No. ____________

NELSON LINDER, SUSANA ALMANZA,

IN THE _______DISTRICT COURT

JANE RIVERA, PH.D, GILBERT RIVERA,
MICHAEL HEBERT, JEFF JACK, MARY INGLE,
D. LAUREN ROSS, PH.D., RELATORS.

V.

THE CITY OF AUSTIN; THE CITY COUNCIL
OF AUSTIN; THE HONORABLE AUSTIN MAYOR
STEVE ADLER, IN HIS OFFICIAL CAPACITY;
THE HONORABLE AUSTIN CITY COUNCIL
MEMBERS HOUSTON, GARZA, RENTERIA,
CASAR, KITCHEN, FLANNIGAN, POOL,

OF TRAVIS COUNTY

TROXCLAIR, POOL, TOVO, AND ALTER,
INDIVIDUALLY IN THEIR OFFICIAL CAPACITIES;
AND THE HONORABLE AUSTIN CITY MANAGER,
SPENCER CRONK, IN HIS OFFICIAL CAPACITY,
RESPONDENTS

RELATORS’ ORIGINAL VERIFIED PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE COURT:
Relators, Nelson Linder, Susana Almanza, J a n e R i v e r a , P h D . , G i l b e r t R i v e r a , P.
Michael Hebert, Jeff Jack, Mary Ingle, and D. Lauren Ross, Ph.D., file this Original
Verified Petition for Writ of Mandamus against Respondents the City of Austin; the City
Council of Austin; the Honorable Mayor of Austin, Steve Adler, in his official
capacity; the Honorable City of Austin Council members Houston,

 Garza, Renteria, Casar, Kitchen, Flannigan, Pool, Troxclair, Tovo, and Alter, individually in
their official capacities; and the Honorable City Manager of Austin, Spencer Cronk, in his
official capacity (hereafter “Respondents” or “City Council”), and respectfully would show:
I.
Relators seek an expedited hearing and a writ of mandamus against Respondents. Relators
request that the District Court order Respondents to timely perform their ministerial duty to place
the CodeNEXT Waiting Period and Election Petition Initiative (hereafter “petition initiative” or
“petition”) on the next available city election ballot, November 6, 2018, as required by law.
There is no adequate remedy at law.
II.
The issue is this case is a matter of law. No discovery is needed; no facts are in dispute. Should
there be any discovery, it would be conducted under level one pursuant to Texas Civil Procedure
Rule 190.2.
III.
Relators all have standing, in that they are: residents of the City of Austin, Travis County, Texas;
registered voters in the City of Austin; and signers of the petition initiative. Blum v. Lanier, 997
SW2d 259 (Tex. 1999). Respondent City of Austin is a home-rule city located primarily in
Travis County, Texas. Respondent City Council of Austin, and Respondents the Mayor, each
individual Council member and the City Manager, in their individual official capacities, have
ministerial duties to ensure that the petition initiative is placed timely on the November 6, 2018
ballot. The City Attorney of Austin has agreed to and has accepted service for all Respondents.
IV.
In our democracy, “all political power is inherent in the people.” Texas Constitution Article I,
Section 2. The City of Austin is a home-rule city chartered under Article XI, Section 5 of the
Texas Constitution. This Constitutional Amendment grants the City of Austin full power of selfgovernment. In the City of Austin’s Charter, the people have reserved full legislative power to
legislate directly by initiative and referendum except for the subjects of appropriating money or
levying taxes:
The people of the city reserve the power of direct legislation by initiative, and in
the exercise of such power may propose any ordinance, not in conflict with this
Charter, the state constitution, or the state laws except an ordinance
appropriating money or authorizing the levy of taxes. Any initiated ordinance
 

