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HomeMy WebLinkAbout1979 k3;F}3! =s4rli!itit I I NO IN THE SUPREME COURT OF 'ITFXAS i I I3I(OOKS HOLT, CITY SECRETARY CITY OIL" DBNTON, TEXAS, PETITIONERS VS, WILLIAM H, TRANTHAM O ET AL, ! RESPONDENTS APPLICATION Fool WR.I'I' OF ERROR PAUL C. ISHAM CITY ATTORny 215 EAST MCKINNEY r)rN'i'ON, TEXAS 70201 ATTORNEY FOR PETITIONERS i I 1 it I N D E X J PAGE . APPLICATION FOR WRIT OF ERROR 1 ~I STATEMENT OF THE NATURE; OF THE CAST; 2 f STATEMENT OF JURISDICTION 3 POINTS OF ERROR S I STATEMENT OF TILE EVIDENCE AND ISSUES 4 ARGUMENT AND AUTHORITY IN REGARD TO POINTS OF g ERROR NUMBERS ONE TRROUOII FOUR j POINT OF ERROR NUMBER FIVE 12 { (RESTATED) 1 {j I r ARGUMENT AND AUTHORITIES IN 10:0ARD TO POINT 12 OF ERROR NUMBER FIVE 3 CONCLUSION 15 • t PRAYER 16 CERTIFICATE OF SERVICE 16 l r~ ~ I I . t, i I m LIST OF AUTHORI'iPIES PAGE ARAZOS RlVgB ACJTH RI V. CI'A' OF GRAHAM, 8 384 S.W.2d 99 (TEX. 1901) 13201 V. MALKMo ,377 S.W.2d 630 (TEX. 1964) 9 ?I F CITY QF PORT ARTHUR V. TILLMAN., ..,398 S.W,2d 8 i 760 (TEX, 1965) GEIGER V. E~:AUao 534 S.W.2d 437 (DALLAS 9 CIV.APP, 1976) N.W.M. I W= V. M,ANCFi, 567 S,W.2d 10 (FT, WORTH CIV. 10 I APP, 1978) N.W.H, t3US V. JSE,"iSU$, 564 S.W,2d 498 (DALLAS CIV. 9 APP. 1978) N,W,H4 MC jAW V, NRlYffY, 496 S.W.2d 250 (DrAU.CIV. 8 APP. 1.973) N.W,II, L " V, 1[ICERat 249 S,W.2d 80 (GALVESTON 10 CIV,APP. 1952) N.W.H. xiAXG[ St V, 'MT ,r, ;n, 8 434 S.W.2d 670 (TEX. 1968) 4~ yS RA QLUU V. AUaSTIN IND. SCi QQL DT61RICT, 7 489 S.W.2d 325 (AUS.CIV.APP. 1973) REV. TEXAS HjGHWAX CQ111ja V, BY, ' 8 TR. GUN., 234 S.W.2d 857 (TEX. 1960) STATUTES VERNON'S TEXAS CIVIL STATUTES, ARTICLE 23 6 TEXAS ELECTION CODE, SECTION 2.Olb 14 CITY CHARTER E SECTION 4.12 g E SECTIONS 4.13 (a) AND 4.13(b) 6 j SECTION 4,13(c) ' 13 TREATISES BLACKS LAW DICTIONARY $lgpi'{'PiS NO. IN THE SUPREME COURT OF TEXAS j BROOKS HOLT, CITY SECRETARY CITY OF DENTON, TEXAS, PETITIONERS f VS. 1 l WILLIAM E. TRANTHAM, ET AL, RESPONDENTS ~ f )J APPLICATION FOR WRIT OF ERROR ` TO THE HONORABLE SUPREME COURT O;, TEXAS: Comes now Petitionor, BROOKS BOLT, CITY SECRETARY, CITY OF i DENTON, TEXAS, Petitioner in the above numbered and entitled cause, and respectfully presents this, his Application for Writ i Ct l . 1 of Error to the Court of Civil Appeals for the Secol-a Supreme Judicial District of Texas at Port Worth, Texas, to the end that this Honorable Court may review and corr.uct the errors of law com- mitted by the Court of Civil Appeals in Cause No, 18,116 on the docket of said Court, styled, Brooks Holt, City Secretary, City of Denton, Texas, Appellant vs. William E, Trantham, of al, Appoll3os. The Court of Civil Appeals rendered its opinion and judgment herein i on Novrmber 36, 1978, Petitioner timely filed his Motion for Re- hearing, which Motion for Rehearing was overruled, without opinion, by the Court of Civil Appeals, on January 11, 1979. All matters presented in this Petition for Writ of Error were duly presented to the Court of Civil Appeals in said Motion for Rehearing. i I X. I STATEMLNT OF THE NATURE OF THE CASE This is a suit seeking a writ of mandamus regarding a recall petition, In the Trial Court, Respondents (hereinafter called Trantham) sought a writ of mandamus against Brooks Holt, City SEac;re- tary of the City of Denton, Texas (hereinafter called Holt) to direct and order him to certify the sufficiency of the recall petition to r tho City Council of the City 01, Denton, Texas, and to fix a date for holding a recall election. All matters in controversy wero tried before Judge C.C. (Kit) Cooke, sitting fur Judge Bob Scofield, 168th I District Court, Denton County, Texas, without a jury, The Trial Court, after due cons:i.doration of the Issues, granted a writ of mandamus directing Holt to certify tho recall petition to the City Council, but declined to order a date for the holding of t "•o u I a the election. The Court of Civil Appeals for the Second Supreme Judicial. District Court of Texas, sitting at Fort Worth, Texas, affirmed the Trial Court's judgment and ordered that the Trial I Court fix the date and time of the election. Holt has duly per- fected its apperl to this Honorable Court alleging each of the Pointe of Error contained in this Brief. STATEMENT OF JURISDIC'1.