City of Galena Park v. Barry Ponder

Reversed and Remanded and Opinion filed October 25, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00708-CV

CITY OF GALENA PARK; DANNY P. SIMMS, CRUZ R. HINOJOSA, JR.,
MARICELA SERNA, AND JUAN FLORES, IN THEIR OFFICIAL
CAPACITIES AS MEMBERS OF THE GALENA PARK CITY
COMMISSION; ROBERT PRUETT, IN HIS OFFICIAL CAPACITY AS
CITY ADMINISTRATOR OF THE CITY OF GALENA PARK; MAYRA
GONZALES, IN HER OFFICIAL CAPACITY AS CITY SECRETARY OF
THE CITY OF GALENA PARK; JIM DEFOYD, IN HIS OFFICIAL
CAPACITY AS CITY ATTORNEY OF THE CITY OF GALENA PARK;
AND ESMERALDA MOYA, IN HER OFFICIAL CAPACITY AS MAYOR
OF THE CITY OF GALENA PARK, Appellants

V.

BARRY PONDER, Appellee

On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2015-00781

OPINION
This appeal concerns the validity of a petition seeking an election to amend
the charter of the City of Galena Park, Texas. Appellants, the City of Galena Park
and several city officials in their official capacities (collectively, at times, “Galena
Park”),1 challenge the trial court’s grant of summary judgment favoring appellee
Barry Ponder and denial of summary judgment favoring Galena Park. In its
judgment, the trial court ordered Galena Park to hold an election on the proposed
amendments. We reverse and remand for further proceedings.

I. Background

On September 15, 2014, Ponder delivered a set of papers to Galena Park
City Secretary Mayra Gonzales that purported to be a petition in support of city
charter amendments proposed by a group called Citizens for a Better Galena Park.
The top page of the papers was an unsigned cover sheet, the body of which read as
follows:

To the City Commission of Galena Park:
We, the undersigned, registered and qualified voters of the State of
Texas, residents of Galena Park, . . . present to the city Commission
this petition and request that the following proposed amendments to
the charter of the city of Galena Park be submitted to the registered
and qualified voters of the city of Galena Park for the adoption or
rejection at the next special election . . . .
The next ten pages contained four proposed charter amendments. The
amendments concerned, respectively, (1) the creation of four new commissioner
positions to act as liaisons from the city commission to certain departments of the
city government; (2) appointment and duties of fire chief, fire marshal, and police
chief; (3) a detailed procedural system for voter initiative, referendum, and recall
petitions; and (4) changes to the general powers of the mayor and the commission.

1
These officials are Mayor Esmeralda Moya, City Administrator Robert Pruett, City
Secretary Mayra Gonzales, City Attorney Jim DeFoyd, and City Commissioners Danny Simms,
Cruz Hinojosa, Maricela Serna, and Juan Flores.

2
None of these pages were signed or dated. The next page in the set also appears to
be an unsigned cover sheet, the body of which read:

Attached is a petition bearing 614 signatures of registered and
qualified voters of the State of Texas and City of Galena Park.
Additional are the affidavit of those volunteer petitioners. [sic]
Present[ed] to the City Secretary of Galena Park on this date
September 15, 2014.2

After the second cover letter came several sets of signature pages. Each
individual signature page is labeled “Charter Amendment Petition” and includes
the following language above the signatures:

To the Galena Park City [Commission]:
We, the undersigned duly qualified electors of the City of Galena
Park, by affixing our signatures hereon, demand the attached Charter
Amendments to be placed before the citizens of Galena Park for their
approval.

