in Re Cleo Petricek

Supreme Court of Texas
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No. 21-0693
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In re Cleo Petricek,
Relator

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On Petition for Writ of Mandamus
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JUSTICE HUDDLE delivered the opinion of the Court.

A group of voters in the City of Austin petitioned the Austin City
Council for a proposed ordinance that, according to the petition, would
establish minimum standards for the Austin Police Department “to
enhance public safety and police oversight, transparency and
accountability.” Rather than adopt the proposed ordinance, the City
Council chose to place it before the voters for approval at the next
general election. And rather than use the caption set forth in the
petition as the ballot language, the City Council prepared and approved
its own description of the ordinance to be used on the ballot. Because
that language differed materially from the caption in the petition,
Relator Cleo Petricek, an Austin voter and one of the signers of the
petition, brought this mandamus proceeding challenging the City
Council’s chosen ballot language.1
We conclude Relator is entitled to relief, in part. While we agree
with Relator’s contention that the Austin City Charter requires the City
to place the petitioned caption on the ballot verbatim if it complies with
the law, we recognize that the City retains discretion to modify that
caption if the City determines the caption does not. Here, we conclude
the City correctly determined that the caption’s omission of the
ordinance’s financial impact amounted to a violation of state law,
requiring that the caption be modified. But we also conclude that the
City Charter forbids the remainder of the City’s revisions to the
petitioned caption, because those revisions were not necessary to bring
the petitioned caption into compliance with the law.
I
Over 25,000 registered voters in the City of Austin (including
Relator) signed a petition seeking adoption of a citizen-initiated
ordinance in response to the Austin City Council’s adoption of a budget
the petitioners claim “drastically defunded” the Austin Police
Department, reportedly causing the cutting of 180 officer positions and
the delay of four cadet classes. The petition includes the following
caption for the proposed ordinance:
A PETITIONED ORDINANCE TO ENHANCE PUBLIC
SAFETY AND POLICE OVERSIGHT, TRANSPARENCY
AND ACCOUNTABILITY BY ADDING NEW CHAPTER
2-16 TO ESTABLISH MINIMUM STANDARDS FOR THE

1 Relator’s mandamus petition names the City of Austin and the Austin
City Council as respondents. For convenience, we will refer to respondents
collectively as the City.

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 POLICE DEPARTMENT TO ENSURE EFFECTIVE
PUBLIC SAFETY AND PROTECT RESIDENTS AND
VISITORS TO AUSTIN, AND PRESCRIBING MINIMAL
REQUIREMENTS FOR ACHIEVING THE SAME
According to the petition, the City of Austin reduced the budget for the
Austin Police Department for 2020–21 at a time when City residents
and visitors are dissatisfied with public safety. The proposed ordinance
would adopt a new Chapter 2-16 to the Austin City Code, consisting of
three sections: “Minimum Standards and Resources,” “Representative
Community Policing,” and “Coordination of Oversight.” The proposed
ordinance states that it “will require the City Council to adopt an
adequate level of police funding, staffing, and training and enhance
police oversight.” Among other things, the proposed ordinance requires
the City to employ a minimum ratio of two sworn police officers to every
one thousand residents. It also requires the City to enroll at least three
full-term cadet classes until such time as the department’s staffing
levels return to the levels prescribed in the 2019–20 city budget.
The initiative petition was filed with the Austin City Clerk on
July 19, 2021. On August 3, the Clerk certified that the petition had
more than 20,000 signatures of valid voters. Under the Austin City
Charter, the City then had the choice of either passing the proposed
ordinance without amendment or ordering an election on the ordinance
on the next allowable election date. AUSTIN CHARTER art. IV, § 4. On
August 11, the City ordered that a city election be held on November 2,
2021, to submit the proposed ordinance to the voters. The City approved
the following language to be submitted on the ballot:
Proposition A: Shall an ordinance be approved that, at
an estimated cost of $271.5 million - $598.8 million over

