ACCEPTED
05-18-00700-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
6/26/2018 9:51 PM
LISA MATZ
CLERK

No. 05-18-00700-CV

FILED IN
5th COURT OF APPEALS
DALLAS, TEXAS
IN THE COURT OF APPEALS
6/26/2018 9:51:04 PM
LISA MATZ
FOR THE FIFTH DISTRICT OF TEXAS
Clerk

DALLAS, TEXAS
__________________________________________________________________
IN RE TOM HARRISON
Relator
v.
LISA HENDERSON, CITY SECRETARY OF THE CITY
OF PLANO, TEXAS
Respondent
CITY OF PLANO, TEXAS
Real Party in Interest
__________________________________________________________________
RESPONDENT’S COMBINED RESPONSE TO RELATOR’S PETITION
FOR WRIT OF MANDAMUS AND MOTION FOR EMERGENCY
TEMPORARY RELIEF
__________________________________________________________________
TO THE HONORABLE FIFTH COURT OF APPEALS:
COMES NOW LISA HENDERSON, in her official capacity as the City
1

 Secretary of the City of Plano, Texas (the “City Secretary” and/or “Respondent”),
and files this her Combined Response to Relator’s Petition for Writ of Mandamus
and Motion for Emergency Temporary Relief, and in support thereof, would show:
STATEMENT OF THE CASE
Relator’s suit, which was first filed on June 18, 2018, seeks original
mandamus relief against Plano’s City Secretary on the alleged basis that Respondent
breached her ministerial duty in certifying a citizen petition seeking Relator’s recall
at an upcoming special election scheduled in November of 2018. By way of an
ancillary Motion for Emergency Temporary Relief, Relator also seeks to enjoin the
submission of his name on the ballot to the Texas Secretary of State. On June 19,
2018, this Honorable Court ordered Respondent to respond to both filings by June
27, 2018.
STATEMENT OF THE ISSUES PRESENTED
Issue One:

Whether this Court’s original mandamus jurisdiction has been
properly invoked where Relator had an adequate remedy at law
available to him in the Civil District Court but that he chose to
ignore?

Issue Two:

Whether this Court’s original mandamus jurisdiction has been
properly invoked where genuine issues of material disputed facts
are present and cannot be decided without involving a trier of
fact?
2

 Issue Three:

Whether mandamus relief is available to Relator where
Respondent’s certification of the Citizen Recall Petition has
already been presented and accepted by the Plano City Council,
whereby a City Ordinance has already been passed calling for a
Special Election in November of 2018, and where the Special
Election process has already begun?

Issue Four:

Whether mandamus relief is available to Relator where the only
party to this proceeding is the City Secretary such that complete
relief against all necessary parties cannot be afforded?

Issue Five:

Whether mandamus relief is available on the merits where the
City’s interpretation of Section 6.06 of its own City Charter is
both objective and reasonable?
STATEMENT OF THE FACTS

On April 4, 2018, a citizen petition consisting of 568 petition pages containing
approximately 4,434 signatures was filed with the City Secretary for the City of
Plano, Texas. This single submission of multiple pages (collectively referred to
herein as the “Citizen Recall Petition”) sought a recall election of City Council
Member Tom Harrison.

Upon receipt of this submission, Respondent carefully

reviewed each and every page of the Citizen Recall Petition and either accepted or
rejected the validity of each citizen signature for a variety of legal reasons1. Upon

1

Relator’s Petition does not challenge any of the City Secretary’s determinations on whether to
accept or reject a particular signature contained within the Citizen Recall Petition. Accordingly,
Respondent will not address those determinations. Suffice it to say that Respondent was
extremely conservative in accepting signatures as valid, requiring each person’s signature to fully
comply with both the letter and the spirit of the laws governing validation of citizen petition
3

 completion of that vigorous and thorough review process, Respondent certified the
Citizen Recall Petition on April 9, 2018 on the basis that she found the minimum
threshold of 2,791 valid signatures required by Section 6.02 of the Plano City
Charter had been met2.
Upon her certification and presentation, the Plano City Council passed an
election ordinance calling for a special election for the recall of Relator Harrison
(“Special Recall Election”) in November of 2018. Moreover, on April 23, 2018, a
public hearing was held on this matter as required by Section 6.06 of the Plano City
Charter at a regularly-scheduled meeting of the Plano City Council3.
On June 18, 2018, Relator filed this Emergency Petition for Writ of
Mandamus against Respondent.

