HomeMy WebLinkAbout1978
A
NO. ~y-lo
AN ORDINANCE CANVASSING ELECTION RETURNS OF ELECTION HELD APRIL 1
1, 1975, TO ELECT THREE CITY COUNCILMEN.
THE COUNCIL OF THE CITY OF DENTON, TEXAS, HEREBY ORDAINS:
SECTION I.
That the City Council officially finds and determines that
an election was duly ordered to be held in the City of Denton,
Texas, on the 1st day of April, 1975, for the purpose of elect-
ing three (3) members to said Council; that proper notice of
said election was duly given; that groper election officers were
duly appointed prior to said election; that said election was
duly held; that due returns of the result of said eli:ntion have
been made and delivered, and that the City Council hss duly can-
vassed said returns; all in accordance with law.
f SECTIO14 II.
That the City Council officially finds and determines that
only resident qualified electors of said City were allowed to
vote at said election, and the following votes were cast at said
election for each candidate and write-in, there being no other
person receiving any votes at this election:
Irving K. Pershing 401 votes
Elinor Hughes 2,133 votes
Barbara Smith 233 votes
Ray Stephens 1,915 votes j
Bill Neu 1,453 votes
Joe Mitchell 1,989 votes
Richard 0. Stewart 1,1112 votes
Harral E. Landry 645 votes
Stanford "Bud" Hauptmann 789 votes
William Matthew Jamerson 465 votes
William S. Nash 842 votes
SECTION III.
That the City Council officially finds, determines and de-
olares the results of said election to be that Elinor Hughes,
Joe Mitchell and Ray Stephens have each received the proper num-
ber of votes to be elected, and that each of them is elected to
said Council in accordance with law,
PASSED AND APPROVED this the 7th day of April, A. D. 1975•
ti1ZL NhU, MAYOR
CITY OF DENTON, TEXAS j
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ATT4io_e~V /
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CfTY OF DENTON, TEXAS
APPROVED AS TO LEGAL F011M.,
P A 114LIf A q6
6 ~ Y,i ~rb-i r1o, 1//lin 1 1 =1
CITY OF DENTON, TEXAS
1~1
NO. ~I4 • /L i
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i AN ORDINANCE ELECTION RETURNS ELECTION HELD APRIL
3, 19760 TO THE COUNCIL OF THE CITY OF DENTON, TEXAS, HEREBY ORDAINS:
I SECTION I.
That the bity Council officially finds and determines that
an election was duly ordered to be held in the City of Denton,
Texas, crn the 3rd day of April, 1976, for the purpose of elect-
ing two (2) members to said Council; that proper notice of said
election was duly given; that proper election officers were duly
E appointed prior to said election; that said election was duly
held; that due returns of the result of said election have been
made and delivered; and that the City Council has duly canvassed
said returns; all in accordance with law.
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FiEC'PION II.
That the City Council officially finds and determines that
only resident qualified electors of said City were allowed to
vote at said election, and the following votes were cast at said
election for each candidate and write-in, there being no other
person receiving any votes at this election:
Ben Ivey, Jr. 3,134
Bill Nash 2,915
Bill Brady 2,481
Clayton E. Bockbrader 1,947 i
Gene White 1,022
Richard 0. Stewart 1,004 ii
W. M. Jamerson, Jr. 966 i
Pat Cheek 24,
1 SECTION 111.
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That the City Council officially finds, determines and de'- I
olares the results of said eleetijn to be that BEN IVEY, JR. and
BILL NASH have each received the proper number of votes to be
elected, and that each of them is elected to said Council in
accordance with law.
PASSED AND APPROVED this the k day of ril, A. D. 1976.
OR
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CITY OF DENT 4, T~ S
E
ATTEST:
HOLT, L..TY S CRET RY
CITY Or 1) N, 'TEXAS
APPROVED AS TO LEGAL FORM:
UL C. ~I1 M, C11' A'CTUf~~Y
CITY Or DENTON, TUAS
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CITY COUNCIL '
JUNK 9, 1978
Emergency Called Meeting of the City Council of the City of Denton, Texas, Friday,
June 90 1978 at 1:00 p,m, in the Council Chambers of the Municipal Building,
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PRESENTt Mayor Mitchell, Mayor Pro Tom Gay, Members Nash, Stewart and Hughes; 1
i City Manager Chris Hartung, Assistant City Manager Sack Owen, City
Attorney Paul Isham and City Secretary Brooks Holt.
1. The Mayor opened the meeting and adjourned the Council into Executive
Session to consider Board appointments.'
