In RE DAVID ROGERS, JENNIFER PAKENHAM, AND KRISTI POWELL v. the State of Texas ( 2024 )

Supreme Court of Texas
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No. 23-0595
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In re David Rogers, Jennifer Pakenham, and Kristi Powell,
Relators
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On Petition for Writ of Mandamus
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PER CURIAM
Qualified voters petitioned the local Board of an emergency
services district for a ballot proposition at the next available election to
alter the sales tax rates within the district. The Board, believing the
petition to be legally deficient, refused to place it on the ballot. Relators,
three signatories of the petition, seek a writ of mandamus compelling
the Board to determine whether the petition contains the statutorily
required number of signatures or, alternatively, ordering the Board to
call an election on the petition. Because we conclude that the Board has
a ministerial duty to determine whether the petition contains the
required number of signatures for placement on the ballot, we
conditionally grant the writ.
I
Emergency services districts are political subdivisions that
provide emergency services to residents within the district’s boundaries.
See TEX. HEALTH & SAFETY CODE § 775.031. They are created when
requested and approved by the voters of a county (or counties) in which
the district is to be located. See id. §§ 775.011-.026. Each such district
is overseen by a five-member board of emergency services
commissioners. See id. §§ 775.034-.036.
An emergency services district may impose a sales and use tax to
raise revenue. Id. § 775.0751(a). Once a tax rate is established, an
election is required to change or abolish it. Id. The board may call for
such an election by adopting a resolution. Id. § 775.0752(b).
Alternatively, the district’s voters can petition for an election.
Section 775.0752 states that “[t]he board shall call an election if a
number of qualified voters of the district equal to at least five percent of
the number of registered voters in the district petitions the board to call
the election.” Id. (emphasis added).
Once an election is called, it is generally governed by the same
provisions that govern elections to adopt or abolish county sales taxes.
Id. § 775.0752(a) (citing TEX. TAX CODE §§ 323.401-.408). In addition,
Section 775.0752 specifies the required ballot language, depending on
the type of action sought. Those provisions state:
(c) At an election to adopt the tax, the ballot shall be
prepared to permit voting for or against the proposition:
“The adoption of a local sales and use tax in (name of
district) at the rate of (proposed tax rate) percent.”
(d) At an election to abolish the tax, the ballot shall be
prepared to permit voting for or against the proposition:
“The abolition of the local sales and use tax in (name of
district).”
(e) At an election to change the rate of the tax, the ballot
shall be prepared to permit voting for or against the
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proposition: “The (increase or decrease, as applicable) in
the rate of the local sales and use tax imposed by (name of
district) from (tax rate on election date) percent to
(proposed tax rate) percent.”
Id. § 775.0752(c)-(e).
In the fall of 2022, voters in Travis County Emergency Services
District No. 2 began circulating a petition to change the sales and use
tax rates in their District. The District includes the City of Pflugerville
and some surrounding areas. The District currently imposes a
1.0 percent sales tax rate in some parts of the District but a 0.5 percent
sales tax rate in other parts. The petition called for an election to change
the tax rates as follows:
This is a petition for “The decrease in the rate of the local
sales and use tax imposed by Travis County Emergency
Services District #2 from 0.5 percent to 0 percent in the
City of Pflugerville, and 1.0 percent to 0.5 percent in those
areas of the District subject to 1.0 percent taxation.”
The petition includes 5,752 signatures, or around 6.5 percent of
the registered voters in the District, which is greater than the 5 percent
threshold the statute requires. Id. § 775.0752(b). Yet the District’s
Board rejected the petition during a public meeting, claiming it was
“legally insufficient.” Though it gave no explanation at the time, the
Board now claims the petition is deficient in at least two ways: (1) it
combines two separate propositions into one, which would contradict the
mandatory ballot language set forth in Section 775.0752, and (2) it
misleads voters by calling for a “decrease” to a zero percent tax rate
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instead of an “abolishment” of the tax. 1 The Board has never contended
any of the petition signatures is invalid for any reason.
