action would be advisory. The trial court’s order was affirmed in part and reversed in part.

If you would like to read this opinion click here. The Panel includes Justice Lang- Miers, Justice Stoddart, and Retired Justice O’Neill. Justice Stoddart delivered the opinion of the court. Attorneys for the Appellants: Robert J. Davis, William A. Taylor, and Timothy Dunn.  Attorney for the Appellees: Jack George Ternan.