NO.

TNTHE COURTOF APPEALSFORTHE

FIFTH DISTRICTOF TEXAS
AT DALLAS

INRE MARCUSWOOD, THE KIRKI^IOOD TEMPLE, THE AFRICAN-

AMERI CAN PA STORS CO ALITION, THE IN TERDENOMINA TION AL
MINISTERIAL ALLIANCE OF DALLAS, THE MT. TABORBAPTIST CHURCH
AND THE LIFEWAY CHURCH

PETITION FORWRIT OF MANDAMUS

Leland C. de laGarza
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

SHncxnrroRD, Mnrrox & MsKthtrnY

3333 Lee Parkway, Tenth Floor
Dallas, Texas 75219
Telephone: (21.4)780-1.400
Facsimile: Q1a) 780-1.40'L

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 COUNSEL

Relators:
Marcus Wood Leland C. de laGarza
Kirkwood Temple Andrew L. Siegel
African-American Pastors Coalition Timothy D. Zeiger
Interdenominational Ministerial Alliance Derek D. Rollins
Of Greater Dallas SHacTSMoRDMELTON& MCKINLEY
Mt. Tabor Baptist Church 3333Lee Parkway, Tenth Floor
Lifeway Church Dallas, Texas 75219
Telephone : (21,! 7804404
Facsimile: (214)780-1401,
Respondents, in their respectioe
fficial capacities: Thomas P. Perkins, Jr.
City Secretary,City of DaIIas,Texas City Attorney
Deborah Watkins City of Dallas
DallasCity CouncilMembers: 1500Marilla Street
Tom Leppert Suite 7-CN
Delia Jasso Dallas, Texas 75201,
Pauline Medrano
David A. Neumann
Dwaine R. Caraway
Vonciel JonesHill
Steve Salazar
Carolyn R. Davis
Tennell Atkins
Sheffie Kadane
Jerry R. Allen
Linda Koop
Ron Natinsky
Ann Margolin
Angela Hunt
 STATEMENT REGARDING ORAL ARGUMENT

This case presents important issues regarding the application of election

and alcoholic beverage laws to an unlawful election called by the City of Dallas

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 issuespresented, 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 electioru 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

of alcoholic beverages, and the Texas constitutional and statutory paradigm for

resolving conflicts between wet and dry political subdivisions under local option

election laws.
 TABLE OF CONTENTS

IDENTITY OF PARTIESAND COUNSEL.............. i

..................

STATEMENTREGARDINGORAL ARGUMENT........... ......ii

TABLE OF CONTENTS....... ...................iii

INDEX OF AUTHORITIES ..-........--..'-....v

STATEMENTOF THE CASE.............. ....-................3

STATEMENT OF JURISDICTION .........4

ISSUESPRESENTED............ ....................4

STATEMENTOF FACTS..... ......................5

STANDING OF RELATORS...... ..............9

SUMMARY OF ARGUMENT..... ..........13

ARGUMENT AND AUT}IORITIES ......17

L MandamusStandards............... ---.....-17

II. Respondents have failed to perform ministerial duties

imposed by law in connection with the proposed local option
electionand mandamusmust issue........ ..--.''...-.18

A. The City Secretaryfailed to comply with Section 501'031

of the Texas Election Code by failing to certify the
........19
number of qualified voterssigning 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
quali{iedvoters signing the petition .............. ...........25

u1
 C. The 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 * election to legalize the off-premise sale of beer
and wine in Dallas and consequently they improperly
certified and ordered, respectively, an unlawful and
futile election... ..........28

CONCLUSION AND PRAYER. ..............32

CERTIFICATEOF SERVICE............ .........35

APPENDIX INCLUDING CERTIFICATION

lv
 INDEX OF AUTHORITIES

Cases

BIuma. Lanier,
9975.W.2d259(Tex.1999)..
.. .... .... .-..---..-.....9,10

City of OakCliffo. State,795.W.1 (Tex.1904) .----5,6

Cokera. Tex.Alco. Beu.Comm'n,

ffe x.1 9 7 5 )...........
5 2 4 5.W.2 d 5 7 0 - - 18,26,2 8,29

Ellis o. Vanderslice,
4865.W.2d155 (Iex. Civ. App. -- Dallas 1972,no writ) ---..21

FlemingFoodsof Tex.a. Rylander,6 5.W.3d278(Tex.1999) ...-------.----------24

(Tex.D3n
Houchinso.Plainos,110S.W.2d549 18,24,29,30,31'

Hownrdu. Clack,
589S.W.2d74B(Tex.Civ. App.-- Dallas1979,no writ) .......--.----.......-26

In re Daais,
2695.W.3d581 (Tex.2008)........
. .. 26,27,29,30,31
.......18,

In re Porter,
126S.W.3d708(Tex.App.-- Dallas 2004,orig. proceeding) --.....-...--.26

In re Triantaphyllis,
68 S.W.3d861 (Tex.App. -- Houston [14th Dist.] 2002,orig. proceeding)...20,2'l'

lacksonzt.State,118S.W.2d313 (Tex.Crim. App. 1938) -......-29

McGraw o. Newby,
496S.W.2d 250(Iex. Civ. App. -- Beaumontl973,no writ) -....-...-.-.--24

Pornelln. Bond,150S.W.2d337(Tex.Civ. App. -- Waco 1941,no writ) 22,27

Tex.Ass'nof Bus.o. Tex.Air Control8d'852 S.W.2d440(Tex.1993).. ....---- --..--..12

Walkerzt.Packer,
.. .. .. ..
827S.w.zd 833(Tex.1992)... ....--.-.-......--.-17
 LS.D.of
Consol.
WestEndRuralHigh SchoolDist.ofAustin Countyo. Columbus
County,221s.W.2d777
Colorado (Tex.1949). .... . .. .--------24

Constitution, Statutes,Ordinances,Rules,and Attorney GeneralOPinions

R.S.,ch. 975,SS'1.-8,2005
Act of May 27,2005,79thLe9.,
Tex.Gen.Laws3269,3269-77.... ......-.17

DallasCity Charter,Ch.XVI[, S12.......... -.--..-.----.26

DallasCity Charter,Ch.XV[I, S 13.......... --.--.----..--26

D).............
- .82(subchapter
Tnx.Arco. Bnv.CoouSS251.71 .........--.-.-..17

TEx.Arco. Bnv.CoouS 251,.72... ...........28

Trx. Arco. Bnv.ConnS 25'1..73... ............28

TEx.Arco. BEv.CooES251.80... ...........18

TEX.ALCO.Buv.CoouS 251..52... ...........26

(2004)
Tnx.Art'v GsN.Op.GA-02O9 ......................25

TEx.Arfv GsN.Op.GA-0635(2008)

Tux.Arr"v GrN.Op.0-6364(1945) ..............22,25,27

Tux.Cotrlsr.art.XVI, S 20.......... ......13,24

Tsx.Cowsr.art.XVI, $ 20(c) ....4,17,28,31'

