                                   IN THE
                           TENTH COURT OF APPEALS



                                  No. 10-10-00263-CV

                               IN RE LOUIS F. BOUSE


                                  Original Proceeding


                            DISSENTING OPINION


       Election contests, unfortunately, frequently come with short external deadlines

which make thoughtful appellate legal analysis and research much more difficult. That

is the situation in which this mandamus proceeding has been processed. It is my

opinion, based upon the issues as presented and argued, and based upon my own

research and analysis, that the Court has failed to heed the most important admonition

of election law as it relates to an initiative election: In order to protect the people of the

city in the exercise of this reserved legislative power, the right to proceed by an

initiative election should be liberally construed in favor of the power reserved.

                                INITIATIVE ELECTIONS

       The authority to compel a city council to adopt a resolution consistent with an

initiative election is a legislative act that the citizens have retained. It can, however, be
given up by the people. Thus, like the United States Constitution defines those rights

that have been given up by the people to the federal government and the Tenth

Amendment expressly provides that those powers/rights not expressly described in the

constitution are retained by the people/states, unless we can find an express surrender

of the right to pursue the initiative election process, the people retain that right.1

        The Court has decided that the City of College Station and the two amicus

organizations, Texas Municipal League and Texas City Attorney’s Association, are

correct in their position that the Texas Legislature has removed the right of the people

to compel the governing body of a city, the city council, to consent to an ordinance

regarding incorporation of an area that lies within the extraterritorial jurisdiction of a

city. I, however, agree with the Citizens for Wellborn, the Committee of Circulators,

Louis Bouse, Teri Gerst, Beth Becker, Marcy Halterman, and Brian Alg, and an

individual amicus, Rusty Adams, that the right to proceed by an initiative election to

obtain the consent of the governing body is not inconsistent with or contrary to the

statute relied upon by College Station and the Court. To fully appreciate the need to

liberally construe the right to proceed by an initiative election in this situation, it is

necessary to step back and review the alternatives and some of the broader issues that

impact the advisability and operation of the interpretation of the relevant statute.

                                        ISSUES PRESENTED

        There are essentially two issues around which this mandamus proceeding has

been briefed and decided. The Citizens, apparently due to the time pressure, have, I


1 “The powers not delegated to the United States by Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” U. S. CONST. amend. X.



In re Bouse                                                                                          Page 2
believe inadvertently, opened the door to College Station’s ability to argue the second

issue, but which I believe is not ripe for review. It is, nevertheless, the issue upon which

the Court decides to deny the mandamus and therefore I, too, will address it.

        1. Did the College Station City Secretary, Connie Hooks, fail to perform a
           ministerial duty by refusing to certify the sufficiency of the initiative petition
           calling for a city council ordinance consenting to Wellborn’s request to hold
           an incorporation election? (Alternatively worded: Did the amended
           initiative petition meet the technical requirements of College Station’s
           Charter?) Answer: Yes.

        2. Can the initiative petition/election process in College Station’s charter be
           used to compel the city council’s consent to hold an incorporation election for
           Wellborn? (Alternatively worded: Is compelling the city council’s consent by
           an initiative election consistent with Texas Local Government Code Section
           42.041?) Answer: Yes.

                                     BACKGROUND

        College Station is a home-rule city. As a home-rule city it has all the powers of

governing itself which the citizens have delegated to it in the city’s charter so long as

the power delegated does not conflict with any statute or constitutional provision. See

TEX. LOC. GOV’T CODE ANN. Ch. 9 (Vernon 2008), TEX. CONST. art. XI, § 5. College

Station’s charter defines the procedure the voters must follow to utilize the initiative

process.

        The relevant provisions in the city’s charter are contained in Article X thereof.

Because of the importance of compliance with those provisions in answering the first

question above stated, I will set out the relevant charter provisions in their entirety. The

only portions omitted will be those related solely to referendum petitions and recall

elections. In the quoted documents set out in this opinion, I have italicized those

portions of greater importance to the issues addressed in this dissenting opinion.



In re Bouse                                                                            Page 3
                      COLLEGE STATION CHARTER PROVISIONS
                                   ARTICLE X

        Power of Initiative
        Section 83. The electors shall have power to propose any ordinance, except an
        ordinance zoning or rezoning property, appropriating money, authorizing
        the issuance of bonds, or authorizing the levy of taxes, and to adopt or
        reject the same at the polls, such power being known as the initiative.
        Any initiative ordinance may be submitted to the City Council by a
        petition signed by qualified electors of the City equal in number to at least
        twenty-five (25) percent of the number of votes cast at the last regular
        municipal election.