2. The Council reconvened into Public Session at 2:00 p.m.
` Motion was made by Stewart, seconded by Gay that Council Members Hughes
I` and Nash be named Directors to the Board of Directors of the Texas Municipal Power
Agency, and that the following Resolution be pdssedt
AT A SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, HELD IN THE
MUNICIPAL BUILDING OF SAID CITY ON THE 9TH DAY OF JUNE, A.D. 1978
x' R E S O L U T I O N
WHEREAS, it is necessary for the City of Denton to appoint directors to places 3
and 4 on the Texas Municipal Power Agency; and
WHEREAS said directors to the Board of Directors of the Texas Municipal Power
1 x Agency shall be chosen by the governing body of the City of Denton; now therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DL•NTON, TEXAS:
SECTION I. '
That the City Council of the City of Denton in accordance with Ordinance No. 75-22 .
hereby reappoints Elinor Hughes to Place 3 to fill a two-year term as a Director
to the Board of Directors of the Texas Municipal Power Agency, and hereby appoints
William S. Nash to Place 4 to fill an unexpired term as a Director to the Board
of Directors of the Texas Municipal Power Agency,
SECTION II.
That this Resolution shall take effect immediately from and after its passage and
it is so ordered,
PASSED AND APPROVED this the 9th day of June, A. D. 1978,
/a/
?1AYOR, JOE MITCHELL
ATTRST: CITY OF DENTON, TEXAS
BROOKS HOLT, CITY SECRETARY
CITY OF DENTON, TEXAS ;
APPROVED AS TO LEGAL FORMS
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PAUL C, ISHAM, CITY ATTORNEY y
CITY OF DENTON, TEXAS
On roll call vote Hughes "aye", Stewart "eye", Nash "aye", Gay "aye" and
Mitchell "aye". Motion carried,
Meeting adjourned at 2t15 p.m,
MAYOEI
I' Y S?,CHETAAY
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July 19, 1977 Continued
N D. Consider method of funding Loop 288 right-of-way acquisition, and
authorizing the funding.
E. Consider applying for "All-America City" designation,
13. The following ordinance was presented:
ORDINANCE NO. 77-40
l D t~,p h~RA~, ur LAND CONTINGUOUS AND ADJACENT TO THE CITY OF DENTON,
TEXAS"~ HA'I~'LtYII T T OR PARCEL OF LAND CONSISTING OF 24,639.33 SQUARE
FEET OF LAN YING AND BEING SITUATED IN THE COUNTY OF DENTON, STATE OF TEXAS AND
BEING IN THE B.B.B. & C.R.R. SURVEY, ABSTRACT NO. 141, DENTON COUNTY, TEXAS;
CLASSIFYING DECLARING HE SAME AN AGRICULTURAL "AI DISTRICT PROPERTY; REPEALING ORDINANCE NO.
77-34; AND
Motinn was made by Nash, seconded by Gay that the ordinance be passed.
On roll call vote Stewart "aye", Gay aye , Nash "aye", Mitchell "aye" and Hughes
"aye". Motion carried.
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14. The following ordinance was presented:
f
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ORDINANCE NO. 77-41
t" AN ORDINANCE AMENDING THE ZONING MAP OF THE CITY OF DENTON, TEXAS, AS SAME WAS ADOPTED
AS AN APPENDIX TO THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS, BY ORDINANCE
NO. 69-11 AND AS SAID MAP APPLIES TO LOT NO. 14.41 BLOCK NO. 350-C AS SHOWN THIS DATE
ON THE OFFICIAL TAX MAP A OFEFFECTIVE HC TY F DENTON, TEXAS, AND MORE PARTICULARLY DESCRIBED
THEREIN; DECLARING AND Motion was made by Nash,secondad by Mitchell that the ordinance be passed. 1
11 On roll call vote Nash "aye", bay "aye", Stewart "aye". Mitchell "aye" and Hughes aye .
Motion carried.
15. The Council adjourned into executive session at 8:35 P.M. to discuss personnel,
land acquisition and consider board appointments.
16, The Council reconvened into public session.
The following resolution was presented:
k AT A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, HELD IN THE
'S
MUNICIPAL BUILDING OF SAID CITY ON THE 19TH DAY OF JULY, A.D. 1977.
