In Re Donald Ray LEE, Latricia Doyal, Paulette Savage and Jonathan Chase
412 S.W.3d 23
| Tex. App. | 2013Background
- Relators seek mandamus to compel Brady City to recall its Mayor Gail Lohn under Brady Home Rule Charter art. VIII, §8.08 and §8.01.
- Recall petition filed Jan 25, 2018; City Secretary issued a certification of insufficiency Jan 31, 2013, after reviewing the affidavit and petition.
- Petition required signatures equal to 20% of last municipal election or 250, whichever greater; petition must specify reasons for removal and be addressed to Council.
- City Secretary’s duty to certify sufficiency is at issue; petition signatures were correct, but sufficiency of the factual allegations is contested.
- Council refused to order a recall election following certification; Relators seek ministerial mandamus directing certification as sufficient and election.
- Court holds City Secretary and Council have ministerial duties to certify sufficiency and order an election, absent an express discretionary provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City Secretary must certify as sufficient when signatures are correct | Relators rely on ministerial duty to certify sufficiency | Secretary may review allegations for sufficiency and discretion to deny | Secretary has no discretion to review sufficiency beyond signatures; mandamus granted |
| Whether the City Council must order an election if the recalled official does not resign | Council is required to order an election upon insufficiency resolutioned | Council may exercise discretion on timing and validity of recall due to discretionary review | Council must order a recall election if petition is certified sufficient; mandamus directs election |
Key Cases Cited
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus for ministerial act)
- Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) (ministerial duty requires clear, specific duties)
- Blanchard v. Fulbright, 633 S.W.2d 617 (Tex.App.-Houston [14th Dist.] 1982) (no authority to determine sufficiency of recall petitions absent charter provision)
- Burns v. Kelly, 658 S.W.2d 731 (Tex.App.-Fort Worth 1983) (due process and lack of judicial sufficiency review for recall petitions)
- In re Carla Lee Suson, 120 S.W.3d 477 (Tex.App.-Corpus Christi 2003) (no inferred right or duty to examine sufficiency of recall petitions)