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.


Dallas Court of Appeals holds comprehensive plan ordinance is subject to referendum petition


Carruth, et al v Henderson, 05-19-01195-CV (Tex. App. – Dallas, July 22, 2020).

This is a mandamus action (and second interlocutory opinion) where the Dallas Court of Appeals issued a mandamus against the City Secretary of the City of Plano regarding a citizen’s referendum petition and granted summary judgment for the plaintiff citizens.

The City of Plano, a home-rule municipality, has a comprehensive plan for land and use development under Chapter 213 of the Texas Local Government Code. The City of Plano’s charter permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance, other than taxation ordinances. After the City passed an ordinance amending and adopting a new comprehensive plan, several citizens submitted a petition to the City Secretary for a referendum to repeal the new plan. The City Council held an executive session and was advised by outside legal counsel that the petition was not subject to a referendum vote. When no action was taken on the petition, the citizens filed suit to compel formal submission to the City Council and to have the City Council either take action or submit to a popular vote. The City Secretary filed a motion for summary judgment, which was granted. The citizens appealed.

The legislature may preempt municipal charters and ordinances. However, when preempting a home-rule charter, the language must be clear and compelling. The Plano City Charter itself excepts only ordinances and resolutions levying taxes from the referendum process. And while Chapter 213 of the Texas Local Government Code regulates the adoption of comprehensive plans, the mere fact that the legislature has enacted a law addressing comprehensive plans does not mean the subject matter is completely preempted (which would have foreclosed a referendum application). The City Secretary claims § 213.003 impliedly withdraws comprehensive development plans from the field of initiative and referendum by mandating procedural requirements, including a public hearing and review by the planning commission before cities can act on such plans. This argument ignores that the statute also allows a municipality to bypass the procedures set forth in subsection (a) and adopt other procedures in its charter or by ordinance. Tex. Loc. Gov’t Code § 213.003(b). Thus, the legislature did not limit the power of home-rule municipalities to adopt comprehensive plans. Further, comprehensive plans, while linked, are to be treated differently than zoning regulations. So, the cases cited by the City Secretary related to zoning referendums are not applicable. The order granting the City Secretary’s motion for summary judgment is reversed.  Because the original interlocutory opinion (summary found here) held the City Secretary has a ministerial duty to present the petition to the City Council, the law-of-the-case doctrine prevents the panel from holding otherwise. As a result, it must grant the citizen’s motion for summary judgment.

If you would like to read this opinion click here. Panel consists of Justices Schenck, Molberg, and Nowell. Opinion by Justice Schenck.  Docket page with attorney information found here.

Texas Supreme Court holds election contest moot, but trial court was still in error when it awarded sanctions


Laura Pressley v Geregorio Casar, 17-0052 (Tex. January 25, 2019)

This is an election contest case for a city council seat where the losing party and her attorney were sanctioned for bringing a frivolous claim. The Texas Supreme Court reversed the award of sanctions and dismissed the case as currently moot.

Gregorio Casar and Laura Pressley finished first and second, respectively, in the 2014 Austin City Council general election for the District 4 council seat. Pressley filed a request for recount, which included a recount of the electronic voting system information. For the manual recount, the CVR file for each voter was printed and counted by hand. The manual recount found no discrepancies with the original canvass and confirmed the original results that Casar won. Pressley next filed an election contest, arguing that CVRs are not “ballot images” or “images of ballots cast,” as the Election Code requires. She also asserted the election officials failed to allow her and the poll watchers the ability to observe the retrieving of the images from the machines. Casar filed traditional and no-evidence summary judgment motions and moved for Chapter 10 sanctions, which the trial court granted and the court of appeals affirmed.

The Court first noted Casar was reelected and began his second term in 2017. Because Pressley’s petition for review was filed after the completion of Casar’s contested term, the Court  decide is whether the election contest is moot.

Casar argued this election contest is moot because no remedy exists to contest an expired term of office. The Court agreed and no exception to the mootness doctrine applied. However, even though the election contest provision is moot, the Court still considered the sanctions holdings. Chapter 10 of the Civil Practice and Remedies Code permits sanctions for pleadings that are filed for an improper purpose or that lack legal or factual support. Pleaded claims must be warranted by existing law or a nonfrivolous argument to change existing law.  The trial court sanctioned Pressley and Rogers for three claims in which they alleged: (1) election irregularities, (2) criminal violation by election officials, and (3) voter disenfranchisement.  After analyzing each, the Court held at least some evidence exists to support the claims asserted. There is nothing frivolous about presenting a statistical analysis showing that the results were unlikely as persuasive support. Pressley’s computer-science and data expert testified that he found at least nine corruption errors in the files, which constitute irregularities and is also an indicator of potential corruption. The seals on the election machines were also broken. Pressley did not need to be right or produce enough evidence to prevail on her entire suit to avoid sanctions. These claims have some evidentiary support and that is enough to make them non-frivolous.  The sanctions order was reversed and the remainder dismissed as moot.


If you would like to read this opinion click here. Per Curiam opinion. The docket page with attorney information is found here.

US Supreme Court remands redistricting case to determine if state improperly used race as a basis for redistricting lines


Bethune-Hill v. Virginia State Bd. of Elections, No. 15-680 (U.S. March 1, 2017)

In this U.S. Supreme Court redistricting case, the Court held the lower courts misapplied the standard for determining whether race was an impermissible factor in redrawing district lines.