This one and only attempt to initiate legal

proceedings was inexplicably brought 74 days after the Citizen Recall Petition was
submitted, 69 days after the Special Recall Election was called by Plano’s City
Council, and eight full weeks after a public hearing was called and held on this

signatures.
2
Section 6.05 of the Plano City Charter imposes a mandatory five (5) day turnaround for the City
Secretary to conduct her review and presentation to Plano’s City Council.
3
A public hearing is not triggered pursuant to Section 6.06 of the Plano City Charter unless and
until the Relator actually requests that a public hearing be conducted. Far from complaining that
the Citizen Recall Petition was legally inadequate and therefore no hearing was required, Relator
specifically asked for a public hearing to be conducted. Accordingly, a public hearing occurred
on April 23, 2018, as explained above.
4

 matter. Nothing in Relator’s scant Mandamus Record explains the reasons for this
untimely delay.
Section 6.02 of the Plano City Charter requires a recall petition to be signed
by at least 30% of the number of votes cast “at the regular municipal election of the
city.” As can be seen by Relator’s Petition, Council Member Harrison contends
that the City Secretary abused her discretion by certifying the Citizen Recall Petition
based upon a supposedly flawed interpretation of what numbers to use in
determining whether the total number of validated citizen signatures equals 30% of
the number of votes cast at a particular election. In support of its position, Relator
Harrison contends that the correct election totals to use in the calculation must come
from the last regular municipal election, irrespective of whether the elected official
was on the ballot for that particular election or not. Springing from that faulty
premise, Relator next contends that the Respondent was obligated to use the exact
number of 27,208 as the baseline to determine whether the 30% required threshold
had been met. However, Plano voters reside in one of two counties, namely, Collin
and Denton. The figure of 27, 208 relates solely to Collin County. Relator fails to
mention, much less include, this glaring oversight.

5

 Finally, although not mentioned in Relator’s Emergency Petition, Relator’s
separate ancillary emergency motion seeks injunctive relief to enjoin both the City
Secretary and the non-party City of Plano from submitting Councilperson
Harrison’s name to the Texas Secretary of State for the upcoming General Election.
Such relief, even if granted, would accomplish nothing.

First, the upcoming

November election for the potential recall of Relator is not a part of the General
Election. Indeed, the City of Plano’s election ordinance calls for a Special Election.
Second, the Special Recall Election does not involve certification of any name to the
Texas Secretary of State. To the contrary, submission is made to both Collin and
Denton counties.
SUMMARY OF THE ARGUMENT
Relator’s Emergency Petition for Writ of Mandamus should be denied for
jurisdictional and substantive reasons.

With respect to this Court’s original

jurisdiction, four insurmountable hurdles exist.

First, Relator cannot properly

invoke mandamus jurisdiction where Relator has an adequate remedy at law
available to him in the Civil District Court but that he simply chose to ignore.
Where, as here, nothing would have prevented Relator from filing suit in District
Court seeking mandamus and declaratory/injunctive relief, jurisdiction is lacking in
6

 this Court. Second, this Court’s original jurisdiction depends upon the complete
absence of any genuine and material disputed facts. Where, as here, Plano disputes
the cast vote totals used by Relator and his failure to include voters from both
counties, not just one, fact issues exist. Further, where the City is obligated to
interpret the meaning of the language of its citizen-approved Charter language, and
where Relator’s contended interpretation would render meaningless and mere
surplusage another section of that same Charter, fact issues exist as to whether the
City’s interpretation is correct. Third, Relator’s pursuit of mandamus relief is
moot, given the passage of time and the fact that the City Council has already
considered the Citizen Recall Petition and entered an ordinance calling for a Special
Recall Election. Fourth, now that the election is underway, the Courts will not
interfere with the political process at this time, rendering Relator’s petition
non-justiciable and potentially violates the constitutional separation of powers
between different branches of government.
Setting aside these four insurmountable jurisdictional deficiencies, and even
assuming that this Court were to rule in Relator’s favor on how to interpret the
number of cast votes for a recall election, substantive problems nevertheless abound.
First, the only party against whom Relator seeks mandamus relief is the City
7

 Secretary, but she has already concluded her duties and the rest of the City’s political
apparatus has been triggered. Accordingly, no relief directed towards Respondent
would obligate the City Council to do anything, as they are not parties here.
Second, Relator’s request for injunctive relief is directed at the wrong parties. This
special election is conducted by the two counties for which Plano exists; Collin and
Denton. Yet Relator’s request for injunctive relief seeks to restrain the inclusion of
his name to the Texas Secretary of State. This is misguided, as submission of
Relator’s name is not made to the Texas Secretary of State, and relief prohibited
such action would accomplish nothing.
For all of these stated reasons, Relator’s Petition for Writ of Mandamus and
Ancillary Motion for Emergency Temporary Relief should be denied.
ARGUMENT AND AUTHORITIES
A.
This Court’s original mandamus jurisdiction has not been
properly invoked where Relator had an adequate remedy at law
available to him in the Civil District Court that he chose to ignore.