Each of the signature pages contains multiple columns listing information for each
signatory, including date of signature, address, and date of birth or voter
registration number. At the end of each set of signature pages is a signed and
notarized “Circulator’s Statement,” each of which reads: “I, the petition circulator,
swear or affirm that I personally circulated the petition papers; it bears ___
signatures: all signatures thereto were made in my presence; and I believe them to
be the genuine signatures of the persons whose name they purport to be.” In each
statement, the blank space is filled in by hand with the number of signatures in the
particular set.3

2
While most of the cover letter was typed, the number “614” was handwritten into a
blank.
3
Although the pages containing the circulator’s statements also have rows for voter
signatures, no signatures appear on them other than those of the circulators themselves. The
circulator’s statement pages also do not include the language that appears at the top of each of
3
 According to Gonzales’s uncontroverted affidavit, there were no proposed
charter amendments attached to the signature pages delivered to her. Gonzales
reviewed the signature pages to determine the validity of the signatures. She then
sent a letter to Citizens for a Better Galena Park in which she stated

I . . . have reviewed the election petition and other documents
submitted on September 15, 2014, in connection with a proposed
charter amendment.
I have determined that 492 of the signatures that were contained in the
documents meet the requirements for signatures on election petitions .
. . . I have also determined, based on the voter registration records
maintained by Harris County, that there are between 3,677 and 4,025
qualified voters in the City of Galena Park and that the number of
valid signatures is in excess of 5% of the number of qualified voters in
the City of Galena Park.
I have made no investigation into any issues concerning the manner in
which the petition and related documents were circulated or how the
signatures were obtained and I make no determination concerning
those matters.

According to City Attorney Jim DeFoyd’s affidavit, he also reviewed the
submitted papers and concluded that they did not constitute a proper petition
primarily because (1) the signature pages did not include the text or a description
of any proposed amendment to the charter, (2) there were no amendments attached
to the signature pages as referenced, and (3) the proposed amendments covered
multiple subjects, which he asserts is not permitted under the law. DeFoyd further
stated in his affidavit that neither he nor Gonzales certified that the papers
constituted a proper petition. Attached to DeFoyd’s affidavit were five additional
affidavits, which DeFoyd stated are from signatories. Several of the affiants stated
that they were told the amendments were aimed at lowering Galena Park water

the other signature pages addressed to the “City of Galena Park City [Commission]” and
referencing attached amendments.

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bills, but some also acknowledged not reading the materials for themselves.
DeFoyd further stated that he reported this information to the city commission.

After the commission refused to call an election on the proposed
amendments, Ponder filed the present lawsuit. Both sides filed motions for
summary judgment. In his motion, Ponder contended that because the petition met
the legal requirements for a valid petition and City Secretary Gonzales certified the
validity of a sufficient number of signatures, the commission had a ministerial duty
to submit the proposed charter amendments to voters. As evidence in support,
Ponder attached the papers that he had presented to Gonzales, the letter sent by
Gonzales regarding the number of valid signatures, and a copy of the city charter.

In its motion, Galena Park asserted that the papers did not constitute a proper
petition because it was impossible to discern exactly what amendments were being
supported by the signatories, the proposed amendments improperly covered
multiple subjects, and the submission lacked a Spanish translation. Galena Park
also denied in its motion that Gonzales had certified the petition. Galena Park
attached as evidence the affidavits of Gonzales, DeFoyd, and the five signatories;
the papers presented to Gonzales; and Gonzales’s letter regarding the validity of
the signatures. In a reply, Ponder additionally argued that Gonzales’s letter
constituted a certification of the election petition. The trial court granted Ponder’s
motion for summary judgment, denied Galena Park’s motion, and ordered that the
“City Defendants shall place the proposed amendments on the ballot for the next
available election date.” In its appeal, Galena Park contends the trial court erred in
granting summary judgment for Ponder and, instead, should have granted summary
judgment favoring Galena Park.

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 II. Legal Foundations

A. Summary Judgment Standards

We review a trial court’s summary judgment rulings under an abuse of
discretion standard. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). In respect to traditional motions for summary
judgment, such as those filed by both sides in this case, the movant has the burden
of establishing that there is no genuine issue as to any material fact and that the
movant is therefore entitled to judgment as a matter of law. Id. (citing Tex. R. Civ.
P. 166a(c)). The nonmovant has no burden to respond to or present evidence
regarding the motion until the movant has carried its burden to conclusively
establish the cause of action or defense on which its motion is based. State v.
$90,235, 390 S.W.3d 289, 292 (Tex. 2013). We consider all the evidence in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
(Tex. 2006). Evidence raises a genuine issue of fact if reasonable and fair-minded
jurors could differ in their conclusions in light of all of the summary judgment
evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.
2007). When, as in this case, the order granting summary judgment does not
specify the grounds upon which the trial court relied, we must affirm if any of the
independent summary judgment grounds is meritorious. $90,235, 390 S.W.3d at
292.

