ACCEPTED
03-15-00518-CV
7144477
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/30/2015 1:05:10 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00518-CV
IN THE THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
_______________________________________________________
9/30/2015 1:05:10 PM
JEFFREY D. KYLE
CITY OF SAN MARCOS, TEXAS Clerk
Appellant
v.
SAM BRANNON, COMMUNITIES FOR TEXAS THRIVING
WATER FLUORIDE-FREE SAN MARCOS, MORGAN KNECHT AND
KATHLEEN O’CONNELL
Appellee
________________________________________________________
On Appeal from the 274th Judicial District Court of Hays County, Texas
Honorable R. Bruce Boyer, Judge Presiding
Trial Court Cause Number 15-1266
_________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
MCKAMIE KRUEGER, LLP
941 Proton Rd.
San Antonio, Texas 78258
210.546.2122
210.546.2130 (Fax)
William M. McKamie
State Bar No. 13686800
mick@mckamiekrueger.com
CITY ATTORNEY
CITY OF SAN MARCOS, TEXAS
512.393.8153
Fax 512.393.3983
ORAL ARGUMENT REQUESTED
Michael J. Cosentino
State Bar No. 04849600
mcosentino@sanmarcostx.gov
ATTORNEYS FOR APPELLANT
ii
IDENTITY OF PARTIES & COUNSEL
In order that the members of this Court may determine disqualification and
recusal under the Texas Rules of Appellate Procedure, Appellant certifies that the
following is a complete list of the parties, attorneys, and other persons with a
financial interest in the outcome of this lawsuit:
Appellant: Attorneys for Appellant:
City of San Marcos, Texas William M. McKamie
State Bar No. 13686800
McKamie Krueger, LLP
941 Proton Road
San Antonio, Texas 78258
210.546.2122
210.546.2130 (Fax)
Michael J. Cosentino
State Bar No. 04849600
City Attorney’s Office
630 East Hopkins Street
San Marcos, Texas 78666
512.393.8150
855.749.2846 (Fax)
Appellees: Attorneys for Appellees:
Morgan Knecht Craig F. Young
108 E. San Antonio
San Marcos, Texas 78666
512.847.7809
512.393.1212 (Fax)
cyoung@lawyer.com
Sam Brannon Lynn Peach
147 S. Guadalupe, Suite 101
San Marcos, Texas 78666
512.393.9991
888.428.0468 (Fax)
iii
Kathleen O’Connell and Communities Brad Rockwell
for Thriving Water-Fluoride Free San 707 Rio Grande, Ste. 200
Marcos Austin, Texas 78701
SBN 17129600
brad@LF-lawfirm.com
512-469-6000
512-482-9346 (fax)
iv
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL ................................................................ iii
INDEX OF AUTHORITIES................................................................................... vii
STATEMENT OF THE CASE ..................................................................................1
STATEMENT REGARDING ORAL ARGUMENT ............................................... 3
ISSUES PRESENTED FOR REVIEW ..................................................................... 3
Issue 1: The trial court’s denial of the City’s Plea to the Jurisdiction is
error, because mandamus relief related to elections must be
presented to the appellate courts in original proceeding, not a trial
court.
Issue 2: The trial court’s denial of the City’s Plea to the Jurisdiction is
error, because a public official is a necessary party to mandamus,
and Appellees failed to name a public official as a party.
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF THE ARGUMENT ........................................................................ 3
ARGUMENT & AUTHORITIES ............................................................................. 4
Issue 1: The trial court’s denial of the City’s Plea to the Jurisdiction is error,
because mandamus relief related to elections must be presented to the appellate
courts in original proceeding, not a trial court ........................................................... 4
Issue 2: The trial court’s denial of the City’s Plea to the Jurisdiction is error,
because a public official is a necessary party to mandamus, and Appellees failed to
name a public official as a party. ...............................................................................6
PRAYER ....................................................................................................................8
CERTIFICATE OF COMPLIANCE ......................................................................... 9
CERTIFICATE OF SERVICE ..................................................................................9
v
APPENDIX ..............................................................................................................11
vi
INDEX OF AUTHORITIES
Cases
Bejarano v. Moody, 901 S.W. 2d 570 (Tex. App.—El Paso 1995, orig.
proceeding), at page 571.........................................................................................5
Brooks v. Northglen Ass’n, 141 S.W. 3d 158 (Tex. 2004) ........................................7
In re Dorn, 2015 Tex. LEXIS 835, 58 Tex. Sup. Ct. J. 1629 (Tex. 2015) ................5
In re Dupont, 142 S.W.3d 528, 532 (Tex. App.—Fort Worth 2004, orig.
proceeding) .............................................................................................................4
In re Link, 45 S.W.3d 149, 156 (Tex. App.—Tyler 2000, orig. proceeding) ............4
In re Palomo, 366 S.W.3d 193, 194 (Tex. 2012) (orig. proceeding) ........................5
In re Triantaphyllis, 68 S.W.3d 861, 869–70 (Tex. App.—Houston [14th Dist.]
2002, orig. proceeding [mand. denied]) .................................................................4
In re Vela, 399 S.W.3d 265, 266 (Tex. App.—San Antonio 2012, orig. proceeding)
................................................................................................................................4
In re Woodfill, 2015 Tex. LEXIS 686, 58 Tex. Sup. Ct. J. 1525 (Tex. 2015, orig.
proceeding) .............................................................................................................4
Sears v. Bayoud, 786 S.W.2d 248, (Tex. 1990).........................................................5
Strachan v. Lanier, 867 S.W.2d 52 (Tex.App.—Houston [1st Dist.] 1993, orig.
proceeding...............................................................................................................5
Rules
Tex. R. Civ. P. 39 .......................................................................................................7
Statutes
Local Government Code §9.004 ...............................................................................6
Texas Election Code § 277.003 .................................................................................6
Texas Election Code Section 273.061 .......................................................................4
vii
CASE NO. 03-15-00518-CV
IN THE THIRD COURT OF APPEALS
AUSTIN, TEXAS
_______________________________________________________
CITY OF SAN MARCOS, TEXAS
Appellant
v.
SAM BRANNON, COMMUNITIES FOR TEXAS THRIVING
WATER FLUORIDE-FREE SAN MARCOS, MORGAN KNECHT AND
KATHLEEN O’CONNELL
Appellee
________________________________________________________
On Appeal from the 274th Judicial District Court of Hays County, Texas
Honorable R. Bruce Boyer, Judge Presiding
Trial Court Cause Number 15-1266
_________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
TO THE HONORABLE THIRD COURT OF APPEALS:
NOW COMES Appellant, CITY OF SAN MARCOS, TEXAS (“City”), and
submits this appellant’s brief. For clarity, unless otherwise noted, the Appellant
shall be referred to as the “City,” the Appellees shall retain that reference.
STATEMENT OF THE CASE
This case concerns a dispute regarding the validity of a petition filed with
the City of San Marcos City Clerk on April 2, 2015 to place a proposed
amendment to the City Charter on the ballot in a special election on November 3,
1
2015. On May 5, 2015, the City Clerk advised the City Council, sitting in Regular
Meeting, that the petition could not be certified as having the requisite number of
verified signatures of qualified voters of the City.
San Marcos filed this case in district court, seeking a declaratory judgment
that a petition circulated and filed by Defendants and Counter-claimants to place
a proposed amendment to the San Marcos City Charter on the ballot at an
election in November 2015 is void (CR:4).
A month later, Sam Brannon, Kathleen O’Connell, and Communities For
Thriving Water – Fluoride Free San Marcos (“Communities”) filed their Original
Answers and Counterclaims requesting, among other things, a writ of mandamus
to compel the City to place the proposed charter amendment on the ballot at the
November 3, 2015 municipal election (CR:20, 35).
All pending counterclaims for mandamus relief in this case are based on
the contention that the City of San Marcos has a non-discretionary duty imposed
by law -- Section 9.004 of the Texas Local Government Code -- to place their
proposed charter amendment on the November 3, 2015 ballot. The City Clerk
was not named as a respondent, was not served with process, and had no
opportunity to appear as a party in the case. No other public official was named
as a respondent.
On July 29, the City filed its Plea to the Jurisdiction primarily based upon
2
the ground that in election matters, the Texas appellate courts, not the district
court, have exclusive jurisdiction over mandamus in election matters. (CR:49).
After hearing on the Plea to Jurisdiction on August 5, 2015, the Court
denied the Plea by Order dated August 12. (CR:120).
The City timely filed Notice of Accelerated Appeal. (CR:121)
STATEMENT REGARDING ORAL ARGUMENT
Oral argument may edify the Court, and is requested by Appellant.
However, the issues before the Court are neither novel nor complex.
ISSUES PRESENTED FOR REVIEW
Issue 1: The trial court’s denial of the City’s Plea to the Jurisdiction is
error, because mandamus relief related to elections must be
presented to the appellate courts in original proceeding, not a trial
court.
Issue 2: The trial court’s denial of the City’s Plea to the Jurisdiction is
error, because a public official is a necessary party to mandamus,
and Appellees failed to name a public official as a party.
STATEMENT OF FACTS
Relevant facts appear in the Statement of the Case. The issues presented are
based in law, as there are few if any disputed material facts.
SUMMARY OF THE ARGUMENT
The trial court lacks subject matter jurisdiction over Appellees’
Counterclaim seeking mandamus against the City of San Marcos because (1)
jurisdiction to consider mandamus involving elections lies solely with the appellate
3
courts, not a trial court, and (2) a public official is a necessary party-respondent in
a mandamus action, and Appellees failed to name a public official as a party in this
case. The trial court’s denial of the City’s timely presented Plea to the Jurisdiction
is error, and the Counterclaim for mandamus must be dismissed.
ARGUMENT AND AUTHORITIES
Issue 1: The trial court’s denial of the City’s Plea to the Jurisdiction is
error, because mandamus relief related to elections must be
presented to the appellate courts in original proceeding, not a
trial court.
Section 273.061 of the Texas Election Code expressly authorizes both the
Supreme Court and the Courts of Appeals to issue a writ of mandamus “to compel
the performance of any duty imposed by law in connection with the holding of an
election or a political party convention, regardless of whether the person
responsible for performing the duty is a public officer.” These appellate courts
have granted mandamus relief in numerous cases where the duties related to
elections have not been performed. See, e.g., In re Vela, 399 S.W.3d 265, 266
(Tex. App.—San Antonio 2012, orig. proceeding); In re Dupont, 142 S.W.3d 528,
532 (Tex. App.—Fort Worth 2004, orig. proceeding); In re Triantaphyllis, 68
S.W.3d 861, 869–70 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding
[mand. denied]); In re Link, 45 S.W.3d 149, 156 (Tex. App.—Tyler 2000, orig.
proceeding); In re Woodfill, 2015 Tex. LEXIS 686, 58 Tex. Sup. Ct. J. 1525 (Tex.
2015, orig. proceeding).
4
Also, appellate courts have exercised jurisdiction in original proceedings
seeking mandamus in election matters, yet denied relief. See, e.g., In re Palomo,
366 S.W.3d 193, 194 (Tex. 2012) (orig. proceeding); In re Dorn, 2015 Tex. LEXIS
835, 58 Tex. Sup. Ct. J. 1629 (Tex. 2015).
