Memorandum Opinion by Justice Benavides

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Contreras, Benavides, and Longoria
Memorandum Opinion by Justice Benavides

Relator Mark Scott filed a petition for writ of mandamus in the above cause on March 16, 2017. Through this original proceeding, Scott seeks to compel Rebecca L. Huerta, City Secretary of Corpus Christi, Texas to: (1) find Scott eligible to run for the position of mayor of the City of Corpus Christi, Texas; and (2) grant his application for a place on the ballot for the May 6, 2017 mayoral election. Applying a de novo review to the relevant provisions of the Corpus Christi City Charter, we conclude that principles of statutory construction establish that Scott is eligible to run for the position of mayor. Accordingly, we conditionally grant the petition for writ of mandamus.

I. BACKGROUND

This case concerns the term limits applicable to the mayor and council members for the City of Corpus Christi. On November 2, 2010, Article II, Section 1 of the Corpus Christi City Charter (City Charter) was amended in two respects relevant to this matter. The amendments: (1) changed the election date from May to November, thereby shortening the two-year terms of office for the mayor and council members elected in May 2011 by approximately six months; and (2) increased the required break in service for the mayor and city council members from one term to three consecutive terms. The current portions of the City Charter that are at issue here provide:

(b) The mayor and members of the city council shall be elected for terms of two years and shall hold office until their respective successors have been elected and qualified. The regular election shall be held on the November uniform election date of even-numbered years as authorized by State law; provided that, a transition election shall be held on the second Saturday in May, 2011 for terms expiring upon the final canvass of the elections in November 2012.

. . . .

(d) No person shall serve more than four two-year terms consecutively as a council member, or four two-year terms consecutively as mayor, or six two-year terms consecutively in any combination of such offices. A person who has reached the limitation on terms provided in this section shall not be eligible for election or appointment to the City Council until three consecutive terms of office for the council have expired.

On February 28, 2017, the City Council of Corpus Christi called for a special election to be held on May 6, 2017, to fill the vacancy in the office of the mayor after former Mayor Dan McQueen resigned from office. On March 6, 2017, Scott applied for a place on the ballot.

On March 10, 2017, the City Council passed a resolution regarding Scott's eligibility to run in the special election. This resolution reads as follows:

Whereas, by election held on April 3, 1993, the Corpus Christi voters approved Charter Amendment 3 to amend Article II Section 1 of the City Charter to add an additional subsection (d) regarding term limitations to read as follows:

"(d) No person shall serve more than four two-year terms consecutively as a council member, or four two-year terms consecutively as mayor, or six two-year terms consecutively in any combination of such officers. A person who has reached the limitation on terms provided in this section shall be eligible for election or appointment to the city council after not serving on the city council for one full term of office. (This provision shall take effect beginning with the terms of office commencing in April 1993. Terms of office served prior to such date shall not count toward this limitation.)"

Whereas, by election held on November 2, 2010, the Corpus Christi voters approved Charter Amendment No. 2 to amend Article II Section 1 subsection (d) of the City Charter to increase the waiting period from one term (2 years) to three terms (6 years) before a person becomes eligible to serve again and modifying subsection (d) to read as follows:

"(d) No person shall serve more than four two-year terms consecutively as a council member, or four two-year terms consecutively as mayor, or six two-year terms consecutively in any combination of such offices. A person who has reached the limitation on terms provided in this section shall not be eligible for election or appointment to the city council until three consecutive terms of office for the council have expired."

Whereas, also by election held on November 2, 2010, the Corpus Christi voters approved Charter Amendment No. 6 to change the City Council election date from the second Saturday in May to the November uniform election date of even numbered years and to allow for a transition election in May 2011, with a shortened term of a year and a half, and amending Article II Section 1 (b) of the City Charter to read as follows;

"(b) The mayor and members of the city council shall be elected for terms of two years and shall hold office until their respective successors have been elected and qualified. The regular election shall be held on the November uniform election date of even-numbered years as authorized by State law; provided that, a transition election shall be held on the second Saturday in May, 2011 for terms expiring upon the final canvass of the elections in November 2012."

