6/1/2018 1:17 PM

Velva L. Price
District Clerk
Travis County
D-1-GN-18-002688
Carrisa Escalante
No. D-1-GN-18-002688
____________

e
ic
Pr
NELSON LINDER, SUSANA ALMANZA,

L.
IN THE 201ST
_______DISTRICT COURT
JANE RIVERA, PH.D, GILBERT RIVERA,

a
lv
MICHAEL HEBERT, JEFF JACK, MARY INGLE,

Ve
D. LAUREN ROSS, PH.D., RELATORS.

k
er
V.

Cl
THE CITY OF AUSTIN; THE CITY COUNCIL
OF AUSTIN; THE HONORABLE AUSTIN MAYOR ct
tri
STEVE ADLER, IN HIS OFFICIAL CAPACITY;
is

THE HONORABLE AUSTIN CITY COUNCIL

.D

MEMBERS HOUSTON, GARZA, RENTERIA,

Co

CASAR, KITCHEN, FLANNIGAN, POOL, OF TRAVIS COUNTY

TROXCLAIR, POOL, TOVO, AND ALTER,
is

INDIVIDUALLY IN THEIR OFFICIAL CAPACITIES;

av

AND THE HONORABLE AUSTIN CITY MANAGER,

Tr

SPENCER CRONK, IN HIS OFFICIAL CAPACITY,

y

RESPONDENTS
op
lc

RELATORS’ ORIGINAL VERIFIED PETITION FOR WRIT OF MANDAMUS

ia
fic

TO THE HONORABLE COURT:

of

Relators, Nelson Linder, Susana Almanza, J a n e R i v e r a , P h D . , G i l b e r t R i v e r a , P.

Un

Michael Hebert, Jeff Jack, Mary Ingle, and D. Lauren Ross, Ph.D., file this Original
Verified Petition for Writ of Mandamus against Respondents the City of Austin; the City
Council of Austin; the Honorable Mayor of Austin, Steve Adler, in his official
capacity; the Honorable City of Austin Council members Houston,
 Garza, Renteria, Casar, Kitchen, Flannigan, Pool, Troxclair, Tovo, and Alter, individually in
their official capacities; and the Honorable City Manager of Austin, Spencer Cronk, in his

e
official capacity (hereafter “Respondents” or “City Council”), and respectfully would show:

ic
I.

Pr
Relators seek an expedited hearing and a writ of mandamus against Respondents. Relators

L.
request that the District Court order Respondents to timely perform their ministerial duty to place
the CodeNEXT Waiting Period and Election Petition Initiative (hereafter “petition initiative” or

a
lv
“petition”) on the next available city election ballot, November 6, 2018, as required by law.

Ve
There is no adequate remedy at law.
II.

k
The issue is this case is a matter of law. No discovery is needed; no facts are in dispute. Should

er
there be any discovery, it would be conducted under level one pursuant to Texas Civil Procedure

Cl
Rule 190.2.
III.
ct
tri
Relators all have standing, in that they are: residents of the City of Austin, Travis County, Texas;
is

registered voters in the City of Austin; and signers of the petition initiative. Blum v. Lanier, 997
.D

SW2d 259 (Tex. 1999). Respondent City of Austin is a home-rule city located primarily in
Travis County, Texas. Respondent City Council of Austin, and Respondents the Mayor, each
Co

individual Council member and the City Manager, in their individual official capacities, have
ministerial duties to ensure that the petition initiative is placed timely on the November 6, 2018
is

ballot. The City Attorney of Austin has agreed to and has accepted service for all Respondents.
av
Tr

IV.
y

In our democracy, “all political power is inherent in the people.” Texas Constitution Article I,
op

Section 2. The City of Austin is a home-rule city chartered under Article XI, Section 5 of the
lc

Texas Constitution. This Constitutional Amendment grants the City of Austin full power of self-
government. In the City of Austin’s Charter, the people have reserved full legislative power to
ia

legislate directly by initiative and referendum except for the subjects of appropriating money or
fic

levying taxes:
of

The people of the city reserve the power of direct legislation by initiative, and in
Un

the exercise of such power may propose any ordinance, not in conflict with this
Charter, the state constitution, or the state laws except an ordinance
appropriating money or authorizing the levy of taxes. Any initiated ordinance
2
 may be submitted to the council by a petition signed by qualified voters of the
city equal in number to the number of signatures required by state law to initiate

e
an amendment to this Charter.

ic
Austin City Charter, Article IV, Section 1. Because of the separation of powers doctrine, Texas

Pr
Courts generally do not allow city councils to interfere in the initiative lawmaking process,

L.
which is the people’s exercise of direct democracy where their elected officials have failed to act.

a
lv
Mandamus will lie against city councils to compel them to perform their ministerial duty to place

