Court orders Prop B language change

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City Council was in session, promptly complied with the majority opinion

Save Austin Now won a significant victory today in the Texas Supreme Court regarding how the group’s initiative ordinance will be worded on the May 1 ballot as Proposition B.

Bill Aleshire
Bill Aleshire

Attorney Bill Aleshire, who represents Save Austin Now in challenging the ballot language, said, “We won. The Council must change the wording of the Prop B ballot.” (Case No. 21-0170.)

(Disclosure: Aleshire represented The Austin Bulldog in two public information lawsuits in 2011. He currently serves as volunteer attorney for the Bulldog’s public information requests.)

The City Council, which was holding a work session today, had a placeholder item on the agenda in case action was required.

A transcript of the meeting’s action in this matter shows the council complied by removing two words from the ballot language.

The previously worded ballot language was: “Shall an ordinance be adopted that would create a criminal offense and a penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors in and near the downtown area around the University of Texas campus; create a criminal offense and penalty for solicitation, defined as requesting money or another thing of value, at specific hours and locations or for solicitation in a public area that is deemed aggressive in manner; create a criminal offense and penalty for anyone camping in any public area not designated by the Parks and Recreation Department?”

Anne Morgan
Anne Morgan

City Attorney Anne Morgan, at the mayor’s request, stated the action required by the Supreme Court’s decision would require removing two words in the ballot language.

Hearing that, the council passed a motion at 4:30pm to remove the word “anyone” in two places.

That change is as follows, with strikethroughs showing where the words were removed:

“Shall an ordinance be adopted that would create a criminal offense and a penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors in and near the downtown area around the University of Texas campus; create a criminal offense and penalty for solicitation, defined as requesting money or another thing of value, at specific hours and locations or for solicitation in a public area that is deemed aggressive in manner; create a criminal offense and penalty for anyone camping in any public area not designated by the Parks and Recreation Department?”

Save Austin Now might sue after election

Aleshire said, “It also appears from the Opinion and Dissenting Opinion, that if the Council does not use the petitioned-ordinance’s caption on the ballot, then the election results could be challenged.”

“Justices held that the City Council was required to use the neutral wording of the caption in the proposed ordinance as the ballot language because the City Charter requires it.

“The Opinion and Dissenting Opinion can both be read as a strong warning to the Council: If the Council does not adopt the ballot language as required by the City Charter and Prop B fails, then an election challenge is likely to be successful.

Any decision to sue would have to be made by Save Austin Now, Aleshire said.

Matt Mackowiak

In response to The Austin Bulldog’s request for a statement as to whether Save Austin Now might sue if it loses the election, Matt Mackowiak, who chairs the group, said, “It’s a distinct possibility.”

This story was updated at 6:36pm. The original story said the court’s opinion required removing the word “only” instead of “anyone.” The latter is correct.

Photo of Ken MartinTrust indicators: Ken Martin has been doing investigative reporting in the three-county Austin metro area since 1981. You can learn more about Ken on the About page.

Links to related documents:

Opinion of Texas Supreme Court in Case No. 21-0170, March 2, 2021 (9 pages)

Dissent of Texas Supreme Court in Case No. 21-0170, March 2, 2021 (7 pages)

Notice of City Council action on Court’s Order, Case No. 21-0170, March 2, 2021 (6 pages)

Links to related Bulldog coverage:

Texas Supreme Court wants a closer look, March 1, 2021

Save Austin Now takes case to Texas Supreme Court, February 25, 2021

City files response to Save Austin Now lawsuit, February 24, 2021

National Homelessness Law Center amicus brief in response to Relators’ Emergency Petition for Writ of Mandamus, February 25, 2021 (22 pages)

Response to the amicus brief from Bill Aleshire, attorney for the Relators, February 25, 2021 (1 page)

Save Austin Now petitioners file suit challenging ballot language, February 21, 2021

Council’s ballot language triggers lawsuit(s), August 11, 2018

Ballot language draws second lawsuit, August 17, 2018