Tux.ErEc.Coon5273.061.. .................4,'16

A-D)
- .155(subchapters
Tux.Erpc.ConnSS501.001 ....--.---..17

Tux.ErEc.CooeS501.021 'l'6,29,20

- .033
Tux.Eruc.Conr SS501.026 ..........19

Tsx.Ernc.CopuS501.031 ...............4,7,21
Tnx.Ersc.Coos $ 501.031(a) 79,20,27,28,33
..........8,

TEX.ELEc.Copn S501.032 ..25,26

Tsx.Ersc.Coor S501.032(a).............. ...............4,8,75,79,25,26

Tsx.Ersc. CoDES501.109 ........19

Tsx.Emc. Coon S501.153 .........5

Miscellaneous

http:/ /qaickfacts.census.gov/qfd/states/48/48790ffi.htrnl ...................5

hryr/ /***.tabc.state.tx.us/local-option*elections/history-of3lections.asp.....6

vll
 STATEMENT OF THE CASE

Nature of underlyingproceeding:

June 23, 2010,decision of the Dallas City Council to call a city-wide election in
November 2A10to 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.

A1l members of the City Council of the City of Dallas in their respective official
capacities: Tom Leppert, Delia ]asso, Pauline Medrano, David A. Neumann,
Dwaine R. Caraway, Vonciel JonesHill, Steve Salazar,Carolyn R. Davis, Tennell
Atkins, Sheffie Kadane, Jerry R. Allen, Linda Koop, Ron Natinsky, Ann
Margolin, and Angela Hunt.

Action from which reliefis 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 disenJranchising voters in the historically
dry political subdivisions.

RecordReferences:

The Mandamus Record, numbered MR 00000L- 000248inclusive, is filed

with this Petition as required by TRAP 52.7(a). No testimony was adduced in
connection with the matter complained. Referencesto the Mandamus Record
will be by pagenumber and applicable titles of the particular documents.
 STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a writ of mandamus under Tex. Ernc.

CooE 5273.061..

ISSUES PRESENTED

1. Did the City Secretary discharge her ministerial duty under Section

501.031of the Texas Election Code to certify to the City Council the "number of

qualified voters signing the petition" when she made no finding regarding the

number of qualified voters signing the petition calling for a local option election'

but instead merely certified that she had examined the petition and that the

"petition contains the required number of registered voters in the political

subdivision to be considered sufficient?"

2. Did the City Council discharge its ministerial duty under Section

501.032(a)of the Texas Election Code to verify that it was presented with a

"proper petition" and a certification of the number of qualified voters validly

signing the petition" which satisfied the 35% statutory threshold requirement of

state law before ordering a local option election as requested in the petition?

3. Did the City Secretary and City Council each fail to perform its

respective duties under Article XVI, Section 20(c), of the Texas Constitution, the

Texas Election Code and the Texas Alcoholic Beverage Code to delineate the

boundaries of the historic political subdivisions located within the City of Dallas
that previously elected dry status, to require a certification in proper fotm, and to

independently determine by individual signature verification that a sufficient

number of qualified voters validly signed the petition for each aJfectedpolitical

subdivision, as well as those residing in the City of Dallas, before certifying and

calling a lawful election?

STATNVTNNT OF FACTS

The City of Dallas covers an area of 342 square miles and extends into

parts of Dallas, CollirU Denton, Kaufman and Rockwall counties.l Over the

years, Dallas has consolidated with and has annexed other incorporated cities

and towns, some of which voted to remain, and currently are, dry- Three

examples2illustrate the issue.

. When the CiW of Oak Clif{ was annexed into the City of Dallas in

1g1g,the special law passed by the Texas Legislature changing the boundaries of

the City of Dallas included a provision that prohibited a City of Dallas election

from changing the dry local option status of Oak Cliff.3 The Supreme Court

1 The Court is requested to take judicial notice of these facts which are reflected in the U.S. Census
Bureau's Quick Factsand may be viewed at http:/lquickfacts.census.govlqfd/states/48/4819000.htm1.

2 While Relators cite three examples, the City's own records allow a complete determination of dry
historic political subdivisions located within the Cify of Dallas. Consequently, the relief requested is not
limited to separately verifying signatures only for these three examples.

3 City of Oak Aiffa. State,79 S.W. 1, 3 (Tex. 1904): "section 10 of the ...act is in these words: 'The said
terriiory of Oak Cliff hereby added to the city of Dallas, is hereby declared to be a residence district, and
the city council of Dallas shall never have authority to permit any intoxicating liquors to be sold, bartered
or exciranged within said limits. That the present statute of local option, as it now exists in said territory
of Oak Cliff, shall not be repealed or changed Ot act of the city council of Dallas, and should any
?
[-

addressed the validity of that statutory provision and noted: "[T]he effect .-. is

to declare the law as it was at the time the charter was amended, and in no

manner affects the rights of the citizens of Oak Cliff on that question as they

existed prior to the adding of that territory to the city of Dallas. It was useless

and is harmless.' City of Oak Cliffa' State,79S.W- L, 3 (Tex.1904).

. In 1940, the town of Preston Hollow voted to be dry.a In 1945,

Preston Hollow was annexed by the City of Dallass and its dry status has not

changed.o

. On September 20, 1975, the City of Kleberg voted to remain dry-'

Then on April 1., 1978, Ordinance No. 15794 consolidating the City of Kleberg

with the City of Dallas was approved.s

on March 1-.6,2010, the City secretary of the City of Dallas (the "City

Secretary") received an application for a petition to the qualified voters of the

election be held on said question, it shall be held solely in the entire justice precinct in which the city of
Oak Cliff was, and is, situated prior to the adoption of this act, to wit: Precinct No. 7, Dallas County,
Texas, as it is now constituted."'

4 MR 000219, 000232-000243. T]nedocument at MR 000233-000243is a report maintained by the Texas

Alcoholic Beverage Commission on its website found at
http://www.tabc.state.t.us/local option elections /history--of elections.asp. The Court is requested to
tutu i"ai.iut notice that this record is maintained by the Comrnission. Section 501.153 if the Texas
Electi'on Code requires that the results of a local option election be reported to the Commission.

5 MR 000232.

6 MR 000219.

7 MR 000218,000221.-00023'l-.

8 MR 000153-000216.
City of Dallas to legalize "the legal sale of beer and wine for off-premise

consumption only."e On May 20, 2010,the City Secretary received a petition to

legalize the sale of beer and wine for off-premise consumption for the entire City

of Dallaslo containing over 108,000signatures.u The petition did not distinguish

between the City as a whole and those historical political subdivisions, including

incorporated cities and historic JusticePrecincts located within the City of Dallas,

such as Preston Hollow, Kleberg, and historic JP7 (now part of current Justice

Precincts 5 and 1), which previously elected a dry status.

