The Power of Petition
The Right to Petition
TEXAS LOCAL GOVERNMENT CODE 9.004 -
Code 9.004 puts the government back where it belongs ...
With the PEOPLE.
The state of Texas does not provide petition rights of Initiative, Referendum or Recall at the state level like many other states offer. Since County law is under state law, there are not petition rights at the County level either. Only municipalities that have 5,000 population or more which are entitled to establish Home Rule Charters can place in their charters the right of petition.
HOW TO CONDUCT A TEXAS LOCAL GOVERNMENT CODE 9.004 PETITION
Note: The following is not intended to provide legal advise and does not warrant the accuracy of this information since laws change periodically. Seek qualitied legal counsel.
1. Approach the City Council with information regarding the ideas or concerns you have and give the City Council the opportunity to provide the change you requested to an ordinance or stop an action that gives the citizens concern.
2. Find out if your city has a City Charter. Visit your City website and look for City Charter or visit these sites that has numerous City Charters: http://www.franklinlegal.net/codes.html or http://www.municode.com/Library/TX.
In the intro area of the City Charter, it should state if it is a Home Rule Charter. If so find out when your City Charter is eligible for amending, as Charter Amendments can only occur every 2 years. Call the City and find out how to submit a Freedom Of Information Act (FOIA) request. Try to do all communications through email so you have date and time stamp of requests.
Note: If your City Charter contains language pertaining to Charter Amendments that was adopted prior September 1985, then the City Charter guidelines should be followed pertaining to percentage of signatures and timeliness of submission. If the City Charter does not contain Charter Amendment language or was adopted after September 1985, then the you can choose to either follow the City Charter Guidelines or the State Texas Local Government Code 9.004 guidelines. Texas state guidelines allow for 6 months to acquire signatures, time frame for certificate of signatures may be dependent upon the City Charter guidelines. The Texas Ethics Commission can be helpful to call with your individual questions. If you can receive information in writing from the Ethics Commission, this ruling should supersede local attorney opinion.
It is very important to follow up with email any conversation you have with the City Secretary or City representative to provide clear communication and date and time stamp of statements.
3. Find out how many registered voters there are in your City by going to the County Elections Department – 9.004 requires 5% or 20,000 signatures whichever is less for an amendment to go before the voters. (20,000 is only 100 locations getting 200 signatures - not hard). Determine number of registered signatures needed – need a minimum of an extra 10 % to 15 % of the required numbers to allow for signatures being thrown out due to not being able can’t read name or address or date of birth that doesn’t match registered voter’s list or people don’t know they’re not registered voters in the City.
It is helpful to get spreadsheet list of registered City Voters from Voters Registrar's office ($19) – if possible, and self screen signatures before submission to the City Secretary.
4. Find people of like mind regarding the petition you are submitting - Initiative - "New Idea" , Referendum-"Reform an ordinance", or Recall of an elected official. Many issues are very bi-partisan efforts. Need to form a General Political Action Committee (PAC) if spending over $500 on multiple political issues which requires a filing with State of Texas Ethics Commission. If spending over $500 on a single special issue, filing is done at the City Hall or the School District or County Clerk depending on issue. There is no charge for forming a PAC but there are reporting requirements.
5. Get familiar with your City Charter. Find out who your Charter Review Commission Members are. Talk to them about your concerns.
If your Charter doesn’t have recall options – put one in with an Initiative petition. Don’t like how they handle Citizen’s Comments? Change it in the Charter. If you don't want fluoride in your water, do a 9.004 Referendum to prohibit the City rom renewing the fluoride contact when it expires.
The issue comes before the voters on the next eligible voting date of May or November.
6. The petition has to go before the City Council and must be submitted by August to be in on the November ballot or by March for a May ballot. Need to check to see the date that the Council plans on calling for the election. The. earlier the better to have a full month prior to the deadline to allow for any legal processes that may be necessary
7. Each subject requires a separate petition and signatures. Here is a petition blank sample. 9.004 Petition Blank This is only an example and no legal claims or warranties are applied to this document. Your Charter should be reviewed to determine section and subsection where the new amendment would apply.
