in Re Silsbee Police Association, Joshua Alan Lawrence, Lashawn Brandi McBride Steven Robert McBride, Angela Teresa Rogers, Justin Lynn Rogers, and Taylor Garrett Rogers ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00322-CV
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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
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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
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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.
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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.
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PETITION DENIED.
PER CURIAM
Submitted on September 4, 2018
Opinion Delivered September 5, 2018
Before McKeithen, C.J., Kreger and Horton, JJ.
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