        Form of Petitions: Committee of Petitioners
        Section 85. Initiative petition papers shall contain the full text of the
        proposed ordinance. The signatures to initiative or referendum petitions
        need not all be appended to one paper, but to each separate petition there
        shall be attached a statement of the circulator thereof as provided by this section.
        Each signer of any petition paper shall sign his name in ink or indelible
        pencil and shall indicate after his name his place of residence by street and
        number, or other description sufficient to identify the place. There shall
        appear on each petition the names and addresses of five electors, who, as
        a committee of the petitioners, shall be regarded as responsible for the
        circulation and filing on the petition. Attached to each separate petition paper
        there shall be an affidavit of the circulator thereof that he, and he only, personally
        circulated the foregoing paper, that it bears a stated number of signatures, that all
        signatures appended thereto were made in his presence, and that he believes them
        to be the genuine signatures of the persons whose names they purport to be.

        Filing; Examination and Certification of Petitions
        Section 86. All petition papers comprising an initiative or referendum
        petition shall be assembled and filed with the City Secretary as one
        instrument. Within ten (10) days after the petition is filed, the City Secretary
        shall determine whether each paper of the petition has a proper statement of the
        circulator and whether the petition is signed by a sufficient number of qualified
        electors. The City Secretary shall declare any petition paper entirely
        invalid which does not have attached thereto an affidavit signed by the
        circulator thereof. If a petition paper is found to be signed by more
        persons than the number of signatures certified by the circulator, the last
        signatures in excess of the number certified shall be disregarded. If a
        petition paper is found to be signed by fewer persons than the number
        certified, the signatures shall be accepted unless void on other grounds.
        After completing his examination of the petition, the City Secretary shall certify
        the result thereof to the city council at its next regular meeting. If he shall



In re Bouse                                                                                      Page 4
        certify that the petition is insufficient, he shall set forth in his certificate the
        particulars in which it is defective and shall at once notify the committee of the
        petitioners of his findings.

        Amendment of Petitions
        Section 87. An initiative or referendum petition may be amended at any
        time within ten (10) days after the notification of insufficiency has been
        sent by the City Secretary, by filing a supplementary petition upon
        additional papers signed and filed as provided in case of an original
        petition. The City Secretary shall, within five (5) days after such an amendment
        is filed, make examination of the amended petition and, if the petition be still
        insufficient, he shall file his certificate to that effect in his office and notify the
        committee of petitioners of his findings, and no further action shall be had on
        such insufficient petition. The finding of the insufficiency of a petition
        shall not prejudice the filing of a new petition for the same purpose.

        Consideration by City Council
        Section 89. Whenever the City Council receives a certified initiative or
        referendum petition from the City Secretary, it shall proceed at once to
        consider such petition. A proposed initiative ordinance shall be read and
        provision shall be made for a public hearing upon the proposed ordinance. The
        City Council shall take final action on the ordinance not later than sixty (60) days
        after the date on which such ordinance was submitted by the City Secretary. A
        referred ordinance shall be reconsidered by the City Council and its final
        vote upon such reconsideration shall be upon the question. “Shall the
        ordinance specified in the referendum petition be repealed?”

        As relevant to this proceeding, and what I believe is the only issue ripe for our

consideration herein, I will first focus upon whether the city secretary, Connie Hooks,

has failed to perform a purely ministerial duty. I believe the record shows that she has.

        There is no factual dispute that the Citizens filed an initiative petition on May 4,

2010. Hooks timely undertook to perform her duties to review the petition. And on

May 18, 2010 she sent an email to Janet Cohen with a subject of “Verification of

Initiative Petition.” The text of the email is as follows:

        Good morning Mrs. Cohen,




In re Bouse                                                                                       Page 5
        I presented the results of my examination of the initiative petition to the
        College Station City Council during its workshop meeting on Monday May
        17. This process is outlined in Section 86 of the City Charter.

        The petition was determined insufficient per Charter requirements. You
        are being notified of the particulars in which the petition is defective and may
        within ten days amend the original petition. I will mail a copy of the
        attachments to your home today.

        If additional information is needed, please feel free to contact me.