Appellees’ filed their counterclaim in the district court, which although a
court of general jurisdiction, is not mentioned in the Election Code or elsewhere as
having the express authority to issue mandamus. While it is true that there are
some reported examples of district courts assuming jurisdiction in election-related
mandamus actions, jurisdiction was not challenged in those cases.
To the contrary, the El Paso Court of Appeals held in Bejarano v. Moody,
901 S.W. 2d 570 (Tex. App.—El Paso 1995, orig. proceeding), at page 571:
“Mandamus relief lies exclusively with the appellate courts of our state, not
with its district courts,” citing Sears v. Bayoud, 786 S.W.2d 248, (Tex. 1990) and
Strachan v. Lanier, 867 S.W.2d 52 (Tex.App.—Houston [1st Dist.] 1993, orig.
proceeding.
The Appellees simply sought mandamus in the wrong court, and jurisdiction
fails. [Apparently having discovered their error, on August 20, 2015, three of
Appellees joined Shannon Dorn as Relators in an original proceeding seeking
mandamus in the Texas Supreme Court. The application was denied by the
Supreme Court on September 4.] See Appendix “G”.
5
Please note that each of the above-cited mandamus cases are brought against
an individual official, named as the responding party.
Issue 2: The trial court’s denial of the City’s Plea to the Jurisdiction is
error, because a public official is a necessary party to mandamus,
and Appellees failed to name a public official as a party.
On April 2, 2015, a petition was submitted to the City of San Marcos,
seeking an amendment to the City’s Home Rule Charter. Local Government Code
§9.004 (a) provides for an election on such a petition if it is “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 smaller.” In
San Marcos, it is undisputed that the requisite number of valid signatures on such a
petition is 1,090 (CR: 19).
The City Clerk is responsible for verifying the signatures on a charter
amendment petition. On May 5, 2015, the City Clerk reported to the City Council
that the petition was insufficient and could not be certified as being signed by a
sufficient number of qualified voters of the city. It is most common that the City
Clerk or City Secretary perform that function, due to that office’s many statutory
responsibilities involving elections and voting procedures. This is acknowledged
in Election Code § 277.003, which reads in part: “. . . the city secretary or other
authority responsible for verifying the signatures . . . .” (emphasis added). In San
Marcos, there is no “authority” other than the City Clerk.
6
The duty of the governing body to submit a proposed charter amendment to
the voters under Local Government Code §9.004 does not arise unless and until a
petition for such amendment has been signed by the required number of verified
signatures of qualified voters of the City.
In the Counterclaim, Appellees allege that the City Clerk’s failure to certify
to the City Council the requisite number of verified signatures to have the charter
amendment election go forward was improper, and request the trial court to order
the election. The gravamen of their claim is that the City Clerk must be compelled
to certify to the City Council that the signatures are valid.
Because the only official upon whom a duty in connection with the charter
amendment petition has been placed is the City Clerk, the City Clerk is the only
party subject to mandamus. Therefore, the City Clerk is the necessary party-
respondent to the attempted counterclaim. Tex. R. Civ. P. 39.
Appellees did not name the City Clerk as a respondent to the Counterclaim
for mandamus relief. The City Clerk was not served with process, nor given the
opportunity to appear. Therefore, the only necessary party to Appellees’
mandamus action was not sued. See, Brooks v. Northglen Ass’n, 141 S.W. 3d 158
(Tex. 2004).
Further, Appellees failed to name the Mayor and Members of the City
Council as respondents to the Counterclaim for mandamus. As discussed above,
7
the governing body’s duties with regard to submission of a charter amendment to
the electorate do not arise unless and until the City Clerk has certified that the
petition has been verified as signed by a sufficient number of qualified voters.
Nonetheless, to obtain the mandamus relief sought (an order of charter amendment
special election on November 3, 2015), the Councilmembers are necessary parties-
respondent. This argument was presented directly to the trial court at the hearing
conducted on August 12, 2015. (RR3: 5-6 & 10-15)
The Court lacks jurisdiction.
PRAYER
The City prays this Honorable Court reverse and render in favor of the City
and against Appellees, and dismiss Appellees’ counterclaim for lack of
jurisdiction.
Respectfully submitted,
MCKAMIE KRUEGER, LLP
941 Proton Rd.
San Antonio, Texas 78258
210.546.2122
210.546.2130 (Fax)
/s/: William M. McKamie
WILLIAM M. McKAMIE
State Bar No. 13686800
mick@mckamiekrueger.com
and
CITY ATTORNEY
8
CITY OF SAN MARCOS, TEXAS
512.393.8153
Fax 512.393.3983
/s/: Michael J. Cosentino
Michael J. Cosentino
State Bar No. 04849600
mcosentino@sanmarcostx.gov
ATTORNEYS FOR DEFENDANT
CITY OF SAN MARCOS, TEXAS
CERTIFICATE OF COMPLIANCE
I certify that this document is in compliance with Tex. R. App. P. 9.4 (e) and (i). It
contains 1,157 words excluding the exempted parts of the document. The body text
is in 14 point font, and the footnote text is in 12 point font.
/s/ William M. McKamie______________
WILLIAM M. McKAMIE
CERTIFICATE OF SERVICE
I certify that a copy of Appellant’s Brief was served in accordance with the
Texas Rules of Appellate Procedure as indicated below on September 30, 2015
addressed to:
Craig F. Young
108 E. San Antonio
San Marcos, Texas 78666
512.847.7809
512.393.1212 (Fax)
cyoung@lawyer.com
Attorney for Morgan Knecht
Lynn Peach
147 S. Guadalupe, Suite 101
San Marcos, Texas 78666
512.393.9991
888.428.0468 (Fax)
lynn@lynnpeachlaw.com
9
Attorney for Sam Brannon
Brad Rockwell
707 Rio Grande, Ste. 200
Austin, Texas 78701
SBN 17129600
brad@LF-lawfirm.com
512-469-6000
512-482-9346 (fax)
Attorney for Kathleen O'Connell and
Communities for Thriving Water-Fluoride
Free San Marcos
/s/ William M. McKamie____
WILLIAM M. McKAMIE
10
CASE NO. 03-15-00518-CV
IN THE THIRD COURT OF APPEALS
AUSTIN, TEXAS
_______________________________________________________
CITY OF SAN MARCOS, TEXAS
Appellant
v.
SAM BRANNON, COMMUNITIES FOR TEXAS THRIVING
WATER FLUORIDE-FREE SAN MARCOS, MORGAN KNECHT AND
KATHLEEN O’CONNELL
Appellee
________________________________________________________
On Appeal from the 274th Judicial District Court of Hays County, Texas
Honorable R. Bruce Boyer, Judge Presiding
Trial Court Cause Number 15-1266
__________________________________________________________________
APPELLANT’S APPENDIX
__________________________________________________________________
A. Counterclaims of Communities for Thriving Water-Fluoride Free San
Marcos, and Kathleen O’Connell filed July 17, 2015(CR: 20)
B. Counterclaims filed on behalf of Sam Brannon, filed July 17, 2015 (CR: 35)
C. First Amended Counterclaims of Communities for Thriving Water-Fluoride
Free San Marcos, and Kathleen O’Connell, filed August 4, 2015 (CR: 56)
D. Counter-Defendant City of San Marcos’ Plea to the Jurisdiction on
Counterclaims for Mandamus Relief, filed July 29, 2015 (CR: 49)
E. Response of Counterclaimants Communities for Thriving Water-Fluoride
Free San Marcos, and Kathleen O’Connell to the City of San Marcos’ Plea to the
Jurisdiction, filed August 5, 2015 (CR: 72)
11
F. Order Denying City’s Plea to the Jurisdiction on Counterclaims for
Mandamus Relief, dated August 12, 2015
G. Case No. 15-0632; In re Shannon Dorn, Kathleen O’Connell, Communities
for Thriving Waters-Fluoride-Free San Marcos, and Morgan Knecht, Supreme
Court of Texas Denial of Petition for Writ of Mandamus; Concurring Opinion by
Justice Brown and Justice Green, dated September 4, 2015
H. Reporter’s Record, Volume 3, Pages 5-6 and 10-15; excerpts from the Plea
to Jurisdiction Hearing held August 12, 2015; 274th Judicial District Court, Hays
County.
12
FILED
7/17/2015 4:30:22 PM
Beverly Crumley
District Clerk
Hays County, Texas
CASE NO. 15-1266
CITY OF SAN MARCOS, TEXAS, §
Plaintiff and Counter-Defendant, §
§ IN THE DISTRICT COURT
v. §
§
COMMUNITIES FOR THRIVING §
WATER-FLUORIDE FREE SAN §
MARCOS, AND KATHLEEN § OF HAYS COUNTY, TEXAS
O’CONNELL §
Defendants and Counter-claimants, §
§
and §
§ 274TH JUDICIAL DISTRICT
SAM BRANNON and MORGAN §
KNECHT, §
Defendants. §
COUNTERCLAIMS
OF COMMUNITIES FOR THRIVING WATER-
FLUORIDE FREE SAN MARCOS, AND KATHLEEN O’CONNELL
EXPEDITED CONSIDERATION IS REQUESTED.
TO THE HONORABLE JUDGE OF THE COURT:
COME NOW Communities for Thriving Water Fluoride-Free San Marcos
(“Communities”), and Kathleen O’Connell (collectively “Defendants” or
“Counterclaimants”), and file these Counterclaims against Plaintiff and Counter-
Defendant City of San Marcos, and in support therewith, respectfully offer the following:
Appendix - A
000020
I.
NATURE OF THE CASE AND DISCOVERY CONTROL PLAN
1. Counterclaimants intend that discovery be conducted under Level 3, Texas
Rule of Civil Procedure 190.4.
2. Communities and Kathleen O’Connell submitted to Plaintiff and Counter-
Defendant City of San Marcos a Petition for an amendment to the Charter of
the City of San Marcos to bar the addition of fluoride to the San Marcos public
water supply (“Petition”) on April 1, 2015. Substantially more than 5% of the
voters within the City of San Marcos signed this Petition. The City of San
Marcos, however, has refused to submit the proposed charter amendment to the
voters as required by section 9.004(a) of the Texas Local Government Code.
3. The San Marcos City Clerk has refused to even count the signatures for the
Petition, taking the position that all the signatures are “invalid” because “none
of the petition papers contains an oath or affirmation.” As a matter of Texas
statute and the San Marcos City Charter, there is no requirement that petitions
for a City Charter amendment contain an oath or affirmation. Such a
requirement in this situation would be a violation of Article I, Section 2 and
Article XI Section 5 of the Texas Constitution as well as a violation of the First
and Fourteenth Amendments of the United States Constitution.
4. The City of San Marcos has filed a hysterical and punitive lawsuit against the
Defendants, and made allegations that are known to the City to be false. San
2
000021
Marcos has asked the Court to award it attorney’s fees for the costs San
Marcos has incurred filing suit against Defendants.