After the petition was filed, on June 3, 2A10,Wood and Dallas County

Commissioner John Wiley Price ("Price"), citizens and voters of the City of

Dallas, each requested the City Secretary to verify each signature on the petition

as permitted by Section 501.031of the Texas Election Code.12 Wood and Price

expressed concern about the validif of the signatures and the lack of sufficient

signatures from dry justice precincts. On June 7 and 8, 201A,the City Secretary

acknowledged receipt of the requests for verification and requested payment of

e MR 000001-5;Appendix A.

t0 MR 000002 One page as Appendix B. For the Court's convenience, due to its length, only the first ten
pages of the Petition have been printed. The entire PetitiorU which is contained on three compact discs is
MR 000007. Only the first page of the Petition is included in the Appendix. The Court's clerk has advised
Relators that the Court consented to Relators' filing the Petition in CD format due to its length. Another
petition was received at the same tirne calling for an election to legalize the sale of mixed beverages in
restautants by food and beverage certificate holders only, but this mandamus proceeding is not
addressed to that petition.

tt MR 000002 MR 000096,Affidavit of Tim Reeves,para. 3.

12MR 000041;Appendix D MR 000248'

$43,505.98as the reasonable cost for verification.l3 The City Secretary advised

Wood and Price that the verification process would not begin until receipt of the

requested $43,505.98,that the process would take three weeks and that if it took

less than three weeks, a refund would be issued.la On June 15, 2010,$43,505.98

was paid to the City Secretary.rs On ]une 15,201,:0,the City Secretary notified

Wood that an additional $12,333.49would be required for the verification.l6 On

was paid to the City Secretary.tT

June17,2010,the additional $12,333.49

Five days later, on June 22,20L0, Wood's counsel gave written notice to the

City Secretary that an independent audit of all petition signatures had been

conducted by * outside exper! The Election Group, LLC, and that the petition

was a minimum of 5,555 signatures short of the required numbeds of valid

signatures.le The next day, June 23, 2010, the City Secretary issued a

"Memorandum" to the Mayor and Members of the City Council advising that

13MR 000&11.000247.

14MR 000040,000247. The City has not refunded any of the cost of the requested signature-by-signature
verification paid to the City, nor provided any breakdown or explanation of the reasonablenessof any
such expenses.

15MR 000104,000039;Appendix D

15MR 000035.

17MR 000036-000038;
Appendix E; MR 000104.

18 The minimum number is equal to 35% of those City of Dallas voters who voted in the last
gubernatorial election. TEx. Errc. Coos S 501.032(a).

1eMR 000023-000025.
she had "examined" the signafures on the petition and summarily stated that she

had found the two petitions to contain "sufficient signatures" to quatfy as valid

and, therefore, submitted the petition and a "certificate of sufficiency" to the City

Council for appropriate action.2o Neither the Memorandum nor the Certificate

certified the actual "number" of signatures individually verified, nor did either

state the number of valid, qualified signatures contained in the petition.

Nonetheless, on June 23, 2010,the City Council adopted Ordinance No. 27932,

ordering a special election to be held on the petition on November 2,2010, for the

purpose of submitting to the qualified voters of the City of Dallas a proposition

on whether to legalize "the sale of beer and wine for off-premise consumption

oily" in the City of Dallas.2r The Ordinance set the boundaries for the election to

encompassall of the City of Dallas, but failed to define the boundaries of all dry

historical political subdivisions contained within the City boundaries.

Sra.NorNc oF RELAToRS

A. Marcus Wood. Mr. Wood is a resident and registered voter of the

City of Dallas. Relator requested the signature-by-signature verification of the

petition signatures and arranged payment of the cost of such verification and,

consequently, has standing to complain of the failure to properly call the local

option election. In Blum zt. Lanier, 997 S.W.zd 259, 262 $ex. 1999), the Texas

20MR 000(X2-000045;Appendix F.

21MR 000046-000095;
Appendix G.
Supreme Court held that the signer of a petition, as a sponsor of legislation, has a

justiciable interest in seeing that the legislation is submitted to the people for a

vote and reasoned that "citizens who exercise their rights under initiative

provisions act as and 'become in fact the legislative branch of the municipal

govemment."' Blum, gg7 S.W.2d.at 262 (quotingGlasso. Smith, 2M S.W.2d 645,

649(Tex.1951)). Section501.031of the TexasElection Code authorizes a "citizen

of the political subdivision for which an election is sought" to request verification

of each signature on the petition. Wood exercised that right by requesti.g a

signature-by-signafure verification and also caused the costs for the verification

to be paid,.D These facts give Wood an interest distinct from the general public in

this proposed legislation and confer standing on him- |

B. The Kirkwood Temple. Kirkwood Temple, Christian Methodist

Episcopal Churctu represented by its Senior Pastor, Dr. Jerry L. Christian, St., is

located at1,440Sunny Gleru Dallas, Texas 75232,in the Oak Cliff section of the

city of Dallas. The Church has a membership of approximately 3,000

congregants and includes persons who are residents of the City of Dallas and

who are registered voters residing throughout the Southern Sector in Dallas,

including in Oak Clrtf.23

z wood arranged for such payment by a coalition interested in the outcome of the proposed election.

tt Nm.oooo99-ooo1oo.
10
 C. The African-American Pastors Coalition. The African-American

Pastors Coalition (the "Coalition") is a corporation that represents the pastors of

45 churches with a total, collective membership of approximately 50,000

congregants. Most of the Coalitiort's congregants are residents of the City of

Dallas and are registered voters residing in the Southern Sector of Dallas,

including the Oak Cliff part of the City of Da11as.2a

D. The Interdenominational Ministerial Alliance of Greater Dallas.

The hrterdenominational Ministerial Alliance of Dallas (the "Alliance") is a

voluntary association of 390 member churches with approximately 60,000

congregants who worship and live in Oak Cliff.2s

E. Mt. Tabor Baptist Church. The Mt. Tabor Baptist Church,

represented by its senior pastor, Dr. Stephen C. Nash, is located aL3700Simpson-

Stuart Road, Dallas, Texas, 75241 in the Southern section of Dallas and has

approximately 2,000 members, many of whom are registered voters who live,

work, and worship in Oak Cliff.26

F. Lifeway Church. The Lifeway Church, located at 5520 South

Westmorland, Dallas, Texas, 75237,represented by its senior pastor, Dr. Karen

u tvrRoooogg-ooo1oo.
25N&.oooo97-oooo98.
* vtRoooogz-oooo98.
11
Hollie, is an unincorporated association of congregants including persons who

are registered voters residing in the Oak Cliff part of the City of Dallas.27

Oak Cliff was dry when it was annexed by the City of Dallas in 1903.

Relators Kirkwood Temple, the Coalition, the Alliance, Mt- Tabor Baptist

Church, and Lifeway Church have standing as individuals and associations

representing individuals who reside in Oak Cliff who are opposed to changing

the dry status of Oak Cliff and who will be disenfranchised by a wet-dry election

held in the entirey of the City of Dallas, which does not differentiate between

the City as a whole, and the dry areaswithin the City of Dallas, in which many of

their congregants members reside.

