Texas Supreme Court wants a closer look

HomeCity of AustinTexas Supreme Court wants a closer look

This story was updated at 7:06pm March 1, 2021, to include a statement from a City of Austin spokesperson.

This story was updated again at 11:23am March 2, 2021, to include an uploaded and linked response from the City of Austin.

Asks for City of Austin response before deciding whether to force a change in Prop B ballot language

The Texas Supreme Court issued a request today for the City of Austin to file a response to Save Austin Now’s petition for an emergency writ of mandamus and do so by 10am Tuesday.

Renea Hicks

Renea Hicks, the outside attorney representing the City, told The Austin Bulldog, concerning the request, “It’s kind of par for the course.

“The rules say the court could not grant the relief requested without asking for a response,” said Hicks, who was working on the response this afternoon.

The case moved to the Texas Supreme Court after the Third Court of Appeals dismissed the case February 24, 2021. (Supreme Court Case No. 21-0170, Court of Appeals Case No. 03-21-00075-CV.)

Bill Aleshire
Bill Aleshire

Bill Aleshire, the attorney who filed the Original Emergency Petition for Writ of Mandamus with both the Third Court of Appeals and Texas Supreme Court, said, “I am glad to see the Court give this case close attention. This is an important voter-rights case.

“This lawsuit is not about whether one thinks the City Council has done the right thing about people who are homeless. This lawsuit is not about politics, except in the broad sense that it stands to protect the democratic right of the people of Austin to petition for new laws through a fair election without interference by the Austin City Council.”

(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.)

Council, county clerk set to move fast

The Austin City Council has a work session set for Tuesday March 2 and a regular council meeting scheduled for Thursday March 4. Placeholder items to change the ballot language are on the agendas for both of those meetings.

Update: A City of Austin spokesperson emailed a statement to the Bulldog, as follows: “We have alerted Travis County to the legal challenge to the ballot language related to the camping petition, and the fact that we do not yet have a ruling from the Texas Supreme Court.”

Dana DeBeauvoir

Travis County Clerk Dana DeBeauvoir said regarding the possibility of a change in ballot language “I was expecting something like this. We have everything ready to go (with finalizing the ballot language) but not locked down.

“We will wait until the city gives us the final language.”

DeBeauvoir said her main concern was getting out vote-by-mail ballots for military personnel and voters overseas. Federal law requires those ballots go out 45 days before elections. Technically that deadline does not apply to municipal elections, she said, “but it’s a good guideline” that she tries to meet.

The ballot language being contested

If the Texas Supreme Court were to grant the emergency writ of mandamus the Austin City Council would have to alter the language it previously approved for describing Save Austin Now’s initiative ordinance on the May 1 ballot.

Save Austin Now’s chief contention is that the council-adopted ballot language does not comply with the Austin City Charter and is biased in such as way as to dissuade people from voting for it.

The petition points out that the caption in the Save Austin Now petition is nearly identical to the caption in the City’s current Ordinance No. 20190620-185:

Current ordinance caption—“An ordinance amending City Code Sections 9-4-11 related to prohibiting camping in public areas, 9-4-13 relating to prohibiting solicitation, and 9-4-14 relating to prohibiting sitting or lying down on public sidewalks or sleeping outdoors in the downtown Austin Community Court area; and creating offenses.”

Petition caption language—“A petitioned ordinance amending City Code Section 9-4-11 related to prohibiting camping in public areas, Section 9-4-13 relating to prohibiting solicitation, and Section 9-4-14 relating to prohibiting sitting or lying down on public sidewalks or sleeping outdoors in the downtown Austin Community Court area; and creating offenses.”

The council’s adopted language is far different: “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?”

Aleshire said it would be a victory if the Texas Supreme Court orders the City to enforce the City Charter.

“The question is, would using the initiative ordinance caption as the ballot language mislead the voters? The answer is no. Using the same language that’s in the ordinance the City Council passed (in June 2019) is not misleading.”

What the initiative ordinance would do

If a majority of voters approve, the petition ordinance would ban these activities:

Camping in a public area not designated as a camping areas by the City’s Parks and Recreation Department;

Soliciting in designated areas including ATMs, banks, check cashing businesses; and

Sitting or lying down on public sidewalks in the Downtown Austin Community Court area, defined by this map, which includes downtown, East Austin, and the west campus of the University of Texas (but not within the campus itself).

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 new documents:

Supreme Court of Texas letter of March 1, 2021 (1 page)

City of Austin’s response in opposition to First Amended Original Emergency Petition for Writ of Mandamus, March 2, 2021 (51 pages)

Links to related Bulldog coverage:

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) 20210225 Amicus

Response to the amicus brief from Bill Aleshire, attorney for the Relators, February 25, 2021 (1 page) 20210225 Aleshire

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

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