In the Court of Appeals for the Third Judicial District of Texas Austin, Texas

Transcription

1 NO. ACCEPTED CV THIRD COURT OF APPEALS AUSTIN, TEXAS 5/22/2018 5:49 PM JEFFREY D. KYLE CLERK In the Court of Appeals for the Third Judicial District of Texas Austin, Texas IN RE: TIFFANY MCMILLAN Original Proceeding for Writ of Mandamus EMERGENCY PETITION FOR WRIT OF MANDAMUS RAY & WOOD Randall B. Wood State Bar No Doug W. Ray State Bar No Bee Caves Road, Suite 200 Austin, Texas (512) (Tel) (512) (Fax) ATTORNEYS FOR RELATOR TIFFANY MCMILLAN

2 TABLE OF CONTENTS Identity of Parties and Counsel Index of Authorities Statement of the Case Request for Emergency Relief Statement of Jurisdiction Issues Presented iv v vii viii ix x Statement of Facts 1 Argument 4 I. Mandamus Standard 4 II. Respondents Have a Duty to Call a Runoff Election for the Office of Mayor 4 A. When an Office Must be Filled by a Majority Vote the Governing Body Must Call a Runoff Election When No Candidate Receives a Majority of the Votes Cast 4 B. The Lakeway City Mayor is Required to be Elected by Majority Vote 6 1. When a Home-Rule City s Charter Adopts Three Year Terms for Officials Then Those Officials Must be Elected by Majority Vote 6 ii

3 2. Lakeway s Attempt to Suspend its Charter Does Not Excuse the City Council from Calling the Required Runoff Election 10 Prayer 13 Appellate Rule 9.4(i)(3) Certificate of Compliance 14 Appellate Rule 52.3(j) Certification 14 Certificate of Service 15 Appendix to Petition for Writ of Mandamus 16 iii

4 IDENTITY OF PARTIES AND COUNSEL RELATOR Tiffany McMillan RELATOR S COUNSEL Randall B. Wood Doug W. Ray RAY & WOOD 2700 Bee Caves Road, Suite 200 Austin, Texas (512) (Tel) (512) (Fax) dray@raywoodlaw.com RESPONDENTS PRO SE 1 City Council of Lakeway, Texas Jo Ann Touchstone City of Lakeway, Texas City Secretary 1102 Lohmans Crossing Road Lakeway, Texas (512) (Tel) joanntouchstone@lakeway-tx.gov REAL PARTY IN INTEREST Sandy Cox REAL PARTY IN INTEREST S COUNSEL Ross Fischer THE GOBER GROUP PLLC P.O. Box Austin, Texas (512) (Tel) (877) (Fax) rf@gobergroup.com 1 On May 21, 2018 the Lakeway City Council accepted the resignation of the city attorney and Relator is not informed that the City has retained a new city attorney. iv

5 INDEX OF AUTHORITIES Cases Blum v. Lanier, 997 S.W.2d 259 (Tex. 1999)... 5 Cent. Power & Light Co. v. City of San Juan, 962 S.W.2d 602 (Tex. App. Corpus Christi 1998, pet. dism d w.o.j.)...10 Estrada v. Adame, 951 S.W.2d 165 (Tex. App. Corpus Christi 1997, orig. proceeding)...7, 8 In re Sanchez, 81 S.W.3d 794 (Tex. 2002)...11 In re Woodfill, 470 S.W.3d 473, 481 (Tex. 2015)... 4 Miller v. Burch, 32 Tex. 208 (1869)...10 Wilder v. Am. Produce Co., 147 S.W.2d 936 (Tex. Civ. App. El Paso 1940).10 Statutes TEX. CONST. art. V, 6... vii TEX. CONST. art. XI, 11(a)...6, 11 TEX. CONST. art. XI, 11(b)... passim TEX. ELEC. CODE TEX. ELEC. CODE v

6 TEX. ELEC. CODE 2.025(a)... vi, 5 TEX. ELEC. CODE 3.004(a)(3)... 5 TEX. ELEC. CODE vii, 4 TEX. GOV T CODE (4)... 5 Other Authorities Op. Tex. Att'y Gen. No. JC-0293 (2000)...9 vi

7 STATEMENT OF THE CASE Relator Tiffany McMillan is a candidate for the office of mayor of the City of Lakeway. The Lakeway city charter provides that the office of mayor has a three-year term of office. Pursuant to the Texas Constitution when a city has terms of office in excess of two years it must elect the members of its governing body by majority vote. In the May 5, 2018 election for mayor of the City of Lakeway McMillan received the second highest number of votes. Real Party in Interest, Sandy Cox, received the highest number of votes, but did not receive a majority of the votes cast. Respondents have canvassed the election and have refused to call a runoff election as required by the Texas Election Code. McMillan therefore seeks an order of mandamus requiring Respondents to order a runoff election. vii

8 REQUEST FOR EMERGENCY RELIEF McMillan requests emergency consideration of her mandamus petition due to the short deadlines set for the ordering the date of a runoff election. Pursuant to 2.025(a) of the Texas Election Code a runoff election shall be held not earlier than the 20th nor later than the 45th day after the date the final canvass of the main election is completed. As the canvass was completed on May 16, 2018, if this Court issues a writ of mandamus the runoff election would need to be called for a date no later than June 30, viii

9 STATEMENT OF JURISDICTION This Court has jurisdiction of this petition under article V, 6 of the Texas Constitution and Texas Election Code ix

10 ISSUES PRESENTED ISSUE ONE: Respondents have a duty under the Election Code to order a runoff election for the office of mayor of the City of Lakeway between McMillan and Cox. x

11 STATEMENT OF FACTS McMillan is a candidate for the office of mayor, City of Lakeway, Texas, and at the May 5, 2018 general election for mayor McMillan received 888 votes, which was the second highest number of votes received by any candidate for mayor at the election. Cox received 1,269 votes, which comprised 42.15% of all votes cast in the election for mayor. The Lakeway City Council canvassed the general election on May 16, 2018 and issued Cox a certificate of election as mayor. The Lakeway City Council then met five days later, on May 21, 2018, and refused to call a runoff election. Lakeway became a home-rule city in 1990 and under its original charter the mayor and council members served terms of two years and were elected by a plurality vote. See App. Tab 1. 2 In 2014 the City passed ordinance , which called a special election to consider a proposition to amend Section 3.01 [of the charter] to increase the term of office of the Mayor and all Councilmembers from two years to three years. 2 The terms of the City s charter as of 2010 may be found at: McMillan requests this Court take judicial notice of all of the municipal ordinances and charter provisions set out in the appendix. TEX. R. EVID

12 See App. Tab 2. 3 The voters approved this proposal and the charter now states that the [t]erm of office for all members will be three (3) years. Lakeway, Tex., City Charter, art. III, 3.01(b). See App. Tab 3. 4 The charter section providing for election by plurality vote has not been amended and still provides that the candidate who receives the largest number of votes cast for an office shall be declared elected. Id. art. V, See App. Tab 3. The Texas Constitution states that a city providing a term exceeding two (2) years but not exceeding four (4) years for any of its non-civil service officers must elect all of the members of its governing body by majority vote of the qualified voters in such municipality. TEX. CONST. art. XI, 11(b). Despite this constitutional mandate, following its adoption of threeyear terms the City continued to elect members of the City Council by a plurality vote. When this issue came to the attention of the City Council they passed ordinance in which it suspended... City Charter Section 3.0l(b) establishing three-year terms and ordered that the 3 This ordinance may be found at: tx.gov/documentcenter/view/18744/ ordinance-ordering-special- Election. 4 These charter provisions may be found at: 2

13 results of the May 2018 General Election shall be canvassed declaring the winners to be the candidates having received the most votes (i.e., a plurality) for their respective races, consistent with Chatter Section See App. Tab 4. This ordinance attempting to change the mayor s term from three years to two was passed at the time early voting for the mayor s race had commenced. 3

14 ARGUMENT I. MANDAMUS STANDARD The Election Code expressly authorizes the supreme court or a court 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. In re Woodfill, 470 S.W.3d 473, 481 (Tex. 2015) (quoting TEX. ELEC. CODE ). II. RESPONDENTS HAVE A DUTY TO CALL A RUNOFF ELECTION FOR THE OFFICE OF MAYOR The Lakeway City Council is in violation of the Texas Election Code by refusing to do its statutory duty of ordering a runoff election between McMillan and Cox for the office of mayor. McMillan is therefor entitled to a writ of mandamus compelling the City to call the required runoff election. A. When an Office Must be Filled by a Majority Vote the Governing Body Must Call a Runoff Election When No Candidate Receives a Majority of the Votes Cast If no candidate for a particular office receives the vote necessary to be elected in an election requiring a majority vote, a runoff election for that office is required. TEX. ELEC. CODE If a runoff election is required, 4

15 then [n]ot later than the fifth day after the date the final canvass of the main election is completed, the authority responsible for ordering the main election shall order the runoff election. Id In this case, the authority responsible for calling the election, and hence the runoff election, is the Lakeway City Council, the governing body of the City of Lakeway. See id (a)(3) ( [T]he governing body of a political subdivision, other than... a city... with a population of 1.9 million or more... that has elective offices for the general election for those officers... shall order an election. ); TEX. GOV T CODE (4) ( Governing body, if used with reference to a municipality, means the legislative body of a city, town, or village, without regard to the name or title given to any particular body. ). Accordingly, if the office of mayor is required to be elected by majority vote, then the Lakeway City Council has a duty under the Election Code to call the runoff election when no candidate receives the required majority vote. This duty is enforceable by mandamus. See Blum v. Lanier, 997 S.W.2d 259, 263 (Tex. 1999) ( Thus, when public officials have refused to call an election required by law, this Court has compelled them to act. ). In this case, a runoff election would need to be called for no later than June 30, See TEX. ELEC. CODE 2.025(a) ( [A] runoff election shall be held 5