5. Communities and Kathleen O’Connell as Counterclaimants seek a writ of
mandamus and injunction ordering the Counter-Defendant to place the charter
amendment on the ballot for the November 3, 2015 election. They also seek
related declaratory relief.
6. Under the authority of §37.008 of the Texas Civil Practice and Remedies Code,
Counterclaim Plaintiffs hereby sue to recover their costs and reasonable and
necessary attorney’s fees in both the trial of this case and in connection with
any subsequent appeal.
7. Counterclaimants seek monetary relief of $100,000 or less and nonmonetary
injunctive, declaratory and mandamus relief.
8. The Texas Election Code requires general elections to be ordered not later than
the 78th day before Election Day. Applied here, the deadline for San Marcos to
order an election for the proposed Charter amendments is August 17, 2015, one
month from today.
9. For this reason, expedited consideration is requested.
II.
PARTIES
10. Counterclaimant Communities for Thriving Waters Fluoride-Free San Marcos
is an association created to cause Counter-Defendant San Marcos to stop
adding fluoride to its public water supply. Communities submitted the Petition
3
000022
to amend the San Marcos charter to prohibit fluoridation. Most of
Communities members are residents of San Marcos, registered and qualified
voters, and have signed the Petition. Most of the members of Communities
wish to vote for the Charter amendment in an election. Most of the members
are customers of San Marcos’ public water system. San Marcos initiated the
instant lawsuit by filing suit against Communities.
11. Counterclaimant Kathleen O’Connell is a member of Communities and has
submitted the Petition to San Marcos and she has been sued by San Marcos for
doing so. San Marcos initiated the instant lawsuit by filing suit against
Kathleen O’Connell.
12. Counter-Defendant City of San Marcos is a home rule Texas City and is
represented by the City Attorney in this lawsuit. San Marcos is the initial
Plaintiff in this lawsuit, having sued its citizens for submitting a City Charter
Amendment petition and asking the Court to judge these citizens liable for the
attorney’s fees resulting from the City’s lawsuit.
III.
JURISDICTION AND VENUE
13. This Court has subject matter jurisdiction pursuant to Texas Civil Practice and
Remedies Code section 32.003, Texas Government Code section 24.008, and
Article V, section 8 of the Texas Constitution.
14. Venue is proper in Hays County, Texas, under Sections 15.002 and 15.004 of
the Texas Civil Practice and Remedies Code.
4
000023
IV.
FACTS
15. Counterclaimants are aware of scientific research indicating that fluoridation of
the public water supply is detrimental to human health. Hundreds of cities
agree and have decided to stop adding fluoride to their public drinking water.
Among the Texas cities that have stopped adding fluoride to their waters are:
College Station, Alamo Heights, Elgin, and Lago Vista. Other cities who no
longer fluoridate their public water supply include Albuquerque, New Mexico;
Honolulu, Hawaii; Colorado Springs, Colorado; Spokane, Olympia, and
Bellingham, Washington; Davis, Redding, Santa Barbara, and Santa Cruz,
California; Portland, Oregon; Fairbanks and Juneau, Alaska; and Quebec City,
Windsor, and Calgary, Canada.
16. The City of College Station estimated a savings to its taxpayers of about
$40,000 attributable to the discontinuation of fluoridation.
17. Counterclaimants began discussions with San Marcos city officials in the year
2013 in an attempt to convince them to discontinue fluoridation of San Marcos
water.
18. On August 13, 2013, the San Marcos Executive Director of Public Services,
Tom Taggart, sent a memo to the San Marcos Mayor, City Council, and City
Clerk summarizing the requests being made by Counterclaimants. Among
other things, the Mayor, City Council, and City Clerk were informed by their
staff that Counterclaimant O’Connell’s and Communities’ goal was to “cease
5
000024
fluoridation of the drinking water supply in San Marcos” and to stop “the
addition of fluoride to the Public Drinking water supply.” Mr. Taggart also
informed the Mayor, City Council and City Clerk that Counterclaimants
wished to see the “Fluoride feed equipment.”
19. On August 13, 2013, the San Marcos Executive Director of Public Services
also informed the Mayor, City Council, and City Clerk that “a policy change
could result in the discontinuation of the treatment at any time” and that the
effect on the budget would be a savings in the annual cost to San Marcos of
fluoridation which amounted to $14,000.
20. Counterclaimants have never asked San Marcos to remove naturally-occurring
fluoride in the drinking water.
21. On April 12, 2015, Counterclaimants submitted to San Marcos a Petition with
over 2,000 signatures for a Charter Amendment to be placed on the ballot for
the consideration of voters. Counterclaimants pre-verified that at least 1,634 of
these signatures were of valid San Marcos voters. This number of voters
significantly exceeds 5% of the number of San Marcos registered voters.
22. If approved by the voters, the Charter Amendment would preclude San Marcos
from adding fluoride to its public water supply. The Petition was titled a
“PETITION to BAN FLOURIDATION in CITY OF SAN MARCOS
WATER.” The Charter language proposed by the Petition read:
The City of San Marcos … shall not fluoridate the public water
supply or accept any fluoridated water for use in the San Marcos
water system, including but not limited to the addition of
6
000025
Hydrofluorosilicic Acid, Hexafluorosilicic Acid, Sodium
Silicofluoride, or any other fluoride derivative. The City of San
Marcos shall not purchase, install, or allow the installation of
fluoridation equipment to be used in relation to the San Marcos
municipal water supply or its distribution system.
23. Nowhere in the Petition was there any request or requirement that San Marcos
remove naturally-occurring fluoride that sometimes is found in its source of
water.
24. On April 7, 2015, Counterclaimant O’Connell and Defendant Brannon met
with San Marcos City Manager Jared Miller. Mr. Miller asked multiple
questions about removing naturally-occurring fluoride. O’Connell and
Brannon responded to each of his questions, explaining carefully that neither
they nor Communities, nor the Petition ever mentioned or requested that
naturally-occurring fluoride be removed from San Marcos water.
25. The San Marcos City Clerk refused to even count the signatures on the Petition
submitted to her. On May 6, she announced that “none of the petition papers
contains an oath or affirmation [and therefore] none of the signatures may be
counted.”
26. On May 18, Communities and O’Connell sent a letter to the Mayor and City
Council of San Marcos asking them to place the Charter amendment measure
on the ballot as required by section 9.004(a) of the Texas Local Government
Code.
27. This request was again made on June 16, 2015.
7
000026
28. Counterclaimants made demand on the City of San Marcos to submit the
proposed charter amendment to the voters as required by section 9.004(a) of
the Texas Local Government Code. But the City of San Marcos has refused.
29. On or about June 18, 2015, the City of San Marcos filed suit against
Counterclaimants, Sam Brannon, and Morgan Knecht seeking declaratory
relief and a judgment asking Kathleen O’Connell, Sam Brannon, Morgan
Knecht, and Communities for Thriving Waters – Fluoride Free San Marcos to
pay the City’s attorney’s fees.
30. The City seeks a declaration validating the position it took with regard to the
alleged oath or affidavit requirement for City charter petitions.
31. The City also alleged that the Petitioned charter amendment
would prohibit the City of San Marcos from accepting …
naturally fluoridated surface water and groundwater … forcing
the City to find, finance and develop a new raw water supply or to
design and install equipment at its surface water treatment plant
and ground water wells in an attempt to remove all fluoride
derivatives….
San Marcos further alleged that the cost to the City of doing this would exceed
$97 million.
32. As a result of the filing of this lawsuit, these knowingly false allegations have
been repeated by the news media as if they were true.
33. The effect of these legally and factually baseless claims has been to cast the
Counterclaimants and their work in a false light, harm their reputations, and
8
000027
falsely prejudice the voters of San Marcos against this proposed Charter
amendment.
V.
MANDAMUS
34. Counterclaimants submitted to Counterdefendant City of San Marcos a Petition
for a Charter amendment containing more than 1,634 valid signatures of
qualified voters of the City of San Marcos, pursuant to section 277.002(a) of
the Texas Election Code and section 9.004(a) of the Texas Local Government
Code.
35. The number of these qualified signatures exceeded the requirements of section
9.004(a). Five percent of the number of qualified San Marcos voters is
approximately 964.
36. “When the requisite number of qualified signatures sign such a petition, the
municipal authority must put the measure to a popular vote.” Blume v. Lanier,
997 S.W.2d 259, 262 (Tex. 1999).
37. The City of San Marcos had a non-discretionary ministerial duty to put the
Charter amendment requested by the Petition on the ballot.
38. By refusing to place the Charter amendment on the ballot, San Marcos abused
its discretion.
39. Counterclaimants are entitled to immediate mandamus relief. Without the
issuance of a mandamus, Counterclaimants may not have a remedy at law.
9
000028
VI.
INJUNCTION AGAINST VIOLATIONS
OF ART. I, § 2 AND ART. IX, § 5 OF THE TEXAS CONSTITUTION
40. The city charter petition process implements Article I, section 2 of the Texas
Bill of Rights, which states that “All political power is inherent in the people.”
Green v. City of Lubbock, 627 S.w.2d 868, 871 (Tex. App. – Amarillo 1982,
writ ref’d n.r.e.).
41. The system of petitioning for a charter amendment “has its historical roots in
the people’s dissatisfaction with officialdom’s refusal to enact laws.” Green,
627 S.W.2d at 871. It is “the exercise by the people of a power reserved to
them.” Taxpayers’ Ass’n of Harris County v. City of Houston, 105 S.W.2d
655, 657 (Tex. 1937).
42. As a matter of constitutional law, all rights relating to submitting petitions for a
vote on a charter amendment should be liberally construed in favor of the
power reserved to the people. Taxpayers’ Ass’n, 105 S.W.2d at 657.
43. The law has long been that city charter requirements for amending a charter by
petition are different than the requirements for passing ordinances by initiative
and referendum. See Edwards v. Murphy, 256 S.W.2d 470 (Tex. Civ. App. –
Fort Worth 1953, dism’d).
44. The San Marcos City Charter has only one section, 12.11, expressly defining
the process for amending the City Charter. It is titled “Amending the City
Charter” and reads in its entirety:
10
000029
Amendments to this Charter may be framed and submitted to the
voters of the City in the manner provided by state law.
(emphasis supplied).
45. This section 12.11 Charter provision is consistent with Art. XI § 5 of the
Texas Constitution which says the “amendment of charters is subject to such
limitations as may be prescribed by the Legislature.”
46. San Marcos has transgressed this constitutional provision by imposing
signature validation requirements that are more onerous than what is
specifically prescribed by the Legislature – e.g. which are more restrictive than
and not consistent with Election Code section 277.002(a).
47. With respect to the Counterclaimants’ fluoridation petition, San Marcos has
taken the position that the criteria for establishing the validity of Charter
amendment petitions is not found in state law, but rather in a section of the San
Marcos Charter, section 6.03, which is not even mentioned by the Charter
section 12.11 entitled “Amending the City Charter.” Section 6.03 references
petitions for ordinances rather than Charter amendments.
48. Because the submission of signatures verified under oath is required to place a
citizen-initiated ordinance on the ballot, San Marcos takes the position that a
similar oath or verification is required for a petition to amend the Charter.