Relators here are three of the petition signatories: David Rogers,
Jennifer Pakenham, and Kristi Powell. They originally sued in
February 2023 in district court, seeking a writ of mandamus directing
the Board to hold an election no later than November 2023. During
discovery, relators filed a petition for writ of mandamus in May 2023 in
the court of appeals. The court of appeals denied relief without
substantive opinion. ___ S.W.3d ___, 2023 WL 4748846 (Tex. App.—
Austin July 25, 2023). Thereafter, relators filed their mandamus
petition in this Court and then nonsuited their claims in the district
court.
II
Before examining the merits, we address the Board’s argument
that the Court lacks jurisdiction to grant mandamus relief against the
Board, which is the only named respondent. As a political subdivision
of the State, see TEX. HEALTH & SAFETY CODE § 775.031(a), an
emergency services district is entitled to governmental immunity, which
operates like sovereign immunity. See generally Wichita Falls State
Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003) (discussing this
concept); see also Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.
2004) (“Governmental immunity operates like sovereign immunity to
afford similar protection to subdivisions of the State, including counties,
cities, and school districts.”); El Paso County v. El Paso Cnty. Emergency
1 We express no opinion on the merits or validity of these claims.
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Servs. Dist. No. 1, 622 S.W.3d 25, 38 (Tex. App.—El Paso 2020, no pet.)
(“A county’s immunity is derived from the state’s sovereign immunity
because it is a unit of state government, but its immunity is referred to
as ‘governmental immunity.’”). The Board, as the governing entity of
the District, also retains immunity. See Rosenberg Dev. Corp. v.
Imperial Performing Arts, Inc., 571 S.W.3d 738, 749 (Tex. 2019).
But governmental immunity can be waived, of course. See City of
LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995) (“A city is immune
from liability for its governmental actions, unless that immunity is
waived.”); Oncor Elec. Delivery Co. v. Dall. Area Rapid Transit, 369
S.W.3d 845, 849 (Tex. 2012) (“[A] waiver of governmental immunity
must be clear and unambiguous.”). And Section 273.061 of the Election
Code waives any claim to immunity from mandamus relief by
authorizing this Court or a court of appeals to compel the performance
of a duty in connection with an election: “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 . . . regardless of whether the person responsible for performing
the duty is a public officer.” TEX. ELEC. CODE § 273.061(a). Here,
relators seek to compel performance of a duty that the Health and Safety
Code expressly assigns to the “board” of an emergency services district.
See TEX. HEALTH & SAFETY CODE § 775.0752(b) (“The board shall call an
election if a number of qualified voters of the district equal to at least
five percent of the number of registered voters in the district petitions
the board to call the election.” (emphasis added)). By authorizing the
Court to issue mandamus relief to compel the performance of that duty,
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which the Legislature expressly assigned to the Board, the Legislature
waived the Board’s immunity from relators’ claim for relief.
The Board responds that Election Code Section 273.061
authorizes mandamus relief in connection with an election only if the
respondent is an individual. First, the Board reads Section 273.061’s
reference to the “person” responsible for performing a duty as a limiter
and, on that basis, argues that the statute authorizes mandamus relief
against individuals who comprise the board but not the Board itself.
Second, the Board points out that although the Government Code
defines “person” to include a “government or governmental subdivision
or agency,” TEX. GOV’T CODE § 311.005(2), it also states that “the use of
‘person,’ as defined by Section 311.005 to include governmental entities,
does not indicate legislative intent to waive sovereign immunity unless
the context of the statute indicates no other reasonable construction,”
id. § 311.034.
Given that the Legislature has expressly required identified
individuals as well as entities (such as the board of an emergency
services district) to carry out certain duties in connection with elections,
we conclude that the only reasonable construction of Section 273.061 is
that the Legislature intended a “person” against whom mandamus relief
is available to include an entity like the Board. The Board’s proposed
alternate reading would condition availability of mandamus relief on the
composition or structure of the governing body that failed to carry out
an election-related duty—a clear contravention of the Legislature’s
stated intent that this Court “issue a writ of mandamus to compel the
performance of any duty imposed by law in connection with the holding
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of an election.” TEX. ELEC. CODE § 273.061(a) (emphasis added).