8

 To be entitled to mandamus relief, a relator must demonstrate clear abuse of
discretion and the relator has no adequate remedy at law. In re Lee, 411 S.W.3d
445, 463 (Tex.2013) (orig. proceeding); In re Reece, 341 S.W.3d 360, 364
(Tex.2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135–36 (Tex.2004) (orig. proceeding). This Court does not have jurisdiction to
grant the relief requested in Relator’s Petition for Writ of Mandamus petition
because Relator has an adequate remedy at law. See Bell Helicopter Textron Inc. v.
Walker, 787 S.W.2d 954, 955 (Tex. 1990) (orig. proceeding).

Mandamus

proceedings that challenge a public official's rejection of a referendum or recall
petition, which are akin to recall petitions, are regularly filed in the district court, not
in this Court.

A district court has exclusive original jurisdiction over such

mandamus proceedings. See A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668,
671-72 (Tex. 1995); see TEX. GOV’T CODE §24.011.

Unlike an original

proceeding for a writ of mandamus filed in an appellate court, a district court
mandamus petition "is a civil action subject to trial and appeal on substantive law
issues and the rules of procedure as any other civil suit." Anderson v. City of Seven
Points, 806 S.W.2d 791, 792 n. l (Tex. 1991).

9

 The Texas Supreme Court’s decision in Anderson v. City of Seven Points is on
point. There, several citizens filed a petition for writ of mandamus in the district
court after the city's mayor rejected a referendum petition because it was not signed
by a sufficient percentage of qualified city voters, and refused to order an election.
Anderson, 806 S.W.2d at 792-93. After holding a bench trial during which several
witnesses testified, the court issued findings of fact concluding that a sufficient
number of registered voters in the city had in fact signed the referendum petition. Id.
at 793. The district court granted the mandamus petition, and ordered the mayor to
hold an election on the measure. Id. On appeal, the Supreme Court affirmed,
holding that the district court properly issued mandamus because the case
"involve[d] the performance of a ministerial act by a public official." Id. Once the
district court determined that the petition contained a sufficient number of valid
signatures, the "the mayor had no discretion ... the act became ministerial and the
trial court was required to grant the petition for writ of mandamus and order an
election." Id. at 793-94.
Consistent with Anderson, Texas district courts have regularly considered
mandamus petitions filed to compel a public official to order a recall or referendum
election, which are akin to recall petitions, as required by the terms of a city charter.
10

 See, e.g., Humphrey v. Balli, 61 S.W.3d 519, 522 (Tex. App. -- San Antonio 2001,
no pet.) (citizens filed petition for writ of mandamus in district court to challenge
city council's rejection of referendum petition); Withers v. Comm'rs Court of
Bandera Cnty., 75 S.W.3d 528, 530 (Tex. App.-San Antonio 2002, no pet.)
(deciding through mandamus whether signatures on referendum petition were valid,
such that city official was required to call an election); Tex. Att'y Gen. Op.
GA-0870 ("[C]harter provisions … have been determined ... to impose upon the city
council the ministerial duty, subject to compulsion by mandamus, to order the recall
election."). Relator here seeks the same type of mandamus relief as did the relators
in Anderson and in the other cases cited above. Simply put, Relator has an ordinary
remedy at law, which ousts this Court of its original jurisdiction.
B.
This Court’s original mandamus jurisdiction has not been
properly invoked because genuine issues of material disputed facts are
present and cannot be decided without involving a trier of fact.
In addition, Relator’s request for relief presents disputed issues of fact, which
this Court lacks jurisdiction to resolve in this mandamus proceeding. See In re
Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding); Brady v. Fourteenth
Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990) (orig. proceeding). Relator
contends that the Respondent was obligated to use the exact number of 27,208 as the
11

 baseline to determine whether the 30% required threshold had been met. However,
Plano voters reside in one of two counties, namely, Collin and Denton. The figure
of 27, 208 relates solely to Collin County. Relator fails to mention, much less
include, this glaring oversight. This presents a fact question which this Court cannot
resolve by its original mandamus jurisdiction. Moreover, as described below in
Section C of this Combined Response, the interpretation of Section 6.06 involves
disputed fact issues as well.
C.
Mandamus relief is not available on the merits where the City’s
interpretation of Section 6.06 of its own City Charter is both objective and
reasonable.
The City of Plano, Texas is a home-rule municipal corporation organized
under the laws of the State of Texas. Plano’s City Charter contains provisions
which provide for the enactment or repeal of legislation via initiative and
referendum by the citizens of Plano in Section 7, while Section 6 of the Plano City
Charter contains provisions referring to citizen recall petitions. See generally City of
Plano City Charter §7.01, et seq; compare §6.01, et seq.; available at
https://www2.municode.com/library/tx/plano/codes/code_of_ordinances4.

