In Re Jones
2011 Tex. App. LEXIS 1338
| Tex. App. | 2011Background
- Jones and Campbell petition for writ of mandamus to force recall elections of three Cleveland Council Members under city home-rule charter.
- Petitions certified sufficient by City Secretary on Jan 6, 2011; recall elections must be ordered within 45 days under Charter §9.08.
- Council failed to call or approve ordinances for recall elections by Feb 8, 2011.
- Issue involves whether City Secretary’s designation as Interim City Manager voids certifications or City Council duties.
- Charter permits recall petitions with 25% of votes or 250 signatures, whichever is greater; recall affects eligibility for two-year post-recall period.
- Court grants petition and directs recall elections to be ordered and filed with court clerk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the recall elections must be ordered under the Charter once petitions are certified | Jones/ Campbell: mandatory duty to order elections | City: discretionary or blocked by other issues | Yes; mandatory duty to order elections within 45 days |
| Effect of McDonald’s Interim City Manager status on City Secretary’s certifications | Certifications valid despite interim designation | City Secretary vacancy/void certifications | Certifications valid; acts not voided by interim appointment |
| Whether dual-office holding or public-officer status blocks mandamus relief | Offices of City Secretary and Interim City Manager not dual offices | Statutory prohibition applies | Not dispositive; mandamus proper to compel recalls |
| Whether writ is appropriate given potential mootness or further actions beyond recall | Recall would affect McIntyre’s eligibility for future offices | Relief moot if recall cannot be completed | Not moot; recall orders valid and enforceable |
Key Cases Cited
- Duffy v. Branch, 828 S.W.2d 211 (Tex.App.-Dallas 1992) (mandamus to compel recall actions; ministerial duty of council)
- In re Porter, 126 S.W.3d 708 (Tex.App.-Dallas 2004) (city council must act when certificate of sufficiency is presented)
- Dow Chem. Co. v. Garcia, 909 S.W.2d 503 (Tex. 1995) (writ of mandamus for ministerial act)
- Rivera v. City of Laredo, 948 S.W.2d 787 (Tex.App.-San Antonio 1997) (public policy validates acts of de facto officer)
- Brinkerhoff (State ex rel. Kingsbury v. Brinkerhoff), 17 S.W. 109 (1886) (resignation by accepting incompatible office; effect on office)
- In Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955) (definition of public officer; dual office holding)