Ve
initiatives on the ballot. In the leading case of Coulson v City Council of Victoria, 610 S.W. 2d
744, 747 (Tex. 1980), the Texas Supreme Court unanimously mandamused the City Council of

k
Victoria, holding that it had a ministerial duty to place an initiative on the ballot. “The City

er
Council's duty is clear, and its compliance with the law is ministerial in nature. The City

Cl
Council's refusal to submit the proposed amendments to the vote of the people thwarts not only

ct
the legislature's mandate but the will of the public.” Id. Recently, the Texas Supreme Court
tri
unanimously reiterated this holding in In Re Woodfill, 470 S.W.3d 473 (Tex. 2015),
is

mandamusing the Houston City Council to place a certified petition initiative on the ballot.
.D

V.
Co

In the fall of 2017, Austinites began circulating the CodeNEXT Waiting Period and Election
petition initiative. This proposed ordinance calls for a vote of the Austin electorate on whether
is

they support a waiting period and election before CodeNEXT (or other comprehensive rewrite of
av

the City’s land development code) becomes effective. The proposed waiting period would allow
Tr

voters a reasonable time to educate themselves on any CodeNEXT ordinance passed by the
y

Council as well as an opportunity to vote on the City Council members that approved
op

CodeNEXT. The proposed ordinance then would allow Austinites to vote on CodeNext itself
lc

before it takes effect. The proposal also provides that, in the event Austin voters do not ratify the
Council-approved CodeNext ordinance, that the City’s land development code provisions
ia

previously in place would remain in effect or be readopted. The proposal ordinance contains a
fic

severability clause. A copy of the petition initiative as circulated by petitioners is attached as

of

Exhibit A.
Un

CodeNEXT is the City of Austin’s process to draft a comprehensive revision to its land
development code. The City staff released the latest draft, CodeNEXT Draft 3, in February 2018.
3
 CodeNEXT Draft 3 would replace the City’s land development code text in its entirety. Draft 3
covers a broad range of subjects, including, but not limited to: environmental regulations (such

e
as watershed and water quality regulations, tree protections, and landscaping requirements);

ic
stormwater management and floodplain regulations; subdivision standards; billboard and sign

Pr
regulations; construction standards; permitting requirements; resident input opportunities and

L.
appeal rights; parkland dedication and open space requirements; affordable housing incentive
programs; and land use and development standards. At least twelve of the current draft’s thirteen

a
lv
chapters, and over 800 pages, do not involve zoning in any way.

Ve
After months of petitioning, Austinites submitted 31,062 signed petitions to Austin’s City Clerk

k
on March 29, 2018. The City Charter requires twenty thousand valid signatures of Austin

er
registered voters to place an initiative on the ballot. Austin City Charter, Article IV, Section 1;

Cl
Tex. Local Gov. Code Section 9.004 (a). On April 23, 2018, the City Clerk certified that the

ct
petition initiative had submitted 25,790 valid signatures.
tri
is

The City Clerk’s certification triggered a ministerial duty on the City Council to take one of two
.D

steps: either adopt as law the petition initiative as written within 10 days or place the petition on
the ballot for the next allowable election. Austin City Charter, Article IV, Section 4. Relators
Co

demanded that the City Council perform their ministerial duty. The Council, however, officially
refused to take either step. On April 26, 2018, the City Council voted six-to-four against
is

adopting the petition initiative as written. On May 24, 2018, the City Council, on a six-to-four
av

vote, decided against placing the petition initiative on the November 6, 2018 ballot. Relators
Tr

promptly filed this action seeking mandamus from the District Court to require the City Council
y

to perform its ministerial duty to place the petition initiative on the November 6, 2018 ballot.
op
lc

VI.
WHEREFORE, the Relators request that Respondents, appear and answer, that an expedited
ia

hearing be granted, and that a mandamus lie against Respondents to timely place the certified
fic

CodeNEXT Waiting Period and Election Petition Initiative on the November 6, 2018 election
of

ballot, and for such other and further relief, at law or in equity, to which Relators are justly
Un

entitled.

4
 Respectfully submitted,

/s/________________________________________

e
ic
Fred I. Lewis

Pr
Tex. Bar No 12277075
Law Office of Fred I. Lewis

L.
309 East 11th St., Suite 2

a
Austin Texas 78701

lv
512-636-1389

Ve
f_lewis@sbcglobal.net

k
er
William Bunch
Tx. Bar No. 03342520

Cl
Save Our Springs Alliance
905A West Oltorf
ct
tri
Austin, Texas 78704
is

512-477-2320, ext. 302

.D

512-477-6410 fax
bill@sosalliance.org
Co

ATTORNEYS FOR RELATORS

is
av
Tr
y
op
lc
ia
fic
of
Un

5
 VERIFICATION

I, Fred I. Lewis, an adult resident of Austin, Travis County, Texas, have personal knowledge of the

e
facts contained above in this petition, and I swear and affirm that all such facts are true and correct to

ic
the best of my knowledge.