When parties file competing motions for summary judgment, and the trial
court grants one motion and denies the other, we may consider the propriety of the
denial as well as the grant. See Grant Prideco, Inc. v. Empeiria Conner L.L.C.,
463 S.W.3d 157, 160 (Tex. App.—Houston [14th Dist.] 2015, no pet.). If the issue

6
raised is based on undisputed and unambiguous facts, we may determine the
question presented as a matter of law. Id. We may then either affirm the judgment
or reverse and render the judgment the trial court should have rendered. Id.

B. Election Petitions

Galena Park’s city charter has little to say regarding procedures to amend its
charter, merely referencing section 9.004 of the Texas Local Government Code.
Galena Park, Tex., City Charter art. VIII, § 19 (1946).4 Section 9.004 reads in
relevant part:

§ 9.004. Charter Amendments
(a) The governing body of a municipality . . . shall 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.
....
(d) An amendment may not contain more than one subject.
(e) The ballot shall be prepared so that a voter may approve or
disapprove any one or more amendments without having to approve
or disapprove all of the amendments.

Tex. Loc. Gov’t Code § 9.004.

Section 9.004(a) outlines the right of the qualified voters of a municipality to
petition their governing body to amend its charter, a power sometimes referred to

4
“SECTION 19: AMENDMENTS. This Charter after its adoption by the qualified
voters of the City may be amended in accordance with Article 1170 of the Revised Civil Statutes
of Texas of 1925, and any amendments thereto.” The current version of Article 1170 is section
9.004 of the Local Government Code. See Act of June 17, 1961, 57th Leg., R.S., ch. 500, 1961
Tex. Gen. Laws 1108–09, repealed by Act of May 21, 1987, 70th Leg., R.S., ch. 149, § 49(1),
1987 Tex. Gen. Laws 1306.

7
as “initiative and referendum.” See In re Roof, 130 S.W.3d 414, 417 (Tex. App.—
Houston [14th Dist.] 2004, orig. proceeding); see also Coalson v. City Council of
Victoria, 610 S.W.2d 744, 747 (Tex. 1980); Taxpayer’s Ass’n of Harris Cty. v.
City of Houston, 129 Tex. 627, 105 S.W.2d 655, 657 (1937) (“[T]he power of
initiative and referendum . . . is the exercise by the people of a power reserved to
them, and not the exercise of a right granted. It follows that, in order to protect the
people of the city in the exercise of this reserved legislative power, such charter
provisions should be liberally construed in favor of the power reserved.”); accord
In re Woodfill, 470 S.W.3d 473, 480 (Tex. 2015) (quoting Taxpayer Ass’n). When
the requirements of section 9.004 are met, the proposed amendments must be put
to a vote, and the duty of the municipal officials to do so is a ministerial one. See
Coalson, 610 S.W.2d at 747 (addressing predecessor statute); In re Roof, 130
S.W.3d at 417-18.

III. Analysis

A. Ponder’s Motion

We begin our analysis by addressing whether the trial court properly granted
Ponder’s motion for summary judgment. As discussed above, Ponder raised
essentially two grounds, contending that the commission had a ministerial duty to
submit the proposed charter amendments to voters because the papers submitted
met all of the legal requirements for a valid petition, or, alternatively, Gonzales’s
letter regarding the validity of the signatures constituted a certification of the
petition. Neither the papers themselves nor Gonzales’s letter, however,
demonstrate Ponder’s entitlement to summary judgment as a matter of law.

