City obtained mandamus to remove TRO preventing display of budget meeting which addressed fiscal impact of pending charter election

 

In re Sylvester Turner, Mayor and Dave Martin, Houston City Council Member 14-18-00649-CV (Tex. App. – Houston [14th Dist.], Aug. 23, 2018)

This is an original mandamus where the 14th District Court of Appeals in Houston reversed a trial judge’s order requiring the City to remove the video and transcript of the City’s budget meeting from its website.

A Houston firefighter association (“Association”) collected petitions to place a charter amendment on the ballot which addresses comparable compensation between the firefighters and police. The City Council scheduled a council vote for August 8, 2018, to place the Charter Amendment on the ballot. Pursuant to the Texas Local Government Code, for a charter amendment to appear on the November 2018 general election ballot, the City must publish a fiscal impact in the paper several times. The first publication must occur, at the latest, by mid-October 2018. Relators’ petition states that the City’s Budget and Fiscal Affairs Committee scheduled a public meeting for July 26, 2018, in anticipation of the publication. Various City officials spoke at the meeting and the Association’s attorney was invited to speak. Afterwards a video was posted. Four days later, the Association sought a temporary injunction to prevent release of the video asserting it violated the Election Code. A judge signed a TRO restraining the City from displaying on municipal websites or other municipally funded media platforms any audio, video, or transcribed versions of the July 26 meeting.

The Association alleges the City violated §255.003 of the Election Code, which prohibits an officer or employee of a political subdivision from knowingly spending public funds for political advertising. “Political Advertising” includes a communication supporting or opposing a measure that appears on an Internet website. The City’s Budget and Fiscal Affairs Committee scheduled the July 26 public meeting to obtain information regarding the fiscal impact of the proposed charter amendment. The fiscal impact of the charter amendment is relevant to whether voters and Council Members may oppose or support the charter amendment. The 14th Court held it was not unreasonable or unexpected that statements tending to indicate support for, or opposition to, the charter amendment might be voiced at the meeting. However, according to Ethics Advisory Opinion No. 456, such public discussion generally does not violate §255.003 of the Election Code. Such section was not intended to inhibit discussion of matters pending before a governmental body. In such a situation, public funds were not being used for political advertising by making the meeting video publicly available, even though an incidental effect of posting the video on the City’s website may be to re-publish statements supporting or opposing the charter amendment.  As a result, the district court judge committed error, and mandamus was issued.

If you would like to read this opinion, click here. Panel consists of Justice Boyce, Justice Wise and Justice Jewell. Memorandum Opinion by Justice Wise. The docket page with attorney information is found here.