RESOLUTION
WHEREAS, the City of Denton has passed a concurrent ordinance creating the Texas
Municipal Power Agency; and
WHEREAS, two directors to the Board of Directors of the Texas Municipal Power Agency
shall be chosen by the governing body of the City of Denton; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DENTON TEXAS;
SECTION 1. That the City Council of the City of Denton in accordance with Ordinance
oo. 15-'W hereby appoints Joe Mitchell to Plaa: 3 for a term of one year, and Robert
E. Nelson to Place 4 for a term of two years as Directors to the Board of Directors of
the Texas Municipal Power Agency. ,
SECTION 1I. That this Resolution shall take effect immediately from and after its
passage and it is so ordered.
PASSED AND APPROVED this the l9th day of July, A.D. 1977.
ATTEST; 11lQYIll1GIlES, TOR
~ROOK$'IIO T, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
~AUL'~.`131pIxi;
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Information for Bill Trantham
j Dates elected to City Council
Nash--April 3, 1976
Hughes--April 1, 1975 - 11711 , 7PIO
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11 1975
Mitchell--April
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Dates elected as Denton Representatives'
to the TMPA Board
Mitchell--July 19, 1977 •
Hughes--June 9, 1978 x 5,
Nash--June 9, 1978 3 c y JW
Ordinance N78-24, providing new water and sewer rates, was passed at the meeting
of June 30, 1978.
The matter of the purchase of 68 acres of land adjacent to the sewer plant for i
expansion of treatment facilities was approved at the meeting of July 5, 1978.
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City of Denton
Memorandum
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T0: Denton City Council
FF M: Brooks I{olt, City Secretary
III ` DATE: ~ <<r-• ~:1 a y; I y? 5
SUBJECT: Recall Petition Gam"'
that the
pursuant to the 1S8th District Court Orders I certify
recall petition is sufficient as follows:
1. Thateach who g constitute the i committee of t the names petitioners. (5)
2. That there are a total of 951 signatures on the petition,
3. That 79S signatures on the petition are signatures of
qualified electors in accordance with Section 4.12 of the
l City Charter of the City of Denton, Texas.
4. That lsignatures 4.12 of h petition
City Chaio'er, or are not require-
ments of Section legible.
held on Aprils Ipreceding general
5.
uThat nicipal there elwere ection6 which votes was cast in the
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cast in the last
6. preceding tgeneral percent (251 of election the is 6tes 74,
7. That the "recall petition" is signed by qualified electors
of the City equal twenty-five percent
251 of the
general municipal election.
8. That there are 76 pages of the petition.
G
CITY OP UENTCN, TEXAS
SWORN TO AND SUBSCRIBED before me on this CI V day of A ~ A.D, '
NMWPUBM I
DfWfON COUNTY, TEXAS
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City of UcntOn
yk~nor:utdron
TO: Mnton City Coluwi I
I MV: Brooks Holt, City Secretary
WE: April 24, 1979
SUBJECT: Recall Petition
A
Pursuant to the 155th District Court order, which has been affirmed
by the Court of Civil Appeals, l certify that the recall petition is
sufficient as follows:
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E 1. That each page of the petition contains the names of five (5)
electors who constitute the committee of the petitioners.
2. That there are a total of 951 signatures on the pct-`,ion.
3. That 795 signatures on the petition are signatures o. qw lifted
electors in accordance with Section 4.12 of the City Charter
of the City of Denton, Texas. l
4. That 156 signatures on the petition do not meet the require-
ments of Section 4,12 of the City Charter, or are not legible,
S. That there were 2,696 rotes cast in the last preceding general '
I municipal election which was held on April 1, 1978.
6. That twenty-five percent (251) of the votes cast in the last
preceding general municipal election is 674.
~i 7. That the "recall petition" is signed by qualified electors of
the City equal in number to at least twenty-five percent (251)
of the number of votes cast at the last preceding general
municipal election.
I 8, That there are 76 pages of the petition.
ljw~
RMS FRLT,CS s CRE r
{ CITY OF rum, Tr as
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SWOM TO AND SUBSCRIBED before me on this 24th day of April, A, D. 1979.
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NOTARI PUBUICIN 1.l OR
DENTON COUN71'0 1TUS
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N0. 78-1430-B
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HILL TRANTHAM, ET AL, X IN THE DISTRICT COURT
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` t RELATORS
` VS. X OF DENTON COUNTY, TEXAS
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BROOKS HOLTo CITY SECRETARY,
CITY OF DENTON, TEXAS, X 158TH JUDICIAL DISTRICT
RESPONDENT
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REPORT
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f TO THE HONORABLE JUDGE C.C. COOKEs
I, Brooks Holt, City Secretary of the City of Denton, Texas,
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pursuant to the Court's direction and order delivered in open
j Court in Denton County, Texas, on the 26th day of July, 1978,
j have in accordance with Section 4.13 of the City Charter of the
f City of Denton, Texas, a Home Rule Municipal Corporation, received
the "recall petitions", and have determined the following:
1. That each page'of the petition contains the names of five
(5) electors who constitute the committee of the petitioners.