1. Validity of Petition

Although section 9.004 of the Local Government Code does not dictate a

8
precise form for election petitions, it clearly requires the submission to be
supported by a petition signed by a certain number of qualified voters in order to
mandate an election. It states: “The governing body of a municipality . . . shall
submit a proposed charter amendment to the voters . . . if the submission is
supported by a petition signed by a [sufficient] number of qualified voters.” Tex.
Loc. Gov’t Code § 9.004(a).

We know that a sufficient number of qualified voters signed the petition.
But, has Ponder conclusively shown that the petition supported the submission?
As citizens may support the right of initiative and referendum irrespective of the
proposition submitted to the voters, we do not construe the plain language of
section 9.004 as requiring all petition signatories as being “FOR” voters. But,
Ponder must establish that the petition supported the submission of the proposed
charter amendments.

The cover letter in the papers Ponder presented to Gonzales represents that
the collected signatures were in support of the submission of proposed
amendments. Additionally, the signature pages themselves reference “Charter
Amendments” with a demand that they be placed before the citizens for their
approval. The circulator’s statements aver that the circulator’s circulated a
“petition paper.” The gap in Ponder’s motion for summary judgment, however, is
that the evidence he attached—the papers submitted, Gonzales’s letter, and the city
charter—do not conclusively establish that the four amendments presented are the
actual amendments that the signatories were demanding be placed on the ballot.
The signature pages note that amendments were attached, but when Ponder
submitted the papers, nothing was attached to the signature pages.5 Neither the

5
Ponder does not contest Gonzales’s statement that no amendments were attached to the
signature pages when filed. Moreover, there were multiple sets of signature pages submitted and
only one set of amendments, so the amendments could not have been attached to each different
9
signature pages, the circulator’s statements, nor the cover letters describe the
amendments.

In his motion, Ponder failed to conclusively establish that the signatories on
the provided signature pages supported the petition that was submitted. See Mann
Frankfort, 289 S.W.3d at 848.6 The papers he submitted to Gonzales did not do so,
and he offered no other evidence to demonstrate that this elemental requirement
was met.

2. Scope of Letter

Although Ponder contends that the letter from Gonzales constituted a
certification of the election petition, it is clear from the face of the letter itself that
this is not so. In the letter, Gonzales stated that she determined only that the
signatures were valid and numbered in excess of 5% of qualified voters in the city.
However, she further explicitly stated that she “made no investigation into any
issues concerning the manner in which the petition and related documents were
circulated or how the signatures were obtained and [makes] no determination
concerning those matters.”7 Although Ponder emphasizes Gonzales’s use of the

set of signature pages.
6
Some city charters contain provisions specifying how petition signature pages must
indicate the substance of the amendment or other issue of governance on which supporting
signatures are being sought. See, e.g., City of Sherman v. Hudman, 996 S.W.3d 904, 916-17
(Tex. App.—Dallas 1999, pet. granted, judgm’t vacated w.r.m.) (noting Sherman charter
required full text of ordinance in petition forms). Although the Galena Park charter does not
contain such specification, this fact does not mean that the substance of the supported
amendments does not need to be established in some manner. To hold otherwise would be to
sanction bait-and-switch tactics that could undermine the integrity of the initiative process.
Here, there is at least some indication in the record that the amendments Ponder
submitted to Gonzales were not the same amendments presented to at least some of the
signatories. As discussed above, a few of the signatories provided affidavits to Galena Park in
which they stated they were told by circulator’s that the proposed amendments concerned an
issue not addressed in the amendments Ponder submitted: lowering water bills.
7
In his reply to Galena Park’s response and cross-motion, Ponder states that in her letter,
10
term “election petition,” there is no indication in the context of the letter that she
intended this term to indicate that the submitted papers were a valid and proper
election petition; indeed, she explicitly indicates that she did not make such a
determination.8 Accordingly, Gonzales’s letter does not support the trial court’s
grant of summary judgment. Because Ponder failed to prove conclusively either of
his grounds for summary judgment, the trial court erred in granting summary
judgment favoring Ponder and ordering an election be held.

