Lago in The Morning...30 March

posted by Bryan Quitania -

County Commissioner Mike Pusley is in the box 7 am.Judge Neal gave the State of The County Address and he talked about 10 years of progress. You may take issue with some of the successes, however the judge did what he usually does. Clearly and succinctly laid out the program in a slide show and he highlighted the costs and impact of a number of big projects going back to 2007. With Richard M. Borchard Regional Fairgrounds, home of the Nueces County Junior Livestock Show that was completed in 2007 for a total of $28 million in certificates of obligation, and ended with the most recent project, the Outlets at Corpus Christi Bay. More on that just after 7...........

The Court decides, he is eligible..... Mark Scott and his supporters are happy this morning, Mr. Scott will be in the box just after 8 am.NUMBER 13-17-00148-CVCOURT OF APPEALSTHIRTEENTH DISTRICT OF TEXASCORPUS CHRISTI - EDINBURGIN RE MARK SCOTTOn Petition for Writ of Mandamus.MEMORANDUM OPINIONBefore Justices Contreras, Benavides, and LongoriaMemorandum Opinion by Justice Tana BenavidesPages 11 through 16.....IV. ANALYSIS Scott contends that Huerta has a duty to place his name on the May 2017 ballot for the office of mayor because he is eligible as a matter of law to serve in that position. Scott argues that this case is governed by “plain language, plain math.” Scott asserts that there is no dispute that he has served three “two-year” terms and one shortened term of eighteen months as a member of the city council. Scott contends that an eighteen-month term does not constitute a “two-year term” as specified in the term limits provision of the City Charter. See CORPUS CHRISTI, TEX., CITY CHARTER, art. II, § 1(d). In support of this argument, Scott asserts that the Charter amendments to subsections (b) and (d) of Section 1 in Article II of the Charter were made contemporaneously, so these provisions should be construed together. See id. § 1(b),(d). He contends that if the term limitation in subsection (d) were to apply to all “terms,” no matter the specified term length, then the “two-year” modifier in subsection (d) is meaningless. He further asserts that this interpretation runs contrary to the rule of statutory construction that disfavors surplusage. See, e.g., TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). Huerta asserts that she has no duty to place Scott’s name on the ballot because he has reached his term limit and he is ineligible to serve until three consecutive terms of office for the council have expired. Huerta argues that the record conclusively establishes Scott’s ineligibility because he has held four consecutive terms as a city council member. Huerta contends that we should construe the City Charter as a whole and not by isolated provisions, and that the language regarding “two-year terms” found in Section 1(d) is redefined and expanded by Section 1(b). According to Huerta, Section 1(b) “establish[es] a single, transitional term of office beginning in May 2011 and ending in November 2012 to adjust the terms of office to meet the state election law requirements.” See TEX. ELEC. CODE ANN. § 41.052(b) (West, Westlaw through 2015 R.S.). Huerta contends that Sections 1(b) and 1(d) of the City Charter are of “equal dignity” and “each must be given effect as a legislative act of the voters of the City of Corpus Christi.” In other words, Huerta argues that the 2010 amendments to the City Charter established two “new” types of terms of office—the new uniform term beginning in November 2012 and a “single transitional term of office” from May 2011 to November 2012. Huerta contends that Scott’s interpretation would “render meaningless the clear intent to impose term limits of four consecutive terms.” In a separate argument, Huerta further contends that changes to the Texas Election Code control over any inconsistent City Charter provisions. Huerta argues that the City was required to change its election date to a uniform November date to comply with a general statewide mandate, and that it had the duty to adjust the terms of office to conform to the new election date. See TEX. CONST. art. XI, § 5 (providing that “no charter . . . shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State”).1 Huerta thus argues that “[u]pon the voters’ approval of a charter amendment to change the election date, the City Council was authorized to enforce the terms of office of its members, including a discretion to 1 The Texas Election Code requires elections to be held on uniform election dates. See TEX. ELEC. CODE ANN. §§ 41.001(a) (West, Westlaw through 2015 R.S.). The Code allows the governing body of a political subdivision, other than a county or municipal utility district, which holds its general election for officers on a date other than the November uniform election date, to change the date on which it holds its general election for officers to the November uniform election date. The Code further provides that a governing body changing an election date under this section “shall” adjust the terms of office to conform to the new election date. See generally id. § 41.0052 (West, Westlaw through 2015 R.S.). declare ineligible any council member who had served as a council member more than four terms of office as redefined by the 2010 amendment to Article II, Section 1(b).” We conclude that this case is controlled by the plain language of Article II, Section 1, subsection (d) of the City Charter, which provides that “[n]o person shall serve more than four two-year terms consecutively as council member, or four two-year terms consecutively as mayor, or six two-year terms consecutively in any combination of such offices.” All parties agree that one of Scott’s terms of office as a city council member was truncated from