`ION j 'rho Supreme Court has jurisdiction of this suit under the I following subdivisions of Article 1728; I~ 1 1, Subdivision 2 because the Court of Civil Appeals holds differently than the Courts of Civil Appeals in Geiger v, eBu, , 534 0.W.2d 437; j [p.2.9 v, Kessler, 564 S.W.2d 496 ; and Car, v. nee, f 667 S,W,2d 16; and the holding of the Supreme Court in ktZ v. maker, 377 S,W,2d 6130, 2. Subdivision 3 in that the construction of Article 2.Olb of the Texas Election Code is involved. i 3. Subdivision 6, I /f OF POINT'S OI ERROR y POIN'T' OF ERROR NO. I 'T'HI; COURT OF CIVIL APPEALS ERRED IN HOLDING THAT THE APPLICABLE RULT;S OF LAW BY WHICH THERE SHOULD BE A TEST OF THE ELECTORS' PI TI'T'ION ARE DIRECTORY RATHER T11AN MANDA'T'ORY. POINT OF ERROR NO, 2 THE COURT OF CIVIL APPEALS ERRED IN HOLDING THAT THE "BUNDLE OF PAPT;RS" CONSTITUTING TIM RECALL PETITION COULD BE TENDFRm (OR IM-TENDERED) TO THE CITY 9ECRETARY FOR THE IDENTICAL GROUNDS AFTER THEY HAD BELN REJECTED AS INSUFFICIENT BY, THE CITY SECRE- TARY BECAUSE: THE CITY CHARTER STAT", THAT ONCE A PETITION HAS BEEN FOUNT) INSUFFICIENT BY TEE CITY SECRETARY, IT CAN ONLY BE f PRESENTED AGAIN ON NEW AND DIFFERBMT GROUNDS. I .3- r . POINT OF ERROR N0, 3 THE COURT OF CIVIL APPEALS ERRED '.N HOLDING THAT THE APPELLEES HAD SUBwTANTIALI,Y COMPLIED WITH THE CITY CHARTI311 BECAUSE THE PETITIONS WHEN SUBMITTFl) DID NOT CONTAIN THE REQUIRED AFFIDAVIT OF THE CIR- CULATOR THFAMOF. POINT OF ERROR NO, 4 TIM COURT OF CIVIL, APPEALS ERRED IN HOLDING THAT THE PROVISIONS OF THE CITY CHARTER ARE UNCONSTITUTIONAL IN THEIR APPLICATION TO THE FACTUAL SITUATION HERE POSED AND HAVE IMPAIRED THE RIGHT OF SUFFRAGE DY THE ELECTORS BECAUSE THERE IS NO GUARANTEE THAT AN ELECTION WILL OCCUR, FOR THE CITY CHARTER PROVIDES THAT THE MEMBERS SOUGHT TO BE RECALLED CAN RESIGN. j POINT OF ERROR NO, 5 I 1 j THE COURT OF CIVIL APPEALS ERRED IN HOLDING THAT THE TRIAL, COURT CAN FIX THE DATE AND TIME OF ELECTION I3ECAUSE (1) THAT WAS NOT RAISED AS j A POINT OF ERROR IN THE CASE 13IsF'ORI3 THE COURT OF CIVIL APPEALS, (2) HE TRIAL COURTS JUDGMENT SPECIFICALLY DENIED TIIE REQUEST, (3) CER- TAIN EVENTS MUST TAKE PLACE BEFORE' AN ELECTION CAN DE CALLER, AND (4) THV TEXAS ELECTION CODE HAS DESIGNATED CERTAIN DA'Z'ES UPON WHICH AN F;LI''OTION CAN BE HELD, STATQl NT OF THE EVIDENCE AND ISSUES Petitioner submits the following as a summary of the evideneo I I j and issues presented to the Trial. Court and the Court of Civil Appeals, Trantham is a member of the committoo of electors that circulated a petition for the recall of throe oouncilmembers in the City of Denton pursuant to Section 4.12 of the City Charter. The other Respondents are qualified oloctors in the City of Denton and r signers of the petition. On July 6, 1978, Trantham submitted to halt seventy-six pages of a recall petition as shown by Plaintiffs' Exhibit 2. (S.P. 130 Finding of Fact No. 3). On July 7, 1978 Holt returnod the petition to Trantham and informed him that the potition vas insufficient be- cause it (lid not contain the affidavit required by Sectiono 4.12 t `:1 and 4,7.3 of the City Charter, (S.F, 14, 20, Finding of Tact No, 6) At the time Holt received the petition from Trantham on July 6, there was neither an affidavit attached to each page nor an i affidavit for the entire petition. (S.F. 20-21, Finding of Tact No. 4) Later during the day of July 7, 'Trantham riled this appliea- tion for writ of mandamus against Holt. On July 12, 1978, Trantham returned to Holt',y office with the same seventy-six pages of the i recall petition and one affidavit for the entire petition (Plain- tiffs' Exhibit 3), and re-submittod the petition to Holt, (S,F. 21-22, 24, Finding of Fact No, 6) Holt rot used to accept the ro- submission of the petition