16 not earlier than the 20th or later than the 45th day after the date the final canvass of the main election is completed. ). B. The Lakeway City Mayor is Required to be Elected by Majority Vote When a home-rule city s charter provides for terms of office in excess of two years then by constitutional mandate they are required to elect members of their governing body by majority vote. Because Lakeway s charter provides for three year terms, they were required to elect the mayor by a majority vote despite providing for plurality voting in their charter and despite an ordinance attempting to nullify the charter provisions on terms of office. 1. When a Home-Rule City s Charter Adopts Three Year Terms for Officials Then Those Officials Must be Elected by Majority Vote The Texas Constitution states that a Home Rule City may provide by charter or charter amendment... for a longer term of office than two (2) years for its officers, either elective or appointive, or both, but not to exceed four (4) years. TEX. CONST. art. XI, 11(a). However, the Constitution also states that a city providing a term exceeding two (2) years but not exceeding four (4) years for any of its non-civil service officers must elect 6

17 all of the members of its governing body by majority vote of the qualified voters in such municipality. Id. art. XI, 11(b). As such, the City was required to elect its mayor by majority vote. When Lakeway amended 3.01(b) of its charter to provide for three year terms, it thereby made its elections subject to the requirement of article XI, 11(b) requiring majority vote. The fact that Lakeway did not also revise its charter to remove elections by plurality vote does not excuse it from complying with this constitutional provision. Lakeway is not the first city to have a charter provision adopting three-year terms in conjunction with a charter provision requiring election by a plurality vote. In Estrada v. Adame, 951 S.W.2d 165, 166 (Tex. App. Corpus Christi 1997, orig. proceeding), under its charter members of the Donna City Council are elected to three-year terms. However, the Donna city charter also provides that election to each place on the Council shall be by a plurality of all votes cast. Donna, Tex., City Charter, art. IV, 2. 5 (attached at App. tab 5). 5 These charter provisions may be accessed at: applications/. 7

18 Following its May 1997 general election, the mayor of Donna followed the city s charter and declared a candidate for city council the winner when that candidate received a plurality, but not a majority, of the votes cast. Estrada, 951 S.W.2d at 166. The runner up filed an original proceeding seeking mandamus to compel the city to call a runoff election between himself and the top vote getter as required by art. 11, 11(b) of the Constitution. The court of appeals agreed and held that under the Texas Constitution... members of the Donna City Council must be elected by a majority vote (and not by mere plurality) and that [s]ince the election results were canvassed... respondent was under statutory compulsion to order a runoff for the city council seat. Id. at 167. Although the city argued that its long history of continuing to hold plurality elections was entitled to weight in determining the legality of its actions, the court held that because there was no statutory ambiguity... the fact that the City of Donna may have long ignored or misapplied even if unwittingly state election laws did not override the public policy in our democratic system requir[ing] rigorous adherence to the rules governing the popular selection of public officials. Id. at

19 Similarly, the Texas Attorney General was asked whether the City of Elsa correctly called a runoff election for a city commission race in which no candidate received a majority vote. Just like the City of Donna, the Elsa charter provided for commissioner terms of more than two but less than four years and election by plurality. Following Estrada, the city disregarded the plurality requirement in its charter and instead called and held... a runoff election. Op. Tex. Att y Gen. No. JC-0293 (2000). The Attorney General concluded that, despite the charter requirement for plurality elections, the office of commissioner... of the City of Elsa must be elected by a majority vote. A plurality vote is insufficient. In the event of a plurality vote, the appropriate official must order a runoff election and therefore the city correctly ordered the June 3, 2000 runoff. Id. (citations omitted). Based upon Estrada, even though Lakeway did not amend its charter to provide for majority elections at the same time it amended its charter to adopt three year terms, it still must elect its mayor by majority vote. As a consequence, McMillan is entitled to a mandamus ordering the Lakeway City Council to order a runoff election pursuant to the Texas Election Code. 9

20 2. Lakeway s Attempt to Suspend its Charter Does Not Excuse the City Council from Calling the Required Runoff Election Although the Lakeway City Council knew that its plurality elections violated the Constitution, it chose a method for trying to correct the problem that was itself invalid. The City Council s ordinance suspending the charter is void and therefore does not excuse it from complying with the constitutional mandate to elect the mayor by majority vote. When a charter is adopted, that instrument becomes the fundamental law of the municipality in the same manner that the constitution is the fundamental law of the state. The only limitation upon these powers is that the charter may not be in conflict with general laws of the state or in contravention of the constitution. Cent. Power & Light Co. v. City of San Juan, 962 S.W.2d 602, 612 (Tex. App. Corpus Christi 1998, pet. dism d w.o.j.) (citations omitted). As such, a city ordinance may not contravene its charter, unless the charter provision at issue is invalid. Wilder v. Am. Produce Co., 147 S.W.2d 936, 938 (Tex. Civ. App. El Paso 1940), rev d on other grounds, 138 Tex. 519, 160 S.W.2d 519 (1942); accord Miller v. Burch, 32 Tex. 208, 210 (1869) ( An 10

21 ordinance, therefore, not warranted by the charter, is void. ). Accordingly, the City s ordinance re-instituting two-year terms for members of the City Council is void unless the 2014 amendment to 3.01(b) of the charter violates the Constitution. Courts presume a home-rule city charter provision to be valid. In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002) (orig. proceeding). Therefore, courts will not hold a state law and a city charter provision repugnant to each other if they can reach a reasonable construction leaving both in effect. Id. In the present case, there is no conflict between the Constitution and 3.01(b) of the charter. Article XI, 11(a) clearly provides home-rule cities with the authority to adopt three-year terms for their elected officials, which the voters of Lakeway did in There is nothing in 11(a) that limits this authority or is any way inconsistent with 3.01(b) of the City s charter. In a separate subsection of 11, the Constitution requires that if a city adopts terms of office in excess of two years, then the city must elect all of the members of its governing body by a majority vote. TEX. CONST. art. XI, 11(b). Nothing in 11(b) limits a home-rule city s authority to adopt threeyear terms, but rather simply provides that if it does so, then it must also 11

22 elect its city council members by majority vote. Ordinance , revoking the three-year terms enacted in charter 3.01(b), is apparently premised on the belief that unless a city s charter also provides for election by majority vote then it is unconstitutional for the charter to adopt terms of office in excess of two years. As shown above, the only authority on this question is to the contrary. Because Lakeway has validly adopted three-year terms in its charter, it may not by ordinance simply disregard these terms of office. Rather, under the Constitution and Estrada, it must order elections so that the mayor is chosen by a majority of the electorate. Thus, while the City may not validly disregard 3.01(b) of the charter establishing three-year terms, because 5.03 of the charter requiring election by plurality vote is irreconcilably in conflict with article XI, 11(b) of the Constitution requiring election by majority vote, the City is required to disregard 5.03 and elect the mayor by majority vote. Because there was no candidate receiving a majority of the votes cast for mayor in the May 5, 2018 election, based upon the Election Code provisions previously cited, the Lakeway City Council has the duty to call a runoff election between McMillan and Cox. 12

23 PRAYER Based upon the foregoing, Tiffany McMillan, Relator, respectfully requests this Court to order Respondents to order a runoff election between McMillan and Sandy Cox for the office of mayor of the City of Lakeway, Texas, with such election to be held on or before June 30, Respectfully submitted, RAY & WOOD By: Randall B. Wood State Bar No Doug W. Ray State Bar No Bee Caves Road, Suite 200 Austin, Texas (512) (Tel) (512) (Fax) dray@raywoodlaw.com ATTORNEYS FOR RELATOR TIFFANY MCMILLAN 13

24 APPELLATE RULE 9.4(I)(3) CERTIFICATE OF COMPLIANCE Counsel hereby certifies that this document was computer generated using 14-point Book Antiqua typeface and that this document, excluding those portions enumerated in Appellate Rule 9.4(i)(1), contains 2,402 words, based upon the word count of the computer program used to generate the brief. Doug W. Ray APPELLATE RULE 52.3(J) CERTIFICATION I certify that I reviewed the Emergency Petition for Writ of Mandamus that I filed on behalf of Tiffany McMillan on this day and I concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record. Doug W. Ray 14

25 CERTIFICATE OF SERVICE I hereby certify that on May 22, 2018 a true and correct copy of the above and foregoing was served through the electronic filing manager or by to the following: Jo Ann Touchstone City Secretary 1102 Lohmans Crossing Road Lakeway, Texas (512) (Tel) joanntouchstone@lakeway-tx.gov RESPONDENTS CITY COUNCIL OF LAKEWAY, TEXAS AND CITY OF LAKEWAY, TEXAS Ross Fischer THE GOBER GROUP PLLC P.O. Box Austin, Texas rf@gobergroup.com COUNSEL FOR REAL PARTY IN INTEREST Doug W. Ray 15

26 In the Court of Appeals for the Third Judicial District of Texas Austin, Texas IN RE: TIFFANY MCMILLAN APPENDIX TO RELATOR S EMERGENCY PETITION FOR WRIT OF MANDAMUS APPENDIX TABLE OF CONTENTS TAB DOCUMENT 1 Lakeway Charter Articles III and V as of Lakeway City Ordinance Current Lakeway Charter Articles III and V 4 Lakeway City Ordinance Donna City Charter Articles II and IV 6 Affidavit of Tiffany McMillan 16

27 TAB 1

28 LAKEWAY CITY CHARTER Original Charter Approved at an Election held May 5, 1990 Amendments Approved at Elections held: May 2, 1992 May 7, 1994 August 10, 1996 May 4, 2002 May 13, 2006 May 8, 2010 City of Lakeway & 1102 Lohmans Crossing & Lakeway, Texas & Fax

29 ARTICLE III THE CITY COUNCIL Section 3.01 Number, Selection and Term The City Council, referred to herein as the Council consists of the Mayor and six Councilmembers. (a) (b) (c) The Mayor and the Councilmembers will be elected from the City at large. The Mayor and three Councilmembers will be elected in odd numbered years, and three Councilmembers will be elected in even number years. Elections will be held in a manner provided in Article V of this Charter. Term of office for all members will be two years. Office term will commence at the first regular Council meeting after a member of the Council has been declared elected. No person shall serve as Mayor for more than three (3) successive terms and no person shall serve as Councilmember for more than three (3) successive terms. Section 3.02 Qualifications All office holders for city elective office shall possess the following qualifications: (a) (b) Meet all the requirements for public office prescribed by State and Federal laws. Be a registered voter residing in the City, or annexed territory, for at least one year prior to the election. ( c) Be at least twenty one years of age by the date of the election. ( d) Shall not hold any other compensated public office if elected. ( e) Shall not be a city employee, contractor or supplier. (f) Shall not be in financial arrears, which shall mean nonpayment of a tax, liability, or other obligation owed the City, other than a citation properly contested through municipal court, that has not been received by the City within ninety days from due date. If a member of the Council shall cease to possess any of the qualifications prescribed, the person shall forfeit the office. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, and May2010 Page 11 of43