        Thank you, Connie

        The city attorney, Harvey Cargill, Jr., provided a Memorandum dated May 13,

2010 to the city secretary, in which he purported to concur in her assessment of various

particulars in which the petition was deficient. He went on to elaborate on other

reasons he believed the Citizens were not entitled to proceed by the initiative process

and why Wellborn was not entitled to incorporate. The text of the memorandum is as

follows:

                                      MEMORANDUM

        TO:            Connie Hooks, City Secretary

        FROM:          Harvey Cargill, Jr., City Attorney

        DATE:          May 13, 2010

        RE:            Wellborn

               1.      As we discussed, I agree with your conclusion that the
        Petition submitted for an Initiative Ordinance is invalid because it does not
        have attached to each petition paper an affidavit signed by the circulator and does
        not contain the full text of the proposed ordinance. Section 86 of the Charter
        specifically requires that the City Secretary “shall” declare the petition
        invalid if the circulator requirement is not net.

               2.     Additionally, the ordinance attached to the Initiative petition
        proposing that consent be granted provides it is for the area delineated on the


In re Bouse                                                                                   Page 6
        attached plat. There is no plat attached to the ordinance. By the Charter, the full
        text of the proposed ordinance must be contained in the petition papers.

               If this petition with the ordinance was shown to the voters signing
        the Petition without the plat attached, the voters were given no idea of
        what area was to be incorporated, and the ordinance is vague and invalid.
        If a plat was shown to each voter and represented to the voters as being
        the area to be incorporated, the voters would know what area is to be
        incorporated and the plat can be added to the Petition documents.
        However, the circulators would have to swear the plat was attached and
        represented to each voter as being the area to be incorporated. At this
        point the City does not know what area is to be incorporated by Wellborn,
        and the Charter requirements have not been met.

                3.    Further, as was stated in the letter of March 29, 2010, if a plat
        was shown to the voters, and it was the same plat or map that Wellborn
        previously submitted to the City Council, the area does not constitute a
        city/town as provided by Section 6.001, 7.001 and 8.001 of the Texas Local
        Government Code.

               As provided in the 2003 edition of the Municipal Law & Procedure
        Manual, “Before incorporation under any statute, there must be an
        unincorporated community in existence with a compact center or nucleus
        of population around which a city or town or village has developed.”
        State ex rel Needham v. Wilbank, 595 S.W.2d 849 (Tex. 1980). If the
        incorporation is challenged, the Court will look at whether there is a
        community in a fairly compact area. There should be a nucleus or center
        which can be shown by such things as businesses, a community hall, a
        post office or school in fairly close proximity. The area proposed for
        incorporation must be capable of receiving municipal services on a
        reasonable basis. This is the language that appeared before Mr. Bojorquez
        took over editing the Manual, and it is the current law.

               If the area proposed in the Initiative Petition ordinance to be incorporated
        is the previously set out area, it does not meet the legal requirement for
        incorporation.

                4.    In order to incorporate Wellborn must comply with Section 42.041
        of the Texas Local Government Code. The first step is to request consent to
        incorporate from the City Council. If consent is not given, the statute
        provides for a specific second step, to request the area be annexed, after
        getting 50% of the landowners to request annexation. If the City of
        College Station fails to annex within 6 months, by operation of law,
        consent to incorporate is given.



In re Bouse                                                                                   Page 7
               There is no step for circulating an Initiative petition instead of following §
        42.041. Texas courts have held that a city can no more add a step to the
        process than it can omit one. Annexation issues are not subject to direct
        democracy voting through referendum, but are reserved to representative
        democracy (City Council). The State has set up how and when an area can
        be incorporated, and the process needs to be followed.

                In conclusion, you have determined that as presented the Initiative
        Petition lacks the affidavits as required by the Charter, and the Petition
        must be declared invalid. If the Petition is corrected to include the
        affidavits, the ordinance remains invalid unless the plat is attached to the
        proposed ordinance and the circulators can swear that the plat was shown
        to each voter. If the plat shows the same area to be incorporated as was
        presented earlier, the area does not meet the legal requirements for incorporation.
        The purpose of incorporation is to recognize that an area has become an urban,
        compact, contiguous area of homes, not to incorporate a rural area then have folks
        come. Simply put, Wellborn is not an existing town. Finally, state law provides
        a process to be followed for incorporation, and an Initiative Petition is not part of
        that statutory process.

                If consent is given by College Station, it can’t be taken back. The
        result is growth in College Station in the southern direction will be cut off by
        Wellborn’s string of properties. Wellborn is already talking about filling in
        gaps to areas to be incorporated. The decision the City Council makes will be
        a decision that will decide present and future needs and growth patterns for
        College Station.

                Ultimately, the decision should be what is in the best interests of
        the citizens of College Station.

