A charter election proposition that receives more votes than a second charter proposition on the same ballot can invalidate a second charter proposition if proper notice is given. 

Special contributing author Laura Mueller, City Attorney for Dripping Springs

Hotze v. Sylvestor Turner, Mayor  and City of Houston, Texas., No. 14-19-00959-CV (Tex. App.—Houston [14th Dist.] Oct 12, 2021).

In this appeal from a trial court’s summary judgment in favor of the city and mayor, the Fourteenth Court of Appeals in Houston affirmed the trial court’s judgment because the election ordinance correctly affirmed that only one ballot proposition of two could be passed.

The City’s charter amendment election ballot contained two propositions on expenditures that were contradictory.  Both passed.  The plaintiff sued the mayor and the city arguing that: (1) the clause invalidating the second proposition was not properly in the first ballot proposition; and (2) that the clause invalidating the second ballot proposition conflicts with state law and the Texas Constitution.  The trial court granted the city’s motion for summary judgment that the first ballot proposition was the only valid amendment   The plaintiff appealed.

The primary issue is the validity of two charter amendment propositions related to financial limitations of the city that were on the same ballot. The first ballot proposition included a clause outside of quotes stating that:

“If another proposition for a Charter amendment relating to limitations on increases in City revenues is approved at the same election at which this proposition is also approved, and if this proposition receives the higher number of favorable votes, then this proposition shall prevail and the other shall not become effective.”

Both ballot propositions passed, but due to the language in the first ballot proposition, and the first ballot proposition passing with more votes, only the first ballot proposition was deemed valid.  Even though this clause was not within the quoted portion of the ballot proposition it is still valid because voters are “presumed to be familiar with every measure on the ballot.”  Dacus v. Parker, 466 S.W.3d 820, 825 (Tex. 2015).  Not only was the language in the ballot indicating that only one proposition may be valid, newspaper articles stated that this was a possibility at the time of the election.  Section 9.005 of the Texas Local Government Code states that a ballot proposition is adopted if a majority of qualified voters vote for the proposition.  Both propositions were approved and adopted, but the invalidating clause in the first proposition was still effective to invalidate the second proposition without violating Section 9.005 and by extension the Texas Constitution.  The Court of Appeals affirmed the trial court’s summary judgment in favor of the City.

The dissent stated that the invalidating clause was an unconstitutional and illegal poison pill provision and should be held void, especially considering that the second ballot proposition was voter driven while the first ballot proposition was city driven.

If you would like to read this opinion click here.   The Dissent can be read here. Panel consists of Justices Jewell, Zimmerer, and Hassan.  Majority Opinion by Justice Hassan.  Dissenting Opinion by Justice Jewell.