49. By adding this onerous requirement that State statutes do not prescribe, San
Marcos violates Art. XI, § 5 of the Texas Constitution. By imposing onerous
oath and verification requirements for signatures on petitions to amend the City
11
000030
Charter, San Marcos is diminishing the powers reserved to the people in
violation of Article I, section 2 of the Texas Constitution.
50. Counterclaimants ask that San Marcos be enjoined from denying their
Constitutional right to seek amendment of the Charter by petition and that San
Marcos be ordered to place Counterclaimants’ Charter amendment regarding
fluoride on the ballot. See Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex.
2011).
VII.
DECLARATORY RELIEF
51. Pleading in the alternative, if as San Marcos contends, City Charter section
6.03 and/or Texas Election Code section 277.004 are correctly interpreted to
require Counterclaimants to submit charter petitions that are affirmed under
oath in order to establish the right to get a proposed charter amendment on the
ballot, Counterclaimants seek a declaration pursuant to Chapter 37 of the Texas
Civil Practice and Remedies Code that section 6.03 and section 277.004 as
applied to Counterclaimants are invalid as inconsistent with the First and
Fourteenth Amendments to the United States Constitution.
52. There is no indication of fraud or invalidity of the 1,634 already-verified
signatures that were submitted. In this context, to require these signatures to
be submitted under oath would serve no rational purpose. A requirement for
an oath or affirmation is not narrowly tailored to advance a compelling state
interest.
12
000031
53. Counterclaimants in addition seek a declaration that an ordinance putting the
anti-fluoride charter amendment on the ballot would be valid.
54. Counterclaimants in addition seek recovery from San Marcos of attorney’s fees
and costs incurred before this Court and any appellate court pursuant to
Chapter 37 of the Texas Civil Practice and Remedies Code.
PRAYER
For the reasons given above, Counterclaimants Communities for Thriving Waters
– Fluoride-Free San Marcos and Kathleen O’Connell respectfully ask the Court to grant
them the following: a writ of mandamus and injunction ordering Counter-Defendant City
of San Marcos to place Counterclaimants’ proposed Charter amendment on the
November 2015 election ballot. Additionally, but only in the event that the Court agrees
with San Marcos’ contention that City Charter section 6.03 and Texas Election Code
section 277.004 require Charter Petition signatures to be verified under oath,
Counterclaimants seek a declaration that Charter section 6.03 and Texas Election Code
section 277.004 are invalid as applied to Counterclaimants’ petition; attorney’s fees under
Texas Civil Practice and Remedies Code section 37.008; and any other relief to which
they may be entitled.
Respectfully submitted,
/s/ Brad Rockwell
Brad Rockwell
SBT No. 17129600
FREDERICK, PERALES,
13
000032
ALLMON & ROCKWELL, P.C.
707 Rio Grande St., Ste. 200
Austin, Texas 78701
(512) 469-6000
(512) 482-9346 facsimile
brad@LF-lawfirm.com
ATTORNEYS FOR KATHLEEN
O’CONNELL AND
COMMUNITIES FOR
THRIVING WATER –
FLOURIDE FREE SAN
MARCOS
14
000033
CERTIFICATE OF SERVICE
By my signature, below, I certify that on July 17, 2015, a true and correct copy of the
foregoing document was served upon the City of San Marcos via e-mail, as indicated, and
by deposit in the U.S. mail, in accordance with the Texas Rules of Civil Procedure, on the
other parties.
/s/ Brad Rockwell
Brad Rockwell
FOR THE CITY OF SAN MARCOS:
Michael J. Cosentino
San Marcos City Attorney
630 East Hopkins
San Marcos, Texas 78666
(512) 393- 8151
(855) 759- 2846 fascimile
mcosentino@sanmarcostx.gov
FOR SAM BRANNON:
Lynn Peach
174 S. Guadalupe Street, No. 101
(512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com
FOR MORGAN KNECHT:
Morgan Knecht
235 Craddock Avenue
Unit B
San Marcos, Texas 78666
15
000034
FILED
7/17/2015 3:35:28 PM
Beverly Crumley
District Clerk
Hays County, Texas
Appendix - B
000035
000036
000037
000038
000039
000040
000041
000042
000043
000044
000045
000046
000047
000048
FILED
8/4/2015 5:21:59 PM
Beverly Crumley
District Clerk
Hays County, Texas
CASE NO. 15-1266
CITY OF SAN MARCOS, TEXAS, §
Plaintiff and Counter-Defendant, §
§ IN THE DISTRICT COURT
v. §
§
COMMUNITIES FOR THRIVING §
WATER-FLUORIDE FREE SAN §
MARCOS, AND KATHLEEN § OF HAYS COUNTY, TEXAS
O’CONNELL §
Defendants and Counter-claimants, §
§
and §
§ 274TH JUDICIAL DISTRICT
SAM BRANNON and MORGAN §
KNECHT, §
Defendants. §
FIRST AMENDED COUNTERCLAIMS
OF COMMUNITIES FOR THRIVING WATER-
FLUORIDE FREE SAN MARCOS, AND KATHLEEN O’CONNELL
EXPEDITED CONSIDERATION IS REQUESTED.
TO THE HONORABLE JUDGE OF THE COURT:
COME NOW Communities for Thriving Water Fluoride-Free San Marcos
(“Communities”), and Kathleen O’Connell (collectively “Defendants” or
“Counterclaimants”), and file these First Amended Counterclaims against Plaintiff and
Counter-Defendant City of San Marcos, and in support therewith, respectfully offer the
following:
Appendix - C
000056
I.
NATURE OF THE CASE AND DISCOVERY CONTROL PLAN
1. Counterclaimants intend that discovery be conducted under Level 3, Texas
Rule of Civil Procedure 190.4.
2. Communities and Kathleen O’Connell submitted to Plaintiff and Counter-
Defendant City of San Marcos a Petition for an amendment to the Charter of
the City of San Marcos to bar the addition of fluoride to the San Marcos public
water supply (“Petition”) on April 1, 2015. Substantially more than 5% of the
voters within the City of San Marcos signed this Petition. The City of San
Marcos, however, has refused to submit the proposed charter amendment to the
voters as required by section 9.004(a) of the Texas Local Government Code.
3. The San Marcos City Clerk has refused to even count the signatures for the
Petition, taking the position that all the signatures are “invalid” because “none
of the petition papers contains an oath or affirmation.” As a matter of Texas
statute and the San Marcos City Charter, there is no requirement that petitions
for a City Charter amendment contain an oath or affirmation. Such a
requirement in this situation would be a violation of Article I, Section 2 and
Article XI Section 5 of the Texas Constitution as well as a violation of the First
and Fourteenth Amendments of the United States Constitution.
4. The City of San Marcos has filed a hysterical and punitive lawsuit against the
Defendants, and made allegations that are known to the City to be false. San
2
000057
Marcos has asked the Court to award it attorney’s fees for the costs San
Marcos has incurred filing suit against Defendants.
5. Communities and Kathleen O’Connell as Counterclaimants seek a writ of
mandamus and injunction ordering the Counter-Defendant to place the charter
amendment on the ballot for the November 3, 2015 election. They also seek
related declaratory relief.
6. Under the authority of §37.008 of the Texas Civil Practice and Remedies Code,
Counterclaim Plaintiffs hereby sue to recover their costs and reasonable and
necessary attorney’s fees in both the trial of this case and in connection with
any subsequent appeal.
7. Counterclaimants seek monetary relief of $100,000 or less and nonmonetary
injunctive, declaratory and mandamus relief.
8. The Texas Election Code requires general elections to be ordered not later than
the 71st day before Election Day. Applied here, the deadline for San Marcos
to order an election for the proposed Charter amendments is August 24, 2015.
9. For this reason, expedited consideration is requested.
II.
PARTIES
10. Counterclaimant Communities for Thriving Waters Fluoride-Free San Marcos
is an association created to cause Counter-Defendant San Marcos to stop
adding fluoride to its public water supply. Communities submitted the Petition
to amend the San Marcos charter to prohibit fluoridation. Most of
3
000058
Communities members are residents of San Marcos, registered and qualified
voters, and have signed the Petition. Most of the members of Communities
wish to vote for the Charter amendment in an election. Most of the members
are customers of San Marcos’ public water system. San Marcos initiated the
instant lawsuit by filing suit against Communities.
11. Counterclaimant Kathleen O’Connell is a member of Communities and has
submitted the Petition to San Marcos and she has been sued by San Marcos for
doing so. San Marcos initiated the instant lawsuit by filing suit against
Kathleen O’Connell.
12. Counter-Defendant City of San Marcos is a home rule Texas City and is
represented by the City Attorney in this lawsuit. San Marcos is the initial
Plaintiff in this lawsuit, having sued its citizens for submitting a City Charter
Amendment petition and asking the Court to judge these citizens liable for the
attorney’s fees resulting from the City’s lawsuit.
III.
JURISDICTION AND VENUE
13. This Court has subject matter jurisdiction pursuant to Texas Civil Practice and
Remedies Code section 32.003, Texas Government Code section 24.008, and
Article V, section 8 of the Texas Constitution.
14. Venue is proper in Hays County, Texas, under Sections 15.002 and 15.004 of
the Texas Civil Practice and Remedies Code.
IV.
4
000059
FACTS
15. Counterclaimants are aware of scientific research indicating that fluoridation of
the public water supply is detrimental to human health. Hundreds of cities
agree and have decided to stop adding fluoride to their public drinking water.
Among the Texas cities that have stopped adding fluoride to their waters are:
College Station, Alamo Heights, Elgin, and Lago Vista. Other cities who no
longer fluoridate their public water supply include Albuquerque, New Mexico;
Honolulu, Hawaii; Colorado Springs, Colorado; Spokane, Olympia, and
Bellingham, Washington; Davis, Redding, Santa Barbara, and Santa Cruz,
California; Portland, Oregon; Fairbanks and Juneau, Alaska; and Quebec City,
Windsor, and Calgary, Canada.
16. The City of College Station estimated a savings to its taxpayers of about
$40,000 attributable to the discontinuation of fluoridation.
17. Counterclaimants began discussions with San Marcos city officials in the year
2013 in an attempt to convince them to discontinue fluoridation of San Marcos
water.
18. On August 13, 2013, the San Marcos Executive Director of Public Services,
Tom Taggart, sent a memo to the San Marcos Mayor, City Council, and City
Clerk summarizing the requests being made by Counterclaimants. Among
other things, the Mayor, City Council, and City Clerk were informed by their
staff that Counterclaimant O’Connell’s and Communities’ goal was to “cease
fluoridation of the drinking water supply in San Marcos” and to stop “the
5
000060
addition of fluoride to the Public Drinking water supply.” Mr. Taggart also
informed the Mayor, City Council and City Clerk that Counterclaimants
wished to see the “Fluoride feed equipment.”
19. On August 13, 2013, the San Marcos Executive Director of Public Services
also informed the Mayor, City Council, and City Clerk that “a policy change
could result in the discontinuation of the treatment at any time” and that the
effect on the budget would be a savings in the annual cost to San Marcos of
fluoridation which amounted to $14,000.