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 five years, requires the City to employ at least 2 police
officers per 1,000 residents at all times; requires at least
35% of patrol officer time be uncommitted time, otherwise
known as community engagement time; requires
additional financial incentives for certain officers; requires
specific kinds of training for officers and certain public
officials and their staffs; and requires there be at least
three full-term cadet classes for the department until
staffing levels reach a specific level?
Relator simultaneously sought mandamus relief in the Third
Court of Appeals and this Court, requesting an order compelling the City
to replace this ballot language with the caption of the petitioned
ordinance. Relator argues the Austin City Charter mandates that the
caption of a voter-initiated ordinance be used as the language on the
ballot. In the alternative, Relator argues the ballot language approved
by the City is deficient in several respects and must be modified.
The court of appeals denied relief without a substantive opinion.
The City filed a response to the mandamus petition in this Court, which
we have considered along with the parties’ filings in the court of appeals.
II
This Court has jurisdiction to “issue a writ of mandamus to
compel the performance of any duty imposed by law in connection with
the holding of an election.” TEX. ELEC. CODE § 273.061. Mandamus
relief is appropriate if the relator establishes a clear abuse of discretion
for which there is no adequate appellate remedy. In re AutoNation, Inc.,
228 S.W.3d 663, 667 (Tex. 2007). Voters who sign an initiative petition
have standing to seek mandamus relief against the city council if they
can establish the elements for such relief. In re Williams, 470 S.W.3d
819, 821 (Tex. 2015). If the ballot can be corrected before the election, a

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post-election contest is an inadequate remedy for mandamus purposes.
Id. at 823.
Relator first argues the City Charter imposes a duty on the City
to use the caption of the proposed ordinance as the ballot language,
without modification. Relying on article IV of the City Charter, which
reserves to the people of Austin the power of direct legislation, Relator
argues the City has no discretion to craft ballot language for a petition-
initiated ordinance with a caption, and that any modification of the
petitioned caption violates the City’s ministerial duty under article IV,
section 5 to place the petitioned caption on the ballot verbatim. The City
responds that the City Charter does not automatically bind the City to
place on the ballot whatever caption is included with a petitioned
ordinance. Instead, the City contends section 52.072(a) of the Election
Code “gives the job of crafting Proposition A’s language to the city
council.”2
We conclude that the City Charter requires the City to place the
petitioned caption on the ballot verbatim if the caption complies with
applicable law, including the common-law standard for ballot language
set forth in Dacus v. Parker, 466 S.W.3d 820, 823 (Tex. 2015). But we
also conclude that when the petitioned caption falls short of that

2 In In re Durnin, 619 S.W.3d 250 (Tex. 2021), another challenge to
ballot language chosen by the Austin City Council for a petition-initiated
ordinance, the parties presented similar arguments regarding the
interpretation and effect of the Austin City Charter. See id. at 252–53. Due
to the expedited nature of that proceeding, and because we otherwise granted
relief to the relators, we declined at that time to resolve the merits of this
dispute. Id. at 253. We now answer the question we expressly left open in
Durnin.

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standard, the City has limited discretion to revise the caption to the
extent necessary to bring it into compliance. Here, the petitioned
caption fell short of the Dacus standard because it included no mention
of the proposed ordinance’s cost, and the City thus had authority to
remedy that omission. But the City did not have carte blanche to rewrite
the petitioned caption wholesale, and it abused its discretion by doing
so.
Article IV of the Austin City Charter expressly reserves to the
people of the City “the power of direct legislation by initiative.” AUSTIN
CHARTER art. IV, § 1. The City Charter allows qualified voters to submit
by petition an ordinance for adoption by the City.3 Once a petition is
certified by the city clerk to be sufficient, the City may either (1) pass
the initiated ordinance without amendment, or (2) order an election and
submit the ordinance to a city-wide vote on the next allowable election
date. Id. art. IV, § 4.
Section 5 of article IV states: “The ballot used in voting upon an
initiated or referred ordinance shall state the caption of the ordinance
and below the caption shall set forth on separate lines the words, ‘For
the Ordinance’ and ‘Against the Ordinance.’” Id. art. IV, § 5. According
to Relator, this language creates a nondiscretionary ministerial duty on
the City to use the caption of the petitioned ordinance as the ballot
language.

3 The City Charter does not, however, allow for petition-initiated
ordinances that are “in conflict with this Charter, the state constitution, or the
state laws” or ordinances “appropriating money or authorizing the levy of
taxes.” AUSTIN CHARTER art. IV, § 1. The City does not contend that the
proposed ordinance falls within any of these exceptions.