Consistent with this reasoning, this Court and others have granted
conditional mandamus relief under Section 273.061 to compel a body
comprised of multiple individuals to perform an election-related duty as
required by statute or ordinance. See, e.g., In re Durnin, 619 S.W.3d
250, 255 (Tex. 2021) (conditionally granting mandamus relief directing
the Austin City Council to delete language from a ballot proposition); In
re Petricek, 629 S.W.3d 913, 921 (Tex. 2021) (conditionally granting
mandamus relief directing “the Austin City Council” to revise ballot
language of a citizen-initiated ordinance); In re Williams, 470 S.W.3d
819, 823 (Tex. 2015) (conditionally granting mandamus relief directing
the Houston City Council to revise ballot language in accordance with
the Houston City Charter); see also In re Reed, No. 02-22-00113-CV,
2022 WL 1405520, at *9 (Tex. App.—Dallas May 4, 2022, orig.
proceeding) (conditionally granting mandamus relief and ordering “the
[Burleson Independent School] District to conduct a special election”);
In re Neil, No. 09-13-00144-CV, 2013 WL 3929230, at *1 (Tex. App.—
Beaumont Mar. 28, 2013, orig. proceeding) (granting mandamus relief
and ordering the Beaumont Independent School District to accept a
candidate’s application for election); In re Link, 45 S.W.3d 149, 156 (Tex.
App.—Tyler 2000, orig. proceeding) (granting mandamus relief and
ordering the Anderson County Commissioners Court to hold an election
on a citizen-initiated petition). We conclude that we have jurisdiction to
do the same here.
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III
Turning to the merits, relators contend that the Board’s decision
to reject their petition as “legally insufficient” was improper because the
Board has a ministerial, nondiscretionary duty to call an election based
on a petition with the statutorily required number of signatures. We
agree. The Board, once it has determined that a petition has a valid
number of signatures, must place the petition on the ballot.
Section 775.0752(b) of the Health and Safety Code states that the
board “shall” call an election if an appropriate number of qualified voters
petition the board to call the election. The plain meaning of this
statutory text—and, in particular, the use of “shall”—reflects that the
Board has no discretion to deny a petition calling for an election if it
contains the requisite signatures. See TEX. GOV’T CODE § 311.016(2)
(stating that the statutory language of “‘[s]hall’ imposes a duty”); see also
In re Caballero, 272 S.W.3d 595, 599 (Tex. 2008) (applying the
Government Code’s definition of “shall”). But, as the statute makes
clear, the duty to call the election arises only if the petition includes the
requisite signatures. While there may be some discretion to be exercised
in making that preliminary determination, once it is determined that
the requisite signatures were included, the mandatory duty to call the
election arises, leaving no room for the exercise of any discretion.
In this sense, this case resembles Schroeder v. Escalera Ranch
Owners’ Ass’n, in which we concluded a city zoning and planning
commission had a nondiscretionary duty to approve a plat once it had
been established that the plat met the applicable regulations. 646
S.W.3d 329, 332 (Tex. 2022) (“‘[P]lat approval is a discretionary function
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that only a governmental unit can perform.’ But once the relevant
governmental unit determines that a plat conforms to applicable
regulations, it has a ministerial duty to approve that plat.” (footnote
omitted) (quoting City of Round Rock v. Smith, 687 S.W.2d 300, 303
(Tex. 1985))). Likewise, here, once the Board determines that the
petition has been signed by the requisite number of qualified voters, it
has a nondiscretionary duty to call an election and place the petition on
the ballot.
The Board raises the specter of being forced to place a legally
defective petition on the ballot. It argues that Texas law mandates that
any changes in tax rates must be “in increments of one-eighth of one
percent,” TEX. HEALTH & SAFETY CODE § 775.0751(a), whereas relators’
proposal would lower the tax rate by a greater increment. The Board
also argues that the wording of relators’ petition does not match the
mandatory ballot language to be used in an election to “abolish” the tax,
which is what the Board contends relators’ proposal would do, at least
in part.