B. Galena Park’s Motion

Next, we must consider whether the trial court erred in denying Galena
Park’s motion for summary judgment. We begin here by noting that the grounds
Galena Park urges on appeal are not in complete sync with the grounds it raised in
the trial court. In its motion, Galena Park asserted that as a matter of law, the
papers Ponder submitted did not constitute a valid election petition because (1) it

Gonzales “certif[ied] that the Election Petition contained no deficiencies.” The letter itself
refutes this contention. It is clear from the letter that Gonzales’s review was limited to the
validity of the signatures and did not extend to the validity of the petition as a whole. Ponder
further does not cite any authority supporting his position that Gonzales’s letter was sufficient to
certify the petition and thus mandate an election.
8
Moreover, Ponder does not cite any authority supporting the proposition that even if the
city secretary had certified the petition as valid that this would have resolved the issue as a
matter of law. See Sherman, 996 S.W.3d at 916-17 (holding city official was without authority
to certify petition where petition was not in compliance with applicable law). We further note
that, although not cited by Ponder, the recent Texas Supreme Court opinion In re Woodfill, 470
S.W.3d 473, is distinguishable for several reasons. First, the city charter at issue in Woodfill
specifically assigned the duty to certify referendum petitions to the city secretary, whereas, the
Galena Park charter contains no such assignment. Id. at 475-76. Second, the secretary in
Woodfill in fact certified the petition and did not adopt the city attorney’s contrary findings,
whereas, Gonzales here did not certify the petition and expressly deferred to the city attorney’s
opinion regarding the sufficiency of the petition papers. Id. at 478-79. Third, Woodfill was a
mandamus action in which the city council did not request any relief on the merits, and a direct
appeal concerning the sufficiency of the petition was then pending in the court of appeals,
whereas, the present case is a direct appeal concerning the validity of the petition. Id. at 480 &
n.10. And fourth, Woodfill did not involve the fundamental question posed in the present case
concerning whether the signatories actually supported the submitted petition.

11
was impossible to tell what amendments had been supported by the signatories, (2)
the proposed amendments improperly covered multiple subjects, and (3) no
Spanish-language translation was provided. On appeal, Galena Park raises the first
two grounds, but instead of arguing that a Spanish translation was required, it
asserts that the proposed amendments were not in proper form and “would leave a
voter guessing as to the chief features and the character and purpose of the
proposed amendments.” Because Galena Park has abandoned its Spanish-
translation argument on appeal, we will not address the merits of that contention.
See Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex.
1991). And because Galena Park did not preserve its objection to the form of the
proposed amendments, we likewise will not address the merits of that assertion.9
See Stiles v. Resolution Trust Corp., 857 S.W.2d 24, 26 (Tex. 1993); Envtl.
Procedures, Inc. v. Guidry, 282 S.W.3d 602, 621 (Tex. App.—Houston [14th
Dist.] 2009, pet. denied).

1. Sufficiency of Petition

Turning to the first ground, concerning whether Galena Park demonstrated
as a matter of law that the papers Ponder submitted did not constitute a valid
election petition, the evidence clearly shows that voter signatures were collected in
support of proposed charter amendments. The signature pages indicate that the
signatures were in support of submitting proposed charter amendments to the
voters and, that at the time the signatures were obtained, the proposed amendments
were attached to the signature pages. Additionally, as discussed above, Gonzales
determined that the number of valid signatures on the signature pages was in
excess of the number required by section 9.004. It is also important to note that

9
In its motion, Galena Park actually described the proposed amendment pages as
“contain[ing] an adequate description of a request.”

12
Ponder provided an unsigned cover letter to Gonzales indicating that the submitted
amendments were the ones the signatories requested be submitted to voters.
Although, as discussed above, the papers Ponder submitted do not conclusively
establish that the petition was the one the signatories supported, the papers do
contain enough information to raise a fact question as to whether the requirements
of section 9.004 were met. See Mann Frankfort, 289 S.W.3d at 848; see also
Coalson, 610 S.W.2d at 747; In re Roof, 130 S.W.3d at 417-18.