        The referenced email, if the city attorney’s memorandum was attached, is fairly

characterized as substantial compliance with the requirement for a certification by the

city secretary that sets forth “the particulars in which” the petition was insufficient. But

that certification was certainly not in strict conformity with the procedure specified in

the city’s charter. The certification was addressed to only one person who is not one of

the circulator’s committee of petitioners, but who is president of the Citizen’s

committee, Janet Cohen, it was presented to the city council in a work session rather



In re Bouse                                                                                     Page 8
than in a regular meeting of the city council, and it does not appear to have been timely

performed and communicated. Further, it is unclear whether the city attorney’s memo

was attached to the email or whether it was part of the “attachments” that were going

to be mailed to Cohen’s home. The most fundamental problem regarding compliance

with the charter provisions is that the attachment failed to delineate the petition’s

defects that the city secretary was responsible for determining and certifying to the city

council as distinguished from what the city attorney believed to be other impediments

to Wellborn’s ability to incorporate.       And although the consequence of the city

secretary’s failure to perform her certification duties properly is not specified in the

charter, it is noted that the city wants to demand strict compliance with its charter

provision but nevertheless is satisfied with only substantial compliance with the charter

in regard to their own conduct.

        The Citizens, rather than complain about the city’s non-compliance with their

charter provisions, simply proceeded to address the technical complaints they could

identify in the certification of insufficiency of their initiative petition. Specifically, the

certification and the city attorney’s memorandum made it clear that the circulator’s

affidavit had to be attached to every petition page and that every petition page had to

have a complete copy of the proposed ordinance attached, including the attachment of a

copy of the plat referenced in the proposed ordinance.             According to the letter

transmitting the supplemental initiative petition, compliance with these formal

requirements required the addition of almost 600 pages, but nevertheless was still based

on the petitions originally submitted, which contained the signatures of 1500 registered




In re Bouse                                                                             Page 9
voters. The supplementation required the addition of the two-page ordinance, a copy

of the plat, and the individual certification page by the circulator to each page of

petition signatures, which could contain a maximum of 11 signatures.                            This

supplementation was clearly intended to bring the petition into technical compliance

with the city’s charter requirements for an initiative election and meet the deficiencies

identified in items one and two of the city attorney’s memorandum.

        The city secretary acknowledged that the supplementation was timely received

on May 27, 2010. On the following day the city attorney sent the following letter to the

Citizen’s attorney:

               The City Secretary has not completed her review of the
        supplemental petition. At the completion of her review she will set out
        her findings.

                The first point I will make is that this is not a red-light camera
        initiative/petition situation. The current case law provides that annexation
        issues are controlled by the statutes dictating your next step. Wellborn’s next
        step is to request annexation by College Station.

                By letter of March 29, 2010, I told you that I would recommend that no
        initiative election be called because the precedent, as established by case law, is
        that zoning and annexation are not subject to initiative petition. I sent that
        letter in March so that Wellborn and you would know what my
        recommendation would be and not be surprised or expend energy
        circulating the petition, and then complain the City never told Wellborn
        that the law might bar Wellborn’s request.

               In spite of the letter, Wellborn has proceeded. My recommendation
        stands as before. I believe for Wellborn to prevail, it will have to change the
        law as it currently exists.

        Notwithstanding the requirements of the city’s charter, specifically the deadline

to certify the initiative petition as sufficient or insufficient and the need to notify the

Committee of that certification, it appears the city secretary never actually notified the



In re Bouse                                                                                   Page 10
Committee of the petition insufficiency. After the supplemental petition was filed, it

appears that the city secretary’s next official action with regard to the petition was on

June 10, 2010 when she provided a report to the city manager, Glenn Brown. Within the

context of the report, she first summarizes the previous events and then declares that

the petition as supplemented is insufficient. The report states, in part, as follows:

        On May 27, 2010, Mrs. Cohen and members of the Citizens for Wellborn
        committee submitted supplemental documents to the original petition
        within the time frame required by the City Charter Section 87.

        The City Secretary reviewed the amended petition and concluded it is
        insufficient based on the following issues:

              1. Not clear in all sworn affidavits that a complete initiative ordinance
                 was presented to voters.

                 If an incomplete ordinance was presented to the voters, it is vague,
                 ambiguous and invalid.