and returned it; to Trantham. (S.T, 22) On July 20, Trantham amended his original petition, The evidence also shows that Trantham brought a form of his petition to the City Attorney, and the City Attorney okayed the { form before it was submitted to Holt, (S.F. 33, Finding of Fact No. 7) After the first hearing boforo Judge Cooke, the Judge found the petition substantially complied with the City Charter of Denton regarding the affidavit, and directed Holt to verify whether there were the required number of valid signatures on the petition, A second hearing was hold so that Holt could report back to the Court, At the second hearing it was determined that a sufficient f number of qualified signatures were affixed to the petition, The Court grantod the writ of mandamus finding than the petition sub- stantially complied with the Charter, and diroctod Holt to certify I _r_ i Ff t(~ •.el'. 'i c its suffiaioncy to the City Council, The Trial Court specifically denied the Respondent's requost to het a date and time for the election, but the Court of Civil Appoaly authorized the 't'rial Court to do so even though this issue was not raised as a point of error before the Corrrt of Civil Appeals. ARGUNIEt,,' AND AIITHORI'ITY IN REGARD TO POINTS OF ERROR NUMBEIIS ONE THROUGH FOUR This case involves the interpretation of the City Charter of I the City of Denton rogardiir2: recall petitions. Section 4,12 of the Charter states, In part: 1 "The signatures to a recall. petition need not all be 1 appended to one paper, but to each separate petition there shall be attached an affidavit of the circula- tor thereof that ho, and he only, porsonally circu- lated the foregoing paper, that it boars a stated num- bor of signatures, that all signatures wero appended thereto in his presence and that he believes them to be the genuine signatures of the porsons whose names j they purport to bo." (Emphnsis Added) I Section 4.13(a) states in ~ part that; "Within seven (7) days after a petition is filed the city secretary shall determine whether each aper bears the names of the five (5) olaetors 1vTo con- stitute the committee of the petitioners, and the required affidavit of the circulator thereof,,,. ISnp aaie d ec and Section 4.13(b) statos: r "If the city secretary finds the petition insuffi- ciont he shall return it to the committee of the petitioners, without prejudice, however, to the filing of a new petition based upon now anal dif- i forent grounds, but not upon the same grounds,..", Article 23 V.T.C.S. definos affidavit as "a statement in writ- ing of a fact or facts signed by the party making it, and sworn to before some officer authorized to administer oaths, and officially I 1 ..G~ I 1 f ti 21 }J x M 1 certified to by such officer under his sea], of office". Blacks Law Dictionar defines affidavit as "a written or printed decla- ration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken be.4,;re an officer having authority to administer such oath". The evidence is undisputed that the recall petition consist- ing of 76 pages that was delivered by Trantham to Petitioner on { July 8, 1978 did not bear an affidavit a,3 to the entire petition I f or as to each paper to the petition. The question presented to f this Court is: Was it fatal to omit the affidavit from the peti- tion at the time it was submitted -to the City? Petitioner con- tends that it was. The home rule charter of tho City of Denton was adopted by the voting citizens of the City. In effect it is the law of the I city as adopted by its electorate. As the Court said in Sierra Club v. Austin Ind, School Dis~t~., 480 S.W,2d 325 (Aus.Civ,App. ~ ~I 1873) rev, an other grounds 405 S,W,2d 878: "it is so well settled as not to requiro oxten- sive citation of authority that the inhabitants of a home rule city constitute the city, and that the ultimate power of the city is vested in the qualified voters, It is Pram the people that the I 1 city council derives its authority, The power of the people is granted under the home rule