20. Counterclaimants have never asked San Marcos to remove naturally-occurring
fluoride in the drinking water.
21. On April 2, 2015, Counterclaimants submitted to San Marcos a Petition with
over 2,000 signatures for a Charter Amendment to be placed on the ballot for
the consideration of voters. Counterclaimants pre-verified that at least 1,634 of
these signatures were of valid San Marcos voters. This number of voters
significantly exceeds 5% of the number of San Marcos registered voters.
22. If approved by the voters, the Charter Amendment would preclude San Marcos
from adding fluoride to its public water supply. The Petition was titled a
“PETITION to BAN FLUORIDATION in CITY OF SAN MARCOS
WATER.” The Charter language proposed by the Petition read:
The City of San Marcos … shall not fluoridate the public water
supply or accept any fluoridated water for use in the San Marcos
water system, including but not limited to the addition of
Hydrofluorosilicic Acid, Hexafluorosilicic Acid, Sodium
Silicofluoride, or any other fluoride derivative. The City of San
6
000061
Marcos shall not purchase, install, or allow the installation of
fluoridation equipment to be used in relation to the San Marcos
municipal water supply or its distribution system.
23. Nowhere in the Petition was there any request or requirement that San Marcos
remove naturally-occurring fluoride that sometimes is found in its source of
water.
24. On April 7, 2015, Counterclaimant O’Connell and Defendant Brannon met
with San Marcos City Manager Jared Miller. Mr. Miller asked multiple
questions about removing naturally-occurring fluoride. O’Connell and
Brannon responded to each of his questions, explaining carefully that neither
they nor Communities, nor the Petition ever mentioned or requested that
naturally-occurring fluoride be removed from San Marcos water.
25. The San Marcos City Clerk refused to even count the signatures on the Petition
submitted to her. On May 6, she announced that “none of the petition papers
contains an oath or affirmation [and therefore] none of the signatures may be
counted.”
26. On May 18, Communities and O’Connell sent a letter to the Mayor and City
Council of San Marcos asking them to place the Charter amendment measure
on the ballot as required by section 9.004(a) of the Texas Local Government
Code.
27. This request was again made on June 16, 2015.
7
000062
28. Counterclaimants made demand on the City of San Marcos to submit the
proposed charter amendment to the voters as required by section 9.004(a) of
the Texas Local Government Code. But the City of San Marcos has refused.
29. On or about June 18, 2015, the City of San Marcos filed suit against
Counterclaimants, Sam Brannon, and Morgan Knecht seeking declaratory
relief and a judgment asking Kathleen O’Connell, Sam Brannon, Morgan
Knecht, and Communities for Thriving Waters – Fluoride Free San Marcos to
pay the City’s attorney’s fees.
30. The City seeks a declaration validating the position it took with regard to the
alleged oath or affidavit requirement for City charter petitions.
31. The City also alleged that the Petitioned charter amendment
would prohibit the City of San Marcos from accepting …
naturally fluoridated surface water and groundwater … forcing
the City to find, finance and develop a new raw water supply or to
design and install equipment at its surface water treatment plant
and ground water wells in an attempt to remove all fluoride
derivatives….
San Marcos further alleged that the cost to the City of doing this would exceed
$97 million.
32. As a result of the filing of this lawsuit, these knowingly false allegations have
been repeated by the news media as if they were true.
33. The effect of these legally and factually baseless claims has been to cast the
Counterclaimants and their work in a false light, harm their reputations, and
8
000063
falsely prejudice the voters of San Marcos against this proposed Charter
amendment.
V.
MANDAMUS
34. Counterclaimants submitted to Counterdefendant City of San Marcos a Petition
for a Charter amendment containing more than 1,634 valid signatures of
qualified voters of the City of San Marcos, pursuant to section 277.002(a) of
the Texas Election Code and section 9.004(a) of the Texas Local Government
Code.
35. The number of these qualified signatures exceeded the requirements of section
9.004(a). Five percent of the number of qualified San Marcos voters is
approximately 964.
36. “When the requisite number of qualified signatures sign such a petition, the
municipal authority must put the measure to a popular vote.” Blume v. Lanier,
997 S.W.2d 259, 262 (Tex. 1999).
37. The City of San Marcos had a non-discretionary ministerial duty to put the
Charter amendment requested by the Petition on the ballot.
38. By refusing to place the Charter amendment on the ballot, San Marcos abused
its discretion.
39. Counterclaimants are entitled to immediate mandamus relief. Without the
issuance of a mandamus, Counterclaimants may not have a remedy at law.
9
000064
VI.
INJUNCTION AGAINST VIOLATIONS
OF ART. I, § 2 AND ART. IX, § 5 OF THE TEXAS CONSTITUTION
40. The city charter petition process implements Article I, section 2 of the Texas
Bill of Rights, which states that “All political power is inherent in the people.”
Green v. City of Lubbock, 627 S.w.2d 868, 871 (Tex. App. – Amarillo 1982,
writ ref’d n.r.e.).
41. The system of petitioning for a charter amendment “has its historical roots in
the people’s dissatisfaction with officialdom’s refusal to enact laws.” Green,
627 S.W.2d at 871. It is “the exercise by the people of a power reserved to
them.” Taxpayers’ Ass’n of Harris County v. City of Houston, 105 S.W.2d
655, 657 (Tex. 1937).
42. As a matter of constitutional law, all rights relating to submitting petitions for a
vote on a charter amendment should be liberally construed in favor of the
power reserved to the people. Taxpayers’ Ass’n, 105 S.W.2d at 657.
43. The law has long been that city charter requirements for amending a charter by
petition are different than the requirements for passing ordinances by initiative
and referendum. See Edwards v. Murphy, 256 S.W.2d 470 (Tex. Civ. App. –
Fort Worth 1953, dism’d).
44. The San Marcos City Charter has only one section, 12.11, expressly defining
the process for amending the City Charter. It is titled “Amending the City
Charter” and reads in its entirety:
10
000065
Amendments to this Charter may be framed and submitted to the
voters of the City in the manner provided by state law.
(emphasis supplied).
45. This section 12.11 Charter provision is consistent with Art. XI § 5 of the
Texas Constitution which says the “amendment of charters is subject to such
limitations as may be prescribed by the Legislature.”
46. San Marcos has transgressed this constitutional provision by imposing
signature validation requirements that are more onerous than what is
specifically prescribed by the Legislature – e.g. which are more restrictive than
and not consistent with Election Code section 277.002(a).
47. With respect to the Counterclaimants’ fluoridation petition, San Marcos has
taken the position that the criteria for establishing the validity of Charter
amendment petitions is not found in state law, but rather in a section of the San
Marcos Charter, section 6.03, which is not even mentioned by the Charter
section 12.11 entitled “Amending the City Charter.” Section 6.03 references
petitions for ordinances rather than Charter amendments.
48. Because the submission of signatures verified under oath is required to place a
citizen-initiated ordinance on the ballot, San Marcos takes the position that a
similar oath or verification is required for a petition to amend the Charter.
49. By adding this onerous requirement that State statutes do not prescribe, San
Marcos violates Art. XI, § 5 of the Texas Constitution. By imposing onerous
oath and verification requirements for signatures on petitions to amend the City
11
000066
Charter, San Marcos is diminishing the powers reserved to the people in
violation of Article I, section 2 of the Texas Constitution.
50. San Marcos has violated Counterclaimants’ constitutional rights by failing and
refusing to count the signatures on the submitted P for tition, and by failing and
refusing to place Counterclaimants’ petitioned Charter Amendment on the
November 3, 2015 election ballot.
51. The City’s failure to count the signatures on the Petition and its failure to place
the Charter Amendment on the ballot before August 24, 2014 tends to render
any other judgment for declaratory relief ineffectual.
52. Counterclaimants are entitled to injunction under principles of equity and the
law of Texas relating to injunctions.
53. Without injunctive relief, Counterclaimants will suffer irreparable injury by:
losing their right to vote on a Charter Amendment on November 3, 2015;
losing their rights to associate with others for the purpose of securing passage
of the proposed charter amendment on November 3, 2015; and all value of
their petition which was created, circulated and secured at great dedication of
irreplaceable time and significant cost.
54. Counterclaimants’ losses cannot be recovered in damages against San Marcos
because: a) San Marcos retains sovereign immunity from suits for damages;
and b) these losses cannot be fully measured by any certain pecuniary standard.
55. Counterclaimants ask that San Marcos be enjoined from denying their
Constitutional right to seek amendment of the Charter by petition and that San
12
000067
Marcos be ordered to place Counterclaimants’ Charter amendment regarding
fluoride on the ballot. See Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex.
2011).
VII.
DECLARATORY RELIEF
56. Pleading in the alternative, if as San Marcos contends, City Charter section
6.03 and/or Texas Election Code section 277.004 are correctly interpreted to
require Counterclaimants to submit charter petitions that are affirmed under
oath in order to establish the right to get a proposed charter amendment on the
ballot, Counterclaimants seek a declaration pursuant to Chapter 37 of the Texas
Civil Practice and Remedies Code that section 6.03 and section 277.004 as
applied to Counterclaimants are invalid as inconsistent with the First and
Fourteenth Amendments to the United States Constitution.
57. There is no indication of fraud or invalidity of the 1,634 already-verified
signatures that were submitted. In this context, to require these signatures to
be submitted under oath would serve no rational purpose. A requirement for
an oath or affirmation is not narrowly tailored to advance a compelling state
interest.
58. Counterclaimants in addition seek a declaration that an ordinance putting the
anti-fluoride charter amendment on the ballot would be valid.
13
000068
59. Counterclaimants in addition seek recovery from San Marcos of attorney’s fees
and costs incurred before this Court and any appellate court pursuant to
Chapter 37 of the Texas Civil Practice and Remedies Code.
PRAYER
For the reasons given above, Counterclaimants Communities for Thriving Waters
– Fluoride-Free San Marcos and Kathleen O’Connell respectfully ask the Court to grant
them the following: a writ of mandamus and injunction ordering Counter-Defendant City
of San Marcos to place Counterclaimants’ proposed Charter amendment on the
November 3, 2015 election ballot. Additionally, but only in the event that the Court
agrees with San Marcos’ contention that City Charter section 6.03 and Texas Election
Code section 277.004 require Charter Petition signatures to be verified under oath,
Counterclaimants seek a declaration that Charter section 6.03 and Texas Election Code
section 277.004 are invalid as applied to Counterclaimants’ petition; attorney’s fees under
Texas Civil Practice and Remedies Code section 37.008; and any other relief to which
they may be entitled.
Respectfully submitted,
/s/ Brad Rockwell
Brad Rockwell
SBT No. 17129600
FREDERICK, PERALES,
ALLMON & ROCKWELL, P.C.