29 That there are a total of 951 signatures on the petition.
'I 3. That 795 signatures on the petition are signatures of
qualified electors in accordance with Section 402 of the City
Charter of the City of Denton, Texas.
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4. That 156 signatures on the petition do not meet the re-
quiremente of Section 4.12 of the City Charter, or are not legible.
{ 5. That there were 2696 votes cast in the last preceding
1 general municipal election which was held on April 10 1978.
6. That twenty-five percent (251) of the votes cast in the
last preceding general municipal election is 674.
7, That the "recall'petition" is signed by qualified electors
of the City equal in number to at least twenty-five percent (258)
of the number of votes cast at the last preceding general municipal
election,
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Bo That there are 76 pages of the petition.,
9. Sba-t e b-pa.pv laks_the -required_a4ffidavit of the o ulator tt reof.
10. Thdt I find the "recall peti.i n" iasuffic ent because
each papet~f,therpetlion does not cont in'khe requ red affidavit
of the circulator t4 reof.
ROOKS HOLT, CITY SI)CRETARY
CITY OF DENTON, TEXAS
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s SWORN TO AND SUBSCRIBED before me on this 1st day of August, i
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j A. D. 19760
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~t0 Y PUBLIC I D FOR
D TON COUNTY, TEXAS
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Because we are convinced that visiting Judge C. C, Cooke of
Cleburne was in error when he ruled August 2 that recall petitions
i against Joe Mitchell , Elinor Hughes and Mary Claude Gay were "in
substantial compliance" with the City Charter, we have.instructed
t City Attorney Paul Isham to appeal that decision.
To do otherwise, to allow Judge Cooke's ruling to go unchal-
lenged, would allow a precedent to be established which threatens
the very integrity of the City Charter, a document each of us, as
council members, have sworn to protect and defend.
The decision to appeal Judge Cooke's ruling, however, is not
an attempt to avoid calling a recall election, Since the best
legal advice we can obtain indicates that the first available date
j for a recall vote, according to state law, is January 20, we have
sufficient tine to appeal the August 2 ruling.
We believe it would be the height of irresponsibility if we a
did not challenge the concept, implied in Judge Cooke'a ruling, that
i an individual, or group of individuals, is free to pick and choose
which requirements of the Charter--or any set of laws, for that
matter--he or they will follow.
The Denton City Charter is not vague in outlining the exact
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procedures which must precede any recall election. In Section 4.12, !
it says that on each separate petition "there shall (emphasis added)
be attached an affidavit of the circulator..." The Charter clearly
intended that such affidavits be mandatory.
In addition, the Charter, in Section 4.13, lists thred require-
ments which must be met before a petition can be certified. First,
each petition must bear the names of the committee of petitioners.
Second, the "required (emphasis added) affidavit" must be included
on each petition, and third, the petitions must be signed by quali-
fied voters of the city equal in number to at least 25 percent of the
number of votes cast at the last municipal election,
If all these requirements are not met, then the City Secretary
is obligated to reject the petitions as insufficient. This Brooks
Holt did.
,
Such reluirements were placed in the Charter in order to pro-
tect citizens from having their names placed upon a petition with-
out their knowledge, These requirements were placed in the Charter
by the citizens of Denton, and we are charged with the responsibility
of making sure the Charter remains strong.
Regarding the timing of a recall election, Judge Cooke said it
was his opinion that the first available election date is January
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200 1979. Both our City Attorney and a representative of the
Secretary of State's Office, the State's Top Election Official,
uagree with that opinion. Under such a timetable, we have until
I December 20 at the latest to call an election for January 20. There-
fore, we are instructing the City Attorney to expedite the appeal in y
the hopes that an appellate decision can be reached prior to the
deadline for calling the election,
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COURT OF CIVIL APPEALS
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f Second Supreme Judicial District
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Fort Worth, Texos _t,TaVe=b9.r-30.-... 19__4$..