8. Petitions must provide printed name, signature, address, date of birth, voter ID and date of signature and must state the wording for the amendment. Confirm the above requirements with the City Secretary prior to starting the petition.
i. If a person has power of attorney on spouse – they cannot sign a petition – they will throw it out.
ii. If a person is disabled for signature their “X” is valid.
iii. The only original signature needed on a petition is the signature of the signer so the petitioners should neatly print t
the signers name, address and date of birth. Either the date of birth or the Voter ID is needed and date of signing.
9. Petitioners need to have bullet points of talking points on what the petition is for – short and simple.
10. Establish location where people sign – and get signage setup.
11. Put articles in newspaper, Facebook, radio etc.
12. Get signed date and time receipt from City for submission of petitions. Provide a cover letter stating how many pages of petition pages and estimate of self-verified signatures. Schedule with local media to cover the submission of the petition with photos, write-ups etc.
CAUTION: When doing a 9.004 petition to change a City Charter, you will be engaging in a political battle with the City who has inhouse legal council, unlimited taxpayer funded resources to pay legal fees and enormous publicity advantage over your campaign with news media interviews, fliers in utility bills, City websites etc. Also Cities have been known to sue petitioners.
It is not uncommon for cities to try to deny the petitioners petition blocking it from going on a ballot. Below are court cases upholding the right of petition.
TEXAS STATE CASES RELATED TO REQUIRED PLACEMENT OF ON CITY ELECTION BALLOTS (RECALL OR TEXAS LOCAL GOVERNMENT CODE 9.004)
Note: The following is not intended to provide legal advise.
Texas Local Government Code §9.004 grants the qualified voters of a municipality the right to petition their governing body to amend its charter and creates a ministerial duty for the City Council “to approve the ordinance ordering the election to be held on the first authorized uniform election date prescribed by the Election Code to place the charter amendment proposal on the ballot.” Blum v. Lanier, 997 S.W2d 259,262 (Tex. 1999); Brown v. Blum, 9 SW.3d840,847 (Tex.App.-Houston [14th Dist.] 1999, pet.dismd’d *418 w.o.j.). “When the requisite number of qualified citizens sign such a petition, the municipal authority must put the measure to a popular vote.” Blum, 997 S.W.2d at 262.
In re Roof 130 S.W.3d 414 (Tex. App. 2004), the city secretary refused to certify a proposed city charter amendment and call an election. The city secretary did not contest the number of qualified signatures on the petition, but replied that she could not certify the petition because, in her estimation, the proposed charter amendment conflict with the city charter, general state law, and the Texas Constitution. “Based on the plain language of section 9.004, and the authorities cited herein, we conclude that when a petition for a proposed charter amendment is presented, the city Secretary has a ministerial duty to verify that a sufficient number of qualified voters signed the petition, and the ‘governing body shall submit a proposed charter amendment to the voters for the approval at an election.’ ” See Texas Local Government Code §9.004. “It was improper for the City Secretary to refuse to certify the petition based on her belief that the proposed charter amendment conflicts with the charter, general state law, the Texas Constitution. Section 9.004 does not give a public office or such other person performing this ministerial duty imposed in connection with the holding of an election, the discretion of determining whether a proposed amendment violates a city charter, the laws of Texas, or the Texas Constitution. Such question concerning the validity of proposed charter amendments are properly litigated later. See Green, 627 S.W.2d at 872. An election will determine whether a justiciable issue exists, at which time the City’s Secretary’s complaints against the validity of the initiatory process under section 9.004 may be determined by litigation. See Coalson, 710 S.W.2d at 747; Green 627 S. W. at 872.