              2. The concerns stated by the City Attorney in his letter to City Secretary are
                 not resolved.

        Based on this report, the city secretary does not state any particular defect that I

can identify in the report. I have reviewed the petitions and have not been able to

identify any insufficiency between the supplement as filed and the requirements of the

city charter. And if I have overlooked some small aspect that the city secretary focused

upon in her report item 1, surely it is beyond dispute that there is substantial

compliance with the charter provisions. As to the issues identified by the city attorney

other than compliance with the city charter for the form and content of the initiative

petition, which I will address those more fully below, those cannot be a basis for the city

secretary to certify the petition as insufficient.




In re Bouse                                                                                     Page 11
        Accordingly, the supplemental filing corrected the procedural deficiencies in the

originally filed initiative petition. Therefore, the city secretary had no discretion other

than to certify the initiative petition as sufficient, in essence that the form and content of

the petition complied with the requirements of the city charter. Instead, it appears that

the city secretary relied upon the city attorney’s opinion regarding other legal objections

to using the initiative process to reject the Citizen’s petition. Accordingly, I would

conditionally issue a writ of mandamus against the city secretary, Connie Hooks, but

only if she failed to certify the petition as sufficient and provide the Court with

confirmation of her having done so within the next business day after the issuance of

the Court’s opinion. Because the majority does not, I respectfully dissent from that

portion of the Court’s opinion and judgment.

        Further, it is my belief that the forgoing is the only portion of this mandamus

proceeding that is ripe for our consideration. The city council has not been called upon

to vote on the initiative ordinance. It is not clear on the record before this Court that a

majority of the city council would now vote against the consent ordinance, although

that might be an entirely reasonable supposition given that the city council did not

voluntarily agree to Wellborn’s request to incorporate. Further, and more importantly,

I cannot issue a mandamus against the city council without the issue being voted upon

because, notwithstanding that they may not vote to adopt the ordinance, they may,

nevertheless, reject the legal analysis and recommendation of the city attorney and vote

to put the issue on the ballot and let the citizens decide whether they want Wellborn to

be able to control its own fate through incorporation, or at least by letting Wellborn try




In re Bouse                                                                            Page 12
to meet the incorporation requirements. Because even if the city attorney is correct in

his opinion that Wellborn does not meet the other statutory requirements for

incorporation, an issue not before us in this proceeding, the city council may opt for the

public vote to get the sense of the community so that they can consent, or withhold

consent, accordingly. Nevertheless, the initiative petition has never been put to a vote

by the city council and accordingly is not ripe for this Court to compel by mandamus.

Thus, to the extent that the petition for writ of mandamus seeks to compel the mayor

and members of the city council, Nancy Berry, John Crompton, Jess Fields, Dennis

Maloney, Katy-Marie Lyles, Lawrence Stewart and Dave Ruesink, I would dismiss it.

Because the Court addresses the merits and denies the petition for writ of mandamus, I

respectfully dissent from that portion of the Court’s opinion and judgment.

             THE AVAILABILITY OF AN INIATIVE ELECTION
    TO OBTAIN THE GOVERNING BODY’S CONSENT TO INCORPORATION

        The second issue in this mandamus proceeding is whether the initiative process

is even available to compel the city counsel to approve an ordinance that consents to

Wellborn’s request to incorporate. I do not believe this issue is properly before us

because the city council has not yet refused to consider the initiative petition, nor have

they voted against the proposed ordinance and then refused to put it on the ballot for

an initiative election. Because the city secretary refused to certify the initiative petition

as sufficient, the issue has simply not been brought before the city council for

consideration or vote of any type. Nevertheless, because College Station has defended

its actions by asserting that the initiative process is not applicable, and the Court has




In re Bouse                                                                           Page 13
determined to deny the petition for writ of mandamus on that basis, I must express my

disagreement with their legal reasoning and result.

THE CHARTER

         As provided in the city’s charter, the initiative process may be used “to propose

any ordinance, except an ordinance zoning or rezoning property, appropriating money,

authorizing the issuance of bonds, or authorizing the levy of taxes.” The initiative

election in this instance is to compel the city council to give their consent by a city

ordinance for the community of Wellborn to incorporate.2 The incorporation ordinance

is clearly not one of the types of ordinances for which the citizens of College Station

have given up their right to proceed by an initiative petition in the city charter.

Therefore, if the right to proceed by the initiative process has been taken from the

people, as argued by College Station, it must have been taken by a statute of the State of

Texas.

THE STATUTE

         College Station, Texas Municipal League, and Texas City Attorneys Association

have all concluded that the Local Government Code has a provision that has taken

away the people’s right to obtain the city’s consent by an initiative election. This

position is not terribly surprising since it is in their own interest of self-preservation that

they have the maximum power to protect the city’s existence, expansion of the available

tax base of the city, and the sphere of their control and power to regulate through the

city’s governing board; the city council. The statute they rely upon is as follows:


2 For purposes of this opinion I will use the short hand references to College Station and Wellborn, even
though the later is not yet an incorporated entity.