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Mr. Paul C. isham
Gity Attorney
City of Denton
Denton, 9K 76201
Door Sir :
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Tho Judgment of the Triol Court in the case of
Brooks .,_"r-C-4ly-Oeetetarry-of-t-he-eity-of-DeMen, Temcro-.-vs
wm. R Trgntharn, rhafrman of hhn CpmmitteE__..__No,_ Tp11b *J
of Electors of the Recall Committee, City of Denton, Texas, et a1.
from Denton County, was_ _nffirmoA
today. Copy of the opinion of the Court
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it hereto ottoched.
y
Yours truly,
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Yvonne Palmer, Clerk
YP/gaf
Encls.
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Brooks Holt, City secretary S From the District Court of Denton
of the City of Denton, Texas County
S (No. 78-1430-B)
18116 vs• 5 November 30, 1978
William E. Trantham, Chairman
of the Committee of Electors 5
of the Recall Committee, City S opinion by Chief Justice Massey
of Denton, Texas, et al.
3 .
This cause came on to be heard on
the transcript of the record and the same having been reviewed it is
the opinion of the Court that there was no error in the judgment.
It is therefore ordered, adjudged and decreed that the judgment of the
trial court in this cause be and it is hereby affirmed.
It is further ordered that appellant, Brooks Holt, j
City Secretary of the City of Denton, Texas, and his sureties, f
a [
Paul C. Ishant and G. Chris Haztun,g, pay all costs in this behalf
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expended, and that this decision be certified below for observance.
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NO. 18116
IN THE COURT OF CIVIL APPEALS FOR THE
i ) SECOND SUPREME JUDICIAL DISTRICT OF TEXAS
BROOKS HOLT, CITY SECRETARY APPELLANT
OF THE CITY OF DENTOTi, TEXAS
VS.
APPELLEES
WILLIAM E. TP,ANTHAM, ET AL.
FROM THE DISTRICT COURT OF DENTON COUNTY
I '
OPINION
By our opinion in this case we affirm the Order Granting
E
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II ~ Writ of Mandamus. Respondent Brooks Hof Y Secretary for the City of Denton, Texas, was ordered to present the
"Recall Petition" of the petitioners and his Certificate as
to its Sufficiency to' the City Council at its next regular
meeting. ; pr
~ The Letitioners who obtained the foregoing relief were
qualified electors for the purposes involved.
The issue before the trial court was upon the question
of propriety of the character of the petition as a prescribed
'procedural step essential to constitute the foundation for
holding a recall election. Petitioners desired to have
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voted upon the question of whether three councilmen of the
City of Denton should be removed.
The trial court held that the petition, as amended, was
a sufficient compliance with the provisions of the City
Charter.
The applicable rules of law by which there should be
test of the electors' petition are directory rather than
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mandatory. (The contrary rule would apply under provisions
of the election laws governing what is required of candidates
in elections). TEX. CONST. art. VI, "Suffrage", and the
sections thereunder, particularly S 2, "Qualified elector=
. (1966 amendments): Geiger M. DeBusk, 534 S.W.2d 437
(Tex. Civ. App.--Dallas 1976, no writ history).
It was by provisions of the City Cha''rteY that'the City
Secretary ruled the petition insufficient, thus creating the
situation leading to mandamus. In material part the City
Charter provides, vizs
..Sec, 4.11. "Recall of councilmen". Any member
of the city council may be removed from office
by a recall election.
sec. 4.12. "Recall petition, committee of
petitioners." Recall petition papers shall
contain the name of the councilman (or names
of the councilmen) whose removal is sought,
and a clear and concise statement of the j
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grounds for his (or their) removal. .
The signatures to a recall petition need not
all be appended to one paper, but to each
separate petition there shall be attached
an affidavit of the circulator thereof that
he, and he only, personally circulated the
foregoing paper, that it bears a stated number
of signatures, that all signatures were
appended thereto in his presence-and that
he believes them to be the genuine signatures
of the persons whose names they purport to be.
Sec. 4.13. "Filing and certification of
petitions, recall election." (a) All papers
comprising a recall petition shall be assembled
and filed with '_he city secretary as one
instrument.' Within seven (7) days after a
petition is filed the city secretary shall
determine whether each paper bears the
names of the five (5) electors who constitute
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the committee of the petitioners, and the
required affidavit of the circulator thereof,
and whether the petition is signed by
qualified electors (measure as applied to
determining sufficiency as to numbers also
prescribed) . . . . (b) If the city secretary
finds the petition insufficient be shall
return it to the committee of the petitioners,.
without prejudice, however, to the filing of
a new petition based upon new and different
1 grounds, but not upon the same grounds. . . .
(Following are provisions in the event the
petition be deemed sufficient.) (c) [C)ity
council shall thereupon order and fix a
date for holding a recall election . . . .