amend- ment of the Constitution of Texas, and not even f the Legislature may grant, amend, or deny a charter, When the p_3op]e adopt a home rule charter, that in- strument becomes the fundamental law of the munici- pality In tho same manner that the Constitution is the fundamental law of tho state. The only lim.iw Cation upon these powers of the horne,rule city is i that the charter may not be in confict with general laws of the state or In contravention of the Consti- tution, Porwood v. City of a lor, 147 'Pox. 101, il4 f ,l y fg ~i ii J 214 S.W.2d 2820 286 (1948); Yellow Cab Transit Co, v. Tuck, 11.5 S,W,2d 455, 457 (Tex.Civ.App. Sallas 1938, writ rof.); Cite of E1 Paso v. Town of Ascarate200 S,W.2d 989, 994 ( .Civ. App. R1 Paso 1074i, writ ref.,); City of fort-Worth Worth Morrison 164 S.W.2d 771 (Tex-~6iv.App, 1942, writ ref,). Limitations placed in the State Constitution are binding upon the Legislature (Williams v. ~McKnight, 402 S,W.2d 605, 608, 'l'ox. Supp . 19b©, and n like manner limitations placed in the charter are bind- f ing on the city council of a home rule city." i i Therefore, the City Charter is the fundamental law of the municipality, and is mandatory, The provisions of the charter deal- a ing with recall petitions state that there ahall be an affidavit of the circulator thereof attached to each paper of the petition, It is clear -that this is a mandatory provision. As was said in McGraw v. Newby, 490 S,W.2d 250, (Boau.Civ,App. 1973) N.W.H. „Thus, in three instances in the same act, the Legislacure has used the word "shall" in speak- ing of the language to be oaed on the ballot and, in our case, such command was not followed. As Justice Nowell observed in State Boerd of Insur- a.nce v. Betts, 168 Tex. 612, 316__.W.2d 279, 281 { (1968), 'FTE_eLegislaturo used the word 'shall' which has a clear mandatory connotation'." A quick perusal of the City Charter cloarly shown that the word "shall" in each provision Is mandatory. In addition, it has been widely held that a clear and unambiguous statute must be enforced according to its wording. Railroad Commission ooP Texas v, Miller, ;.34 B,W.2d 670 (Tex. 1968), gilty of Port Arthur v. Tillman, 398 S.W.2d 750 (Tex. 1965), Brazos River Author_i.t;y v. Cit v o~ Graham, ~ 354 S , S4.2d 99 (Tex, 1901), and Toxas Ili.gy?rcay, Cam? n v, Nl. I'a6o I314g. & Coast, Tr. Coun,, 234 S,W.2d 857 (Tex, 1950). I I to t~ There have been several Texas cases involving elections and particularly affidavits attached to a petition involving an olec Lion where the requirements have been held mandatory, The Supreme Court in Brown v, Walker, 377 S.W.2d. 630 (Tex, 1964) held that the provisions in the Texas Election Code requiring a candidate to pay an assessment of the necessary election expenses within the pre- scribed time in r~der to have his name placed on the ballot werb mandatory, The statute provided that,the requirements could be mot by i placing the payment in the mail by registered or certified letter before the deadline as shown by the ~ y postmark. Before the deadline, Relator Brown placed the payment in the mail and sent it by regular ma~U to the party chairman. It was received after the j deadline anh the Court refused to grant the writ of mandamus to have Brown's name placed on the ballot. E In Ge_. iger v, UeBusk, 634 S,W.2d 437, (Dallas Civ.App, 1876) N.W.H. the Court held that: I the right to the issuance of the writ of man- Lmus depends upon whether the statute requiring an affidavit toobesattached tto - the petition in lieu of the payment of the filing fee is mandatory or directory, We hold that the requirement in mandatory and that having failed to attach an affidavit to the nominating petition, the potential candidate's name cannot be on the official ballot." printed In Ham v, Keor, 664 S.W,2d 406 (Dallas C~v.A pp, 1978) j N.W,fi, the Court denied the writ of mandamus and hold that the i i provisions of the Texas Election Codo pormittine the placement i of a name on a primary ballot through nominating petitions