In re Bouse                                                                                      Page 14
        (a)    A municipality may not be incorporated in the extraterritorial
        jurisdiction of an existing municipality unless the governing body of the
        existing municipality gives its written consent by ordinance or resolution.

        (b)     If the governing body of the existing municipality refuses to give its
        consent, a majority of the qualified voters of the area of the proposed
        municipality and the owners of at least 50 percent of the land in the
        proposed municipality may petition the governing body to annex the area.
        If the governing body fails or refuses to annex the area within six months
        after the date it receives the petition, that failure or refusal constitutes the
        governing body’s consent to the incorporation of the proposed
        municipality.

        (c)   The consent to the incorporation of the proposed municipality is
        only an authorization to initiate incorporation proceedings as provided by
        law.

        (d)    If the consent to initiate incorporation proceedings is obtained, the
        incorporation must be initiated within six months after the date of the
        consent and must be finally completed within 18 months after the date of
        the consent. Failure to comply with either time requirement terminates
        the consent.

        (e)    This section applies only to the proposed municipality’s area
        located in the extraterritorial jurisdiction of the existing municipality.

TEX. LOC. GOV’T CODE ANN. § 42.041 (Vernon 2008).

        Thus, because Wellborn is within the extraterritorial jurisdiction of College

Station, Wellborn must obtain the consent of the governing body of College Station, the

city council, to proceed with incorporation. It appears that College Station may not

want to voluntarily give its consent. Wellborn has made the request. College Station

has not given it. But it has never actually been placed before the city council for a vote.

        The Court has determined that allowing consent to be compelled by an initiative

election would be adding another step to the annexation process.




In re Bouse                                                                                Page 15
        The reason College Station does not want to voluntarily consent, at least the city

attorney’s reason as expressed in the memo to the city secretary, has to do with city

growth. The city attorney expressed his view of why consent should not be given as

follows:

                If consent is given by College Station, it can’t be taken back. The
        result is growth in College Station in the southern direction will be cut off
        by Wellborn’s string of properties. Wellborn is already talking about
        filling in gaps to areas to incorporate. The decision the City Council
        makes will be a decision that will decide present and future needs and
        growth patterns for College Station.

               Ultimately, the decision should be what is in the best interest of the
        citizens of College Station.3

        It appears from their brief in reply to the Citizens response that College Station

shares this view when it states that the Citizens are “now trying to obtain a hurried

decision that ignores the impact that an additional step will have on cities who attempt

to control growth within their ETJ’s.” And College Station’s brief to this Court makes it

clear that they view this as a question of annexation to College Station, not consent to

allow the Citizens to proceed by initiative election to let the voters decide if the city

council must consent to allow Wellborn to move forward with its effort to incorporate.

College Station’s brief states the prospect for allowing Wellborn to go forward as:

        Should this Court issue the writ of mandamus as petitioned by Relators to
        compel the City to hold an initiative election to allow Wellborn to
        incorporate, the Court would, in effect, add a procedural step to
        annexation that is not now permitted by statute. It is therefore, the
        Respondent’s position that this is an annexation process not subject to initiative
        petition.



3 It appears that the belief is that the city council is better able to make that determination than the voters
of College Station.



In re Bouse                                                                                           Page 16
        Maybe I am reading too much into the legal position taken by College Station.

But by refusing to consent to the incorporation election, and thus, under their

argument, compelling Wellborn to take the next step they contend is required by the

statute, College Station will be in a better position to annex Wellborn, thus avoiding

giving Wellborn independent incorporation status.        TEX. LOC. GOV’T CODE ANN. §

42.041(b) (Vernon 2008).

        At this point it may be helpful to recall that while the citizens of Wellborn are

currently largely regulated by College Station because Wellborn is within the

extraterritorial jurisdiction of College Station, the citizens of Wellborn have no voice in

who is elected to the College Station city council or the passage of ordinances by

College Station that have a regulatory impact on Wellborn because they live in the

extraterritorial jurisdiction of College Station.   Further, the initiative can only go

forward if the required number of registered voters in College Station agrees to it. The

residents of Wellborn do not even get to participate in the initiative. Thus, Wellborn

must look to the citizens of College Station for help to secure the right to control their

own municipal destiny.