707 Rio Grande St., Ste. 200
Austin, Texas 78701
(512) 469-6000
14
000069
(512) 482-9346 facsimile
brad@LF-lawfirm.com
ATTORNEYS FOR KATHLEEN
O’CONNELL AND
COMMUNITIES FOR
THRIVING WATER –
FLUORIDE FREE SAN
MARCOS
15
000070
CERTIFICATE OF SERVICE
By my signature, below, I certify that on August 4, 2015, a true and correct copy of the
foregoing document was served upon counsel to all parties City of San Marcos via e-
service e-mail in accordance with the Texas Rules of Civil Procedure
/s/ Brad Rockwell
Brad Rockwell
FOR THE CITY OF SAN MARCOS:
Michael J. Cosentino
San Marcos City Attorney
630 East Hopkins
San Marcos, Texas 78666
(512) 393- 8151
(855) 759- 2846 facsimile
mcosentino@sanmarcostx.gov
FOR SAM BRANNON:
Lynn Peach
174 S. Guadalupe Street, No. 101
(512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com
FOR MORGAN KNECHT:
Craig Young
108 E. San Antonio St.
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
cyoung@lawyer.com
16
000071
FILED
7/29/2015 4:09:20 PM
Beverly Crumley
District Clerk
Hays County, Texas
CAUSE NO. 15-1266
CITY OF SAN MARCOS, TEXAS § IN THE DISTRICT COURT
§
§
Plaintiff and Counter-Defendant §
§
v. §
§
SAM BRANNON, COMMUNITIES FOR §
THRIVING WATER-FLUORIDE FREE § OF HAYS COUNTY, TEXAS
SAN MARCOS, AND §
KATHLEEN O’CONNELL §
§
Defendants and Counter-claimants §
§
And §
§
MORGAN KNECHT §
§
Defendant § 274TH JUDICIAL DISTRICT
§
COUNTER-DEFENDANT CITY OF SAN MARCOS’ PLEA TO THE JURISIDICTION
ON COUNTERCLAIMS FOR MANDAMUS RELIEF
TO THE HONORABLE JUDGE OF THIS COURT:
The City of San Marcos, Plaintiff and Counter-Defendant, presents this Plea To The
Jurisdiction in response to the requests for mandamus relief presented in the Counterclaims of
Sam Brannon, Kathleen O’Connell and Communities For Thriving Water and in the Motion For
Summary Judgment filed by Defendants and Counterclaimants Kathleen O’Connell and
Communities For Thriving Waters-Fluoride Free San Marcos. The City of San Marcos hereby
requests the entry of an order granting this Plea to the Jurisdiction and dismissing those claims,
in their entirety, for want of jurisdiction.
1
Appendix - D 000049
1. BACKGROUND
The City of San Marcos filed this case on June 18, 2015 seeking a declaratory judgment
that a petition circulated and filed by Defendants and Counter-claimants to place a proposed
amendment to the San Marcos City Charter on the ballot at an election in November 2015 is
void.
After waiting a month to do so, Sam Brannon, Kathleen O’Connell, and Communities
For Thriving Water – Fluoride Free San Marcos (Communities) filed their original answers and
counterclaims requesting, among other things, a writ of mandamus to compel Plaintiff and
Counter-Defendant, the City of San Marcos, to place their proposed charter amendment on the
ballot. On July 23, 2015, Communities and Kathleen O’Connell filed a motion for summary
judgment on all of their counterclaims including their counter-claim for mandamus relief. On the
same day, they filed a motion requesting the Court to set and hear their motion for summary
judgment on an expedited basis on August 5, 2015 with less than 21 days notice to the City.
All pending counterclaims for mandamus relief in this case are based on the contention
that the City of San Marcos has a non-discretionary duty imposed by law -- Section 9.004 of the
Texas Local Government Code -- to place their proposed charter amendment on the ballot.
2. LIMITS ON DISTRICT COURT JURISDICTION
Article 5, §8 of the Texas Constitution, provides, in pertinent part, that:
“District Court jurisdiction consists of exclusive, appellate, and original
jurisdiction of all actions, proceedings, and remedies, except in cases
where exclusive, appellate, or original jurisdiction may be conferred by
this Constitution or other law on some other court, tribunal, or
administrative body.” [Emphasis not in original text].
2
000050
3. MANDAMUS JURISDICTION IN ELECTION MATTERS
Section 273.061 of the Texas Election Code grants original jurisdiction to the Texas
Supreme Court or a court of appeals to issue a writ of mandamus in election matters. It provides
as follows:
§273.061. Jurisdiction
“The supreme court or a court of appeals may issue a writ of mandamus to
compel the performance of any duty imposed by law in connection with the
holding of an election or a political party convention, regardless of whether the
person responsible for performing the duty is a public officer.”
In this case, Counter-claimants are seeking a writ of mandamus based upon their
contention that the City of San Marcos has a duty imposed by Section 9.004 of the Texas Local
Government Code to place their proposed charter amendment on the ballot. Because original
jurisdiction to issue such a writ has been granted to the Texas Supreme Court or a court of
appeals by the Texas Election Code, this Court has no jurisdiction to grant such relief and it
would act in violation of Article 5, §8 of the Texas Constitution if it were to do so. Mandamus
relief in such election matters lies exclusively in the appellate courts of this state and not in the
district courts. See, Bejarano v. Moody, 901 S.W.2d 570, 571 (Tex. App. – El Paso 1995,
original proceeding).
4. ALL COUNTERCLAIMS FOR MANDAMUS RELIEF MUST BE DISMISSED
This Court cannot reach or consider the merits of the pending counterclaims for
mandamus relief because it lacks subject matter jurisdiction regarding those claims. Subject
matter jurisdiction is essential to a court’s power to decide a case. Texas Association of Business
3
000051
v. Texas Air Control Board, 852 S.W.2d 440, 443 (Tex. 1993). The absence of subject-matter
jurisdiction may be raised by a plea to the jurisdiction or by a motion for summary judgment.
Bland Independent School District v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A court must not
act without determining that it has subject-matter jurisdiction to do so. Bland, Id. In this case, it
appears from the face of the pleadings that this Court does not have subject matter jurisdiction to
issue a writ of mandamus as requested in the counterclaims filed herein by Sam Brannon,
Kathleen O’Connell, and Communities For Thriving Water – Fluoride Free San Marcos. The
only appropriate action for this Court to take with regard to those counterclaims is to enter an
order dismissing them for want of jurisdiction.
WHEREFORE, PREMISES CONSIDERED, Counter-Defendant City of San Marcos,
Texas requests that this Plea To The Jurisdiction be set for hearing and considered before any
hearing is conducted on the merits of any pending counterclaims for mandamus relief including
those contained in the Motion For Summary Judgment filed by Communities For Thriving Water
– Fluoride Free San Marcos and Kathleen O’Connell. Counter-Defendant requests the entry of
the attached order granting this plea and dismissing all counterclaims for mandamus relief filed
in this case by Sam Brannon, Communities For Thriving Water-Fluoride Free San Marcos, and
Kathleen O’Connell for lack of jurisdiction.
Respectfully submitted,
SAN MARCOS CITY ATTORNEY’S OFFICE
Sam Aguirre: Bar No. 00937520
Jacque Cullom: Bar No. 05212050
Assistant City Attorneys
By: /s/ Michael J. Cosentino
Michael J. Cosentino, City Attorney
mcosentino@sanmarcostx.gov
4
000052
Texas Bar No. 04849600
630 East Hopkins
San Marcos, Texas 78666
Telephone: (512) 393-8151
Facsimile: (855) 759-2846
Attorneys for Plaintiff and Counter-Defendant
City of San Marcos, Texas
CERTIFICATE OF SERVICE
By my signature, below, I certify that on July 29, 2015 a true and correct copy of the foregoing
document was served upon counsel for all parties listed below via e-file e-mail in accordance
with Texas Rules of Civil Procedure.
/s/ Michael J. Cosentino
Michael J. Cosentino
FOR COMMUNITIES FOR THRIVING WATERS – FLUORIDE FREE SAN MARCOS AND
KATHLEEN O’CONNELL
Brad Rockwell
700 Rio Grande, Ste. 200
Austin, Texas 78701
(512) 469-6000
(512) 482-9346 facsimile
Brad@LF-Lawfirm.com
FOR SAM BRANNON
Lynn Peach
174 S. Guadalupe Street, No. 101
San Marcos, Texas 78666
(512) 393-9911
(888) 428-0468 facsimile
lynn@lynnpeach.com
5
000053
FOR MORGAN KNECHT
Craig Young
108 E. San Antonio Street
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
cyoung@lawyer.com
6
000054
7
000055
FILED
8/5/2015 7:04:35 AM
Beverly Crumley
District Clerk
Hays County, Texas
CASE NO. 15-1266
CITY OF SAN MARCOS, TEXAS, §
Plaintiff and Counter-Defendant, §
§ IN THE DISTRICT COURT
v. §
§
COMMUNITIES FOR THRIVING §
WATER-FLUORIDE FREE SAN §
MARCOS, KATHLEEN § OF HAYS COUNTY, TEXAS
O’CONNELL, and SAM §
BRANNON §
Defendants and Counter-claimants, §
§
and § 274TH JUDICIAL DISTRICT
§
MORGAN KNECHT, §
Defendant. §
RESPONSE
OF COUNTERCLAIMANTS
COMMUNITIES FOR THRIVING WATER-
FLUORIDE FREE SAN MARCOS, AND KATHLEEN O’CONNELL
TO THE CITY OF SAN MARCOS’
PLEA TO THE JURISDICTION
TO THE HONORABLE JUDGE OF THE COURT:
COME NOW Communities for Thriving Water Fluoride-Free San Marcos
(“Communities”), and Kathleen O’Connell (collectively “Defendants” or
“Counterclaimants”), and files this response to Counter-Defendant City of San Marcos’
Plea to the Jurisdiction.
Appendix - E
000072
I.
DISTRICT COURTS HAVE JURISDICTION
TO ISSUE WRITS OF MANDAMUS IN ELECTION DISPUTES
The City of San Marcos contends that the Court has no jurisdiction over
Counterclaimants’ claim for a writ of mandamus. The sole authority cited by the City is
Bejarano v. Moody, 901 S.W.2d 570 (Tex. App. – El Paso 1995, orig. proceeding).
Bejarano, however, is an outlier, without precedent, that contradicts the rulings of the
Supreme Court and other courts. Bejarno relied on Election Code § 273.061, which
simply says a court of appeal or the Supreme Court “may issue a writ of mandamus . . . in
connection with the holding of an election.” Bejarno interpreted the option provided by
section 273.061 as a grant of exclusive jurisdiction, even though the language of the
statute does not say the grant of discretionary authority to the appellate courts is
exclusive.
The Supreme Court has recognized the right to bring original mandamus
proceedings in district court against a governmental entity or government officials. In
Vondy v. Comm’ners Court of Uvalde County, the Supreme Court upheld the right to
bring an original mandamus proceeding in district court against a County Commissioners
Court. 620 S.W.2d 104, 109 (Tex. 1981). “[O]riginal mandamus jurisdiction … is
vested in the district court.” Id. The “performance of a clear statutory duty which is
ministerial and nondiscretionary should be mandated by the district court. Even in
2
000073
matters involving some degree of discretion,” a government entity “may not act
arbitrarily.” Id. (citations omitted).