As originally presented to the City Secretary the many
pages constituting the recall petition contained information
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prescribed as required, along with lines for signature and
addresses with dates of signing, plus completed certificate
at the bottom of each of the pages in the following form:
I r
certify that I, and only ; t
I, personally circulated the foregoing petition,
that it bears signatures that were
appended hereto in my presence and I believe
that they are the signatures of the persona
whose name they purport to be.
Signed the day of ► 1478.
The City Secretary kept the petition papers overnight
and then delivered therm back, returning the same to the
petitioners' committee. The committeemen caused those who
had circulated the petition together to make affidavits
relative thereto. Pursuant thereto the "circulators" made
oath before Notaries Public in the following form:
"STATE OF TEXAS
COUNTY OF DENTON "BEFORE ME, the undersigned authority, personally
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appeared those persons whose names are listed
below, who, each being duly sworn by me deposes
and says:
"I personally circulated the recall
petition page to which my signature is signed;
that each person who signed the page did so in
my presence) that I believe such signatures as
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appear thereon are the genuine signatures of '
the person whose name they purport to be!, and=
that each is a registered voter of the city of
Denton, Texas."
j (Here follows many lines, on each
of which a signature of a circulator
4 of she petition appears.)
"SWORN TO AND SUBSCRIBED TO Before me by each
I one individually." (Followed by hand and seal
of Notary Public.)
Promptly the identical papers comprising the formerly
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tendered recall petition, plus the pages on which there was
oath by the circulators before a Notary Public, (constituting j
I affidavit by each of them), were tendered (or re-tendered)
to the City Secretary. He refused to accept and act. He Y;
E returned such amended petition to the committee of the
petitioners. One of his reasons for returning the amended,
petition was because the grounds were identical to the
grounds stated in the petition as initially presented. It
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E was his opinion that there was not a compliance with requirement
that such petition should have been upon different grounds
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from those stated.
Between the time the "bundle of papers" constituting
the recall petition was first delivered to the City Secretary
and the time of the tender of practically the same "bundle"
as an amended petition, the mandamus suit was filed. There
was amendment of the electors' pleadings in their petition
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for mandamus following the later tender. Since there is no
point of error predicated upon the manner of the proceedings
in the trial court we disregard any irregularities.
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on trial it was in the capacity of electors that several
witnesses who had signed the recall petition testified.'
Uncontested evidence showed the fact that signers of the
recall petition were in sufficient number and were qualified
electors who had signed with the
purpose end intention of
obtaining the certification of the petitions they had signed
I by the City Secretary, to the City Council, so that an
j election would be called.
What was done by the electors, apart from the propriety
of the procedure by which done in aid of their purpose by
those who circulated the petition and by those who were the ry
"committee", was to obtain and exercise their rights of
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suffrage= to obtain the opportunity to participate in an
election in which their rights to vote might be exercised.
o Where a statute, or the provisions of some municipal
charter, authorizes the holding of an election only on the 111.1 j
taking of a prescribed step, this prescribed step constitutes
the foundation for holding the election, not the election
itself. Such action relating to steps to be taken prior to
an..election are.direotory where authority to hold the election
is otherwise conferred upon those who are to order or conduct ;
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it. 29 C.J.S. p. 161, "Elections", g 70, "Order or Call",
(1965). Whatever action or non-action there might be there
{ may be reconsideration of its propriety in a suit in complaint
thereof brought in the appropriate trial court.
Upon the presentation of a proper petition made a
condition precedent, the authorities appointed to call an
election on a particular measure or proposition havo no
discretion to refuse to call it. This rule likewise has
application to and includes a middle-man whose official duty
is to make the examination and deterr„ination of thu s,ffficiency
of the petitioners' compliance with conditions precedent.
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iE 29 C.J.S. p. 159, "Elections", 5 681 "Preparatory Steps in
i General"; S 69, "Petition of Electors" (1965).
In the determination of the compliance or non-compliance
with the conditions precedent the test may require the con-
sideration of the "reasonableness" of the provisions relating
to qualification of a petition as sufficient. To make such
a judgment was part of the duty of the City Secretary in the
instant case. To be valid a registry law or ordinance must
be reasonable, neither impairing the right of suffrage
I guaranteed by the constitution nor depriving a person of his
right where there is no fault or negligence on his part.
It.