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 The form, content, and preparation of election ballots are
governed by chapter 52 of the Texas Election Code. Section 52.072
addresses propositions, which the Election Code defines as “the wording
appearing on a ballot to identify a measure.” TEX. ELEC. CODE
§ 1.005(15). “Measure” is defined by the Election Code as “a question or
proposal submitted in an election for an expression of the voters’ will.”
Id. § 1.005(12).
Section 52.072 provides: “Except as otherwise provided by law,
the authority ordering the election shall prescribe the wording of a
proposition that is to appear on the ballot.” Id. § 52.072(a). Relator
argues that the City Charter is a “law” that otherwise prescribes the
wording that must appear on the ballot, and therefore the City must
follow the City Charter and use the proposed ordinance’s caption as the
ballot language. As a general matter, we agree.
The Election Code defines “law” to mean “a constitution, statute,
city charter, or city ordinance.” Id. § 1.005(10) (emphasis added). The
City Charter article governing petition-initiated ordinances states that
the ballot “shall state the caption of the ordinance.” AUSTIN CHARTER
art. IV, § 5. Although the Election Code does not define “caption,” we
have described similar language that appears before the body of an
ordinance and gives notice of the ordinance’s purpose as its caption. See
Sw. Bell Tel. Co. v. Hous. Indep. Sch. Dist., 397 S.W.2d 419, 421 (Tex.
1965) (“The purpose stated in the body of an act must conform to the
notice-giving purpose stated in the caption . . . .”). The City
acknowledged in the court of appeals that “[t]he caption is the
proposition that briefly lays out the measure (or initiated ordinance).”

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The City Clerk specifically identified this preliminary language as the
“caption” when she certified the sufficiency of the initiated-ordinance
petition. Accordingly, the City Charter’s requirement that the ballot
“state the caption of the ordinance” is a “law” that “otherwise provide[s]”
the prescribed wording for a proposition on the ballot. TEX. ELEC. CODE
§ 52.072(a); AUSTIN CHARTER art. IV, § 5. Thus, while Election Code
section 52.072(a) provides the default rule that the authority ordering
the election prescribes the ballot language, it allows for other law—here,
article IV, section 5 of the City Charter—to vest that authority
elsewhere. Section 5 plainly places that authority with the measure’s
proponent.
Relying on City of Galena Park v. Ponder, 503 S.W.3d 625 (Tex.
App.—Houston [14th Dist.] 2016, no pet.), the City argues that Texas
law places the responsibility for preparing ballot language on the
authority ordering the election, not on the party petitioning for the
election. Id. at 635 (citing TEX. ELEC. CODE § 52.072). However, there
is no indication the city charter in that case contained language similar
to that in the Austin City Charter, which expressly provides that the
ballot used in voting on a voter-initiated ordinance “shall state the
caption of the ordinance.” AUSTIN CHARTER art. IV, § 5. This specific
provision in Austin’s City Charter affords the exception to the ballot-
language authority that would otherwise be given to the City. See TEX.
ELEC. CODE § 52.072(a).
The City is correct, however, that the City Charter does not
compel the City to passively adopt as ballot language, verbatim, every
caption of every ordinance that is proposed and certified. For an election

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ordered by a city authority, the Election Code places the duty to prepare
the official ballot on the city secretary.4 Id. § 52.002. The Texas
Constitution forbids a city from passing any ordinance containing any
provision inconsistent with the constitution or state law. TEX. CONST.
art. XI, § 5. The City Charter expressly mandates that voters propose
only ordinances that are “not in conflict with this Charter, the state
constitution, or the state laws.” AUSTIN CHARTER art. IV, § 1. The
language appearing on the ballot, regardless of its source, must
“substantially submit[] the question . . . with such definiteness and
certainty that the voters are not misled.” Dacus, 466 S.W.3d at 823
(quoting Reynolds Land & Cattle Co. v. McCabe, 12 S.W. 165, 165 (Tex.
1888)). In short, the ballot language must not be inconsistent with the
law, and it “must identify the measure by its chief features, showing its
character and purpose.” Id. at 825.
We therefore conclude the City has the authority to determine
whether the petitioned caption meets these standards. If it does, then
the City Charter obligates the City to adopt the caption of the petition-
initiated ordinance as the ballot language. But in cases where the
proposed caption does not comply with the law, the City may revise the
caption to the extent necessary to bring it into compliance.
Here, the City argues the caption for the petitioned ordinance is
inconsistent with state law. We agree with the City in one respect. In
Dacus, we recognized that ballot language may mislead the voters in
either of two ways: “First, it may affirmatively misrepresent the

The Election Code defines “city secretary” to include a city clerk. TEX.
4

ELEC. CODE § 1.005(1).

