a2 2 BO ee Oe eee No. IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS — IN RE MARCUS WOOD, THE KIRKWOOD TEMPLE, THE AFRICAN- AMERICAN PASTORS COALITION, THE INTERDENOMINATIONAL MINISTERIAL ALLIANCE OF DALLAS, THE MT. TABOR BAPTIST CHURCH AND THE LIFEWAY CHURCH — PETITION FOR WRIT OF MANDAMUS Leland C. de la Garza State Bar No. 05646600 Andrew L. Siegel State Bar No, 18341825 Timothy D. Zeiger State Bar No. 22255950 Derek D. Rollins State Bar No, 24029803 ‘SHACKELFORD, MELTON & MSKINLEY 3835 Lee Parkway, Tenth Floor Dallas, Texas 75219 Telephone: (214) 780-1400 Facsimile: (214) 780-1401 COUNSEL FOR RELATORS ORAL ARGUMENT REQUESTEDIDENTITY OF PARTIES AND COUNSEL Relators certify that the following is a complete list of the parties, the attorneys and any other person who has any interest in the outcome of this proceeding: PARTIES Relators: ‘Marcus Wood Kirkwood Temple African-American Pastors Coalition Interdenominational Ministerial Alliance Of Greater Dallas ‘Mt. Tabor Baptist Church Lifeway Church, Respondents, in their respective official capacities. City Secretary, City of Dallas, Texas Deborah Watkins Dallas City Council Members: ‘Tom Leppert Delia Jasso Pauline Medrano David A. Neumann Dwaine R. Caraway Vonciel Jones Hill Steve Salazar Carolyn R. Davis Tennell Atkins Sheffie Kadane Jerry R. Allen Linda Koop Ron Natinsky ‘Ann Margolin Angela Hunt ‘COUNSEL Leland C, de la Garza Andrew L. Siegel ‘Timothy D. Zeiger Derek D, Rollins ‘SHACKELFORD MELTON & MCKINLEY 3933 Lee Parkway, Tenth Floor Dallas, Texas 75219 Telephone: (214) 780-1400 Facsimile: (214) 780-1401 ‘Thomas P. Perkins, Jr, City Attorney City of Dallas 1500 Marilla Street Suite 7-CN Dallas, Texas 752012 STATEMENT REGARDING ORAL ARGUMENT ‘This case presents important issues regarding the application of election and alcoholic beverage laws to an unlawful election called by she City of Dallas ar ay for the purpose of legalizing the sale of beer and wine for off-premise consumption in the City of Dallas. Oral argument will be beneficial given the {important issues presented, including the jurisdictional prerequisites for the City Secretary and the City Council to properly verify and certify the petition and order a lawful local option election, the constitutional and statutory right of historically dry political subdivisions located within the City of Dallas to vote independently of other parts of the City of Dallas on whether to legalize the sale ee ea @ of alcoholic beverages, and the Texas constitutional and statutory paradigm for resolving conflicts between wet and dry political subdivisions under local option lection laws. = 2 es ep tom en REa 2 2 a ee oo oe TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL .. ‘STATEMENT REGARDING ORAL ARGUMENT. ‘TABLE OF CONTENTS. INDEX OF AUTHORITIES. STATEMENT OF THE CASE. STATEMENT OF JURISDICTION... ISSUES PRESENTED. STATEMENT OF FACTS.. STANDING OF RELATORS. IL Respondents have failed to perform ministerial duties imposed by law in connection with the proposed local option election and mandamus must issue. A. The City Secretary failed to comply with Section 501,031 of the Texas Election Code by failing to certify the ‘number of qualified voters signing the petition... B. The City Council failed to comply with Section 501,032 of the Texas Election Code by failing to obtain a certification from the City Secretary of the number of ‘qualified voters signing the petition ... .Che City Secretary and City Council failed to perform their respective duties to delineate the boundaries of historic dry political subdivisions that will be affected by an election to legalize the off-premise sale of beer and wine in Dallas and consequently they improperly certified and ordered, respectively, an unlawful and fatile election. ‘CONCLUSION AND PRAYER. CERTIFICATE OF SERVICE... APPENDIX INCLUDING CERTIFICATION— oo oe mr wer cum BPR fone INDEX OF AUTHORITIES Cases Blum v. Lanier, 997 