In Anderson v. City of Seven Points, the Supreme Court upheld the original
jurisdiction of a district court over a lawsuit where a writ of mandamus was sought
against a City and its Mayor over the refusal to order an election requested by a citizens
petition. 806 S.W.2d 791, 792-794 (Tex. 1991). “A writ of mandamus will issue to
compel a public official to perform a ministerial act [or] to correct a clear abuse of
discretion by a public official.” Id. at 793.
The fact that the Election Code also grants appellate courts original jurisdiction in
election cases does not deprive the District Court of jurisdiction.
PRAYER
For the reasons given above, Counterclaimants Communities for Thriving Waters
– Fluoride-Free San Marcos and Kathleen O’Connell ask the Court to deny Counter-
Defendant City of San Marcos’ Plea to the Jurisdiction.
Respectfully submitted,
/s/ Brad Rockwell
Brad Rockwell
SBT No. 17129600
FREDERICK, PERALES,
ALLMON & ROCKWELL, P.C.
707 Rio Grande St., Ste. 200
Austin, Texas 78701
(512) 469-6000
(512) 482-9346 facsimile
3
000074
brad@LF-lawfirm.com
ATTORNEYS FOR KATHLEEN
O’CONNELL AND
COMMUNITIES FOR
THRIVING WATER –
FLUORIDE FREE SAN
MARCOS
4
000075
CERTIFICATE OF SERVICE
By my signature, below, I certify that on August 5, 2015, a true and correct copy of the
foregoing document was served via e-file e-mail and by hand delivery on the parties
below.
/s/ Brad Rockwell
Brad Rockwell
FOR THE CITY OF SAN MARCOS:
Michael J. Cosentino
San Marcos City Attorney
630 East Hopkins
San Marcos, Texas 78666
(512) 393- 8151
(855) 759- 2846 facsimile
mcosentino@sanmarcostx.gov
FOR SAM BRANNON:
Lynn Peach
174 S. Guadalupe Street, No. 101
(512) 393-9991
(888) 428-0468 facsimile
lynn@lynnpeachlaw.com
FOR MORGAN KNECHT:
Craig Young
108 E. San Antonio St.
San Marcos, Texas 78666
(512) 847-7809
(512) 353-1219 facsimile
cyoung@lawyer.com
5
000076
Appendix - F
000120
FILE COPY
THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 78711
(512) 463-1312
September 04, 2015
Mr. Michael John Cosentino Mr. Craig F. Young
City of San Marcos The Young Law Firm
630 E. Hopkins 108 E. San Antonio
San Marcos, TX 78666 San Marcos, TX 78666
Mr. Brad Rockwell Mr. William M. (Mick) McKamie
Lowerre Frederick Perales McKamie Krueger LLP
Allmon & Rockwell 941 Proton Road
707 Rio Grande, Suite 200 San Antonio, TX 78258
Austin, TX 78701
RE: Case Number: 15-0632
Court of Appeals Number:
Trial Court Number:
Style: IN RE SHANNON DORN, KATHLEEN O'CONNELL, COMMUNITIES FOR
THRIVING WATERS - FLOURIDE-FREE SAN MARCOS, AND MORGAN
KNECHT
Dear Counsel:
The Supreme Court of Texas denied the petition for writ of mandamus on August 28,
2015. See TEX. R. APP. P. 52.3(e). Justice Brown, joined by Justice Green, delivered a
concurring opinion in the denial of the petition for writ of mandamus. Justice Devine, joined by
Justice Lehrmann, delivered a dissenting opinion from the denial of the petition for writ of
mandamus in the above-referenced case
Sincerely,
Blake A. Hawthorne, Clerk
by Claudia Jenks, Chief Deputy Clerk
Appendix -G
FILE COPY
THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 78711
(512) 463-1312
IN THE SUPREME COURT OF TEXAS
444444444444
NO . 15-0632
444444444444
IN RE SHANNON DORN ET AL., RELATORS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR WRIT OF MANDAMUS
4444444444444444444444444444444444444444444444444444
JUSTICE BROWN , joined by JUSTICE GREEN , concurring in the denial of the petition for writ
of mandamus.
On August 28, 2015, the Court issued an order denying the relators’ petition for writ of
mandamus in this case. I write to provide some explanation for that denial and to distinguish this
case from a seemingly similar matter on which we recently ruled.
This case concerns the relators’ effort to amend the city charter of San Marcos to prohibit the
city from using fluoridated water. On April 2, 2015, the relators submitted a petition seeking that the
proposed amendment be included on the city’s general-election ballot for November 3, 2015. Under
section 3.005(c)(2) of the Election Code, the latest date any proposed city charter amendments could
be added to the November ballot was August 24, 2015.
On May 5, 2015, the city clerk informed the relators that the petition was invalid because it
did not include an oath or affirmation that “the statements were true, that each signature . . . is the
genuine signature of the person whose name purports to be signed thereto, and that such signatures
were placed thereon in the person’s presence.” The parties dispute whether the city charter requires
such an oath or affirmation in this instance.
The relators sent letters to the city on May 18 and June 16 insisting that city officials had
improperly refused to perform ministerial duties regarding the petition and demanding that they do
so immediately. But the relators took no legal action to force the city’s hand. Instead, on June 18 the
city filed a declaratory-judgment action in district court in Hays County. Despite the looming
deadline, the relators waited until July 17 to answer the city’s lawsuit and counterclaim for
declaratory, injunctive, and mandamus relief—more than ten weeks after the city had refused the
petition.
On August 14, the trial court ruled for the relators and ordered the city to review their petition
without requiring any affirmation or verification of the signatures. The city filed a notice of appeal
the next day, staying any further action by the trial court. On August 21, six days after the city filed
its notice of appeal, the relators sought mandamus relief in this Court.
We deploy mandamus as an extraordinary and discretionary remedy, not as a matter of right.
Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (citing Callahan v. Giles, 137 Tex.
571, 575, 155 S.W.2d 793, 795 (1941)). And though mandamus is not an equitable remedy, equitable
principles govern its issuance. Id. (citations omitted). “One such principle is that ‘[e]quity aids the
diligent and not those who slumber on their rights.’” Id. (quoting Callahan, 137 Tex. at 576, 155
S.W.2d at 795).
The relators knew on May 5 that the city had refused to consider their petition. Yet with the
August 24 statutory deadline less than 16 weeks away, the relators waited more than ten weeks
2
before seeking mandamus relief from the district court. Even then, the relators sought mandamus
only in response to the city’s request for declaratory relief, and only after the city’s lawsuit had been
on file for nearly a month. To top it off, it took the relators almost a week to ask for a mandamus
from this Court once the city had appealed the trial court’s ruling. By then the statutory deadline was
just three days away.
The relators have offered no explanation for their failure to diligently pursue the remedies
available to them. Instead, they blame the city for employing “procedural maneuvers” and “doing
nothing to resolve its claims in a timely manner” once it had filed its lawsuit. But nothing the city
did or did not do absolves the relators from their duty to diligently pursue their rights. We will not
grant extraordinary remedies to litigants who “slumber on their rights” and then demand expedited
relief. Callahan, 137 Tex. at 576, 155 S.W.2d at 795; see also In re Int’l Profit Assocs., 274 S.W.3d
672, 676 (Tex. 2009) (per curiam) (“delaying the filing of a petition for mandamus relief may waive
the right to mandamus unless the relator can justify the delay”).
The relators’ failure to diligently pursue relief likewise belies their justification for not first
seeking mandamus in the court of appeals. The rules provide that “[i]f [a] petition is filed in the
Supreme Court without first being presented to the court of appeals, the petition must state the
compelling reason why the petition was not first presented to the court of appeals.” Tex. R. App. P.
52.3(e). In this case, the relators assert that because of the impending statutory deadline, they “have
a compelling reason to submit this petition to the Supreme Court to secure finality now rather than
first going to the Austin Court of Appeals.” Yet as the urgency the relators face is of their own
making, it is no excuse for skipping past the court of appeals. Moreover, the fourteen courts of
3
appeals have mandamus jurisdiction for a reason. This Court cannot be the sole arbiter of expedited
extraordinary relief in a state of nearly 30 million people spread out across 254 counties.
The dissent draws some comparisons between this case and In re Woodfill, ___ S.W.3d ___,
2015 WL 4498229 (Tex. July 24, 2015) (per curiam). In Woodfill, we granted mandamus relief to
order the City of Houston to either repeal an ordinance or submit it to the voters for approval in the
next general election. Id. at *7. But Woodfill is easily distinguished from this case. For instance, the
petition organizers in Woodfill gathered their signatures and submitted their petition over a year
before the statutory deadline—not less than six months before as the relators in this case. Id. at *2.
The Woodfill petition organizers also sued the city in district court for declaratory and injunctive
relief immediately upon its rejection of their petition. Id. at *3. In addition, within a week of the city
rejecting the petition, the petition organizers filed an original mandamus proceeding in the court of
appeals. Id. The same day the court of appeals denied that mandamus, the petition organizers filed
a supplemental petition in district court, requesting a writ of mandamus from that court. Id. These
early attempts at extraordinary relief were denied in light of the appellate remedy the petition
organizers could pursue once they had obtained a final judgment in their action for declaratory and
injunctive relief. See id. It was only after that appellate remedy later proved inadequate, and—unlike
this case—after we had received full briefing from the petition organizers and the city, that this Court
granted mandamus on July 24, 2015. Id. at *6–7. The relatively short-lived and sporadic activity in
the case at bar bears little resemblance to the protracted and relentless litigation that finally resulted
in a mandamus in Woodfill.
4
Process matters. Regardless of the merits of their claims, the relators in this case have failed
to show, under this Court’s well-established rules, principles, and expectations, that they are entitled
to the extraordinary relief they seek.