30 Section 3.03 Judge of Election Qualifications The Council shall be the judge of all elections and the qualifications of all elected and appointed officials of the City. Section 3.04 Application for City Office Each candidate for an elective City office shall make application to have his name listed on the ballot in accordance with the laws of the State of Texas. Section 3.05 Compensation Members of the Council shall serve without pay or compensation; provided, however, that they shall be entitled to reimbursement for all expenses incurred in the performance of their official duties as approved by the Council. Section 3.06 Mayor and Mayor Pro Tern The Mayor's duties include recommending issues for the agenda and presiding over City Council meetings. The Mayor shall vote on all issues brought before the Council and sign all written actions authorized by the City Council. The Mayor may not veto or modify any action approved by the City Council. The Mayor is recognized as the head of City government. The Mayor will also perform all other duties required by order of the Council. The Council shall appoint one of its members for a period of one year as Mayor Pro Tern. The Mayor Pro Tern shall act, and have the rights and duties, as the Mayor whenever the Mayor is absent or incapacitated or the office of Mayor becomes vacant. Section 3.07 Vacancies Any elective office shall become vacant upon death, resignation, or forfeiture as authorized by law or this Charter. The Council, at the first regular Council meeting after the vacancy, shall declare the office vacant and initiate action to fill the vacancy in accordance with this charter. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, and May 2010 Page 12 of 43

31 Section 3.08 Forfeiture of Office Any elected official will forfeit office for any of the following reasons: (a) (b) Failing to maintain any qualification of this Charter. Violating any provision of this Charter. ( c) Conviction of a crime involving moral turpitude. ( d) Fails to attend one-half of the regularly scheduled Council meetings during any consecutive six-month period. Section 3.09 Filling of Vacancies The City Council shall fill any vacancy that occurs on the City Council unless an election to fill the vacancy is required by Article XI, Section 11, of the Texas Constitution, or unless a majority of the City Council votes to call a special election for the next uniform election date to fill the vacancy for the unexpired term only. A person serving as a member of the City Council is not, because of that service, ineligible to be appointed to fill a vacancy in the office of mayor, but the person may not vote on the person's own appointment. If a number of vacancies exist on the Council causing the remaining members to number less than four, those remaining members shall constitute a quorum for the limited purpose of meeting to fill enough of the vacancies so that a quorum of four exists. Section 3.10 Dual Office Holding Neither the Mayor nor any Councilmember shall hold another City office or City employment. Former Mayors and Councilrnembers shall not receive any compensation from the City or hold any compensated appointive City office within one year after their elective office terminates. Section 3.11 Council Meetings The Council shall define by ordinance how and when the Council shall meet, and the manner in which meetings are conducted. The Council shall meet at a regular time at least once a month. All notification prior to meetings shall be in accordance with state law as enacted or hereafter amended. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, and May 2010 Page 13 of 43

32 Section 3.12 Quorums Four members of the City Council shall constitute a quorum for the purpose of transaction of business, and no action of the City Council, except as provided in Section 3.09 shall be valid or binding unless adopted by the affirmative vote of the majority of the Members of the Council present. Section 3.13 Rules of Procedure The Council shall establish by ordinances its procedures for conducting City Council meetings, however, such ordinances shall provide the City's citizens, or their representatives, an opportunity to comment on any matter on the agenda of any regular or special meeting of the Council prior to the Council voting on the matter. The City Secretary will maintain all minutes of all proceedings of the Council and make these available to citizens of the City. Section 3.14 Voting Members of the Council present will vote, and have their votes recorded in the minutes, upon every action requiring a vote. Only in the event the vote involves the member's conduct, or a conflict of interest, will the member recuse and the reasons for the recusal shall be noted in the minutes. The rules set forth elsewhere in this Charter will control conflict of interest issues. Section 3.15 Ordinances in General The Council may adopt or amend any ordinance that is for the good of the City, as well as provide for the enforcement and punishment of ordinance violations in accordance with state law. All expenditure of City funds and contracting of City indebtedness shall be by Council ordinance. All actions will state; "BE IT ORDAINED BY THE COUNCIL OF THE CITY OF LAKEWAY". Section 3.16 Procedure to Enact Legislation Every ordinance or resolution shall be introduced in written or printed form, and shall have a clearly summarized and fully descriptive title or caption. The reading aloud of the title or caption of the ordinance shall suffice as a reading of the ordinance or resolution in its entirety provided that a written or printed copy thereof has been furnished to each member of the Council prior to such meeting, and that a reasonable number of additional. copies are available to interested citizens present at the Council meeting. A majority of the Council present may require an ordinance to be read in its entirety. The affirmative vote of the majority of the Members of the Council present, except as otherwise required by statute, shall be necessary to adopt any ordinance or resolution. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, and May2010 Page 14 of 43

33 The vote upon the passage of all ordinances and resolutions shall be recorded in a book kept for that purpose by the City Secretary. Every ordinance enacted shall be authenticated by the signature of the Mayor, or in the Mayor's absence by the Mayor Pro Tern, and the City Secretary, and shall be systematically recorded and indexed in an ordinance book in a manner approved by the Council. It shall only be necessary to record the caption or title of ordinances in the minutes of the Council meetings. Section 3.17 Publication of Ordinances Except as otherwise provided by the laws of the State of Texas or this Charter, the City secretary shall give notice of the enactment of every ordinance imposing any penalty, fine or forfeiture for any violation of its provisions, and of every ordinance relating to the budget, franchises, taxes or public utilities or the setting of the amounts or rates thereof, by causing the ordinance in full or its caption, including the penalty, to be published at least one time in the official newspaper of the City of Lakeway. The provisions of this section shall not apply to the correction, amendment, revision and codification of the ordinances of the City in book or pamphlet form. Section 3.18 Emergency Ordinances The Council may adopt emergency ordinances to protect life, property or the public peace in accordance with the applicable provisions of state and federal law. The ordinance shall plainly designate it as an emergency ordinance and shall contain a declaration stating that an emergency exists and describing it in clear and specific terms. The emergency will be effective for a maximum period of sixty days from enactment, except as noted below. It may be renewed if necessary by the procedures necessary for the enactment of a new ordinance. Emergency ordinances may not levy taxes; grant, renew or extend a franchise, or regulate rates charged by any public utility. Emergency ordinances may not authorize the borrowing of money except as otherwise provided for in this charter. Emergency ordinances authorizing the borrowing of money can stay in effect longer than sixty days. Section 3.19 Adoption of Code The City may, by ordinance, adopt a codification of its ordinances, together with appropriate penalties for their violation, in accordance with and as authorized by the laws of the State of Texas. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, and May 2010 Page 15 of 43

34 Section 3.20 Investigative Body The Council shall have the power to inquire into the conduct of any City office, department or agency and into the conduct or qualifications of any officer or employee of the City and to make investigations as to municipal affairs, and for these purposes may subpoena witnesses, administer oaths and compel the production of books, papers and other evidence material to a specific inquiry. The Council shall establish by ordinance the procedures applicable to the investigations authorized herein, and shall set penalties for failure to comply therewith. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, and May 2010 Page 16 of 43

35 ARTICLE V NOMINATIONS AND ELECTIONS Section 5.01 City Elections (a) Schedule The regular City Election shall be held annually on the uniform election date provided by state law occurring in or nearest the month of May. The Council shall fix the places for holding such election, and the City Secretary shall give notice of the election in the manner required by the laws of the State of Texas. (b) Special Elections The Council may, by ordinance call special elections as required or authorized by the laws of the State of Texas or the provisions of this Charter. The Council shall fix the time and places for such special elections, shall direct the City Secretary to give notice thereof and shall provide all means for holding same. ( c) Voter Eligibility List A certified list of registered voters residing within the City, as prepared by the County Tax Assessor-Collector, shall be currently maintained by the City Secretary. ( d) Conduct and Regulation of Elections All City elections shall be held in accordance with the Constitution and laws of the State of Texas, and with this Charter, and the ordinances, resolutions and orders adopted by the Council for the conduct of elections. The Council shall appoint election judges and other officials, and shall determine and provide for their compensation and for all other expenses of holding municipal elections. Section 5.02 Official Ballots ( a) The name of each candidate for office, except such as may have withdrawn, died or become ineligible, shall be printed on the official ballots without party designation or symbol. If two or more candidates have the same surname or surnames that are similar as to be likely to cause confusion, their residence addresses shall be printed with their names on the ballot. (b) In elections to fill one or more vacant places on the Council, the order on the ballot of the names of the candidates shall be in accordance with the general election laws ofthe State of Texas and shall be determined by lot in a drawing to be held under the supervision of the City Secretary. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, and May 2010 Page 22 of43

36 ( c) Absentee voting shall be governed by the general election laws of the State of Texas. ( d) Ordinances, Bond Issues, and Charter Amendments shall be presented for voting by ballot title which may differ from the measure's legal title, but which shall be a clear, concise statement, approved by the affirmative vote of the majority of the Members of the Council present, objectively describing the substance of the measure. The content and form of the ballot shall be determined by ordinance in accordance with the general election laws of the State of Texas. ( e) Procedures for write-in votes shall be governed by the general election law of the State of Texas. Section 5.03 Canvassing The election judges and officials appointed by the Council shall determine, record and report the results of any general or special City election in accordance with the general election laws of the State of Texas. In accordance with said laws, the Council shall, after an election, meet, canvass and officially declare the results of the election as to candidates and questions. The returns of every municipal election shall be recorded in the minutes of the Council. The candidate who receives the largest number of votes cast for an office shall be declared elected. Section 5.04 Run-Off Election In the event no candidate for an office receives a plurality of the votes cast for that office in the regular or special election, the Council shall, upon completion of the official canvass, call a run-off election among the candidates who receive an equal number of votes. The election shall be held in accordance with the election laws of the State of Texas, the provisions of this Charter and the ordinance ordering same. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, and May 2010 Page 23 of 43