The requirement for associational standing in Texas was clarified by the

TexasSupreme Court in Tex.Ass'n of Bus.ts.Tex.Air ControlBd',852 S-W.2d 440

(Tex. 1993). In order to have standing, an association must meet the following

test: "(a) its members would otherwise have standing to sue in their own righf

(b) the interests it seeksto protect are germane to the orgatization's purpose; and

(c) neither the claim assertednor the relief requested requires the participation of

individual members in the lawsuit." Tex. Ass'n of Bus., 852 S.W.2d at M7 - The

purposes of the three association Relators include advancing the religious,

economic, safety, health, and community interests of its members. Relators

Kirkwood Temple, the Coalition, the Alliance, Mt. Tabor Baptist Church, and
t'N,m.
ooo1o1-ooo1o2.
l2
Lifeway Church have joined this mandarnus proceeding in order to advance the

interests and rights of its members, whose individual participation is not

required for presentation of this petition or for the relief requested.

Suprpreny OFARGUMENT

The Texas Constitution and local option election laws provide for the

maximum possible voter control over the status of the sale of alcoholic beverages

in the area where a voter resides, and gives that control to the smallest historical

political subdivision. When Article XVI, Section 20, of the Texas Constitution

was amended in 1935, the Texas Constitution guaranteed that political

subdivisions that had elected dry status as of the adoption of this Constitutional

Amendment would remain dry until the identical political subdivision, using

identical boundaries, voted in a local option election to change that status. This

is true even if the boundaries of that political subdivision change, or it ceasesto

exist, or it is absorbed into another political subdivision of the State. In an effort

to wet-up the entire City of Dallas for the sale of beer and wine for off-premise

consumption through a city-wide local option election, a petition was delivered

to the City Secretary. Relators seek mandamus relief to require that the City

Secretary and City Council comply with statutory and Constitutional safeguards

designed to ensure local option initiative petitions are properly veri{ied and

certified before a local option election is ordered.

t3
 The City of Dallas includes political subdivisions, such as Preston Hollow,

Kleberg and historic JP Z which previously elected a dry status. In order to

change that stafus, the voters residing within those historical boundaries must

decide their wet/dry status by a separate vote - a city-wide election to do so is

unlawful and risks overwhelming those voters' choices by votes from persons

who do not reside in their historical political subdivision. The City must

separately consider and safeguard each such territorial status when ordering a

lawful vote to wet-up the City.

The petition delivered to the Cify Secretary failed to distinguish between

historical political subdivisions that formerly had voted dty and were

subsequently annexed by the City of Dallas. As permitted by law, Wood

properly requested in writing that the City Secretaryverify each signature on the

petition, instead of doing so by a statistical sampling method. The City Secretary

estimated the process would take three weeks and required payment of the

estimated costs in advance before beginning to per{orm the mandatory review.

OnIy six days after the cost was paid (and one day #ter counsel for

Relators notified the City Secretary, City Attorney and the City Council that an

independent local option election expert had concluded that petition was short of

the minimum signatures required to call a lawful election) the City Secretary

provided a Memorandum to the City Council purporting to certify that the

l4
petition contained "the required number" ofvoter signatures to call the election'

without stating the actual number of valid signafures required, or the number of

valid signatures contained on the petition. Although the City Secretary has a

mandatory duty to certify the actual number of signatures determined to be valid

and qualified by her mandatory signature-by-signature review, the City

Secretary,nevertheless,ignored this non-discretionary requirement of law-

Separately, before ordering a city-wide election, the Dallas Clty Council

failed to discharge its duty under the Texas Election Code Section 501.032(a)to

verify that it was presented with a "propet petition" that contained the required

number of valid signatures of qualified voters on the petition. Trx. Ernc. Copr S

501.021. Further, neither the City Secretarynor the City Council addressed either

the propriety of the petition or the validity of petition signatures by

differentiating between the City as a whole and the historical political

subdivisions within Dallas that previously voted dry. As a result, an election has

been called on the basis of an unlawful "Certification" which fails prima facie to

comply with express Constitutional and statutory mandates. Any election called

on such basis is void ab initio and, moreover, will disenJranchisevoters itt dry

political subdivisions and fail to give such voters the Constitutionally and

statutorily guaranteed maximum possible control over whether alcoholic

beveragesmay legally be sold in their neighborhoods.

15
 Becauseit is the petition alone that vests the City Council with jurisdiction

to order a lawful election, the City Secretary's and City Council's failure to

ensure the petition is "proper:' rt uncorrected at this stage, Wil result in the

calling of an unlawful, and therefore, futile, election, the wasting of taxpayer

monies, the futile casting of votes, the disenfranchisement of voters, and chaos

regarding wet and dty overlap for citizen, homeownet, property owrler/

consumer and retailer alike.

ARGUMENT AND AUTHORITIES

I. Mandamus Standards

The general standard for issuance of a writ of mandamus is well

established: mandamus is available "to correct a clear abuse of discretion or the

violation of a duty imposed by law when there is no other adequate remedy by

law." Walker o. Pncker,827 S.W.2d 833, 839 (Tex. 1992). Additionally, the Texas

Election Code authorizes the Texas Supreme Court and courts of appeals to

"issue a writ of mandamus to compel the performance of any duty imposed by

law in connection with the holding of an election ...." TEX.Ersc. CooE S 273.061'.

l6
il. Respondents failed to perform ministerial duties imposed by law in
connection with properly verifying the petition and ordering a lawful
local option election and mandamus must issue.

The Texas Constitution guarantees local control of whether a political

subdivision will be wet or dry. TEX.CoNST.art. XVI, S 20(c) provides, in pertinent

part:

(c) In all counties, justice's precincts or incorporated towns or cities

wherein the sale of intoxicating liquors had been prohibited by local
option elections held under the laws of the State of Texas and in
force at the time of the taking effect of Section 20, Article XVI of the
Constitution of Texas, it shall continue to be unlawful to
manufacture, sell, barter oI exchange any intoxicants
whatsoevef, for beverage purposes, unless and until a maiority of
the qualified v in such countv or political subdivision t
tion held for shall
be lawful ....

Tux. CoNsT. art. XVI, S 20(c) (emphasis added). Pursuant to Constitutional

directive, the Legislature has enacted laws regulating the sale of alcoholic

beveragesand providing for local option elections, which are codified at chapter

25'1.of the Alcoholic Beverage Code and chapter 501 of the Election Code. See

Tnx. Coxsr. art. XVI, S 20(c);Tsx. Arco. Bsv. Coor SS251.71- .82 (subchapter D);

Tnx. ErEc. CooE SS501.001- .155(subchaptersA-D).28

The Texas Legislature also has adopted laws intended to satisfy the

Constitutional mandate that voters in the smallest political subdivision

zt 1n2005, subchapters A, B, and C of chapter 251 of the Alcoholic Beverage Code were repealed and re-
codified at chapter 501 of the Election Code. SeeAct of May 27,2005,79th Leg., R.S., ch- 975, SS1-8, 2005
Tex. Gen. Laws 3269,3269-77.
l7
allowed the maximum possible control over the status of the sale or prohibition

of alcoholic beverages in eu:rarea where he or she resides- SeeTgx. Arco. Bnv.