        And even if College Station’s city secretary certifies the initiative petition as

sufficient under the city’s charter, and presuming the city council does not voluntarily

give their consent and, thus, College Station is required to proceed with the initiative

election, the result is still up to the voters of College Station, not Wellborn. Further,

even if the voters of College Station vote to compel the city council to consent to

Wellborn’s incorporation, incorporation is certainly not a certainty.       As discussed




In re Bouse                                                                         Page 17
above, the city attorney has already expressed his view that the map of Wellborn for the

initiative election does not comply with state law regarding an area that can be

incorporated. Of course, this is not a proper basis for the city secretary to not certify the

initiative petition but it would nevertheless thwart Wellborn’s ultimate effort to

incorporate. The statue quoted above also makes it clear that “consent” is “only an

authorization to initiate incorporation proceedings as provided by law” and thus is no

guarantee that the community will ultimately be allowed to incorporate. Thus, College

Station can continue to assert its legal position, even after the initiation of the

incorporation process, that Wellborn, as identified on the plat attached to the ordinance,

is not a proper area for incorporation under the relevant laws of the State of Texas.

        Also by stepping back and taking a look at what it is that College Station wants

to compel Wellborn to do by refusing to give its consent to incorporate, we may begin

to understand why College Station is mounting this defense at this juncture. If the

Court rejects Wellborn’s authority to obtain College Station’s consent to incorporation

by way of the initiative election, Wellborn must ask to become part of College Station!

See TEX. LOC. GOV’T CODE ANN. § 42.041(b) (Vernon 2008). It seems pretty clear that is

the very result that Wellborn wants to avoid.

No Inconsistency; Not an Additional Step; Just a Way to Get Consent

        I now turn to what I believe is the most substantive flaw in the legal reasoning

put forward by College Station and adopted by the Court: That by allowing consent to

be obtained by using the initiative process set out in College Station’s charter, an

additional step would be added to the annexation process, an act prohibited by prior




In re Bouse                                                                           Page 18
cases interpreting annexation statutes. This legal position works only if you accept the

city’s premise that this entire process, and specifically the statute it relies upon to defeat

the ability to use the initiative process, is about annexation and not about regulating

activity in a city’s exterritorial jurisdiction. Further, this legal position is based upon

cases that have held that the comprehensive scheme that regulates annexation of areas

by cities cannot be altered. I have no quarrel with those cases; but I believe the city and

the Court’s reliance on them is misplaced.

        If we examine the statute that is relevant to this proceeding, the one both parties

agree does apply, Texas Local Government Code 42.041, it becomes evident that the

statute is dependant upon several other bodies of law. The statute is not intended to be

a comprehensive statute dealing with any of the issues College Station and the Court

have tried to squeeze into it. First, the provision is in Chapter 42, the Chapter of the

Local Government Code related to Extraterritorial Jurisdiction, not Chapter 43 which is

the comprehensive provisions of the Local Government Code that deal with Municipal

Annexation. Second, even a cursory review of section 42.041 reveals that there are two

significant bodies of law mentioned, but which the section does not even begin to

address the details and implementation thereof; (1) incorporation of cities; and (2)

annexation of areas to existing cities.

Incorporation

        College Station has gone through great lengths to explain why Wellborn does not

meet the criteria to incorporate as a city. But to make these arguments, College Station

goes well outside section 42.041 and makes a cogent argument about the impediments




In re Bouse                                                                            Page 19
to Wellborn’s incorporation. By referencing other statutes regarding incorporation of

cities, College Station has impliedly recognized that the section is not self-contained and

is not intended to address every issue related to the subject matter referenced in section

42.041. In effect, College Station recognizes that you have to refer to additional laws to

understand and be able to determine if Wellborn can incorporate. But we are not yet to

the incorporation stage for Wellborn because that stage does not start until Wellborn

obtains College Station’s consent to incorporate. And the statute makes it clear that just

because Wellborn obtains College Station’s consent, it does not mean that Wellborn will

ultimately be approved by Texas for incorporation. “The consent to the incorporation

of the proposed municipality is only an authorization to initiate incorporation

proceedings as provided by law.” TEX. LOC. GOV’T CODE ANN. § 42.041(c) (Vernon

2008).