______________________________
Jeffrey V. Brown
Justice
OPINION DELIVERED: September 4, 2015
5
03-15-00518-CV 1
1 REPORTER'S RECORD
VOLUME 3 OF 3 VOLUMES
2 TRIAL COURT CAUSE NO. 15-1266
FILED IN
COURT OF APPEALS CASE NO. 03-15-00518-CV
3rd COURT OF APPEALS
3 AUSTIN, TEXAS
8/27/2015 9:16:48 AM
4 CITY OF SAN MARCOS, TEXAS, ) IN THE DISTRICT COURT
) JEFFREY D. KYLE
Clerk
5 )
Plaintiff, )
6 )
VS. )
7 )
) HAYS COUNTY, TEXAS
8 SAM BRANNON, COMMUNITIES )
FOR THRIVING )
9 WATER-FLUORIDE FREE SAN )
MARCOS, MORGAN KNECHT AND )
10 KATHLEEN O'CONNELL, )
)
11 )
Defendants. ) 274TH JUDICIAL DISTRICT
12
13
14
15 ------------------------------
16 PLEA TO THE JURISDICTION
17 ------------------------------
18
19
20
21 On the 12th day of August, 2015, the following
22 proceedings came on to be heard in the above-entitled
23 and numbered cause before the Honorable R. Bruce Boyer,
24 Judge presiding, held in San Marcos, Hays County, Texas;
25 Proceedings reported by machine shorthand.
Appendix- H
GRACE C. DUNCAN, CSR 4278 (512) 393-7705
712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX 78666
2
1 A P P E A R A N C E S
2 FOR THE PLAINTIFF:
3 Mr. Michael J. Cosentino
City Attorney - City of San
4 Marcos
630 East Hopkins
5 San Marcos, Texas 78666
SBOT: #04849600
6 Phone: (512) 393-8153
Fax: (512) 393-3983
7 mcosentino@sanmarcostx.gov
8
FOR THE DEFENDANTS, COMMUNITIES FOR THRIVING
9 WATER-FLUORIDE FREE SAN MARCOS AND KATHLEEN O'CONNELL:
10 Mr. Bradley L. Rockwell
FREDERICK, PERALES, ALLMON &
11 ROCKWELL, P.C.
707 Rio Grande
12 Suite 200
Austin, Texas 78701
13 SBOT: #17129600
Phone: (512) 469-6000
14 Fax: (512) 482-9346
Brad@LF-Lawfirm.com
15
16 FOR THE DEFENDANT, SAM BRANNON:
17 Ms. S. Lynn Peach
LAW OFFICE OF LYNN PEACH
18 174 S. Guadalupe Street
No. 101
19 San Marcos, Texas 78666
SBOT: #00792746
20 Phone: (512) 393-9991
Fax: (888) 428-0468
21 Lynn@lynnpeachlaw.com
22
23
24
25
GRACE C. DUNCAN, CSR 4278 (512) 393-7705
712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX 78666
3
1 FOR THE DEFENDANT, MORGAN KNECHT:
2 Mr. Craig F. Young
THE YOUNG LAW FIRM
3 108 E. San Antonio Street
San Marcos, Texas 78666
4 SBOT: #00786367
Phone: (512) 847-7809
5 Fax: (512) 353-1219
Cyoung@lawyer.com
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
GRACE C. DUNCAN, CSR 4278 (512) 393-7705
712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX 78666
5
1 (Proceedings had which are not herein
2 transcribed)
3 MR. COSENTINO: All right. Your Honor, if
4 the Court has concluded ruling on the evidentiary
5 matters and the affidavits, may we be heard as to
6 questions of jurisdiction in this case?
7 THE COURT: Yes, sir.
8 MR. COSENTINO: All right. Your Honor,
9 we -- we did present our original plea to the
10 jurisdiction on July the 29th. We've -- we've had some
11 correspondence with the Court about the particular
12 holding -- or whether there's a holding in the case --
13 the Seven Points case.
14 Mister -- Mr. Rockwell has asserted that
15 somehow the -- a statement in a footnote in the
16 In Re Woodfill case has arisen to a holding in that
17 case. We -- we contend that it's not. But -- so we do
18 stand behind our plea to the jurisdiction.
19 We've also reserved, Your Honor, the right
20 to object further about jurisdictional issues as to
21 mandamus only, Your Honor, in our -- in our reply.
22 And, Your Honor, the pleadings in this case
23 are all about the City of San Marcos has a ministerial
24 duty; the City of San Marcos refused to put it on the
25 ballot. And, Your Honor, every one of the cases that
GRACE C. DUNCAN, CSR 4278 (512) 393-7705
712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX 78666
6
1 have been cited here by the counter-claimants in this
2 case where a mandamus issued were cases that were
3 properly filed against public officials.
4 There's no public official in this case.
5 The city clerk isn't a party in this case. The city
6 council members aren't parties in this case.
7 So in Coalson, in In Re Roof, in the Blum
8 versus Lanier case, and in the Woodfill case decided by
9 the Supreme Court on July the 24th, the parties before
10 the Court, whether it was in the trial court or the --
11 or the Supreme Court or the Court of Appeals, were
12 public officers.
13 They've cited a case, the Vondy case, last
14 week which -- which involved a request by a constable to
15 set a reasonable salary. But the parties in that case,
16 Your Honor, were the commissioners court of Uvalde
17 County and three out of four of the county
18 commissioners.
19 You have no city council members joined in
20 this case. The city clerk isn't in this case.
21 So, Your Honor, we -- we still contend that
22 where this case sits right now, that this court has no
23 jurisdiction to issue a writ of mandamus against the
24 City of San Marcos. And that's the only party that's
25 before the Court today.
GRACE C. DUNCAN, CSR 4278 (512) 393-7705
712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX 78666
10
1 misspoke, Your Honor. That particular section -- we
2 have it verbatim, Judge, in our plea to the
3 jurisdiction. We copied it as we quoted it.
4 THE COURT: Subchapter D: Mandamus by
5 Appellate Court, 27 -- excuse me -- 273.061:
6 Jurisdiction.
7 "The supreme court or a court of appeals
8 may issue a writ of mandamus to compel the performance
9 of any duty imposed by law in connection with the
10 holding of an election or a political party convention,
11 regardless of whether the person responsible for
12 performing the duty is a public officer."
13 Last time I checked, "may" meant
14 discretionary. "Shall" would be required.
15 MR. COSENTINO: Understood, Your, Honor.
16 THE COURT: You're arguing this section
17 makes it exclusive jurisdiction to the appellate courts?
18 MR. COSENTINO: We're -- we're -- that
19 is -- that is our argument based on the Constitution.
20 But moreover, Your Honor, the reason why that
21 language -- if you look at the last -- the last -- the
22 last phrase of that, regardless of whether the person is
23 a public officer.
24 District court jurisdiction to issue
25 mandamus generally, right -- generally, is to compel a
GRACE C. DUNCAN, CSR 4278 (512) 393-7705
712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX 78666
11
1 public officer to -- to perform a duty required by law.
2 There are no public officers before this
3 court. So independent of the -- of the matter raised
4 last week, what we've raised in our -- in our response
5 today, Your Honor, they want a mandamus issued against
6 the City of San Marcos, which, undisputed, is a
7 home-rule municipal corporation. It's not a public
8 officer.
9 So independent of 273.061, Your Honor, we
10 would -- we would -- we would contend that the Court
11 doesn't have jurisdiction to issue a mandamus in this
12 case against these parties at this time.
13 MR. ROCKWELL: Your Honor, I'm --
14 apologize. I have to rely on my memory, but I believe
15 it was Friday. We dropped off a one-page brief and a
16 couple cases specifically addressing the mandamus issue.
17 One case was Anderson. And there was a
18 more recent case -- I can't remember the name of it, but
19 I think it might have come out this year -- from the
20 Texas Supreme Court. And the Texas Supreme Court case
21 was directly on point. They both were, and they both
22 recognize that trial courts have authority to order
23 mandamus relief over election issues, and that the
24 provision that was cited by opposing counsel for
25 appellate court jurisdiction was in addition to the
GRACE C. DUNCAN, CSR 4278 (512) 393-7705
712 SOUTH STAGECOACH TRAIL, SUITE 3272, SAN MARCOS, TX 78666
12
1 trial court jurisdiction, which also exists, the
2 difference being a trial court can make findings of fact
3 and -- and decide disputed fact issues, where an
4 appellate court cannot do that in a mandamus proceeding.
5 And I believe at least one of those cases,
6 if not both of them, involved a city as a -- as a
7 defendant -- yeah, here it is. I'm sorry. It was
8 brought to me.
9 The -- I believe the 2015 case was against
10 a city council. And the -- which is a governmental
11 body.
12 And the -- and the Anderson case --
13 THE COURT: That's the City of Seven
14 Points, is it not?
15 MR. ROCKWELL: Pardon?
16 THE COURT: City of Seven Points, is it
17 not?
18 MR. ROCKWELL: Yeah, City of Seven Points.
19 So that was also -- the City was a party,
20 and the mandamus was what was requested and granted.
21 And both those cases acknowledged that a mandamus is a
22 relief available in trial court for exactly these kinds
23 of election issues.
24 MR. COSENTINO: And, Your Honor, the
25 counterclaims that are on file in this case allege that
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1 the City of San Marcos refused to put it on the ballot.
2 They complain about the city clerks not counting the --
3 the signatures on the ballot, but they're not seeking
4 any mandamus relief against the city clerk in this case,
5 either, Your Honor.
6 So, you know, the -- the Woodfill case
7 is -- is remarkable in a couple of -- couple of ways.
8 In that case, Your Honor, the Supreme Court disregarded
9 the findings of a jury as to the number of valid
10 signatures, disregarded the findings of the trial court
11 regarding the number of signatures, and pretty much held
12 that -- that because the city secretary or city clerk in
13 the City of Houston said that there were enough
14 signatures, that -- that that was dispositive. And that
15 was the grounds for the mandamus issued in that case.
16 Here, we don't have those facts. We have a
17 city clerk who -- who certified that none of the
18 signatures may be counted.
19 So I don't think the Woodfill case is
20 authoritative here, Your Honor. And I -- we just -- we
21 would like this court to -- to issue a ruling that --
22 you know, that is -- that's binding and final. But we
23 don't think that because there's not been a suit filed
24 against the city clerk or the city council members here
25 that a mandamus issues here. We don't think the trial
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1 court's jurisdiction to issue a mandamus extends to a
2 situation where there's not a public officer before it.
3 And, Your Honor, they -- there's no secret
4 here about -- about the city clerk's certification. It
5 happened on May the 5th.
6 They've had since May the 5th or May
7 the 6th to -- to seek mandamus relief in the appropriate
8 court, and they -- and to join the right parties, and
9 they have not done so.
10 MR. ROCKWELL: Your Honor, the primary
11 section that we're seeking relief under is Local
12 Government Code Section 9.004. And the duty imposed
13 there is on the governing body, not an individual clerk
14 or not individual city council members. It's the City
15 itself that has the duty to put the charter amendment on
16 the ballot.
17 And that's what -- that's the request we're
18 asking for pursuant to 9.004, that the -- the City put
19 the measure on the ballot, not -- not a specific request
20 just to the clerk.
21 MR. COSENTINO: Begging Mr. Rockwell's
22 pardon, Your Honor, the statute in question says "the
23 governing body." And he hasn't sued the governing body.
24 THE COURT: He has not sued the government
25 body by naming the City of San Marcos?
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1 MR. COSENTINO: Correct, Your Honor. The
2 mandamus lies against a public officer to perform the
3 non-discretionary duty. And he -- you know, he didn't
4 bring the city council members here as council members.
5 He didn't sue the city clerk here.
6 All those other cases that the Supreme
7 Court has ruled on have been cases where there was a
8 suit against a public officer. And even the case that
9 they cited last week, that Uvalde case, they sued the
10 commissioners court of Uvalde County and three out of
11 the four commissioners.
12 Now, the court in that -- in that case said
13 three out of four commissioners is enough, but they had
14 the county commissioners [sic] and three county
15 commissioners named in the case.
16 They're not before the Court. They can't
17 be -- they can't be served. They can't be sued and
18 served in time for -- for the August 24th deadline
19 here.
20 That's not a situation we created, Your
21 Honor. This -- this is -- on the face of the pleadings,
22 the Court doesn't have jurisdiction to issue a mandamus
23 here.
24 MR. ROCKWELL: And, Your Honor, this is a
25 situation they created. It was the City that brought
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the City of San Marcos, Texas v. Sam Brannon, Communities for Thriving Water-Flouride Free San Marcos, and Kathleen O'Connell
Combined Opinion