Coog S 251.73. An authonzed voting unit that has exercised a local option

election retains the status adopted until changed by a subsequent local option

election in the same authorized voting unit. Tux. ALco. Bsv. CooB S 251'.72;Tnx.

Op. An'yGsN. GA-0535,p.5, S II.(A), 112(2008)('[A] political subdivision retains

the status resulting from an election until it is changed by another election

specific to the sarnepolitical subdivision."). Once a local option status is in effect

as a result of a legal vote, it can only be changed by u vote in the same

geographic territory as when the status was established. TEx. Arco. Bnv. Copg S

251,.80;In re Daais,269 S.W.3d 581,585 (Tex. 2008); Houchins v. Plainos,11O

S.W.2d 549, 553 (Tex. 1937) (holding that a dry city annexed to a wet area

"remained dry until it was voted wet at a subsequent election held in and for the

same identical area which had theretofore voted dry . .."); Cokerv. Tex.Alcoholic

Coffiffi'n,524 S.W.2d 570,574 (Tex. Civ. App. -- Dallas 1975,writ refd

Bezternge

n.r.e.) ("a political subdivision which has once voted dry remains so until sale of

alcoholic beveragesis legalizedby a wet vote in the same subdivision").

t8
 A. The City Secretary failed to comply with her duty under Section
501.03Lof the Texas Election Code by failing to certify the actual
number of qualified voters validly signing the petition.

Ort " a proper petition" validly signed by the required number of quali-fied

voters of a municipality, the City Council must order a local option election to

determine whether the sale of alcoholic beverages shall be prohibited or

legalized.2eTEx. Ersc. Coos S 501.021. The City Secretary is required to check

the names of the signers of the petition, including determining whether the

signers were qualified voters of the city at the time the petition was signed.

While the City Secretary may use a statistical sampling method to verify

signatures, once a citizen makes a written request, the City Secretary "shall verify

each signature on the petitiorl" atthe expenseof the requestor. Id. at $ 501.031(a).

The City Secretary is then required to certify to the City Council "the number of

qualified voters signing the petitiott." Id. at $ 501.031(a)'

The City Council is authorized and required to order a local option

election only if a "proper petition" in compliance with the statutory

requirements,3obearing the valid signatures of the required number of qualified

voters, is properly presented. Id. at SS501.021,501.032(a).Once Relator Wood

made a written request for verilication of each signafure, however, the Dallas

2eThe local option election stafutes provide that when applied to a city election, references to the county,
county comrnissioners and voter registrar are changed to mean the city, city council and city secretary,
respectively. Tsx. Ersc. CoDE S 501.109.

30TEX.Ersc. Cour 55501.026-.033.

t9
City Secretary assumed an additional, mandatory duty to review enchsignature

on the petition and to certify to the City Council the number of qualified voters

validly signing the petition - she was no longer authorized by law to use a

statistical sampling method as a shortcut to verification. Id. at S 501.031(a). The

City Secretaryfailed to perform these ministerial duties.

The City Secretary's "Memorandum" presented to the City Council on June

23, concludes: "Having examined the petition signatures, I have found the two

petitions to contain sulficient signatures to qualify as valid. Therefore, I am

submitting the attached petitions, with certificate of sufficiency, to the City

Council for appropriate action."31 The City Secretary never certified the actual

number of qualified voters who validly signed the petition, or delineated the

number between the city and political subdivisions, such as signers residing

within or without the historical boundaries of dry Preston Hollow, Kleberg and

historical JP7. The certification does not unambiguously certify the actual

number of qualified signatures on the petition at issue and not only fails to

indicate compliance with the mandate to verify each signature, but also omits the

actual number of qualified signatures determined.

Section 501.031(a) of the Texas Election Code, providing that the City

Secretary "shall certify" the number of qualified voters, requires strict

compliance. SeeIn re Triantaphyllis,68S.W.3d 86'1,868 (Tex. App. -- Houston

31MR 000042-000045;
Appendix F.
20
[14mDist.l2002, orig. proceeding) (use of word "must" in Election Code requires

mandatory compliance). The City Secretary had no discretion to ignore express

and unambiguous statutory mandates or, to substitute a conclusory, non-specific

memorandum or "certification" in lieu of satisfying explicit statutory

requirements, including providing the actual number of valid petition signatures

counted when verifying each signature as requested. SeeTrx. EIEC. COoU S

501.031.

The Memorandum and Certificate fail to satisfy the City Secretary's clear

duties: 1) to "examine" the off-premise Petition by conducting a verification of

each signatwe;2) to declare how many signatures were submitted and of those,

how many (i.e., what "number") were verified as validly signed; and 3) whether

such number of valid signatures of qualified voters met or exceededthe required

threshold to order a lawful election. The importance of the City Secretary's

certificate being in compliance with Section 501.031(a)was made clear by this

486S.W.2d155,159 (Tex.Civ. App. -- Dallas 1972,no

Court rnEllis o. Vnnderslice,

writ), when the court stated: "[the commissioners court] has nothing before it on

which to act or defer action until the clerk makes his certificate." EIIis, 486S.W.2d

at 159. The Texas Attorney General in 1945 summarized the law regarding the

jurisdictional prerequisite of a valid petition: "It is well to bear in mind that it is

the petition that confers upon the commissioners' court the jurisdiction to order

21
an election ...." Tex. Op. Atty. Gen. 0-6364(1945),p.725; seealso PoweIIo. Bond,

150 S.W.2d337,340 (Tex. Civ. App. -- Waco 1941,no writ) ("it is the petition that

confers upon the Commissioners' Court the jurisdiction to order the

election") (intemal quotations omitted).

The requirement that the City Secretary certify the actual number of

qualified voters validly signing the petition, and not simply recite compliance

with the "required number," takes on added significance because:

(1) Relator Wood timely and properly requested in writing and caused

payment to be made in full and in advance for a signature-by-signature

verification of each petition signature;

(2) The City Attorney, in an April 1.,2010,Memorandum, presented the

City Council with a written briefing, and Assistant City Attorney, John Rogers,

provided the City Council and City Secretary with a briefing on April 7,2010,

utilizing presentation slides which advised that the City Secretarymust certify to

the City Council the "number" of signatures on the petition;s2

(3) Accepting the City Secretary's estimates in coffespondence with

Wood and Price that it would take three weeks from the date of payment of the

cost to complete the review, then (a) issuing the Memorandum and Certificate

only six days #ter payment was received, (b) failing to heed the City Attorney's

32MR 000123,000130.