Annexation

         Further, College Station must concede that if its argument is accepted, it does not

mean that Wellborn is automatically annexed simply because they comply with the

provision in section 42.041(b) referencing annexation. To the contrary, before College

Station could annex Wellborn, they would have to comply with the comprehensive

steps for annexation contained in Chapter 43 of the Local Government Code. And as an

indicator of how comprehensive Chapter 43 on Annexation is when compared to

Chapter 42 on Extraterritorial Jurisdiction, Chapter 43 has 11 sub-chapters consisting of

102 sections whereas Chapter 42 has only four sub-chapters and 23 sections. It is this

comprehensive set of laws once you get to the issue of annexation that College Station




In re Bouse                                                                          Page 20
would have to comply with if they decided to annex Wellborn. But quite simply, they

are not there yet. College Station has not initiated annexation procedures, yet, nor has

Wellborn asked to be annexed.

        Thus it is evident that there are two rather large bodies of law that are referenced

in the specific statute that even College Station recognizes it must go elsewhere to

determine what that law is and how it may apply to this statue. Subsection (b) deals

with annexation which is fully addressed by Chapter 43 of the Local Government Code.

Subsection (c) deals with incorporation of municipalities which is fully addressed by

Chapters 6, 7, 8, and 9 of the Local Government Code depending upon what type

municipality is attempting to be incorporated.

Consent

        This brings me back to subsection (a) of 42.041. This subsection of the statute is

about obtaining a city’s governing body’s consent. And this is where College Station

wants to keep Wellborn from going to any other provision of law to determine how

College Station’s city council’s consent can be obtained.       We all agree there is no

comprehensive body of state statutes that regulates or determines how to obtain a

home-rule city council’s consent for some action. Of course, voluntary consent is easy.

If the members of the city council wanted to do this, it would have been done a long

time ago. But the city founders, in their wisdom, recognized that the city council’s

interest and views may not always be consistent with the voters of the city. Therefore,

the founders specified in College Station’s charter the procedures to be used by the

voters to initiate an election to compel the city council to consent to an ordinance. In




In re Bouse                                                                          Page 21
this instance the required number of voters has taken the steps necessary to compel the

city counsel to either pass an ordinance consenting to Wellborn initiating incorporation

proceedings, or to compel the city counsel to put the ordinance to a vote of the

electorate to compel their consent to such an ordinance.

        Thus it is the College Station charter that we look to for the purpose of

determining how the governing body of College Station may “give its written consent

by ordinance or resolution” for Wellborn to initiate incorporation proceedings.

Case Authority

        I do not find the cases cited by College Station, Texas Municipal League and

Texas City Attorneys Association that analyze the steps necessary to annexation

relevant to our inquiry. Neither College Station nor Wellborn are in the annexation

phase, yet.   Likewise, Wellborn has not been authorized to initiate incorporation

proceedings. The issue, if it is ripe for decision and I believe it is not, is whether the

statute or College Station’s charter, the equivalent of the city’s constitution, has

removed the right otherwise retained by the voters to obtain the city council’s consent

though the initiative process. I believe the Citizens still have that right. And if there is

any doubt that the right is retained, it should be resolved in favor of the Citizens having

retained the right.

                                     CONCLUSION

        Based on the forgoing analysis I do not find that the statute, Texas Local

Government Code Section 42.041 has withdrawn the initiative election process from

being used to compel the governing body of College Station to consent to Wellborn’s




In re Bouse                                                                          Page 22
application to incorporate. Because the statute does not expressly remove the initiative

process from being used to obtain the consent of College Station’s governing body, and

further because College Station’s procedural objections to the initiative process were

corrected in the supplemental filing, and finally because College Station’s growth plan

and legal objections to the incorporation of Wellborn are not proper grounds upon

which the city secretary can refuse to certify the petition as sufficient under the city

charter, I would conditionally issue the writ of mandamus compelling the College

Station City Secretary, Connie Hooks, to act in her official capacity and certify the

petition as sufficient so that the city council must take action on it as specified in

College Station’s charter. I would issue the writ only if the city secretary failed to act in

accordance with this opinion and provide certification of compliance within the next

business day after the issuance of this opinion. As noted above, I do not believe the

petition for writ of mandamus to compel the members of the city council, Nancy Berry,

John Crompton, Jess Fields, Dennis Maloney, Katy-Marie Lyles, Lawrence Stewart, and

Dave Ruesink, to order the submission of the ordinance to a vote by the electorate is

ripe for our mandamus jurisdiction and would dismiss that portion of it. Because the

Court denies the petition for writ of mandamus in its entirety, I respectfully dissent

from the Court’s opinion and judgment.



                                          TOM GRAY
                                          Chief Justice

Dissenting opinion delivered and filed August 17, 2010




In re Bouse                                                                           Page 23