Most caws in which there have been expressions upon
applicable law are those where after the fact of an election
~~,~z~'A,r;`~~ there has been attack upon election propriety rather than
cases where there was refusal to hold elections and where,
as an the instant appeal, there were mandamus petitions
filed to have elective roc ses compelled. The,electors
e s
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who petitioned for mandamus in the instant case cite the
case of Bagley K. Holt, 430 S.W.2d 817, 821 (Tex. Civ.
App.--Texarkana 1968, writ ref 'd n.r.e.)r and language
therefrom as follows:
"courts long ago settled the question, -
differing only in the phrasealogy used, by
holding that whatever the law requires
4. a voter to do himself he must do as
required in order to cast a valid ballots
but that failure on the part of election
officers to perform their duties prescribed
by law, where such failure has not prevented
a fair election, will not deprive the elector
of his voting privilege or of his right to
exercise it. (Citing oases.) The elector
in this instance, burdened as he was by
illiteracy, did all that the law required
of him. Misunderstanding of the election
judge's duties and failure on the part of
thit election official to observe'the law's
precepts, did not render the elector's ballot
invalid."
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Analagous legal principles would be effective where the
proceeding is for mandamus to compel the holding of an
election and the performance of duties ancillary thereto
I
I where the respondent occupies the position of an officer in.
i some way connected with and charged with a duty relative to
the election. Where, as a prerequisite to the holding of
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the recall election where by law there must be performance
of authoritatively prescribed duties by the City Secretary he should not escape his obligation of performance where
there has been substantial compliance with the law by the
electors.
It is not that the provisions of the Denton City Charter
are unconstitutional on its face, rather it is that the
provisions are unconstitutional in their application to the
factual situation here posed, i.e., to the manner of preparation
and presentation of the electors' petition to the City
► Secretary. To hold otherwise would be to impair the right
of suffrage by the electors where there has been no fault or
negligence on their part.' `
We agree with_the City Secretary that the trial court
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erred in concluding that because the City Attorney of the
City of Denton had approved the form of the recall petition
prior to its circulation and submission the City Secretary
was estopped to deny its sufficiency. However, the fact
that the point of error relative thereto could be sustained
would in no way affect our obligation to affirm the judgment.
It is obvious that the trial court should fix the date
and time of the election anew when there is finality of the
judgment after exhaustion of the appeal. The trial court is
authorized so to do.
Affirmed.
NOV 3.0 1978 PRANK A. MASSEY,
CHIEF JUSTICE.
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NO. ra ~Uu -g ~'4 f l: 32
C. 0. BLASDELL, ET AL
9 ) 4N ~if~ COUNTY ,C~QU~tT,
AY_
VS. AT-LAW IrI fUrY
)
THE CITY OF DENTON, TEXAS, ET AL ) DENTON CO'NrY, TEXAS
ORIGINAL PETITION
ITO THE HONORABLE JUDGE OF SAID COLRT:
COME NOW C. 0. BLASDELL and RANDALL BIDDY, Plaintiffs, complaining of
the City of Denton, Texas, JOE MITCHELL, ELINOR HUGHES, MARY C. GAY, RICHARD 0.
STEWART, W. S. HASH, ROBERT NELSON and CHRIS HARTUNG, Defendants, and for cause
of action would respectfully show the Courts
That the City of Denton, Texas is a municipal corporation, wholly situa-
ted within Denton County, Texae, and organized under a Home Rule Charter, with
BROOKS HOLT Its City Secretary, upon whom service may be had at his office in
i
the City Hall, Denton, Denton County, Texas; that JOE MITCHELL is a resident of
Denton, Denton County, Texas, where service of process may be had upon him;
that ELINOR HUGHES is a resident of Denton, Denton County, Texas, where service
of process may be had upon her; that MARY C. GAY is a resident of Denton,
Denton County, Texas, where service of process may be had upon her; that
RICHARD 0. STEWART is a resident of Denton, Denton County, Texas, where ser-
vice of process may be had upon him; that N. S. HASH is a tesideat of Denton,
E Denton County, Texas, where service of process may be had upon him; that
ROBERT NELSON is a resident of Denton, Denton County, Texas, where service of
process may be had upon him; that CHRIS HAATUNG is a resident of Denton,
Denton County, Texas, where service of process may be had upon him.
3
xx.
That the Plaintiffs, and each of them, are resident, taxpayers and
qualified voters of the City of Denton, Texas, and consumers of water from the
water aystem owned by the City of Denton, Texas, and service from the sanitary
sewer system owned by the City of Denton, Texas.
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III.
t
That the City of Denton, Texas, in its proprietary capacity, owns,
operates And maintains a water system and sanitary sewer system, and sells
water and furnishes sewer services on a commercial basis from such water and
sewer systems.