37 TAB 2

38 CITY OF LAKEWAY ORDINANCE NO AN ORDINANCE OF THE CITY OF LAKEWAY, TEXAS, ORDERING A SPECIAL ELECTION ON 4TH OF NOVEMBER, 2014 TO CONSIDER TWELVE (12) PROPOSED AMENDMENTS TO THE CHARTER OF THE CITY OF LAKEWAY REGARDING DELETING REDUNDANT AND INAPPROPRIATE WORDING; UPDATING THE PUBLIC NOTICE REQUIREMENT TO INCLUDE THE WEBSITE; CONFORMING QUALIFICATIONS FOR OFFICE TO STATE LAW; RATIFYING THE ESTABLISHMENT AND POWER OF THE BOARD OF ETHICS; CONFORMING TIMELINES FOR THE SUBMISSION OF INITIATIVE, REFERENDUM AND RECALL PETITIONS TO STATE LAW; INCREASING THE TERM OF OFFICE OF THE MAYOR AND ALL COUNCILMEMBERS FROM TWO TO THREE YEARS; REDUCING THE NUMBER OF SUCCESSIVE TERMS FROM THREE TO TWO; MAKING PROVISION FOR THE CONDUCT OF THE ELECTIONS AND THE LANGUAGE TO BE USED ON BALLOTS; AND OTHER PROVISIONS INCIDENT AND RELATING TO THE ELECTIONS; AND PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Lakeway wishes to order a Special Election for the purpose of submitting to the voters twelve (12) amendments to the City Charter of the City of Lakeway; and WHEREAS, the City Council of the City of Lakeway deems it desirous to proceed with the ordering ofan election to be held on November 4th, 2014; WHEREAS, the City Council of the City of Lakeway has entered into an agreement for joint election services with Travis County Elections Division which will provide voter availability to Travis County early voting locations and election day precincts providing accessibility to the County's DRE (direct recording electronic) voting equipment and certified HA VA-compliant voting equipment which preserves the City's compliance with Texas Election laws; WHEREAS, the City Council wishes to designate certain officials to conduct various aspects of Election services for the City; Ordinance No Page I of8

39 NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LAKEWAY, TEXAS, THAT: SECTION 1. A special election for the purpose of submitting to the voters twelve (12) proposed amendments to the Charter of the City of Lakeway is hereby ordered to be held on November 4, 2014 in conformance with all applicable law and as provided in this Ordinance. SECTION 2. CONDUCT OF ELECTION. (a) Early voting by personal appearance will be conducted in accordance with State of Texas election law administered by the Election Officer of Travis County Elections Division from the Travis County Central offices located at 5501 Airport Boulevard, Suite BlOO, Austin Texas Voters may vote at any established Travis County early voting mobile or permanent voting site on the dates and times of operation as conducted by the County. Lakeway area Election Precincts include but are not limited to: Precinct 306, 319, 320, 324, 346 Precinct 308 Precinct Lakeway Activity Center 105 Cross Creek, Lakeway Briarcliff P.O.A. Community Center 22801Briar Cliff Drive, Spicewood L TISD Educational Development Center, 607 RR620 North, Austin The Travis County Election Officer assumes the responsibility for recruiting election personnel and training thereof. The Travis County Election Officer is appointed to serve as the City's Election Officer and Early Voting Clerk and shall coordinate, supervise, and conduct all aspects of administering voting for the City's joint and special elections. (b) In accordance with the Election Agreement between Travis County and the City of Lakeway dated February 11, 2008, and in accordance with the Election laws of the State of Texas, election services for the voters of the City of Lakeway are to be administered under the terms of the agreement by the Election Officer of the Travis County Elections Division from their Travis County Central offices located at 5501 Airport Boulevard, Suite B 100, Austin Texas, SECTION 3. All resident electors of the City shall be entitled to cast a vote in the special election of the City. SECTION 4. The City Secretary of the City of Lakeway will perform those election duties listed (I) through (8) below and any other election duties that may not be delegated to another governmental entity: (1) preparing, adopting, and publishing all required election orders, ordinances, notices and other documents, including bilingual materials, evidencing action by the City of Lakeway necessary for the conduct of an election; Ordinance No Page 2 of8

40 (2) administering the City's duties under state and local campaign finance laws including but not limited to compliance with hours of operation, preparing and providing candidate information and filing forms for prospective interested citizens; receive filings for office and conduct the City's drawing for places on the ballot; (3) preparing the text for the City's official ballot in English and Spanish, as required by law; ( 4) providing the Election Officer with a list of propositions showing the order and the exact manner in which the propositions are to appear on the official ballot; (5) assisting the County whenever possible when required; (6) conducting the official canvass of the City of Lakeway election; (7) serving as the custodian of the City's election records; and (8) filing the Participating Entity's annual voting system report to the Secretary of State as required under Chapter 123 et seq. of the Texas Election Code. SECTION 5. At the special election, the voters of the City will vote FOR or AGAINST the following amendments to the City Charter of the City of Lakeway, Texas: PROPOSITION NO. 1 Shall Article III (City Council), Section 3.01, "Number, Selection and Term," be amended to increase the term of office of the Mayor and all Councilmembers from two years to three years; reduce the number of successive terms from three to two; and phase-in new terms in the 2015 and 2016 elections? If this proposition is approved, subsection (a) would read as follows: The Mayor and the Councilmembers will be elected from the City at large. If this proposition is approved, subsection (b) would read as follows: Terms of office for all members will be three (3) years. Office terms will commence at the first regular Council meeting after a member of the Council has been declared elected. If this proposition is approved, subsection (c) would read as follows: No person shall serve as Mayor for more than two (2) successive terms and no person shall serve as Councilmember for more than two (2) successive terms. Ordinance No Page 3 of8

41 If this proposition is approved, subsection (d) would read as follows: Of the three successful candidates for election to the office of Councilmember in the 2015 regular election, the one (1) candidate receiving the highest number of votes shall have a term of three (3) years, and the two (2) candidates having the next highest vote count shall have terms of two (2) years. Of the three successful candidates for election to the office of Councilmember in the 2016 election, the two (2) candidates receiving the highest number of votes shall have terms of three (3) years and the one (1) candidate having the next highest vote count shall have a term of two (2) years. The successful candidate for election to the office of Mayor in the 2015 regular election shall have a term of three (3) years. PROPOSITION NO. 2 Shall Article III (City Council), Section 3.02, "Qualifications," subsection (b) be amended to conform to state law requirements? If approved, the words "or annexed territory" would be deleted and subsection (b) would read as follows: Be a registered voter residing in the City for at least one year prior to the election. PROPOSITION NO. 3 Shall Article III (City Council), Section 3.02, "Qualifications," subsection (f), the definition of "in arrears", and Article VII (Boards, Commissions and Committees), Section 7.02, entitled "Qualifications and Term of Office," subsection (c) be amended to eliminate certain qualifications for office that are not enforceable? Specifically, removing the qualification for office which requires City Council candidates and office holders to not be in financial arrears with the City. If approved, the subsections and definition would be deleted in their entirety. PROPOSITION NO. 4 Shall Article III (City Council), Section 3.09, "Filling of Vacancies," be amended to include language outlining that any partial term of a Councilmember who filled a vacancy on the Council by having been elected shall count as a full term for that Councilmember? If approved, a sentence would be added to the end of the 1st paragraph and would read as follows: Any term filled by election shall count as a full term for the successful candidate. Ordinance No Page 4 of8

42 PROPOSITION NO. 5 Shall Article III (City Council), Sections 3.17, entitled "Publication of Ordinances," and 10.04, entitled "Procedure to Enact Franchise Ordinances," be amended to allow publication of public notice both on the City website and a newspaper of general circulation? If approved, each of these sections will be amended to replace the words "... in the official newspaper of the City [ of Lakeway]" with the following: "... on the City website and in a newspaper of general circulation." PROPOSITION NO. 6 Shall Article VI (Initiative, Referendum and Recall), Section 6.05, "Council Consideration and Submission to Voters of Initiated Ordinances," subsection (b) be amended to conform the timelines for submissions of voter initiated ordinances to state law? If approved, the words "regular or special" and "to be held within90 days after the date of the certification to the Council" would be deleted and subsection (b) would read as follows: Submit the initiated ordinance without amendment to a vote of the qualified voters of the City at an election to be held as soon thereafter as permitted by the laws of the State of Texas; or PROPOSITION NO. 7 Shall Article VI (Initiative, Referendum and Recall), Section 6.06, "Council Consideration and Submission to Voters of Referred Ordinances," subsection (b) be amended to modify timelines for submissions of voter referred ordinances? If approved, the words "regular or special" and "to be held within 90 days after the date of the certification to the Council" would be deleted and subsection (b) would read as follows: Submit the referred ordinance to a vote of the qualified voters of the City at an election to be held as soon thereafter as permitted by the laws of the State of Texas. Ordinance No Page 5 of8

43 PROPOSITION NO. 8 Shall Article VI (Initiative, Referendum and Recall), Section 6.10, "Recall Election," be amended to modify timelines for submissions of recall elections? If approved, the 2"d paragraph of Section 6.10 would read as follows: The City Secretary shall certify the results of the petition examination to the Council at its next regular meeting, and shall, immediately after such certification notify, in writing, the officer sought to be removed. If such officer does not resign within five (5) days after receipt of the notice, the Council shall hold a special recall election as soon thereafter as permitted by the laws of the State of Texas. PROPOSITION NO. 9 Shall Article VII (Boards, Commissions and Committees), Section 7.02, "Qualifications and Terms of Office," subsection (b) be amended to require members of City boards, commissions and committees be residents of the City? If approved, the words "including territory annexed" would be deleted and subsection (b) would read as follows: Be a resident of the City and shall have resided for at least twelve consecutive months preceding his appointment within the incorporated limits of the City prior to his appointment. PROPOSITION NO. 10 Shall Article VII (Boards, Commissions and Committees) be amended to add a new Section 7.05, entitled "Board of Ethics," to ratify the existence and authority of the Board of Ethics that has jurisdiction over the City's Code of Ethics? If approved, the existing Sections would be renumbered and Section 7.05, "Board of Ethics," would read as follows: There is a Board of Ethics that has jurisdiction over all matters pertaining to the amendment, interpretation and enforcement of the City's Code of Ethics. The Board shall consist of seven residents of the City; one member appointed by the Mayor and one member by each Councilmember. Ordinance No Page 6 of8