Pr
__________________________________

L.
Fred I. Lewis, Affiant

a
lv
Ve
Subscribed and Sworn to before me by Fred I. Lewis, on this__ day of June 2018, to certify which
witness my hand and seal of office.

k
er
__________________________________

Cl
Notary Public in and for the State of Texas

ct
tri
is
.D
Co
is
av
Tr
y
op
lc
ia
fic
of
Un

6
 PETITION FOR AN AUSTIN ORDINANCE REQUIRING BOTH AWAITING PERIOD AND VOTER APPROVAL BEFORE CODENEXT OR
COMPREHENSIVE LAND DEVELOPMENT REVISIONS BECOME EFFECTIVE

c e
ri
We, the undersigned registered voters of the City of Austin, support a proposed ordinance requiring that there shall be BOTH a waiting period and voter approval by election before CodeNEXT (or any
subsequent comprehensive revisions of the City’s land development laws) is legally effective. No land entitlements shall be granted or vested under the proposed comprehensive revisions until both
requirements are met. Therefore, we, the undersigned, propose this ordinance be placed on the next available municipal election for a vote of the citizens of Austin: P
I. Required Waiting Period and Voter Referendum for Comprehensive Revisions of the City’s Land Development Laws. L .
a
A. Waiting Period. CodeNEXT, or subsequent comprehensive revisions of the land development laws, shall not go into effect legally, or any land entitlements be granted or vested under these laws, until
v
l
the June 1st following the next regularly scheduled council elections after Council adopts CodeNEXT or the comprehensive revisions. This waiting period is to ensure voters can learn about the proposed

Ve
comprehensive revisions and elect council members with sufficient time to amend or reject the prior council’s adopted comprehensive revisions before these laws may go into effect.
B. Voter Approval. After the waiting period in Subsection (A), CodeNEXT, or subsequent comprehensive revisions of the land development laws, shall not go into effect, or any land entitlements be granted

r k
or vested under these laws, until the registered voters of Austin approve these laws at the next available municipal election. Voters shall approve or disapprove CodeNEXT, or subsequent comprehensive
revisions, in its entirety and not piecemeal. Should the voters fail to approve the comprehensive revisions, then the existing land development laws remain in effect. Notwithstanding any other provision,

l e
under no circumstances, shall the voters’ rejection of CodeNEXT or proposed comprehensive revisions under this Section be considered or interpreted as repealing the existing land development code.
C. This section overrides all city charter provisions, ordinances, and laws and should be liberally construed to uphold Austin citizens’ sovereign rights to control their government and laws.

t C
D. Severability Clause. If any provision of this ordinance or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act that can be

r i c
given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.

s t
If you circulated this petition beyond your household, please print your name here: _
D i
ONLY REGISTERED VOTERS INTHE CITYOF AUSTIN MAY SIGN THIS PETITION. Please fill in ALL blanks that are NOT optional.
and your phone number here: ___________________________ . Thank you!

o .
DATE NAME (please print clearly) C COUNTY D.O.B. or VOTER EMAIL (optional)
SIGNED ---------------------------------------------------
SIGNATURE i s
STREET ADDRESS
(check one) REGISTRATION ------------------------------------------------

Print name below:

a v
Street no. and name:
PHONE (optional)

Tr
/ /19
/ --------------------------------------------------- Travis
OR -------------------------------------------------
Sign name below: Austin TX

py
2017 Williamson
Zip code: Voter no.

co
Print name below: Street no. and name: / /19
/ --------------------------------------------------- Travis
-------------------------------------------------
al
OR
Sign name below: Austin TX Williamson
2017

ci
Zip code: Voter no.

ffi
Print name below: Street no. and name: / /19
/ --------------------------------------------------- Travis
OR -------------------------------------------------
2017
n o
Sign name below: Austin TX
Zip code:
Williamson
Voter no.

U
QUESTIONS? Contact Let US Vote Austin SPAC at Please print out, fill out all fields that are not optional, and mail to the following address ASAP:
letusvoteaustinspac@gmail.com Let Us Vote Austin SPAC, 309 East 11th, Suite 2,
Austin Tx 787018704
This is paid. pol. adv. by Let Us Vote Austin SPAC
Un
of
fic
ia
lc
op
y
Tr
av
is
Co
.D
is
tri
ct
Cl
er
k
Ve
lv
a
L.
Pr
ic
e