7
IV.
That the Defendants, JOE MITCHELL, ELINOR HUGHES and W. S. NASH (well
knowing that they had vacated their positions on the City Council of the City
of Denton, Texas) joined by Defendants MARY C. GAY and RICHARD 0. STEWART (who
well knew that the Defendants JOE MITCHELL, ELINOR HUGHES and W. S. NASH, had
vacated their positions on the City Council of the City of Denton, Texas) gave
d
notice to the consumers of water and sewer services from the water and sewer
systems of the City's intention to enact an ordinance raising the rates for
water and sewer services furnished by the City, such rate increase to be effec-
tive July 1, 1978.
V.
That on Friday, June 30, 19780 at 100 P.M., JOE MITCHELL, MARY C. GAY,
W. S. NASH, RICHARD 0. STEWART and ELINOR HUGHES (each well knowing that the
Defendants JOE MITCHELL, ELINOR HUGHES, W. S. NASH had vacated their positions
on the City Council of the City of Denton, Texas) purported to hold a meeting
of the City Council of the City of Denton, Texas, and purported to take such
f
legislative action on behalf of the City, i.e., purported to enact an ordinance
entitledt
ORDINANCE NO. 18 - 24
AN ORDINANCE AMENDING CHAPTER 25 OF THE CODE OF ORDINANCES OF
THE CITY OF DENTON, TEXAS, PROVIDING NEW WATER AND SEWER
TAPPING FEES AND NEW SERVICE RATE CHARGES FOR WATER AND SEWER
SERVICE; REPEALING CONFLICTING ORDINANCES: PROVIDING A
SEVERABILITY CLALSE; AND DECLARING AN EFFECTIVE DATE.
that such purported ordinance provides that the rates established by such pur-
ported ordinance shall take effect July 1, 1978.
That perforce the foregoing allegations, no quorum was present at the
purported meeting of the City Council of the City of Denton, Texas, held on
Jane 30, 1978, and that all actions purported to have been taken by the named
` ;ersons purporting to hold said meeting are null and void, and of no force
and effect.
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VI.
That notwithstanding the invalidity of the purported ordinance, never-
theless the Defendants CHRIS HaTUNG and ROBERT NELSON have enforced the pro-
visions of the purported ordinance retroactively against your plaintiffs under
the threat of discontinuing service to them and each of them, and the class of
which they are a part, resulting in damages to the Plaintiffs in the sum of
$150.00.
VII.
That the facts herein alleged constitute a deceptive trade practice
-Consumer Protection Act,
the meaning of the Deceptive Trade Practiceand
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the Plaintiffs are entitled to triple damages, together with reasonable attor-
nay's fees.
VIII.
That the amount of excess charges for water and sewer services is parti-
cularly within the knowledge of the Defendants and is not available to the
Plaintiffs, the Defendants should be required to furnish an accounting.
VHEREFORE, premises considered, Plaintiffs pray that Defendants, and
each of them, be cited to appear and answer herein, as provided by.the Rules
of Civil Procedure, and upon hearing hereof, this Honorable Court enter its
judgment declaring the positions of JOE MITCHELL, ELINOR HUGHES and K. S. NASH
on the city Council of the City of Denton, Texas, vacant; that this Honorable
Court appoint trustees to serve in such positions until such time as such
positions are filled in the manner provided by law; that this Honorable Court
enter an order requiring the Defendants to file a sworn accounting of the
h amounts of excess rates for water and sewer services collected by the Defend-
ants under the provisions of the purported ordinance herein alleged; that
judgment be entered herein against Defendants, jointly and severally, for the
individual customers and consumers of services from the municipally owned water
and sewer systems in an amount three times the amount of excess charges collect
ed under the purported ordinance hereinabove alleged, together with reasonable
attorney's fees, for costs of Court, and for such other relief, both general
and special, in equity and in law, to which Plaintiffs may show themselves to
be justly entitled.
Respectfully subm ,
W
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CITYOI DENTON, TEXAS MUNICIPAL BUILDING,' DENTON, TEXAS 76201 - TELEPHONE (817) 382.9601
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July 6, 1978
Mr. William Trantham
Attorney at Law
1005C University Drive West.
Denton, Texas 76201 I
Dear Mr. Trantham:
This will acknowled a receipt of 76 pages of a G
g
"Petition for Recall" which you filed with me on
July 6, 1978. E
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Thank you.
Sincerely yours,
Brooks Holt
I City Secretary ek
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