MINISTERIAL DUTY OF CITY COUNCIL
The city secretary’s arguments are not unique or novel. In Coalson v. City Council of Victoria, the Relators (petitioners) sought a writ of mandamus to order the Victoria City council to submit a proposed charter amendment to the public for a vote. 610 S. W. 2d 744,745 (Tex 1980). The Texas Supreme Court noted that the Relators complied with article 1170,3 the predecessor of section 9.004 of the Local Government Code. The Coalson Court held that, “the city council’s duty is clear, and its compliance with the law is ministerial in nature.”
Texas courts have long looked askance at efforts by local governing bodies to thwart local citizen efforts to obtain a vote on important local matters. In Coalson v City Council of Victoria, 610 S.W. 2d 744(Tex 1980), the Court issued an emergency writ of mandamus to compel a city council to allow a proposed charter amendment to be placed on the ballot for public vote. The Court determined that, to act otherwise would be to allow the city council’s refusal to submit the proposed amendments to the vote of the people “thwarts…the will of the people.” Id. At 747.
A city council’s duty to order a special election when state code specifically direct that one be called is mandatory; it is a purely ministerial duty. Duffy v. Branch, supra, 828 S.W .2d at 212-13, citing Blanchard v. Fullbright, 633 S. W .2d 717,619 (Tex.App.-Houston [14th Dist] 1982, orig proceeding) (per curiam), and Howard v. Clack, 589 S.W .2d 748,752 (Tex.Civ.App.-Dallas
JUDICIAL REVIEW OF PETITIONS – RESERVED TO THE PEOPLE NOT TO CITY ATTORNEY OR CITY SECRETARY
State law is unwavering that the city attorney has no authority to adjudge the legal sufficiency of the validity of the proposed charter amendment nor cause for recall nor validity of referendum or initiative. Texas law does not authorize the city attorney and city council to arrogate such judicial review powers to themselves. The Blanchard v. Fulbright decision is a good place to start to see why this is so.
The court in Blanchard was presented with similar situation where local citizens submitted an otherwise valid petition for recall, but the city council refused to order the recall election as dictated by city charter. The Blanchard court held that the city officials do not have the right of judicial review, whether performed by the city attorney or by the council itself. Id. The court found in the charter nothing giving any city official “the right to judge the validity of petitions.” Id. Relying on the analysis of another court which had found such actions illegal and a violation of the council’s ministerial duties –Howard v. Clack, supra.
In Blanchard, 633 S. W.2d at 622-623, the court explained, the city council could hardly be impartial body and that the truth of falsity of the petition allegations was “a matter for the people to determine in an election.” This, of course, is consistent with the general principal in election law that those in charge of initiating elections “have no authority to inquire into facts dehors the record.” Garcia v. Carpenter, 525 S. W.2d 160, 161 (Tex.1975) citing Weatherly v. Fulgham, 153 Tex. 481, 271 S. W. 2d 938 (1954).
In re Roof 130 S.W.3d 414 (Tex. App. 2004), “The Coalson court concluded that the declaratory judgment action sought only an advisory opinion because an election on the petition could result in its disapproval. Thus, our high court held, “[t]he election will determine whether there is a justiciable issue, at which time the respondents’ complaints against the validity of the initiatory process under article 1170 may be determined by trial court.” Id. The Coalson court also held that “[t]he City Council’s duty is clear, and its compliance with the law is ministerial in nature. The City Council’s refusal to submit the proposed amendments to the vote of the people thwarts not only the legislature’s mandate but the will of the public.” Id. 3.
In re Roof 130 S.W.3d 414 (Tex. App. 2004), “Moreover, in Green v. City of Lubbock, the Amarillo Court of Appeals considered when a party’s complaints about a charter amendment should be litigated.4 627 X.W.2d 868, 870 n.2 (Tex.App.-Amarillo 1981, writ ref’d n.r.e.). Relying on the Texas Supreme Court’s opinion in Coalson, the Green court concluded that “when article 1170 is satisfied, the election is held first and questions concerning the amendments are litigated later.” 5 Id. At 872.
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