TCAA/TML Legal Defense Program: Amicus Briefs and Comments Filed

TCAA, in conjunction with the Texas Municipal League, files amicus briefs and comments in support of cities on many issues. To keep up to date on the status of these issues, go to

Referendum: Carruth v. City of Plano, No. 380-00469-2016 in the 380th District Court of Collin County. In this case, which has been appealed to the Texas Supreme Court and is now back at the trial court, a citizens group filed a referendum petition under the city’s charter to repeal the city’s comprehensive plan. The Texas Municipal League, Texas City Attorneys Association, Texas Chapter – American Planning Association, and International Municipal Lawyers Association argued in support of the city’s interlocutory appeal on its plea to the jurisdiction that the adoption of a comprehensive plan is not subject to referendum because a statutory adoption process must be followed. Amici filed their brief on August 16, 2016. Oral argument was held on November 8, 2016.

On February 23, 2017, the Dallas Court of Appeals issued a memorandum opinion concluding that the Plano city charter does not give the city secretary any discretion to determine whether the subject matter of a referendum petition has been withdrawn from the referendum power by general law or the charter. “We will not imply such discretion absent express language in the charter supporting its existence [and Carruth]…alleged facts supporting a claim for mandamus relief against the city secretary under the ultra vires exception to governmental immunity.”

In so holding, the court found that the city’s argument that comprehensive plans have been removed from the referendum power confuses the merits of whether mandamus should be issued with whether the trial court has subject matter jurisdiction to consider a petition for mandamus. “Whether the trial court should ultimately grant or deny the petition for mandamus is not the issue before us; the issue is whether the trial court has jurisdiction to consider the petition.” The cases cited by the city were decided on the merits of whether the writ of mandamus should issue, indicating the courts had subject matter jurisdiction to rule on the merits.

Based on those conclusions, the court agreed with the city that the claims against the city council were not ripe because the council had yet to decide how to act on a petition that hadn’t been submitted to it. “What the City Council will do when presented with a referendum petition is unknown and appellees merely speculate the council will refuse to act.” The city filed a petition for review with the Texas Supreme Court, and Amici filed a letter brief on November 7, 2017. The Court requested briefing on the merits on January 26, 2018. On August 31, 2018, the Texas Supreme Court denied the petition for review, and subsequently denied a motion for rehearing.

The case is now at the trial court on the merits, and the latest letter brief was filed on August 9, 2019, in support of the city’s motion for summary judgment.

Quo Warranto/Incorporation: State of Texas v. City of Double Horn, No. 03-19-00304, in the Third Court of Appeals of Texas. TML and IMLA filed an amicus brief in support of the City of Double Horn. The Office of the Attorney General filed a Petition for Leave to File an Information in the Nature of Quo Warranto to dissolve the City of Double Horn (Double Horn) and nullify the election of Double Horn’s mayor and aldermen. The district court denied the State’s petition for leave and the State filed this appeal. Amici argue that the district court did not err in denying the State’s petition for leave since Double Horn had all the characteristics of a village, town, or city in accordance with Section 7.001 of the Local Government Code, and that the property, including 281 acres of commercial property intended to be used for rock quarry operations owned by Spicewood Crushed Stone, LLC, within Double Horn’s incorporated municipal boundaries was strictly for municipal purposes in accordance with Section 7.002(b) of the Local Government Code. The brief was filed August 6, 2019.