4

Courts have taken judicial notice of municipal codes published on the muni code repository
website. See City of Paris v. Abbott, 360 S.W.3d 567, 573 n.6 (Tex. App.—Texarkana 2011, pet.
denied).
12

 After the adoption of an ordinance, citizens have a right under Plano’s City
Charter to collect signatures on a petition requesting a referendum vote on the
ordinance. In this regard, Plano’s City Charter provides that:
Said petition shall be addressed, prepared, signed and verified as
required for petitions initiating legislation as provided in section
7.02 of this charter and shall be submitted to the person performing the
duties of city secretary.
Charter

§

7.03,

available

at

https://www2.municode.com/library/tx/plano/codes/code_of_ordinances; Tex. R.
Evid. 204. The referenced section 7.02 provides that:
Said petition must be signed by qualified voters of the city equal in
number to twenty (20) percent of the number of votes cast at the last
regular municipal election of the city, or one hundred fifty (150),
whichever is greater, and each copy of the petition shall have attached
to it a copy of the proposed legislation.
Charter

§

7.02,

available

at

https://www2.municode.com/library/tx/plano/codes/code_of_ordinances; Tex. R.
Evid. 204 (emphasis added).
Unlike Section 7.02’s reference to “last” regular municipal election of the city
for referendum elections, Section 6.02 of the Plano City Charter referring to recall
elections specifically omits the word “last.” More specifically, Section 6.02 of the

13

 Charter states that the "petition shall be signed by qualified voters of the city equal
in number to at least thirty (30) per cent of the number of votes cast at the regular
municipal

election

of

the

city."

Charter

§

6.02,

available

at

https://www2.municode.com/library/tx/plano/codes/code_of_ordinances; Tex. R.
Evid. 204 (emphasis added).
The City of Plano first addressed this textual difference between referendum
petitions and recall elections in September of 2015. At that time, citizens were
threatening to recall Plano City Council Members regarding the Plano Tomorrow
Plan. After reviewing the language of Plano’s City Charter, Plano determined that
since the initiative/referendum process in Section 7.02 of the City Charter
specifically references the number of votes cast in the last regular municipal
election—coupled with the fact that Section 6.02 merely states regular municipal
election, it was incumbent upon the City to harmonize these different provisions in a
manner such that neither provision would be rendered meaningless or mere
surplusage.
Accordingly, in 2015, Plano applied neutral and objective rules of statutory
construction, and ultimately concluded that the fact that the drafters5 included the

5

It is important to note that Plano voters are the ones whom specifically approved these language
14

 reference to “last” in one provision for elections and not in another was intentional.
Therefore, Plano concluded that the threshold for signatures for the recall provision
contained in Section 6.06 of the Plano City Charter should be calculated on the
number of votes in the regular municipal election at which an officer was elected.
Moreover, Plano also determined that this interpretation was the most
equitable application of the provision. By way of illustration, if Plano applied the
numbers from the last election to City Council Member places 1, 3, 5, or 7, Plano
would be requiring signatures to reach almost 100% of the entire total of persons
who voted in the actual election to seat the respective officers, rather than 30%.
A writ of mandamus may issue when the facts and circumstances dictate only
one rational decision under unequivocal, well-settled, and clearly controlling legal
principles. See Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex.1996)
(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.
proceeding); In re Helix Energy Solutions Group, Inc., 440 S.W.3d 167, 173
(Tex.App.—Houston [14th Dist.] 2013, orig. proceeding);  In re Amos, 397 S.W.3d

differences when they passed Plano’s City Charter at an election held for that purpose. When
understood in that context, harmonizing these differences is far more fundamental than fathoming
the intent of the drafters who wrote these words. Indeed, respecting those words which the voters
have chosen is part of the City’s duty-bound obligation to preserve, protect and defend the
electorate’s deliberate citizen-led creation of a municipal constitution.
15