22
presentation that the statute requires her to report the number of valid

signatures, and (c) omitting any expressconfirmation that each petition signature

was verified, all confirm that there is no basis for presuming that the mandatory

requirement to conduct a signature-by-signature review of over L08,000

signafures was satisfied; and

(4) Relators' counsel advised the City Secretary that a petition expert

consultant independently audited and determined that the number of qualified

voters validly signing the petition was deficient by a minimum of 5,555

signatures.33

The City Secretary'sfailure to certify the actual number of qualified voters

validty signing the petition deprived the City Council of jurisdiction necessaryto

order a lawful local option election and thereby deprived interested citizens,

including Relators, of the public disclosure of the information required to be

provided by statute, assuming that the required signature-by-signature

verification was performed.

The source of the Dallas City Council's authority to call a special election

to wet-up the City of Dallas is Texas Constitution Article XVI, S 20, Chapter 28'J'

of the Texas Alcoholic Beverage Code, and Chapter 501 of the Texas Election

33MR 0000233-000025;MR 000096-000099. As reflected in the Affidavit of Tim Reevet his company,
Election Group, LLC, independently reviewed the petition. The review took three and a half weeks- The
review disclosed that the petition was at least 5,555 signatures short of the required number of signatures
and that an additional 7,987 signatures should be statutorily disqualified because of missing or
incomplete voter information and illegibility.
23
Code. The authority to call the election comes from a special grant of authority.

Therefore, its exercise must be in strict conformity with the provisions of the

Constitutional and legislative grant. W. End Rural High Sch.Dist. of Austin County

a. ColumbusConsol. LS.D. of Colo. County,221, S.W.2d 777,779 (Tex. 1949);

Houchinso. Plainos,110S.W.2d549,553(Tex.1937)("it is settled as the law of this

State that where a power is expressly given by the Constitutioru and the means

by which, or the manner in which it is to be exercised,is prescribed, such means

or manner is exclusive of all others"\; Tex. Att'y Gen. Op. GA-0209 (2004).

hrdeed, the statutory requirements for the election are conditions precedent to

establishing the City Council's proper jurisdiction to order a lawful election in

the first instance. W. End Rural Higlt Sch.Dist.,221S.W.2d ar779-

The Legislature has provided clear and unambiguous instructions

requiring the City Secretary to state "the number of qualified voters signing the

petition;" there is no need or license for additional interpretation. SeeFleming

Foodsof Tex. o. Rylander,6 S.W.3d 278, 283-84(Tex. 1999) (specific, unambiguous

statutes should not be construed to mean something other than what the plain

words say, absent obvious error or the literal language will produce an absurd

result); McGraw zt. Nernby, 496 S.W.2d 250, 251,-52(Tex. Civ. App. -- Beaumont

1973, no writ) (invalidating local option election for failure to comply with

statutory ballot requirement). These provisions are part of a series of protective

24
and precautionary measuresthat are intended to ensure that the election issue is

accurately presented and to prevent the imposition of fraud and mistake on the

City Council and voters, in certifying a petition and calling an election. SeeTex.

Att'y Gen. Op. No. 0-6364, pp.725-26 (1945).

The City Secretary has non-discretionary duties to individually verify and

to certify the actual number of qualified voters signing the petition, but failed to

do so. Relators are entitled to have those duties compelled and performed prior

to the issuance of a lawful certification or the ordering of a lawful election.

Accordingly, Relators request this Court order the City Secretary to certify to the

City Council the number of qualified voters validly signing the petition and the

City Council to perform its duty to evaluate the sufficiency of such certification

and the propriety of the petition.

B. The City Council failed to comply with its duty under Section
50L.032 of the Texas Election Code by failing to obtain a valid
certification from the City Secretary of the actual number of
qualified voters validly signing the petition.

Section 501.032 of the Texas Election Code requires the City Council to

order a local option election on or after the 30th day #ter the petition is filed if:

(1) the petition is filed with the City Secretary within 60 days of the date of its

issuance;and (2) the petition bears the verified, acfual signatures of a number of

qualified voters at least equal to a number corresponding to 35% of the registered

voters in Dallas voting in the last gubernatorial election. Tgx. Ergc. Copg S

25
501.032(a). The duty to call an election belongs to the goveming body of the

City of Dallas, its City Council. SeeCokera. Tex.AIco. Beo.Comm'n,5245.W.2d

570, 579 (Tex. 1975) ('the commissioners' court has responsibility to call the

election ..."); T5*. ArcO. BgV. COoE S 251.82 ("u reference in this code ... to

commissioners court is considered to refer to the governing body of the city").

While some prior Dallas Court of Appeals decisions held that a different

city council, faced with city charter provisions that gave it no discretion, lacked

the power to reject a city secretary's certificate of sufficiency, see,e.9.,In re Porter,

126 S.W.3d 708 (Tex. App. -- Dallas 2004,orig. proceeding) and Howard o. Clack

those decisions
589 S.W.2d748 (Tex.Civ. App.-- Dallas 1979,orig. proceeding),aa

are of dubious precedential value today. The Texas Supreme Court recently

addressedthe governing body's duty to call an electioninln re Daois,269S.W.3d

581 (Tex. 2008). The Relator in that case argued that once the Dallas County

Elections Administrator certified the petitions and the Elections Department

recofilmended that the Commissioners Court order the local option election, the

Commissioners Court had a ministerial duty to order the election and its refusal

34 For example, in In re Porter, the Court found the Balch Springs City Council had no legal right to
disagree with the city secretary's certiFicate because the city's charter made the cify secretaqy's
determination of sufficiency final and binding. The Dallas City Charter contains no such provision, and
gives no deference to the certificate; instead it requires the City Secretary to examine the petition and
ascertain if it is validly signed by the requisite number of qualified voters and to attach to the petition a
certificate showing the result of the examination. The City Secretary is then charged with submitting the
petition to the City Council. In facf the City Council is required to take action on the petition only if
"properly signed." (Dallas City Charter, Ch. XVII, S 12, 13. Appendix Ex. & S). Nor could the Dallas
City Charter lawfully supplant the constitutional and statutory pre-emption of the Texas Election Code
and the Texas Alcoholic Beverage Code.
26
warranted mandamus relief. ln re Daois,269 S.W.3d at 583. The Supreme Court

rejected this argument outright, holding that because the petitions presented to

the Commissioners Court were not "proper," the Commissioners Court had no

duty to order the local option election. In re Daois, 269S.W.3d at 586.

The Dallas City Council's legal duty is not to order a local option election

to legalize the sale of alcoholic beverages unless the petition calling for such

election is "proper," including being signed by the required number of qualified

voters and verified, when requested, on a signature-by-signature basis. In re

Dapis, 269 S.W.3d at 586 ("Flere, however, the Commissioners Court was not

presentedwith'proper petition[s]'for old Precincts2 and 3, so it had no duty to

order a local option election for those historical precincts"). The Election Code

provides a mechanism to assist the City Council in performing its duty to decide

whether a petition bears the required number of qualified voter signatures: the

City Secretary'scertification of the number of qualified voters validly signing the

petition. The certification required by Section 501.031(a)of the Texas Election

Code must contain the actual "number of qualified voters signing the petition"

or the certification is neither lawful nor proper, thereby depriving the City

Council of the necessaryjurisdiction to order a lawful local option election. See

Powellzt.Bond,150S.W.2d337,340 (Tex. Civ. App. -- Waco 194'1,no writ); Att'y

Gen. Op. No. 0-6364,pp.725 (1945).