Neither argument justifies the Board’s refusal to perform its
ministerial duty. Indeed, consistent with the statutory mandate that an
election “shall” be called if sufficient signatures are presented, our
precedents reflect a strong preference in favor of holding elections on
qualified ballot measures even where there is some question about
whether the measure, if passed, would be subject to valid legal
challenge. In re Morris, for example, notes that the City Council had a
“statutory duty to place the proposition on the ballot at the earliest
available election . . . even in the face of colorable arguments that the
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proposition under consideration was constitutionally infirm.” 663
S.W.3d 589, 597 (Tex. 2023); see also Coalson v. City Council of Victoria,
610 S.W.2d 744, 747 (Tex. 1980) (noting that complaints about whether
a proposed charter amendment would be invalid were premature until
after the election because the proposed amendment could be rejected).
Beyond that, the Board may have discretion to adjust the details
of the proposed ballot-measure language if necessary to produce an
accurately worded ballot measure. See Durnin, 619 S.W.3d at 253
(“‘[M]unicipalities generally have broad discretion in wording
propositions.’ Ballot language ‘must capture the measure’s essence,’ but
‘neither the entire measure nor its every detail need be on the ballot.’”
(citation omitted) (quoting Dacus v. Parker, 466 S.W.3d 820, 825, 826
(Tex. 2015))). In other words, the Board may choose to place on the
ballot language that it determines, in its discretion, hews more closely
than relators’ proposed measure to the language prescribed by
Sections 775.0752(c)-(e). 2 What the Board lacks discretion to do is
conduct its own unauthorized legal analysis to keep an otherwise
qualified petition off the ballot entirely.
IV
Finally, we hold that mandamus relief is an appropriate remedy.
Mandamus relief is an “extraordinary remedy,” In re USAA Gen. Indem.
Co., 624 S.W.3d 782, 787 (Tex. 2021), which we issue “only to correct a
2 In this instance, any discretion to change the ballot language arises
from Section 775.0752’s mandatory requirements. We reiterate that ballot
language for an initiative not subject to such a statute and otherwise
complying with the law should not materially differ from the language in the
petition. See, e.g., Petricek, 629 S.W.3d at 916.
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clear abuse of discretion or the violation of a duty imposed by law when
there is no other adequate remedy by law.” Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (quoting Johnson v. Fourth Ct. of Appeals,
700 S.W.2d 916, 917 (Tex. 1985)).
The Board protests that mandamus is not appropriate because
factual questions remain. See Brady v. Fourteenth Ct. of Appeals, 795
S.W.2d 712, 714 (Tex. 1990) (“It is well established Texas law that an
appellate court may not deal with disputed areas of fact in an original
mandamus proceeding.”). The only factual question that could possibly
be in dispute is the validity of the signatures. But, as noted, the Board
has never challenged the qualifications or validity of any of the 5,752
signatures.
The Board also contests the necessity of mandamus because, it
contends, the issue is not urgent and relators would therefore have an
adequate remedy on appeal had they continued to pursue their claims
in district court. The Election Code unquestionably authorizes appellate
courts to grant mandamus relief to compel the performance of an
election-related duty. TEX. ELEC. CODE § 273.061(a). In the context of
election disputes, we have held there is no adequate remedy by appeal
if “the appellate process will not resolve the case in time for the
referendum to be placed on the [next] ballot.” In re Woodfill, 470 S.W.3d
473, 480 (Tex. 2015). Relators’ urgency to have the measure placed on
the ballot is not negated by the fact that they originally pursued their
claims in district court or that their original petition requested a
November 2023 election. See In re Khanoyan, 637 S.W.3d 762, 766 (Tex.
2022) (“[I]f the urgency makes proceeding in a district court
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impracticable, a litigant with statutory authority to do so may file an
original mandamus petition in an appellate court . . . .”).
V
For the foregoing reasons, without hearing oral argument, see
TEX. R. APP. P. 52.8(c), we conditionally grant mandamus relief. We
direct the Board for Travis County Emergency Services District No. 2 to
determine and announce whether relators’ petition contains the
signatures of qualified voters equal to at least five percent of the
registered voters in the District and, if so, to call an election in
accordance with Health and Safety Code Section 775.0752. We are
confident the Board will comply, and our writ will issue only if it does
not.
OPINION DELIVERED: May 24, 2024
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