44 PROPOSITION NO. 11 Shall Article XI (General Provisions), Section 11.05, "Conflicts of Interest and Standards of Conduct," be amended to ratify the establishment of a Board of Ethics. If approved, the znd paragraph of Section would be replaced in its entirety with the following: The Council and Board of Ethics shall by ordinance establish a Code of Ethics. All City officials, employees and members of City Boards, Commissions or Committees shall comply with the City's Code of Ethics. PROPOSITION NO. 12 Shall the Charter be amended to delete all gender-specific wording? If approved, the word "his" and "he" would be deleted and replaced with gender-neutral terminology. SECTION 6. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Council. SECTION 7. All ordinances and resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters ordained herein. SECTION 8. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. SECTION 9. If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and this Council hereby declares that this Ordinance would have been enacted without such invalid provision. SECTION 10. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. Ordinance No Page 7 of8

45 SECTION 11. This Ordinance shall be in force and effect from and after the date of its adoption, and it is so ordained. PASSED AND APPROVED on this, the day of August, CITY OF LAKEWAY, TEXAS: ~ f.)[1()~ David P. DeOme, Mayor ATTEST:,,,,,.,,,,,, 11,,,, of LA l<t.,,,,,,,,, A."""' "Js,.A,,... ;...,' 7,)_; $ e::i-....,- -:;... :. - : =:SEAL\=... : : :, :;..... i,, ra... A..,...,,..., ~... ~... ',,,.., lf Of 1"""',,'',,,,,,,,,,n,,,,, Ordinance No Page 8 of8

46 TAB 3

47 LAKEWAY CITY CHARTER Original Charter Approved at an Election held May 5, 1990 Amendments Approved at Elections held: May 2, 1992 May 7, 1994 August 10, 1996 May 4, 2002 May 13, 2006 May 8, 2010 November 4, 2014 City of Lakeway 1102 Lohmans Crossing Lakeway, Texas Fax

48 ARTICLE III THE CITY COUNCIL Section 3.01 Number, Selection and Term The City Council, referred to herein as the Council consists of the Mayor and six Councilmembers. (a) (b) (c) (d) The Mayor and the Councilmembers will be elected from the City at large. Term of office for all members will be three (3) years. Office term will commence at the first regular Council meeting after a member of the Council has been declared elected. No person shall serve as Mayor for more than two (2) successive terms and no person shall serve as Councilmember for more than two (2) successive terms. Of the three successful candidates for election to the office of Councilmember in the 2015 regular election, the one (1) candidate receiving the highest number of votes shall have a term of three (3) years, and the two (2) candidates having the next highest vote count shall have terms of two (2) years. Of the three successful candidates for election to the office of Councilmember in the 2016 election, the two (2) candidates receiving the highest number of votes shall have terms of three (3) years and the one (1) candidate having the next highest vote count shall have a term of two (2) years. The successful candidate for election to the office of Mayor in the 2015 regular election shall have a term of three (3) years. Section 3.02 Qualifications All office holders for city elective office shall possess the following qualifications: (a) Meet all the requirements for public office prescribed by State and Federal laws. (b) Be a registered voter residing in the City for at least one year prior to the election. (c) (d) (e) Be at least twenty one years of age by the date of the election. Shall not hold any other compensated public office if elected. Shall not be a city employee, contractor or supplier. (f) If a member of the Council shall cease to possess any of the qualifications prescribed, the person shall forfeit the office. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, May 2010, and November 2014 Page 10 of 40

49 Section 3.03 Judge of Election Qualifications The Council shall be the judge of all elections and the qualifications of all elected and appointed officials of the City. Section 3.04 Application for City Office Each candidate for an elective City office shall make application to have their name listed on the ballot in accordance with the laws of the State of Texas. Section 3.05 Compensation Members of the Council shall serve without pay or compensation; provided, however, that they shall be entitled to reimbursement for all expenses incurred in the performance of their official duties as approved by the Council. Section 3.06 Mayor and Mayor Pro Tem The Mayor s duties include recommending issues for the agenda and presiding over City Council meetings. The Mayor shall vote on all issues brought before the Council and sign all written actions authorized by the City Council. The Mayor may not veto or modify any action approved by the City Council. The Mayor is recognized as the head of City government. The Mayor will also perform all other duties required by order of the Council. The Council shall appoint one of its members for a period of one year as Mayor Pro Tem. The Mayor Pro Tem shall act, and have the rights and duties, as the Mayor whenever the Mayor is absent or incapacitated or the office of Mayor becomes vacant. Section 3.07 Vacancies Any elective office shall become vacant upon death, resignation, or forfeiture as authorized by law or this Charter. The Council, at the first regular Council meeting after the vacancy, shall declare the office vacant and initiate action to fill the vacancy in accordance with this charter. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, May 2010, and November 2014 Page 11 of 40

50 Section 3.08 Forfeiture of Office Any elected official will forfeit office for any of the following reasons: (a) (b) (c) (d) Failing to maintain any qualification of this Charter. Violating any provision of this Charter. Conviction of a crime involving moral turpitude. Fails to attend one-half of the regularly scheduled Council meetings during any consecutive six-month period. Section 3.09 Filling of Vacancies The City Council shall fill any vacancy that occurs on the City Council unless an election to fill the vacancy is required by Article XI, Section 11, of the Texas Constitution, or unless a majority of the City Council votes to call a special election for the next uniform election date to fill the vacancy for the unexpired term only. Any term filled by election shall count as a full term for the successful candidate. A person serving as a member of the City Council is not, because of that service, ineligible to be appointed to fill a vacancy in the office of mayor, but the person may not vote on the person's own appointment. If a number of vacancies exist on the Council causing the remaining members to number less than four, those remaining members shall constitute a quorum for the limited purpose of meeting to fill enough of the vacancies so that a quorum of four exists. Section 3.10 Dual Office Holding Neither the Mayor nor any Councilmember shall hold another City office or City employment. Former Mayors and Councilmembers shall not receive any compensation from the City or hold any compensated appointive City office within one year after their elective office terminates. Section 3.11 Council Meetings The Council shall define by ordinance how and when the Council shall meet, and the manner in which meetings are conducted. The Council shall meet at a regular time at least once a month. All notification prior to meetings shall be in accordance with state law as enacted or hereafter amended. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, May 2010, and November 2014 Page 12 of 40

51 Section 3.12 Quorums Four members of the City Council shall constitute a quorum for the purpose of transaction of business, and no action of the City Council, except as provided in Section 3.09 shall be valid or binding unless adopted by the affirmative vote of the majority of the Members of the Council present. Section 3.13 Rules of Procedure The Council shall establish by ordinances its procedures for conducting City Council meetings, however, such ordinances shall provide the City s citizens, or their representatives, an opportunity to comment on any matter on the agenda of any regular or special meeting of the Council prior to the Council voting on the matter. The City Secretary will maintain all minutes of all proceedings of the Council and make these available to citizens of the City. Section 3.14 Voting Members of the Council present will vote, and have their votes recorded in the minutes, upon every action requiring a vote. Only in the event the vote involves the member s conduct, or a conflict of interest, will the member recuse and the reasons for the recusal shall be noted in the minutes. The rules set forth elsewhere in this Charter will control conflict of interest issues. Section 3.15 Ordinances in General The Council may adopt or amend any ordinance that is for the good of the City, as well as provide for the enforcement and punishment of ordinance violations in accordance with state law. All expenditure of City funds and contracting of City indebtedness shall be by Council ordinance. All actions will state; BE IT ORDAINED BY THE COUNCIL OF THE CITY OF LAKEWAY. Section 3.16 Procedure to Enact Legislation Every ordinance or resolution shall be introduced in written or printed form, and shall have a clearly summarized and fully descriptive title or caption. The reading aloud of the title or caption of the ordinance shall suffice as a reading of the ordinance or resolution in its entirety provided that a written or printed copy thereof has been furnished to each member of the Council prior to such meeting, and that a reasonable number of additional copies are available to interested citizens present at the Council meeting. A majority of the Council present may require an ordinance to be read in its entirety. The affirmative vote of the majority of the Members of the Council present, except as otherwise required by statute, shall be necessary to adopt any ordinance or resolution. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, May 2010, and November 2014 Page 13 of 40

52 The vote upon the passage of all ordinances and resolutions shall be recorded in a book kept for that purpose by the City Secretary. Every ordinance enacted shall be authenticated by the signature of the Mayor, or in the Mayor s absence by the Mayor Pro Tem, and the City Secretary, and shall be systematically recorded and indexed in an ordinance book in a manner approved by the Council. It shall only be necessary to record the caption or title of ordinances in the minutes of the Council meetings. Section 3.17 Publication of Ordinances Except as otherwise provided by the laws of the State of Texas or this Charter, the City secretary shall give notice of the enactment of every ordinance imposing any penalty, fine or forfeiture for any violation of its provisions, and of every ordinance relating to the budget, franchises, taxes or public utilities or the setting of the amounts or rates thereof, by causing the ordinance in full or its caption, including the penalty, to be published at least one time on the City website and in a newspaper of general circulation.. The provisions of this section shall not apply to the correction, amendment, revision and codification of the ordinances of the City in book or pamphlet form. Section 3.18 Emergency Ordinances The Council may adopt emergency ordinances to protect life, property or the public peace in accordance with the applicable provisions of state and federal law. The ordinance shall plainly designate it as an emergency ordinance and shall contain a declaration stating that an emergency exists and describing it in clear and specific terms. The emergency will be effective for a maximum period of sixty days from enactment, except as noted below. It may be renewed if necessary by the procedures necessary for the enactment of a new ordinance. Emergency ordinances may not levy taxes; grant, renew or extend a franchise, or regulate rates charged by any public utility. Emergency ordinances may not authorize the borrowing of money except as otherwise provided for in this charter. Emergency ordinances authorizing the borrowing of money can stay in effect longer than sixty days. Section 3.19 Adoption of Code The City may, by ordinance, adopt a codification of its ordinances, together with appropriate penalties for their violation, in accordance with and as authorized by the laws of the State of Texas. Section 3.20 Investigative Body The Council shall have the power to inquire into the conduct of any City office, department or agency and into the conduct or qualifications of any officer or employee of Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, May 2010, and November 2014 Page 14 of 40