27
 The City Council did not obtain a certificate from the City Secretary

complying with Section 501.031(a)of the Texas Election Code, nor did it do its

own review of the number of qualified voters. The City Council had a non-

discretionary dury to order an election only if the petition was proper and

properly certified, but neither the City Secretary, nor the City Council, certified

the number of qualified voters properly signing the petition. Relators are

entitled to have those duties compelled. Accordingly, Relators ask this Court to

order the City Council to verify each petition signature and to state the required

number of properly qualified voters validly signing the petition, as required in

Section 501.031of the Texas Election Code.

C. The City Secretary and City Council failed to perform their

respective duties to delineate the 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
futile election.

The right of the smaller voting unit to control whether it is wet or dry is

well-established in Texas. SeeTnx. CoNsr. ART. XVI, S 20(c); TsX. Arco. Bsv.

Coos SS 251,.72- .73; Houchinso. Plainos,110S.W.2d 549,555 (Tex. 1934 ("*.

hold that while it is true that the city of Houston Heights has long since ceasedto

exist as a municipal corporation, still it yet exists for the purPose of holding a

local option election to vote on the question of making it lawful to sell

intoxicating liquors within the area originally voted dry."); Cokero. Tex.Alcoholic

28
1

Beo.Comm'n,524S.W.2d 570, 574 (Tex. Civ. App. -- Dallas 1975,writ refd n.r.e.)

(holding "that a political subdivision which has once voted dry remains so until

sale of alcoholic beveragesis legalizedby awet vote in the same subdivision"); In

re Daais,259 S.W.3d 581, 585 (Tex. 2008) (holding that since an election in current

justice precinct 3 would not #fect the dry status of old precincts 2 and 3, the

county commissioners were not required to order an election based on a petition

that did not differentiate between the current and old justice precinct

boundaries); lackson a. State, 118 S.W.2d 313, 314 (Iux. Crim. App. 1938)

("intoxicating liquors, once having been voted out, can only be voted back by a

majority vote of the identical territory that had voted such liquors out.").

The City of Dallas contains political subdivisions that previously voted

dry. Preston Hollow, Kleburg and JP7 are but examples. The voters residing in

such political subdivisions are entitled to vote on whether that subdivision

remains dry. Houchins and In re Daois aptly demonstrate this point.

In Houchins, t}:Lecity of Houston Heights voted for a dry status; Houston

Heights was then dissolved and annexed into the City of Houston. Houchins,!10

S.W.2d at 550. The Texas Supreme Court held that in order to change the status

of the part of the City of Houston formerly known as Houston Heights, the

election "must be held in the same area that originally voted dry." Id. at 555

(emphasis added). Houchins was cited with approval by the Texas Supreme

29
Court in its most recent decision addressingthe issue. In re Daois,269S.W.3dat

584.

In In re Daais, the proponents of an initiative to wet up part of Dallas

County encompassing Justice Precinct 3 presented a petition to the Dallas

County Commissioners Court. While the Elections Administrator certified that

sufficient qualified voters had signed the petition and recommended the

Commissioners Court call a local option election in Precinct 3's current

boundaries, the Commissioners Court refused to order the election becausethe

election needed to be called in the historic Precinct 2 and 3, instead of in current

Precinct 3. Id. at 582-83. The Texas Supreme Court refused to mandamus the

Commissioners Court. Id. at 582. The Court addressed "whether a vote in

current Precinct 3 would be effective to change old Precinct 2 and 3 from dry to

wet." Id. at 584. The Court cited Houchinswith approval and noted that Section

251.80 of the Texas Alcoholic Beverage Code "explicitly requires a vote in the

'territory ... constituting such original precinct,' and an election in new Precinct 3

would not change old Precinct 2 and 3 from dry to wet." ld. at 585. The Court

concluded that the petition to wet up current Precinct 3 was not "propet" and,

consequently, the Commissioners Court had no legal duty to order a local option

election in current Precinct 3. Id.

30
 Orly voters who reside in the identical geographic territories of the

historical dry political subdivisions are authortzed to vote in a local option

election that seeks to change that status. SeeTnx. CoNsr. ART. XVI, 5 20(c);

Houchinso. Plainos,110S.W.2d at 555. Accordingly, the City Secretaryhas a duty

under the Texas Election Code and Texas Alcoholic Beverage Code to verify that

a sufficient number of qualified voters who reside in each of the dry political

subdivisions that will be affected by the requested local option electioru as well

as the remaining part of the City, validly signed the petition. Moreover, the City

Council has its own duty to specify in its election order the boundaries and

territory in which the election or elections will be held. The City simply cannot

conduct one election, based on one petition, for the purpose of wetting-up the

entirety of Dallas. Each political subdivision, including annexed towns and cities

and historical justice precincts, which previously voted dry, is entitled to vote

separately on the issue. Tsx. CoNsr. ART.XVL S 20(c).

The Dallas City Secretaryfailed to properly count and disclose the number

of qualified signafures on the petition becauseshe counted in gross, and did not

distinguish between the City as a whole, and the political subdivisions that

previously voted dry, which are located within the City. In re Daois, 269 S.W.3d

at 585 ("Petitions must be addressed to the territory whose status will be

changed by local option election--here, old Precincts 2 and 3-and only then may

3l
the Commissioners Court order a local option election in old Precincts 2 and3.").

The City Council also failed to properly call the election because it did not

distinguish between the City as a whole and the political subdivisions that

previously voted dry that are located within the City.

Relators ask this Court to order the City Secretary to count and verify the

number of qualified voters signing the petition who reside in each political

subdivision located within the City of Dallas which previously voted dry and the

remaining parts of the City, and to certify the number of qualified voter

signatures on the petition for each such political subdivision and for the

remaining parts of the Cify.

CONCLUSION AND PRAYER

This Court has the power to facilitate the election process through this

mandamus proceedirg ir order to ensure the requested local option election is

neither unlawful nor futile. Elections are expensive and time consuming.

Moreover, the citizens' votes should not be squandered in an unlawful election.

As pointed out in this mandamus petition, Dallas' City Secretary and the City

Council each failed to perform their respective duties imposed upon them by

law, which failures threaten to invalidate the local option election that has been

scheduled for November 2010. The mandamus relief requested herein will aid

the City in properly ordering and conducting a lawful local option election.

32
 Relators respectfully pray that this Court gant this petition and issue a

writ of mandamus directed to Deborah Watkins, City Secretary of the City of

Dallas, and the Dallas City Council as follows:

(1) ordering the City Secretary to verify each signature on the petition

as required by TexasElection Code Section501.031(a).