As mentioned, Galena Park additionally attached several affidavits allegedly
from signatories who stated that they were told the petition they were signing was
aimed at reducing water bills.10 None of the affiants, however, made any claims
regarding the written text of the amendments. In fact, it is clear from several of the
affidavits that the affiants did not read the proposed amendments but at best
depended on statements by the circulators. Galena Park complains of alleged
improprieties in how the signatures were gathered but not of any violation of 9.004
requirements. Galena Park did not establish its entitlement to summary judgment
based on its first ground.

2. Scope of Amendments

Galena Park’s second ground for summary judgment is premised on section
9.004(d) of the Local Government Code, which states in full: “An amendment
may not contain more than one subject.” Tex. Loc. Gov’t Code § 9.004(d).
Although Galena Park does not offer much detail regarding its second ground, it
suggests that the papers Ponder submitted could not have constituted a valid
election petition because they included four separate amendments on different

10
We note that, although Galena Park describes the affiants as signatories, it does not
reference where their signatures appear, and it provides no evidence whether these signatories
were among the 492 determined by Gonzales to be qualified voters.

13
subjects and at least one of the amendments (number two) contained provisions
dealing with two separate subjects: the appointment and qualifications of the fire
chief and the appointment and qualifications of the police chief. Nothing in the
text of section 9.004, however, expressly prohibits an election petition from
proposing more than one amendment. Section 9.004(e) requires that an election
ballot must be “prepared so that a voter may approve or disapprove any one or
more amendments without having to approve or disapprove all of the
amendments,” but there is no such requirement in section 9.004 for petitions used
to garner supporting signatures. The language of a ballot proposition is the
responsibility of the authority ordering the election, not the responsibility of the
party petitioning for an election to be called. See Tex. Elec. Code § 52.072.

Concerning the fire chief and police chief changes sought in amendment
two, what constitutes the same subject matter for section 9.004(d) purposes is
generally construed broadly. See Gibson v. City of Orange, 272 S.W.2d 789, 790
(Tex. App.—Beaumont 1954, writ ref’d) (construing predecessor statute broadly
and approving ballot proposition that proposed numerous interconnected changes
to city charter); Edwards v. Murphy, 256 S.W.2d 470, (Tex. App.—Fort Worth
1953, writ dism’d) (holding proposed charter amendment concerned only one
subject where all suggested changes were already contained within single state
statute); Garitty v. Halbert, 235 S.W. 231, 236 (Tex. Civ. App.—Dallas 1921, writ
dism’d w.o.j.) (concluding proposed amendment of two sections of city charter
dealt with the single subject of taxation, even though the funds were to be spent on
both schools and libraries); see also Dacus v. Parker, 383 S.W.3d 557, 568-69
(Tex. App.—Houston [14th Dist.] 2012) (citing Gibson and Garrity and holding
proposition involved only one subject—creation of a municipal fund—even though
fund was to be used to support improvements to both streets and drainage), rev’d

14
on other grounds, 466 S.W.3d 820 (Tex. 2015). This reading acknowledges that
proposed changes to a city charter may seek broader schematic changes to city
government that may make sense only as an all-or-nothing proposition. See
Gibson, 272 S.W.2d at 790. In the present context, new rules governing the
appointment and qualifications for police chief and fire chief are part of the subject
of how the city’s emergency services departments are to be organized.
Consequently, amendment two did not impermissibly address more than one
subject and the trial court did not err in refusing to grant summary judgment
favoring Galena Park on this ground.

IV. Conclusion

The record demonstrates that a sufficient number of qualified voter
signatures were obtained in support of putting proposed charter amendments up for
election. However, the manner of submission of the election petition materials left
it unclear whether the petition submitted was the one supported by the signatories.
Because the evidence does not demonstrate conclusively that the petition was the
one the signatories supported, summary judgment is not supportable on this record.

Accordingly, we sustain Galena Park’s issues to the extent they challenge
the trial court’s grant of summary judgment favoring Ponder and deny the issues to
the extent they urge judgment favoring Galena Park. We further reverse the trial
court’s judgment and remand for further proceedings consistent with this opinion.

/s/ Martha Hill Jamison
Justice

Panel consists of Justices Jamison, Donovan, and Brown.

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