53 the City and to make investigations as to municipal affairs, and for these purposes may subpoena witnesses, administer oaths and compel the production of books, papers and other evidence material to a specific inquiry. The Council shall establish by ordinance the procedures applicable to the investigations authorized herein, and shall set penalties for failure to comply therewith. ARTICLE IV ADMINISTRATIVE SERVICE Section 4.01 City Manager (a) Appointment and Qualifications: The City Council, by a majority vote of all the members of the City Council, shall appoint a City Manager. The method of selection shall be left to the discretion of the City Council as long as the other provisions of this Charter with respect to city employment are satisfied. The City Manager, when chosen, need not be a resident of the City, but is expected to reside within the City within a reasonable period of time after accepting appointment. (b) Compensation: The City Manager shall receive compensation as may be fixed by the City Council according to level of experience, education and training. The compensation shall be agreed upon before appointment with the understanding that the City Council may change it at its discretion. (c) Term and Removal: The City Manager shall not be appointed for a definite term but may be removed at the discretion of the City Council, by vote of the majority of all the members of the City Council. The action of the City Council in suspending or removing the City Manager shall be final. It is the intention of this Charter to vest all authority and fix all responsibilities for such suspension or removal in the City Council. (d) Powers and Duties: The City Manager shall be the Chief Administrative Officer of the City, and shall be responsible to the City Council for the proper administration of all the affairs of the City and to that end shall have the power to: (1) See that all State laws and City ordinances are enforced. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, May 2010, and November 2014 Page 15 of 40

54 Section 4.07 Police Department A Police Department headed by the Chief of Police shall be established to maintain order within the City and to protect citizens from violence or threats of violence and their property from damage or loss. The Chief of Police shall be appointed by the City Manager, subject to the approval of the Council. The Chief of Police must be of good reputation and must, as required under state law, maintain sufficient certification and continuing education training to be authorized to serve as Chief. The Chief of Police shall enforce the laws of the State and the ordinances of the City and perform other such duties as may be required of him. The Chief of Police shall establish and maintain written rules, approved by the Council, relating to police policies and procedures. ARTICLE V NOMINATIONS AND ELECTIONS Section 5.01 City Elections (a) Schedule The regular City Election shall be held annually on the uniform election date provided by state law occurring in or nearest the month of May. The Council shall fix the places for holding such election, and the City Secretary shall give notice of the election in the manner required by the laws of the State of Texas. (b) Special Elections The Council may, by ordinance call special elections as required or authorized by the laws of the State of Texas or the provisions of this Charter. The Council shall fix the time and places for such special elections, shall direct the City Secretary to give notice thereof and shall provide all means for holding same. (c) Voter Eligibility List A certified list of registered voters residing within the City, as prepared by the County Tax Assessor-Collector, shall be currently maintained by the City Secretary. (d) Conduct and Regulation of Elections All City elections shall be held in accordance with the Constitution and laws of the State of Texas, and with this Charter, and the ordinances, resolutions and orders adopted by the Council for the conduct of elections. The Council shall appoint election judges and other Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, May 2010, and November 2014 Page 19 of 40

55 officials, and shall determine and provide for their compensation and for all other expenses of holding municipal elections. Section 5.02 Official Ballots (a) (b) (c) (d) The name of each candidate for office, except such as may have withdrawn, died or become ineligible, shall be printed on the official ballots without party designation or symbol. If two or more candidates have the same surname or surnames that are similar as to be likely to cause confusion, their residence addresses shall be printed with their names on the ballot. In elections to fill one or more vacant places on the Council, the order on the ballot of the names of the candidates shall be in accordance with the general election laws of the State of Texas and shall be determined by lot in a drawing to be held under the supervision of the City Secretary. Absentee voting shall be governed by the general election laws of the State of Texas. Ordinances, Bond Issues, and Charter Amendments shall be presented for voting by ballot title which may differ from the measure s legal title, but which shall be a clear, concise statement, approved by the affirmative vote of the majority of the Members of the Council present, objectively describing the substance of the measure. The content and form of the ballot shall be determined by ordinance in accordance with the general election laws of the State of Texas. (e) Procedures for write-in votes shall be governed by the general election law of the State of Texas. Section 5.03 Canvassing The election judges and officials appointed by the Council shall determine, record and report the results of any general or special City election in accordance with the general election laws of the State of Texas. In accordance with said laws, the Council shall, after an election, meet, canvass and officially declare the results of the election as to candidates and questions. The returns of every municipal election shall be recorded in the minutes of the Council. The candidate who receives the largest number of votes cast for an office shall be declared elected. Section 5.04 Run-Off Election In the event no candidate for an office receives a plurality of the votes cast for that office in the regular or special election, the Council shall, upon completion of the official canvass, call a run-off election among the candidates who receive an equal number of Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, May 2010, and November 2014 Page 20 of 40

56 votes. The election shall be held in accordance with the election laws of the State of Texas, the provisions of this Charter and the ordinance ordering same. Lakeway City Charter, as amended May 1992, May 1994, August 1996, May 2002, May 2006, May 2010, and November 2014 Page 21 of 40

57 TAB 4

58 CITY OF LAKEWAY ORDINANCE NO. 2018~ AN ORDINANCE OF THE CITY OF LAKEWAY, TEXAS, SUSPENDING APPLICATION OF THE THREE-YEAR TERMS OF OFFICE AS REFLECTED IN THE CITY CHARTER SECTION 3.0l(b) AND CALLING FOR THE CANVASS OF THE MAY 2018 GENERAL ELECTION BY PLURALITY OF VOTES WHEREAS, the City of Lakeway City Council is committed to conducting open and honest elections in compliance with the letter and spirit of the law; and WHEREAS, the City Council has identified inconsistencies in the City's Home-Rule Charter that create legal and practical difficulties in conducting the May 2018 General Election; and WHEREAS, the City Council has sought legal guidance to interpret and apply the Texas Constitution, Texas Election Code, and the Charter, and reconciling those sources of law has created a measure of conflict and confusion; and WHEREAS, the City Council, through this ordinance, seeks to set forth a reasonable and rational process for bringing certainty and closure to the electoral process while striving to maintain fairness for both candidates and voters; and WHEREAS, the City Council prepared this ordinance in an effort to conform to the written legal guidance provided to the City by lawyers employed by the Elections Division of the Texas Secretary of State's Office; and WHEREAS, on January 31, 2018, at a regularly scheduled City Council Meeting, the City Council of the City of Lakeway adopted Ordinance calling a general election for the purpose of electing the Mayor and two (2) council members to be held on May 5, 2018; and WHEREAS, in 2014, the City Chat1er of the City of Lakeway Section 3.0l(b) established 3- year terms of office for all members; and WHEREAS, the City Charter of the City of Lakeway Section 5.03, establishes voting by plurality, requiring that the candidate who receives the largest number of votes cast for an office be declared elected; and WHEREAS, the Texas Constitution Article XI, Section 11 (b) requires election by majority vote for all of the members of a municipality's governing body with terms of three (3) or four (4) years; and Ordinance No Page 1 of I

59 WHEREAS, the City Charter of the City of Lakeway Section 3.01(b) and 5.03 is inconsistent with the Texas Constitution Article XI, Section 11 (b ); and WHEREAS, pursuant to Texas Constitution A1iicle XI, Section, 5, no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State; and WHEREAS, the three-year terms of office intended in Lakeway would require election by majority vote may not be implemented for two open council seats without implementation of a place system or single member districts, neither of which are currently established for in the City of Lakeway; and WHEREAS, the City Council of the City of Lakeway desires to hold the May general election in accordance with the Texas Constitution, the laws of the State of Texas and the City Chatter; and WHEREAS, the City Council enacts this ordinance as a prudent and reasonable way to implement and effectuate the results of the May 2018 General Election. NOW THEREFORE, BE IT ORDAINED by the City Council of the City of Lakeway, TX: SECTION 1. SECTION 2. SECTION 3. SECTION 4. SECTION 5. SECTION 6. Application of City of Lakeway City Charter Section 3.0l(b) is hereby suspended until such time as the City adopts an ordinance establishing a place system for elections or amends the City Charter to allow for conduct of elections in accordance with the Texas Constitution. The results of the May 2018 General Election shall be canvassed declaring the winners to be the candidates having received the most votes (i.e., a plurality) for their respective races, consistent with Charter Section The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Council. All ordinances and resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters ordained herein. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the Ordinance No Page 2 of2

60 application of such prov1s10n to other persons and circumstances shall neve1theless be valid, and this Council hereby declares that this Ordinance would have been enacted without such invalid provision. SECTION 7. SECTION 8. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. This Ordinance shall be in force and effect from and after the date of its adoption, and it is so ordained. PASSED & APPROVED this, the 23rd day of April ATTEST: (1%1~ Jo Ann Touchstone, City Secretary... ~,,,,,,,11111,,,,,,,,,,, of LAk~;-''11,,?~ i... ~, $I*~... ~ "". - 2!SEAL\ ; ~ : : =.. \.: : -::,., ~ l ',, ~;:..... ~~,~ ',,,,,,,,,,.,,,,,,, 1E OF 1'(.':,,,, Ordinance No Page 3 of3