(2) ordering the City Secretaryto certify to the City Council the number

of qualified voters validly signing the petition;

(3) ordering the City Council to verify that the petition is validly signed

by the stated required number of qualified voters, as required by Section 501.032

of the Texas Election Code;

(4) ordering the City Secretary to count and verify the qualified voter

signatures for each political subdivision located within the City of Dallas, which

previously voted dry and the remaining parts of the City, and certify the number

of qualified voter signatures signing the petition for each such political

subdivision and for the remaining parts of the City; and

(5) ordering such other and further relief in law or in equity to which

Relators may be entitled.

aa
JJ
Respectfully submitted,

LELAND C. DE LA GARZA
State Bar No. 05646640
ANDREW L. SIEGEL
State Bar No. 18341825
TIMOTHY D. ZEIGER
State Bar No. 22255950
DEREK D. ROLLINS
State Bar No. 24029803

SHacxnrFoRD/ MErroru & MSKINLEY,nr

3333Lee Parkway, Tenth Floor
Dallas, Texas 75219
Telephone (21,4)780-1,400
Telecopy (21,4)780-1,40L

ARORNEYS FOR RELATORS

MARCUS WOOD, THE KIRKWOOD
TEMPLE" THE
INTERDENOMINATIONAL
MINISTBRIAL ALLIANCE OF DALLAS,
AND LIFEWAY CHURCH

34
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Yis Head SslivelT

Hsn. Dcbsreh lryatkins
fity Seret{ry
Dallas City Hsil
ffi f SflSMarillq Roorn5D South
Dallfls,TX ?5101

Re: P*yraent of Cast Incrcaee For Futl Petition Vsifieetion and Demrnd for
Itemizafionsf u'Reasoilsble
Csst*".Authorimd Fy Statule& RelatedMattms

Fear $ccret*ry Watkine;

Pr.n$snt to your l6tt*r d*ted June 15, ?010" eneloscd please find eashi€t'eche€k
#4549Pd15in the anlount of $l?,333.49. as ftll6md final paymentnf wlrat you row slfliril rc bE
the third estima{e of the upfronf "rs&f&nabls cnst" d mafided by tlrc City, as a eemditisn
preccdemtto verifying eachsiglurure *n the Local Option Election Pctition for tlrc legaliaationof,
oiFpremisesnlesof beerend wine tlrcughout thc City ofDallss.

As noted hefurc, we bslieve that yaur dermandsfor futrl" upfront Feymf,fif src not
authrriced by staste {which contcnrpia-tcsrsinnbursemenfuf rEs.sonable
expcnsa*}end eonstitrne

w
t dispante, unf'air and unrEasonablcoostr and treatmmt of ReqnestotrB,
flst otherwi$Eallowed by
sfatute.

Msreover, in the abcence of receiving ANY iternisatian ef or detail regarding your

I
drem*tically escalatingesst estimates{$?S,0flfl when ws first r-aet $43,505.98a frw days later"
and 555,83S.471fuisweek), this is tn sdvise fhnt wE are dennandingfr*m the City a fertrl
nccourrtingandjustifieation sfsll suchallegcdly"rens*n*hlesssB'*ingrnredby ynur Otlis*.

to th€ extent t}tal such trost$sre so ditpropnrtionetely trrig:hotd, rr}sre€vst,

'lriditiona{ly,
;rr,rehigtrer-thrn**mp*rable verificalion efferfs by the City; whictt gensrally havs nCItbeen
as*essedby the eity agninst thn requ*stiflSFarty! ytw **sela-tirlgmsnctary dern*ndsappeart* be
;ubitr*ry, u.nr*as*nabl**nd un&ir amd,thu*, censtituteunlawtul d*rlnnde" Indesd, tlte City's
latest "guesstiffTate" is nnsrethnn tudsc the cost sf fhc angoing, indepemdenf audjt sf tFlesarne
Fetjlicn beinge*aductedhy el{illsd verifisrs.

{urpo*nntly, to fh€ €xfrefifyour lcte*t esti*ratc afid demand are pmnnfsd an th+ nsed fcr a
hurried verificetion effart, eimply tu suit the political convenieuesand expedieneeaf, the eity's
derire to connpleiefhe verifrcatisn this Tuerda.y,in time for Council to een*iderthe Petition's
CLlrtifieefisn the fell*wing Wednesday,all *uch r*lsrrd sssts it unsffifrcssryr unrwso*ablc and
nolr-recfir/erablchy the ei$, given th6t the fouxrcii ic ${rt ruquired lo take astinn or any
]*133Leq fx;i*r*y
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ffil Flon.Dcbsr*hWatkins"Esq- : ,; ,., t.i{J
ffit J u n ei7 , ? 0 l n
tr)age 3
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ffil Certificatisn at ils next '"rne*tingo"b$t instead"only during the currentCcuncil'ssEssion$r teffil.
Thus, R*qu*stor* heleby eontinueto rcsErveall claims snd objeetis$ss$d pay_stchcosts,und€r
protestandsubjeettoandwi{hgutwgiverofallnt'ailablerights,remEdies*ndciamageaallaw
ffi irnri in equitY.

ffi Pursuantto comrnonand stf,tutcrylaw and rigltts" ineluding the TexaeOper Recerd*Act'
ffi clsrnand is hereby nnedefbr you to Blsaw promptly provide Requeslorswith an itemized
breekdousrr and deredption olhow you calculatedeaehof your insreflsiugand in$s*ingly high
ffi verificaticn cosls, an sxplanation sf ho$r and why ilch esr.alsting coe,l*&r* "reassnable" as
ffi required by *atnte, the sperific validation eritsris pruvided ts ysur verifiers to validate
signaturesand,thecredentialsand training cf tfuoseFGr$etHvedfyfng all eignature*.

ffi I?inally,i* fhe inrerestaf tm$spsrerey,this is to alert you and your verifiers to certain of
rhe defeetsth__sltrur audit feamatreadyhasidcntified thus fsr on the samePetition* at i*suc. $/e
ffi *re finding obrisus disqualifiegliansas pro:ridedby statute,as well ss the following recuff€nt
ffi and fnIatrdefectsin Fetition signaune*:

w l] irapropcr inclusion of Suspense votsr* and relianee rn unoffieial sr

i nmeurste Regisuar recsrds;

ffi ?) vsteresdifiqate numkrs thatd,o net match the ascsctatedname;

ffi
3l ineornPleteEOFs;

k 4) complereillegibiiity of allegedvoter iderrtlfrestron*rrdinJbrmation;

"str*ightline, verti*al rnarkings"aftemptingto stlpply vnrying datesto the

ffi 5]
sigrratures obt*ined,
hy
rathsr
vsters; &td'
thar itemiced d*tes supptried
eont€fnpora.neowl;r

ffi 6] duplieate handtrritirtg end signaturcs.

ffi We lcok lorwnrd to prornpt receipl of, the City'* findings, as well as to being providcd
wich the underlying itsmiz$tisn and expla*ation of the ever-iRcreasing,"tr€a$onable eosrs"y*u
have dernsfidedcffd we hevePaid"
ffi
ffi
Ilespmtft I Iy sub:rtitted,
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Uwuo*
ffi Andy Siegel

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