are mandatory. In so denying the writ, the Court said that "since I i° the provisions are mandatory, Brown v. Walker, 377 S.TY.2d 630, 632 (Tex. 1964); CFeiger v. Dei3usk, 534 S.W.2d 4370 438-39 (Tex. Civ.App. Dallas 1976, no writ), Hay's non-compliance justified the Committee's refusal to place his name oil the ballot." Also see MaWaters v. Tucker, 249 S.W.3,d 80 (Galveston Civ.App. 1952) N,V,11, where the Court hold that the requirement that the request f 1 to be placed on the ballot be acknowledged is mandatory. In G,zap v. Vance, 567 S.W.2d 16 (Ft. Worth Ctv,App. 1978) N.W.H. this same j Court of Civil Appeals said: 1 ' "Compliance with such Imust' in Article 13.08(d) (Texas Election Code) has boon hold to be manda- tory. u~I3sk, 534 8,.W.2d 437 (Tex,Civ. ` App.y-Da11976 , no wra,t) ; Brown v. UAIX=, 377 S.W.2d 630 (Tex. 1964). We hold that street 4 addresses, current voter registration numbers and home city addresses are mandatory like filing fees paid with a, check that would be paid in due course, Bryant v. Dallas County Democratic Executive Corn., 451 S.1Y.2d 803 (Tex, Clv.App.•-Dallas 1970, no writ). if street addresses, filing foes paid in due course and an affidavit required by the Texas Vloction Code are mandatory, then j an affidavit required by the (%it',Y Charter in recall elections is mandatory. The Court of Civil Appeals errod in holding that the Charter are directory and not mandatory. / provisions of the City I The committee of petitioners petitioners N,c,ro collecting signatures to bring about an election. A recall election i:j not a constitutional guarantoe. It Is not a regularly scheduled election that occurs f ~ i every year. Certain voquirements havo to be met before such an election can occur, and those requirements are mandatory, This Nonorablo Court states that these rulom are directory rather than ~lo- ~ I i ~ i I _9 rtr YYY y i S mandatory, and "the contrary rule would apply under provisions of the election lairs governing what is required of candidates in elections." The Court then summarily rejects the Geiger V. Denusk, Brown v. Walker., Hays v. Kessler and Gray v. Vance cases. But is there a difference between what is required of candidates in an election attempting to have their name placed on a ballot at an I f election that occurs regularly and what is required of petitioners attempting to bring about an election that is a rarity? I do not I think so, What is the difference botween an elector signing a ! petition so that he can vote for a certain candidate in an election and an elector signing a petition so that he can vote to recall an elected official? Next the Court of Civil Appeals orred in holding that the re- t call petition could be re-tonderod with an affidavit attached. The facts are undisputed that the petition was submitted to the City Secretary, and he received it. It was hold overnight and then re- turned as insufficient because it lacked the required affidavit. 1 Thus, the City Secretary had performed the eat of reviewing the petition within the seven day period and found it insufficient. r Section 4.13(b) of the City Charter statos that once a petition is returned as insufficient, then only a petition on new and different i grounds can be presented, It was improper for the Court to hold that the defect could be cured yi-Ith a retendor of the petition. Inasmuch as the casos to date have never been brought before j the Supreme Court, it appears that this Court should take juris--' diction of this case and stato whother or not those provisions and i -11- a the provisions in the Eloction Code are mandatory or directory. POINT OF ERROR NO. 5 (RESTATED) THE COURT OF CIVIL APPEALS ERRED IN HOLDING THAT THE TRIAL COURT CAN FIX THE DATE AND TIME OF ELECTION BECAUSE (1) THAT WAS NOT RAISED AS A POINT 01' ERROR IN THE CASE BEFORE THE COURT OF CIVIL APPEALS, (2) THE TRIAL COURT'S JUDGMENT SPECIFICALLY DENIED THE REQUEST, (3) CERTAIN EVENTS MUST TAKE PLACE. BEFORE AN ELECTION CAN BE CALLED, AND (4) THE TEXAS ELECTION CODE