61 TAB 5

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63 and franchises, which tax shall constitute a lien thereon superior to any other lien or claim except State, County, and City ad valorem taxes, and which may be enforced either by sale of said property in the manner provided by law for the collection of ad valorem taxes by the City, or by suit in any court having jurisdiction. The ordinance levying such tax shall prescribe the time, terms and conditions of payment thereof, and the rate of interest, not to exceed ten percent (IOO/o) per annum and same, if not paid when due, shall be collectible, together with interest, expenses of collection and reasonable attorney's fees, if incurred. The City Council shall have power to cause to be issued assignable certificates in evidence of any such assessments. As an alternate and cumulative method of developing, improving, and paving any and all public streets, sidewalks, alleys, highways, and other public ways within the corporate limits, the City shajl have the power and authority to proceed in accordance with Chapter 106, page 489, Acts 1927, Fortieth Legislature, First Called Session, as now or hereafter amended; to adopt plans and specifications pursuant thereto; to pay to the contractor, the successful bidder, in cash, that part of the cost which may be assessed against the abutting property and the owners thereof; to reimburse itself for the amount paid such contractor by levying assessments against the abutting property and the owners thereof, after the hearing and notice prescribed in the aforesaid statutes, in an amount permitted by said statutes and not in excess of the enhancement in value of such property occasioned by the improvements; and to issue assignable certificates in favor of the City for such assessments, said certificates to be enforceable in the manner prescribed by the aforesaid statutes. The City shall likewise have the power to make any such development, improvement or paving with its own forces if, in the opinion of the Council, the work can be done more expeditiously or economically, and in such event the City shall have the power to reimburse itself for the cost of such improvement in the same amount and in the same manner as if the work had been performed by a successful bidding contractor. Section 7. ANNEXATION FOR ALL PURPOSFS The City Council shall have the power by ordinance to fix the boundary limits to the City of Donna and to prove for the annexation of additional territory lying and adjacent to the City, with or without the consent of the territory and inhabitants annexed. In accordance with the procedural requirements set forth in Article 970a, Revised Civil Statutes of Texas, the City Council shall provide an opportunity for all interested persons to be heard at a public hearing to be held not more than twenty (20) days nor less than ten (10) days prior to institution to such proceedings. Notice of such hearing shall be published in a newspaper having general circulation in the City and in the territory proposed to be annexed. The Notice shall be published at least once in such newspaper not more than twenty (20) days nor less than ten (10) days prior to such hearing. Additional notice by certified mail should be given to railroad companies serving the City and on the City's lax roll where the right of way thereof is included in the territory to be annexed. Two separate readings in accordance with procedure de~cribed elsewhere in this Charter shall be provided described for all annexahon. ordinances. Said ordinances shall not thereafter be finally acted upon until at least thirty days have elapsed after the first reading!h~reof; and upon the final passage of any such ordinance, the boundary hm1.t~ of the <:1ty shall thereafter be fixed in such ordinance; and when any add1t&0nal terntory has been so annexed, same shall be a part of the City of Donna ~nd the prop~rty situated therein shall bear its prorata part of the taxes levied by the City, and the inhabitants thereof shall be entitled to all rights and privileges of all citizens, and shall be bound by the acts, ordinances, resolutions and regulations of the City. Section 8. SUBDIVISION OF LAND Should any property lying within the City limits as cstablish~d by the Charter be hereafter platted into blocks and lots, the owners of s111d property shall plat and lay the same off to confo~m to the ~treets ai:td alleys abutting.the same and shall submit lo the designate~ City Official a cor.rected map thereof, provided that in no case shall the City of Donna be reqmred lo pay for any of said streets or alleys, at whatever date platted, they sh~ll become, by such act the property of the City of Donna, for use as pubjtc streets and they shall be cared for as such. Also, all po"".ers, and a~thonty vested in cities with regard to the controlling a~d ~egulatmg of plat~m.g and recording of subdivision or additions situated w1~hin t.he corporate hnuts, or within the extra-territorial jurisdiction as provided m Article 970a of th.e Revised Civil Statutes of Texas is herein, in all things, as well as the add1- iional powers and authority granted by this Charter, invoked and adopted in behalf of the City of Donna. ARTICLE II THE COUNCIL Sttllon 1. NUMBER AND TERM OF OFFICE. Except as otherwise provided in this Charter, all powers of ~he City of Donna shall be vested in the Council composed of four Council Members and a Mayor except that the prese~t C~uncil ~embers s~all se~e as such until the elections hereinafter provided m Section 2 of this Article. Section 2. ELECTION AND TERM OF OFFICE OF COUNCILMEN j (a) Except as otherwise provided in this Charter, the Councilmen of the City shall be elected to and occupy a place on the Council, such places being number 1, 2, 3, and 4, respectively. The Mayor shall be elected and occupy the post of Mayor. All shall hold office for three year terms and shall be elected from the City at large. (b) On the first Saturday of April, 1981, a general election shall be held for

64 the purpose of electing the Mayor and Council members for places J and 3 for three year terms. (c) On th~ first Saturday in April, 1982, and every three years thereafter, ;ouncllme_n for places 2 and 4 shall be elected at a general election to be el~ for said p_urpo~e to.succeed the Councilmen whose terms of office expire as provided m this Charter. Section J. QUALinCATIONS Any pers?~ who files ror office to serve as Council Member or Mayor, sh~ii be a. ci~izen and registered voter of the State of Texas, and shall have res1d~d wlthm the State of Texas for a period of twelve months and within the City for ~ot les~ than six months next preceding his election. A member of the Counc!I ceasmg to reside in the City during the term for which he was elected shall immediately forf cit his office. Section 4. VACANCIES. In the even~ ~fa resignation or forfeiture of a position on the City Council,!he remammg!'lembers?f th~ council shall appoint a person who quah~es unde~ Sec!ion 3 of this Article to serve until the next Regular City Election at which time a Special Election shall be conducted for the public to elect someone to complete the unexpired term. Section 5. SALARIES Each Councilman shall receive as compensation for his services a salary of $50.00 per year payable annually. Section 6. FORFEITURE OF OFFICES An_y Councilman ~ho shall absent himself from as many as three cons~cutjve reg_ular meetmgs, or from as many as three regular meetings out of five successive regular meetings, shall forfeit his office as Councilman and it shall be the duty of the remainder of the Council in any such case to declare such?ffice vacant an~ fill the vacancy as provided in Section 4 of Article 11 of this Charter; pro~1ded, if ~ny such absence from a meeting has been excused by the ~oun_cd at or pnor to such meeting,.and noted in the minutes of the ~ounc1l, or 1f such absence is found by the remaining members of the C~uncll to have been occasioned by illness or by justified absences from Hldal_go County, then any such absence excused or occasioned shall not constitute an absence forming a basis for forfeiture of the office of the absentee. Section 7. QUALIFYING OF COUNCILMEN ~II newly _electe~ members of the Council who shall assume the duties of their office 1mmed1ately after the election returns of the election in which t~ey were ~lected shall have been canvassed and the results declared as provided _here,~ and _they shall have qualified by taking the oath of office as prescribed m_ Article XV~. Section I of the State Constitution, and giving bond as hereinafter provided. -6- Section 8. POWERS OF THE COUNCIL All powers and authority which are expressly or impliedly conferred on or possessed by the City shall be vested in and exercised by the Council; provided, however, that the Council shall have no power to, and shall not: (a) Sell, convey, lease, mortgage, or otherwise alienate any land which is now, or shall hereafter be, dedicated for park purposes, unless the qualified voters of the City shall authorize such act by adopting in a general or special election a proposition submitting the question and setting forth the terms and conditions under which such sale, conveyance, lease, mortgage, or other alienation is to be made. (b) Sell, convey, or lease all or any substantial part of the facilities of any municipally owned public utility, provided that the Council may lease all or a substantial part of such facilities to any public agency of the Slate of Texas if the qualified voters of the City authorize such lease by adopting in a general or special election a proposition submitting the question and setting forth the terms and conditions under which such lease is to be made. (c) Accept or admit liability in, or pay, any claim for damages asserted against the City without first obtaining a written opinion from the City Attorney regarding the City's Liability therein. Section 9. INVESTIGATIVE BODY The Council shall have the express power to inquire into the official conduct of any department, agency, office, officer or employee of the City, and for that purpose shall have the power to administer oath, subpoena witnesses, compel the production of books, papers, and other evidence material to the inquiry. The Council shall provide by ordinance penalties for contempt in failing or ref using to obey any such subpoena or to produce any such books, papers or other evidence and shall have the power to punish any such contempt in the manner provided by such ordinance. Section 10. INTERFERENCE IN PERSONNEL MATTERS Neither the Council nor any of its members shall instruct or request the City Manager or any of his subordinates to appoint to or remove from office or employment any person except with respect to those offices which are to be filled by appointment by the Council under the provisions of the Charter. Except for the purpose of inquiry and investigation the Council and its members shall deal with the administrative service of the City solely through the City Manager and shall not give orders to any of the Manager's subordinates either publicly or privately. Section 11. MAYOR AND MAYOR PRO-TEM The Mayor shall preside at all meetings of the \:ouncil and shall be recognized as head of the City government for all ceremonial purposes, for the purpose of receiving civil process, and for military purposes, but shall have no regular administrative duties. The Mayor, as a member of the Council, shall be entitled to vote upon all matters considered by the Council, but shall have no veto power. At its first meeting following each regular -7-