 309, 312 (Tex.App.—Dallas 2013, orig. proceeding). Where, as here, a rational
basis exists for Plano’s interpretation of its own Charter, mandamus will not lie.
Plano’s position on how to interpret the current Citizen Recall Petition was
not hastily arrived at or reached for political purposes. To the contrary, this
objective and fundamentally equitable interpretation of Section 6.06 of Plano’s City
Charter has been in existence since 2015 at which time Plano first looked at this
question. Moreover, Plano’s interpretation has been included since February of
2017 in the recall petition instructions on Plano’s website for all the word to see and
rely upon. See https://www.plano.gov/3019/Recall-Petitions.
D.
Mandamus relief is unavailable to Relator where the only party
to this proceeding is the City Secretary such that complete relief against
all necessary parties cannot be afforded.
Relator’s attempt to require Respondent to “decertify” her certification cannot
provide any meaningful relief at this point, given that the City Council has already
met and passed its Citizen Recall Election. Furthermore, although not mentioned in
Relator’s Emergency Petition, Relator’s separate ancillary emergency motion seeks
injunctive relief to enjoin both the City Secretary and the non-party City of Plano
from submitting Councilperson Harrison’s name to the Texas Secretary of State for
the upcoming General Election. Such relief, even if granted, would accomplish
16

 nothing. First, the upcoming November election for the potential recall of Relator
is not a part of the General Election. Indeed, the City of Plano’s election ordinance
calls for a Special Election. Second, the Special Recall Election does not involve
certification of any name to the Texas Secretary of State.

To the contrary,

submission is made to both Collin and Denton counties. Accordingly, mandamus
should be denied.
E.
Mandamus relief is unavailable to Relator where Respondent’s
certification of the Citizen Recall Petition has already been presented
and accepted by the Plano City Council, whereby a City Ordinance has
already been passed calling for a Special Election in November of
2018, and where the Special Election process has already begun.
Relator’s Petition comes too late, as Plano has already called for a special
election when it passed a City Recall Election. Courts refuse to interfere with an
election once it has begun; Plano City Council’s enactment of its election ordinance
was the official launch of the November Special election. Separation of powers
dictates that this Court should not intervene. See City of Austin v. Thompson, 147
Tex. 639, 219 S.W.2d 57, 59 (1949)(district court is without authority to enjoin even
a void election);  Ex parte Barrett, 120 Tex. 311, 37 S.W.2d 741, 742
(1931)(injunction against holding an election is outside the general scope of judicial
power);  City of Dallas v. Dallas Consol. Elec. St. Ry. Co., 105 Tex. 337, 148 S.W.
17

 292, 295 (1912)(declined to enjoin canvassing of votes on ground that election was
illegal);  Leslie v. Griffin, 25 S.W.2d 820, 821-22 (Tex. Comm'n App.1930, judgm't
adopted)(same);  Winder v. King, 1 S.W.2d 587, 587-88 (Tex. Comm'n App.1928,
judgm't adopted)(refused to enjoin official from calling election);  City of McAllen
v. Garza, 869 S.W.2d 558, 561 (Tex.App.-Corpus Christi 1993, writ denied)(refused
to enjoin allegedly void election);  Kolsti v. Guest, 565 S.W.2d 556, 557
(Tex.Civ.App.-Austin 1978, no writ)(declined to enjoin official from placing
referendum on ballot);  Ellis v. Vanderslice, 486 S.W.2d 155, 159-60
(Tex.Civ.App.-Dallas 1972, no writ)(declined to enjoin official from certifying
petition for local option election);  Stroud v. Stiff, 465 S.W.2d 407, 408
(Tex.Civ.App.-Amarillo 1971, no writ)(refused to enjoin city for proceeding under
election resolution).
PRAYER
WHEREFORE, PREMISES CONSIDERED, Respondent Lisa Henderson, in
her official capacity as Plano City Secretary, asks this Honorable Court to deny
Relator’s Petition and Emergency Motion for the reasons stated herein.
Respectfully submitted,
ANDY TAYLOR & ASSOCIATES, P.C.
18

 BY: /s/ Andy Taylor
Andy Taylor
State Bar No. 19727600
2628 Highway 36S, #288
Brenham, Texas 77833
713-222-1817 (telephone)
713-222-1855 (facsimile)
ataylor@andytaylorlaw.com

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF SERVICE
This is to certify that, pursuant to TEX. R. APP. P. 9.5, on this the 26th day of June,
2018, a true and correct copy of the above and foregoing instrument was served
upon opposing counsel for Relator, by electronic service.
/s/ Andy Taylor
ANDY TAYLOR

19