HAS DESIGNATED CERTAIN DATES UPON WHICH AN ELECTION CAN BE HELD, ARGUMENT AND AUTHORITIES IN V REGARD TO POINT OF ERROR NO. 5 Various steps are required by the City Charter to be performed before a recall election can be hold. The following consists of the chain of events that must occur: 1. Circulating of a recall. petition. Such petition must contain the name of the councilman (or names of the councilman) whose removal is sought, a clear and concise statement of the grounds for his (their) removal, and the names and addresses C of the committee of the petitioners circulating the petition (Sec, 4,12 of the City Charter). 2. Filing of the petition with the City Secretary (Sec. 4,13(a)). 3. Determination by the City Secretary within seven days as to whether the petition Is sufficient. The petition must (a) bear the names of the five electors who constitute the committee of -the petitioners (b) contain the signatures of quali- fied electors of the city oqual. in number to at least 260 of the number of votes cast at the last preceding general municipal election and (e) each paper must contain the required affidavit of the circulator thereof (Soc. 4.13(a)). i 4, Return of the petition to committee of the poti- ti.oners because it is insu,fficiont or 5, Certify its sufficiency to tike City Council. at a the next regular council meeting (Soo, 4.13 (b)). •-12•- I 1 1 N! s" N tl 6, The councilman whose removal is sought has seven days after the certification of the petition to the council to resign (Sec, 4,13(c)), 7, if the councilman does not resign, the council shall order a date for holding the recall elec- tion (Sec, 4,13(c)), The application for writ of Mandamus was filed after Step 4 above was completed i,e, the petition was returned because it was ' determined to be insufficient, Steps 5, 6 and 7 have not occurred, j Therefore, it was improper for the Court of Civil Appeals to order I the Trial Court to set the date and time for the election when (1) 4 f the petition has not been certified to the Council, (2) the council- persono have not been given the opportunity to resign, and (3) the j council has not been given the opportunity to order the election. i The Trial. Court expressly ordered that "it being further argued to the Court by Petitioners that the Court enter its order fixing a i date for holding a recall election, the Court is of the opinion that r such request should be denied inasmuch as proper jurisdiction is lacking and the City Charter requires certain events to take place i ~~--J before an election is so ordered",. This part of the Trial Court's Judgment was not brought before this Court, by point of error, and therefore, it is error for the Court to instruct the Trial. Court to set the date and time for the recall election, j Section 4,13(c) of the City Charter allows the councilman whose i removal is sought to resign within seven days after the petition is j cortified to the council, If tho Trial Court is ordered to set the dn'to and time of the eloction, two important requirements provided I j by the Charter aro eliminat:od, Those stops aro (1) the certification f j i [J 1 to the council of the sufficiency of the ' Secretary 1 by the City of resignation by the recall petition, and (2) the opportunity Actually the certification ccuncilpeTSOns involved in the recall, and this Honorable to the council is what the Trial Court or~nrit}is not a point of ld not alter that especially wh Court shou The Trial Court "ORDERED, ADJUDGED AND DECREED that a Writ / error. HROOKS T~0(,T, CITY SECRETARY of Mandamus is issued hereby directing f j ? E DENTON, TEXAS, to present the 'Recall Petition' and OF THE CITY 0 Council of the City his certificate of its sufficiency to the City of Denton, Texas, at its next regular meeting." the Trial ~ The Court of civil Appeals orred in authorizing Section Court to "set the date and time of the election anew" the Texas Election Code applies to a recall election. The 2.Olb of of interpret + charged with the responsibility I