This case addresses whether the Virginia state legislature’s consideration of race in drawing new lines for 12 state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment after the 2010 census. Certain voters challenged the new districts as unconstitutional racial gerrymandering.  The trial court panel held 11 of the 12 districts did not deviate from traditional criteria so were constitutional. It also held the 12th, did deviate, but the state had a compelling interest which was narrowly tailored. It is undisputed that the boundary lines for the 12 districts at issue were drawn with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55%. In order to make the 12th district work, non-traditional criteria were used and justified as not wanting to dilute the black vote and to avoid diminishing the ability of black voters to elect their preferred candidates, which at the time would have violated §5 of the Voting Rights Act of 1965.  The citizen’s suit was dismissed.

The Supreme Court went through a lengthy analysis. It first held the district court used an incorrect legal standard regarding the first 11 districts. The proper inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications that the legislature could have used but did not. A legislature “could construct a plethora of potential maps that look consistent with traditional, race-neutral principles, but if race is the overriding reason for choosing one map over others…” unjustified race considerations may be present.  The trial court erred in considering the legislature’s racial motive only to the extent that the challengers identified deviations from traditional redistricting criteria.  The “ultimate object of the inquiry is the legislature’s predominant motive for the district’s design as a whole, and any explanation for a particular portion of the lines must take account of the districtwide context. A holistic analysis is necessary to give the proper weight to districtwide evidence, such as stark splits in the racial composition of populations…”  The Court remanded the determination of the first 11 districts to the trial court to reconsider in light of the Court’s rulings. However, as to the 12th district, the Court held Virginia had a compelling interest to comply with the Voting Rights Act applicable at the time. The State does not have to show its action of race consideration was actually necessary to avoid a statutory violation, but only that the legislature had “ ‘good reasons to believe’ ” its use of race was needed in order to satisfy the Voting Rights Act.  Virginia established its use of race for the 12th district was narrowly tailored and necessary under §5, and the result reflected the good-faith efforts of legislators to achieve an informed bipartisan consensus.  The Court affirmed the dismissal as to the 12th district and remanded the remaining 11.

Justice Alito concurred in part and in the judgment. He concurred as to the 12th district because he believed the law applicable should be the case law from 2012 and not to consider the Court’s holding in Shelby County v. Holder, 570 U. S. ___ (2013).  He concurred with the remand of the 11 districts but believes strict scrutiny should apply to them.

Justice Thomas concurred in the judgment but dissented in part. He concurred with remanding the 11 districts and would hold they must satisfy strict scrutiny requirements. As to the 12th district, he disagrees Virginia satisfied a strict scrutiny analysis.  Since he has previously held §5 of the Voting Rights Act is unconstitutional, using §5 as a reason to consider impermissible grounds does not qualify as a compelling interest. He also believed Virginia did not narrowly tailor its application. And while he sympathizes with the legislature and appears to believe they were trying to comply with §5, he equates the action to “state sponsored race discrimination.”

If you would like to read this opinion click here.  Justice Kennedy delivered the opinion of the court, in which Justices Roberts, Ginsburg, Sotomayor, and Kagan JJ., joined.  Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part.

Texas Voter ID statute held unconstitutional by U.S. 5th Circuit.


Marc Veasey, et al.,  v. Greg Abbott et al.,  v. United States of America, et al.  14-41127 (5th Cir. July 20, 2016)

This is a Voter Rights Act case where the U.S. 5th Circuit Court of Appeals invalidated SB 14 from 2011 which required several forms of photographic identification in order to vote.

When you add the majority opinion, concurring opinions and dissents this is 203 pages worth of analysis. A summary would still take several pages just to encapsulate the reasoning. As a result, this summary is simply hitting the bottom line. The district court held that SB 14 was enacted with a racially discriminatory purpose, has a racially discriminatory effect, is a poll tax, and unconstitutionally burdens the right to vote. The State appealed from that decision, and a panel affirmed in part, vacated in part, and remanded the case for further findings.  The State sought en banc review, which was granted. The full U.S. Court of Appeals for the 5th Circuit held that while some of the evidence relied upon by the district court was “infirm” other evidence supported a discriminatory purpose, so the matter was remanded for an evidence weighing analysis, especially in light of pretextual evidence under a disparate treatment claim. The court then adopted the two-part framework employed by the Fourth and Sixth Circuits to evaluate Section 2 “results” claims (i.e. disparate impact claims). Under this test, the court found the trial court did not error in holding SB 14 imposes significant and disparate burdens on the right to vote. The court remanded for a determination of an appropriate remedy given the severability clause contained within the statute. However, the court rendered a determination that SB 14 does not impose a poll tax. Given direction from the U.S. Supreme Court, the 5th Circuit instructed the trial court to evaluate an intermediate remedy in light of the November 2016 election, and  address full relief after the election.

If you would like to read this opinion click here. The panel includes chief Judge Stewart, Circuit Judge Jolly, Circuit Judge Davis, Circuit Judge Davis, Circuit Judge Jones, Circuit Judge Smith, Circuit Judge Dennis, Circuit Judge Clement, Circuit Judge Prado, Circuit Judge Owen, Circuit Judge Elrod, Circuit Judge Southwick,  Circuit Judge Haynes, Circuit Judge Graves, Circuit Judge Higginson, and Circuit Judge Costa. Per- Curuam. Attorney for Appellant: Scott A. Keller.  Attorney for Appellee: Chad Wilson Dunn.