65 electi~n, and at the first meeting of the interim Council after the adoption?f this Charter, the Mayor and Council shall, by election, designate one of us membe~s as Mayor Pro-Tern to serve in such capacity at the pleasure of the Council. The Mayor Pro-Tern shall act as Mayor during absence or disability of the Mayor. Section 12. CITY CLERK The City Secret~ry lhall serve as the official secretary of the City Council, shall record the rrunutes of all official meetings and be the custodian of all municipal records. The City Secretary shall hold the City Seal and shall affix same to all documents in need thereof, as well as other duties and responsibilities assigned by the City Manager. Wherever the title City Clerk appears in this Charter it shall be synonymous with City Secretary. Section 13. MEETINGS OF THE COUNCIL The Council shall meet in regular session at the City Hall at least once each month at such time as may be prescribed by Ordinance, unless otherwise ordered by the Council for reasons to be spread upon the minutes. Special meetings of the Council shall be called by the City Clerk upon written request of the Mayor or two members of the Council. Except for meetings for discussion of appointments, all meetings shall be open to the public. Section 14. RULES AND PROCEDURE The City Council meetings shall be conducted in accordance with proper rules of order. Three or more Councilmen shall constitute a quorum, but no action of the Council shall be of any force or effect unless it is adopted by the favorable votes of three or more of the Councilmen. Minutes of all meetings of the Council shall be taken and recorded, and such minutes shall constitute a public record. Section 15. CONFLICT OF INTEREST /MALFEASANCE (a) City Contracts: No officer or employee of the City shall have a financial interest, direct or indirect, in any contract with the City nor shall be financially interested, directly or in,{\irectly, in the sale to the City of any land, materials, supplies~. l>r strvice. Any willful violation of this section shall constitute malfeasance in office. Contracts, agreements or orders for such land, materials or supplies shall become null and void upon the determination of conflict of interest. (b) Franchises: Neither the Mayor nor any other member of the City Council nor any elected or appointed officer of the City, shall be directly nor indir_ectly in th~ employ of any person, company, or corporation, holding or seeking to hold any franchise from the City of Donna and shall not receive directly or indirectly any wage, commission, fee, right, favor or payment from such franchise holder and any violation of this section shall ipso factor render vacant the office held by the person so violat.ing it. (c) Determination of Malfeasance: Any City Council member or elected -8- official found to be guilty of malfeasance under the provisions of this Article, shall immediately vacate such office... Under the presentation of formal written charges fil~d with t~e City Manager accusing a City official of malfeasance, the Caty Counc!l shall investigate the charges as provided for in ~ection 9 of this Art!cle. A majority vote of the Council shall determme.whether an offi~1al has been guilty of malfeasance. The accused Councdman shall abstain from voting. Section 16, NEPOTISM No person related within the second degree by affinity o~ third de~rec by consanguinity to the City Manager or any member of the City Council shall be employed by the City. This prohibition shall not apply, h?wever, to ~y person who shall have been continuously emp!oyed by the City f ~r a penod of one year prior to the election of the Council member or appomtment of the City Manager so related to him. ARTICLE Ill PROCEDURE TO ENACT LEGISLATION Section 1. LEGISLATION BY ORDINANCE The Council shall legislate by ordinance only, and the enacting clause of every ordinance shall be.. BE IT ORDAINED BY THB CITY C:OUN CIL OF DONNA". Before any ordinance shall be adopted t_he City ~ttorney shall approve such ordinance in writing or shall file wtth the Caty Clerk his written legal objections thereto. Every ordinance enacted by the Council shall be signed by the Mayor, Mayor Pro-Tem or by two Councilmen and shall be filed with and recorded by the City Clerk before the same shall become effective. Two public readings shall be given to all ordinances the second and final reading being at least fifteen days from the first ex.dept where an ordinance relating to the immediate preservation of the ~ublic peace health or safety, is adopted as an emergency measure by the favorable votes of four or more of the Councilmen and contains a statement of the nature of the emergency. Section 1. PUBLICATION OF ORDINANCE. Except as otherwise provided by law or this Charter, the City Clerk shall give notice of the enactment of every penal ordinance ~d of every ot.her ordinance required by law or this Charter to be pu~lijhed, by causmg.the descriptive title or caption of the same to be published at least one time within 10 days after final passage thereof in some newspaper of general circulation in the City. The City Clerk shall note on every ordinance and on the record thereof the dates and medium of its publication, and such notation shall be prima f acie evidence of compliance with the requirements of this section. -9-

66 Section 3. CODE OF ORDINANCFS Within twelve months a_fter the effective date of this Section, the Council shall cause all general ordinances of the City to be compiled and printed in code form. For the p~rpose of this section general ordinances shall be deemed to be. those ordinances of a permanent or continuing nature which affect tne residents of the City at large. Every general ordinance enacted subsequent to the original codification required above shall be enacted as an amendment to the code. After the original codification, the Council shall hav~ the power to cause all general ordinances to be recodified and reprinted whenever in its discretion such is deemed desirable and it shall be mandatory upon the Council to cause all general ordinances to be recodified and reprinted before the expiration of any ten consecutive years following the l~t prece~ing codification or recodification. When adopted by the <?ounc1l the ~nnted codes of general ordinances contemplated by this section shall be m full force and effect without the necessity of such codes or any part thereof being published in any newspaper. Section 4. PROOF OF ORDINANCE An ordinance of the City of Donna may be proved prima f acie by a printed code of ordinances purporting to be printed by authority of the City, or by a copy of the or~inance certified by the City Clerk to be a true copy of the same, or by the City Clerk's official record thereof. Section S. ORDINANCE RECORDS. Th~ Council s~all require all ordinances to be adequately numbered and aden.tafied by subject matter, and recorded in a permanent Ordinance Book. It wlll not be necessary for the City Clerk to record all ordinances in full in t~e minutes of the Council, but the caption and ordinance number of the ordinances passed shall be sufficient. ARTICLE IV ELECTIONS Section 1. SPECIAL ELECTIONS. The Council may by ordinance call such special elections as are authorized. by the State law and ~his Charter, fix the time of holding same, and pro':ade all?'cans for holding such special elections, provided that every special el~llon shall be held on a Saturday, unless otherwise provided by law or t~a~ Charter, a!ld shall be held as nearly as practicable according to the prov1s1ons governing general elections. Section 2. ELECTION BY PLURALITY At every regular election, election to each place on the Council shall be by a plurality of all votes cast for such place at such election. In every such election each qualified voter shall vote for not more than one candidate for each Council place to be filled. In the election of other officials as provided in this Charter, such officials shall be elected by a plurality of all the votes cast for such officials. Secllon 3. REGULATIONS OF ELECTIONS All elections shall be held in accordance with the laws of the State of Texas regulating the holding of municipal elections and in accordance with the ordinances adopted by the council for the conduct of elections. The Council shall appoint the election judges and other election officials and shall establish the number of election precincts and polling places as needed. Section 4. FILING OF CANDIDATES Any qualified person who desires to become a candidate for election to a place on the Council shall file with the City Clerk at least 30 days prior to the election day an application for his name to appear on the ballot. Such application shall clearly designate by number the place on the Council to which the candidate seeks election and shall contain a sworn statement by the candidate that he is fully qualified under the laws of Texas and the provisions of this Charter to hold the office he seeks, which application, shall read substantially as follows: To the City Clerk of the City of Donna: I, the undersigned do hereby certify and petition as follows: My street address is No. street, in the City of Donna, Texas. I possess all of the qualifications for the office of of the City of Donna, as prescribed by the Charter of saidcity. I am a candidate for said office of, to be voted upon at the election to be held in said City on the first Saturday in April, 19, and request that my name be placed upon the official ballot to be voted on at said electon as a candidate for said office, and I will serve if elected. SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF A.O., 19 Title of Officer Administering Oath -II- -10-

67 Section 5. BALLOTS For every regular election and for every special election called to fill one or m~re vacant places on the Council, the City Clerk shall place upon the of~ctal ball~t th~ name of ~v.ery candidate who shall file an application W.htch compiles with the prov1s1ons of this Charter. The Council places to be ;:lied_ sh.111 be placed on the ballot in numerical order. The name of each candidate shall be pla~ed on the ballot under the designated place for which he shall have filed, and in such manner that the names of the candidates for each pla~c shall be clearly separate and distinguishable from the names of the candidates for every other Council place. The order on the ballot of the names?f the can~idatcs for each respective Council place shall be determined by _lot ma ~rawmg to ~ held un~er the supervision of the City Clerk, at which drawmg each ~andtdatc fr his named representative shall have a right to be present. _Any <?.ty Counc,_I member who files as a candidate for Mayor shall vacate his posu1on eff ecllvc upon filing as such. Section 6. CANVASSING ELECTION AND DECLAWNG RESULTS. The returns?f every municipal election shall be delivered by the election Judges to t~e City Clerk not later than 72 hours after the closing of the polls. The ~ounc1l shall canvass the returns and declare the official results of the election not later than 72 hours after the closing of the polls. The returns of every municipal election shall be recorded in the Minutes of the Council. ARTICLE V INITIATIVE, REFERENDUM, AND RECALL Section 1. POWER OF INITIATIVE T~c people of. the City reserve all power of direct legislation by initiative, and m the exercise of such power may propose any ordinance not in confl_ict with this Charter, _the State Constitution, or the State laws ;xcept an ordmance may be subrrutted to the Council by a petition signed by at least twenty percent of the registered voters of the City. Section l. POWER OF REFERENDUM. The people reserve the P?wer to approve or reject at the polls any legislatl~n enacted by the Council which is subject to the initiative process under th1~ Charter cxcep! an ordinance which is enacted for the immediate preseryat1on of th~ pubhc peace, health, or safety, which contains a statement of Us urgency ~nd which is adopted by the favorable votes of four or more of the Councilmen. Prior to the effective date of any ordinance which is subject to refcr~ndum, a petition signed by registered voters of the City equal in numbe~ to at lea~t twenty percent of the registered voters of the City may be filed with the qty Clerk requesting that any such ordinance be either repealed or submitted to a vote of the people. When such a petition has been -12- certified as sufficient by the City Clerk, the ordinance.specified in the petition shall not go into effect, or further action thereunder shall be suspended if it shall have gone into effect, until and unless it is approved by voters as herein provided. Section 3. FORM OF PETITION Initiative petition papers shall contain the full text of the proposed legislation in the form of an ordinance including a descriptive caption. The signatures to the initiative or referendum petitions need not all be appended to one paper, but each signer shall sign his name in ink or indelible pencil and shall add to his signature his place or residence by street and number. One of these signers of each separate petition shall make an affidavit that he, and he only, personally circulated such petition and that each signature appended thereto was made in his presence and is the genuine signature of the person whose name it purports to be. Section 4. FILING, EXAMINATION, AND CERTIFICATION OF PETITIONS Within twenty days after an initiative or referendum petition is filed, the City Clerk shall determine whether the same is signed by the requisite number of qualified voters. The City Clerk shall declare void any petition paper which docs not have an affidavit attached thereto as required in Section 3 of the Article. In examining the petition the Clerk shall write the letter "D.V." in red ink opposite the names of signers found not qualified to vote. After completing examination or the petition the Clerk shall certify the result thereof to the Council at its next regular meeting stating the number of persons found on the petition who arc qualified to vote and the number of persons found on the petition who are not qualified to vote. If the certificate of the City Clerk shall show an initiative or ref crendum petition to be insufficient, the Clerk shall notify the person filing the petition, and it may be amended within ten days from the date or such notice by filing a supplementary petition upon additional papers signed and filed as provided for an original petition. Within ten days after such amendment is filed, the Clerk shall examine the amended petition and certify as to its sufficiency. If the amended petition is found to be insufficient the Clerk shall return the petition to the person filing the same, without prejudice to the filing or a new petition for the same purpose. Section 5. COUNCIL CONSIDERATION AND SUBMISSION TO VOTERS When the Council receives an authorized initiative petition certified by the City Clerk to be sufficient, the Council shall eith~: (a) pass the initiated ordinance without amendment within sixty days after the date of the certification to the Council; or (b) submit said initiated ordinance without amendment to a vote of the qualified voters of the City at a regular or special election to be held within ninety days after the date of the certification to the Council; or (c) at such election submit to a vote of the qualified voters or the City said initiated ordinance without amendment, and an alter