Secretary of States is lies opinion that Section 2.01b app Ing the Election Code. it Is hi.s of ,Section 2.01b provides for to recall elections. Subsection (a) a Subsection (e) says that "when a preexist, uniform election dates. Subs special election be called i Ing law (City Charter) requires that a sp within a specified time period after the occurronce of a certain 1 tification of a recall petition to the council and failure event (aer called for a date auth~ of member to re-sign), the election shall be that falls within that time r y orixed in Subsection (a) of this suction cried that there is no authorized date within the period that i pori°d; or if comply with other requirements of law, allows sufficient time to h r election shall be called for tile first authorGaiZvda~or after other i n except that the election shall be expiratio ~ -1d- i I W_.. l L. i~ A ~Ftil-ti tr~Bjyj{[ i7 date withl.n the time Period whom the conutitution requires i,." Therefore, the recall election would have to be on one of the dates set out in Subsection (a). CONCLUSION In summary„ the construction placed by the Trial Court and Court of Civil Appeals upon the City Charter and holding; that the f provisions were directory rather than mandatory was error and with- of the State of Texas, The finding of the out support in the law I f City Secretary that the recall petition was insu:t'ficlent should be I I upheld and the writ of mandamus should have been denied. i Furthermore, that portion of the Court of Civil Appeal's doci- lion directing the Trial Court to set the date and time of the re- call election 9.s improper and should be struck from the opinion. f , f PRAYRR t Petitioner prays that this Court accept this Application for I ~ }grit of Error, and that after full and final hearing and conside- ration hereof, this 1.,ourt enter its opinion reversing the judRrnent and opinion of the Court of Civil Appeals and tho Trial Court, and that the writ of mandamus be denied. In the altornative, petitioner prays that judgment of the f Court of Civil Appeals be modified so as to strike that portion of the judgment that directs the Trial Court; to sot the date and time of the recall election, 4 I III Y}gyp, Ifif a date within the time period whore the constitution requires it," Therefore, the recall election would have to be on one of the dates set out in Subsection (a), CONCLUSION In sums-ary, the construction placed by the Trial Court and Court of Civil Appeals upon the City Charter and holding that the provisions were directory rather than mandatory was error and with- out support in the law of the Stato of Texas. The finding of the I I City Secretary that the recall, petition was insufficient should be upheld and the writ of mandamus should have been denied, Furthermore, that portion of the Court of Civil Appeal's deel. i sion directing the Trial Court to set the date and time of the re- call election is improper and should be struck from the opinion, PRAYER j i Petitioner prays that this Court accept this Application for Writ of Error, and that after full and final hearing and consido- I ration hereof, this Court enter it; opinion :reversing the judgment I and opinion of the Court of Civil Appeals and the Trial Court;, and that the writ of mandamus be denied, In the alternative, Potitionor prays that ;Judgment of the Court of Civil Appeals be modified so as to striko that portion of the Judgment that directs the 't'rial Court to sot the date and time of the recall election, I 1 I i I V er.H l j~ 4 Respectfully submitted, PAUL G TSH I CXTY ATTORNEY CXTY OF AENTON 215 EAST MCKXNNEY DENTON, TEXAS 76201 ATTORNEY FOR APPELLANT 1 1 i j { CERTIFICATE OF SERVICE X hereby certify that a true copy of the above and foregoing Application for Writ of Error has been mailed to William E. Trantham, ~ 1005C University Drive, P. 0. Box 395, Denton, Texas 76201, Attorney 1 for Respondents, by placing the same in the United States Mail, Lost- age Prepaid, on the day of February, A, D. 1979. 1 PAUL C. XcHAM I -16~