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 may be submitted to the council by a petition signed by qualified voters of the
city equal in number to the number of signatures required by state law to initiate
an amendment to this Charter.
Austin City Charter, Article IV, Section 1. Because of the separation of powers doctrine, Texas
Courts generally do not allow city councils to interfere in the initiative lawmaking process,
which is the people’s exercise of direct democracy where their elected officials have failed to act.
Mandamus will lie against city councils to compel them to perform their ministerial duty to place
initiatives on the ballot. In the leading case of Coulson v City Council of Victoria, 610 S.W. 2d
744, 747 (Tex. 1980), the Texas Supreme Court unanimously mandamused the City Council of
Victoria, holding that it had a ministerial duty to place an initiative on the ballot. “The City
Council's duty is clear, and its compliance with the law is ministerial in nature. The City
Council's refusal to submit the proposed amendments to the vote of the people thwarts not only
the legislature's mandate but the will of the public.” Id. Recently, the Texas Supreme Court
unanimously reiterated this holding in In Re Woodfill, 470 S.W.3d 473 (Tex. 2015),
mandamusing the Houston City Council to place a certified petition initiative on the ballot.
V.
In the fall of 2017, Austinites began circulating the CodeNEXT Waiting Period and Election
petition initiative. This proposed ordinance calls for a vote of the Austin electorate on whether
they support a waiting period and election before CodeNEXT (or other comprehensive rewrite of
the City’s land development code) becomes effective. The proposed waiting period would allow
voters a reasonable time to educate themselves on any CodeNEXT ordinance passed by the
Council as well as an opportunity to vote on the City Council members that approved
CodeNEXT. The proposed ordinance then would allow Austinites to vote on CodeNext itself
before it takes effect. The proposal also provides that, in the event Austin voters do not ratify the
Council-approved CodeNext ordinance, that the City’s land development code provisions
previously in place would remain in effect or be readopted. The proposal ordinance contains a
severability clause. A copy of the petition initiative as circulated by petitioners is attached as
Exhibit A.
CodeNEXT is the City of Austin’s process to draft a comprehensive revision to its land
development code. The City staff released the latest draft, CodeNEXT Draft 3, in February 2018.
 

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 CodeNEXT Draft 3 would replace the City’s land development code text in its entirety. Draft 3
covers a broad range of subjects, including, but not limited to: environmental regulations (such
as watershed and water quality regulations, tree protections, and landscaping requirements);
stormwater management and floodplain regulations; subdivision standards; billboard and sign
regulations; construction standards; permitting requirements; resident input opportunities and
appeal rights; parkland dedication and open space requirements; affordable housing incentive
programs; and land use and development standards. At least twelve of the current draft’s thirteen
chapters, and over 800 pages, do not involve zoning in any way.
After months of petitioning, Austinites submitted 31,062 signed petitions to Austin’s City Clerk
on March 29, 2018. The City Charter requires twenty thousand valid signatures of Austin
registered voters to place an initiative on the ballot. Austin City Charter, Article IV, Section 1;
Tex. Local Gov. Code Section 9.004 (a). On April 23, 2018, the City Clerk certified that the
petition initiative had submitted 25,790 valid signatures.
The City Clerk’s certification triggered a ministerial duty on the City Council to take one of two
steps: either adopt as law the petition initiative as written within 10 days or place the petition on
the ballot for the next allowable election. Austin City Charter, Article IV, Section 4. Relators
demanded that the City Council perform their ministerial duty. The Council, however, officially
refused to take either step. On April 26, 2018, the City Council voted six-to-four against
adopting the petition initiative as written. On May 24, 2018, the City Council, on a six-to-four
vote, decided against placing the petition initiative on the November 6, 2018 ballot. Relators
promptly filed this action seeking mandamus from the District Court to require the City Council
to perform its ministerial duty to place the petition initiative on the November 6, 2018 ballot.
VI.
WHEREFORE, the Relators request that Respondents, appear and answer, that an expedited
hearing be granted, and that a mandamus lie against Respondents to timely place the certified
CodeNEXT Waiting Period and Election Petition Initiative on the November 6, 2018 election
ballot, and for such other and further relief, at law or in equity, to which Relators are justly
entitled.

 

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 Respectfully submitted,
/s/________________________________________
Fred I. Lewis
Tex. Bar No 12277075
Law Office of Fred I. Lewis
309 East 11th St., Suite 2
Austin Texas 78701
512-636-1389
f_lewis@sbcglobal.net
William Bunch
Tx. Bar No. 03342520
Save Our Springs Alliance
905A West Oltorf
Austin, Texas 78704
512-477-2320, ext. 302
512-477-6410 fax
bill@sosalliance.org
ATTORNEYS FOR RELATORS

 

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 VERIFICATION
I, Fred I. Lewis, an adult resident of Austin, Travis County, Texas, have personal knowledge of the
facts contained above in this petition, and I swear and affirm that all such facts are true and correct to
the best of my knowledge.
__________________________________
Fred I. Lewis, Affiant

Subscribed and Sworn to before me by Fred I. Lewis, on this__ day of June 2018, to certify which
witness my hand and seal of office.
__________________________________
Notary Public in and for the State of Texas

 

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