two years to eighteen months when the City Charter was amended to provide uniform election dates in accordance with the provisions of the Texas Election Code. There is no factual dispute regarding the fact that Scott served four terms as a member of the city council, or that three of these terms were “two-year terms” and one term comprised a period of eighteen months. Thus, Scott’s terms of office encompassed a total period of seven and one half years. The express statutory language of the City Charter provision governing the term limits for council members and the mayor refers to “two-year terms.” See Houston Belt & Terminal Ry. Co., 487 S.W.3d at 164. Specifically, the City Charter states that “[n]o person shall serve more than four two-year terms consecutively as a council member, or four two-year terms consecutively as mayor, or six two-year terms consecutively in any combination of such offices.” This language is not ambiguous. Accordingly, while the City Council’s interpretation of the City Charter is entitled to due consideration,2 such 2 In this regard, we note that the City Council’s Resolution No. 031000 declared that it was the belief of the City Council that the intent of the 2010 Charter amendments was to count the shortened City Council term towards the term limits. We further note that the City Charter itself provides that “[t]he city council shall be the judge of the election and qualification of its own members, subject to review by the courts in case of contest.” CORPUS CHRISTI, TEX., CITY CHARTER, art. II, § 8.deference must yield to the unambiguous language of the City Charter. See Boeing Co., 466 S.W.3d at 838. Contrary to Huerta’s arguments, subsection (b) of Article II, Section 1, does not impact our analysis of subsection (d) insofar as it refers to “terms of two years” and implements a regular election and a transition election. On its face, subsection (b) does not affect or implicate the definition of a term for the purposes of term limits. Under the plain meaning of the Charter, Scott has not served four “two-year terms,” and thus remains eligible to run for the office of mayor. See Colorado Cnty., 2017 WL 461363, at *6. To hold otherwise would be to render the phrase “two-year terms” superfluous and meaningless. See Levinson, 2017 W. 727269, at *4. And, while the provisions of the Texas Election Code clearly mandated and authorized the change in election dates and the adjustment in terms of office necessary to accomplish the change in election dates, the relevant provisions neither define term limits nor affect the term limits provision of the City Charter. See TEX. ELEC. CODE ANN. §§ 41.001(a) (West, Westlaw through 2015 R.S.) (establishing uniform election dates); id. § 41.0052 (West, Westlaw through 2015 R.S.) (providing that a governing body changing an election date “shall” adjust the terms of office to conform to the new election date). Moreover, the parties to this proceeding have focused exclusively on the statement in section 1(d) that “[n]o person shall serve more than four two year terms consecutively as a council member” in debating Scott’s eligibility for placement on the ballot. CORPUS CHRISTI, TEX., CITY CHARTER, art. II, § 1(d). Leaving this provision aside, the City Charter also states that “[n]o person shall serve more than . . . six two-year terms consecutively in any combination” of the offices of council member or mayor. See id. Because we are considering Scott’s eligibility to serve as mayor after serving four terms as a city council member, the “six two-year” term limitation would apply in this case because we are examining the term limits applicable to “any combination” of the offices of mayor and city council member. See id. Thus, even if we were to construe the City Charter such that Scott’s shortened term of office as a council member counted as a two-year term for term limit purposes, which we do not, Scott’s four terms would not meet the term limit of “six two-year terms consecutively” in the combination of offices so as to prevent Scott from running for mayor. See id. Applying rules of statutory construction, we conclude that the plain language of the City Charter establishes Scott’s eligibility as a candidate for mayor of the City of Corpus Christi, Texas. Therefore, Huerta violated her ministerial duty and abused her discretion in declaring him ineligible for office and refusing him a place on the ballot for the May 2017 mayoral election. See generally TEX. ELEC. CODE ANN. § 145.003 (West, Westlaw through 2015 R.S.). V. CONCLUSION We understand that the City Council has faced a difficult question in determining the correct application of the term limits contained in the City Charter when construed in conjunction with the requirements of the Texas Election Code and in context of the complexities caused by the change in election dates. Nevertheless, we conclude that the plain language of the City Charter supports Scott’s contention that his seven and one half years of service as a City Council member does not render him ineligible to serve without the mandated hiatus contemplated by the Charter. Consequently, Scott is eligible to be on the ballot and Huerta had a duty to declare that he was eligible and allow him a place on the ballot. Therefore, the Court, having examined and fully considered the petition for writ of mandamus, the response, and the applicable law, is of the opinion that Scott is entitled to relief. We conditionally grant mandamus relief and order Huerta to grant Scott’s application for a place on the ballot for the May 6, 2017 mayoral election. We are confident that Huerta will comply, and our writ will issue only if she does not. GINA M. BENAVIDES, Justice Delivered and filed the 29th day of March, 2017

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