S.W.2d 259 (Tex. 1996)... City of Oak Cliff, State, 79 S.W. 1 (Tex. 1904).. Coker v. Tex. Alco. Bev. Comm'n, 524S.W.2d 570 (Tex. 1973)... Ellis v. Vanderslce, 486 S.W.2d 155 (Tex. Civ. App. ~ Dallas 1972, no writ) Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278 (Tex. 1999) -Houchins o. Plainos, 110 S.W.2d 549 (Tex. 1987). Howard v. Clack, 589 S.W.2d 748 (Tex. Civ. App. ~ Dallas 1979, no writ) In re Davis, 269 S.W.3d 581 (Tex, 2008) 18, 26, 27, 29, 30,31 In re Porter, 126 S.W.3d 708 (Tex. App. ~ Dallas 2004, orig. proceeding)... In re Triantaphyllis, (68S.W.3d 861 (Tex. App. ~ Houston [14th Dist] 2002, orig. proceeding) ..20, 21 Jackson v. State, 118 SW.2d 313 (Tex. Crim. App. 1938) 29 McGraw v. Newby, 496 S.W.2d 250 (Tex. Civ. App. ~ Beaumont 1973, no writ 24 Powell». Bond, 150 S.W.2d 337 (Tex. Civ. App. ~ Waco 1941, n0 WH) sou. 22,27 Tex. Ass'n of Bus. v. Tex. Air Control Bd,, 852 S.W.2d 440 (Tex. 1993) wD Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) wv== a ee West End Rural High School Dis. of Austin County v. Columbus Consol LS.D. of Colorado County, 221 S.W.2d 777 (Tex. 1949) Constitut tut Rules, and Attorney General Opinio: Act of May 27, 2005, 79th Leg., RS, ch. 975, §§ 1-8, 2005 Tex. Gen. Laws 3269, 3269-77 wn. Dallas City Charter, Ch. XVI, § 12 Dalllas City Charter, Ch. XVIIL § 13.. TEX. ALCO. BEV. CODE §§ 251.71 - 82 (subchapter D)... ‘TEX. ALCO. BEV, CODE § 251.72. TEX. ALCO. BEV. CoDE § 251.73. ‘TEX. ALCO. BEV. CODE § 251.80. TEX. ALCO. BEV. CODE § 251.82... Tex. ATT’Y GEN, Or, GA-0209 (2004) ‘TEX. ATTY GEN. Or, GA-0635 (2008). ‘TEX. ATT'Y GEN, OP, 0-6364 (1943).. ‘TeX. CONST. art. XVI, § 20. 13,24 ‘TEX. CONST. art. XVI, § 20(c)... 4, 17, 28, 31 soy 16 TEX. ELEC, CODE § 273.061. ‘TEX. ELEC. CODE §§ 501.001 - 155 (subchapters A-D).. ‘Tex. ELEC. CoDk § 501.021... ‘TEX. ELEC. CODE §§ 501.026 - 033. ‘TEX. ELEC. CODE § 501.031.asa Qaa ge ngegeaggeaa we ‘TEX. ELEC. CODE § 501.031(a)... 8, 19, 20, 27, 28, 33 TEX. ELEC. CODE § 501.082. 125, 26 TEX, ELEC. Coe § 501.032(a) 8, 15, 19, 25, 26 ‘Tex. ELEC. CODE § 501.109... ‘Tex, ELEC. CODE § 501.1: Miscellaneous ‘ttp:/ /quickfects census gov /qfd/states/48/4819000 html. http://www tabestate.b.us/local_option_elections /history_of elections.asp....6= ae a a STATEMENT OF THE CASE ‘Nature of underlying proceeding: June 23, 2010, decision of the Dallas City Council to calla city-wide election in November 2010 to legalize the sale of beer and wine for off-premise consumption only. Respondents: Deborah Watkins, in her official capacity as City Secretary, City of Dallas, Texas, All members of the City Council of the City of Dallas in their respective official capacities: Tom Leppert, Delia Jasso, Pauline Medrano, David A. Neumann, Dwaine R. Caraway, Vonciel Jones Hill, Steve Salazar, Carolyn R. Davis, Tennell Atkins, Sheffie Kadane, Jerry R. Allen, Linda Koop, Ron Natinsky, Ann Margolin, and Angela Hunt, ‘Action from which relief is requested: Dallas City Secretary failed to certify to the Dallas City Council the number of qualified voters signing the petition for local option election prior to a vote by the City Council calling a local option election to legalize the sale of beer and wine for off-premise consumption and City Council failed to require such certification before calling the local option election. In addition, because the petition called for a city-wide election, the City Secretary and City Council were required, but failed, to differentiate between the City as a whole and historically dry political subdivisions within the City, thereby disenfranchising voters in the historically dy political subdivisions. Record References: ‘The Mandamus Record, numbered MR 000001 - 000248 inclusive, is filed with this Petition as required by TRAP 527(a). No testimony was adduced in connection with the matter complained. References to the Mandamus Record will be by page number and applicable titles of the particular documents,