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measure’s character and purpose or its chief features. Second, it may
mislead the voters by omitting certain chief features that reflect its
character and purpose.” Id. at 826.
The City contends the caption is misleading because it contains
no mention of the cost to the City to comply with the ordinance. Relator
argues that reference to the cost of the ordinance is unnecessary and is
itself misleading because the proposed ordinance is not an expenditure
mandate or an appropriation ordinance. However, the petitioned
ordinance makes clear that it is driven largely by concerns about the
City’s budget priorities. Under the heading “Purpose,” the ordinance
states that the City’s 2020–21 budget “drastically defunded the police
department . . . . In addition to these budget reductions, more than $120
million in funds were also set aside from police activities that could be
ended or redirected.” This “Purpose” statement goes on to say that the
proposed ordinance “will require the City Council to adopt an adequate
level of police funding, staffing, and training and enhance police
oversight” (emphasis added).
In Dacus, residents of Houston challenged ballot language
describing a Houston City Charter amendment that would create a
dedicated drainage fund, which would be funded by charges imposed on
properties that would benefit from the drainage system. Id. at 822. We
held that the ballot language was misleading because it failed to
mention the drainage charges:
Because the ballot did not mention the charges, it fell short
of identifying the measure for what it is—a funding
mechanism and fiscal burden on benefitting property
owners. Failing to identify something for what it is can be
misleading, even for those presumed to be familiar with

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 it. . . . [W]hen the citizens must fund the measure out of
their own pockets, this is a chief feature that should be on
the ballot, and its omission was misleading.
Id. at 826.
We conclude that the cost to the City of the proposed ordinance is
a chief feature that reflects the ordinance’s character and purpose. We
do not hold that every ballot proposition must include language
reflecting the measure’s cost impact. In this case, however, part of the
stated purpose of the petitioned ordinance was to require the City to
adopt an adequate level of funding for the requirements it would impose.
The omission from the ballot language of any reference to that funding
may mislead the voters. Accordingly, the City was correct in concluding
that the ballot language should include a reference to the proposed
ordinance’s cost.
The balance of the petitioned caption, however, should not have
been modified. The City argues the caption was misleading for multiple
reasons in addition to its failure to mention the proposal’s cost. In
particular, the City argues the petitioned caption failed to comply with
the Dacus standard because it did not mention certain details of the
ordinance, such as the minimum police staffing levels, the minimum
levels of community engagement, or the training mandates required by
the proposed ordinance. We disagree. Ballot language “must capture
the measure’s essence,” but “neither the entire measure nor its every
detail need be on the ballot.” Id. at 825. The caption of the proposed
ordinance states that the ordinance “add[s] new Chapter 2-16 to
establish minimum standards for the police department to ensure
effective public safety and protect residents and visitors to Austin, and

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prescrib[es] minimal requirements for achieving the same.” The City
does not contend this language affirmatively misrepresents the
ordinance’s character and purpose or its chief features. The City argues
the specific requirements this language omits are “key features,” but the
City provides no explanation how those specific requirements “reflect
[the ordinance’s] character and purpose” so that their omission may
mislead the voters. See id. at 826. Nor are we persuaded the petitioned
caption fails to capture the measure’s essence.
Except for its omission of the potential cost of the ordinance, the
caption of the petitioned ordinance is sufficient under the law to serve
as the ballot language. Given the Austin City Charter’s express
requirement that the caption of a petition-initiated ordinance be placed
before the voters, the City has no discretion to adopt its own ballot
language. It must use the petitioned caption, and it has discretion only
to make specific changes as necessary to remedy inadequacies under the
law. Here, the City abused its discretion by choosing to draft and use
its own ballot language rather than using the petitioned caption. The
ballot language should consist of the caption of the ordinance as set forth
in the voter-initiated petition, supplemented by a description of the
ordinance’s cost.
The City’s proposed ballot language described the proposed
ordinance as having “an estimated cost of $271.5 million - $598.8 million
over five years.” Relator does not assert this estimate of the cost is
inaccurate. Instead, Relator argues the City’s use of a five-year estimate
exaggerates the cost and the City might in the future repeal or amend
the ordinance so that those costs are not expended. As discussed above,

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we agree with the City that the omission of any cost information can be
misleading, and we cannot say that including the City’s cost estimate in
the ballot language affirmatively misrepresents the ordinance’s
character and purpose or its chief features so as to make it potentially
misleading. See id. Accordingly, we conclude that the ballot language
must consist of the petitioned ordinance’s caption followed by “at an
estimated cost of $271.5 million - $598.8 million over five years.”
III
For the foregoing reasons, without hearing oral argument, see
TEX. R. APP. P. 52.8(c), we conditionally grant mandamus relief and
direct the Austin City Council to revise the ballot language for
“Proposition A” as approved on August 11, 2021, consistent with this
opinion. We are confident the City Council will comply, and the writ
will issue only if it does not.

Rebeca A. Huddle
Justice

OPINION DELIVERED: September 1, 2021

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