Whereas, Mark Scott was elected to an at-large council member position in May of 2009; May 2011; November 2012; and November 2014;

Whereas, on September 14, 2016, City Council Member Mark Scott announced his resignation from office prior to the expiration of his term of office in order to avoid City Charter term limit requirements;

Whereas, on September 14, 2016, Mark Scott submitted a written letter of resignation from office, to be effective 5 p.m. on September 14, 2016;

Whereas, Council Member Mark Scott was absent from the City Council meetings of September 20, 2016, September 27, 2016, October 11, 2016, October 18, 2016, and October 25, 2016;

Whereas, Council Member Mark Scott attended the November 1, 2016, November 15, 2016, and November 21, 2016 City Council meetings;

Whereas, on November 1, 2016, Corpus Christi City Council approved Resolution No. 031000 "City Council Resolution of Reprimand for Council Member Mark Scott" which declared that it was the belief of the Corpus Christi City Council that the intent of the 2010 Charter amendments was to count the shortened City Council term towards the term limits;

Whereas, Corpus Christi City Charter Article II Section 8 provides:

"Sec. 8. Judge of Elections.

The city council shall be the judge of the election and qualification of its own members, subject to review by the courts in case of contest."

Whereas, the general City Council election was held on November 8, 2016 for the election of the Mayor and Council Members;

Whereas, Mark Scott did not file to run in the November 8, 2016 election;

Whereas, Dan McQueen was elected mayor on November 8, 2016;

Whereas, the Mayor and City Council took office on December 13, 2016;

Whereas, Mayor Dan McQueen resigned from office on January 18, 2017 and City Council accepted his resignation on January 24, 2017;

Whereas, Corpus Christi City Charter Article II Section 12(a) provides that the remaining City Council members shall call a special election to fill a vacancy in the office of Mayor in the event more than one year remains until the next regular city council election;

Whereas, on February 28, 2017, the Corpus Christi City Council called a special election to be held on May 6, 2017 to fill the vacancy in the office of the Mayor;

Whereas, Mark Scott filed application for a place on the ballot on March 6, 2017;

Whereas, Texas Election Code Section 145.003(f) provides:

"(f) A candidate may be declared ineligible only if:

(1) the information on the candidate's application for a place on the ballot indicates that the candidate is ineligible for the office; or

(2) facts indicating that the candidate is ineligible are conclusively established by another public record."

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS:

Section 1. That the Corpus Christi City Council finds that Mark Scott has served four two-year terms consecutively as a council member.

Section 2. That the Corpus Christi City Council finds that Mark Scott has reached the limitation on terms provided in City Charter Article II Section 1(d) and therefore, is not eligible for election or appointment to City Council until three consecutive terms of office for the council have expired.

Section 3. That the City Secretary is directed to utilize this Resolution and the facts stated herein to administratively declare Mark Scott ineligible for election or appointment to the City Council until three consecutive terms of office for the council have expired.

Section 4. The City Secretary is authorized to Issue an administrative declaration of ineligibility to Mark Scott regarding the May 6, 2017 special election.

On March 10, 2017, Huerta notified Scott that he was ineligible to be placed on the ballot. This notification provides:

Mark Scott is hereby DECLARED INELIGIBLE pursuant to the provision of the Texas Election Code Section 145.003(f)(2) for the following reasons:

1. The City of Corpus Christi public records include Resolution No. 031086 dated March 10, 2017 passed by the duly elected City Council of the City of Corpus Christi. Said resolution resolves that the Corpus Christi City Council finds that Mark Scott has served four two-year terms consecutively as a council member. This resolution makes Mark Scott ineligible for election to the position of Mayor.

2. The City of Corpus Christi public records include Ordinance Nos. 028115, 029069, 029676, and 030328 passed by the duly elected City Council of the City of Corpus Christi. Said ordinances reflect that Mark Scott has served four consecutive terms, and thus has reached the limitation of terms as provided in Article II, Section 1of the Corpus Christi City Charter. Subsection (d) of said section provides as follows: "A person who has reached the limitation of terms provided in this section shall not be eligible for election to the city council until three consecutive terms of office for the council have expired".

Based on the foregoing and the legal authority cited Mark Scott is DECLARED INELIGIBLE for election to the position of Mayor and his Application for a Place on the Ballot is DENIED.

In response, Scott filed this original proceeding. By one issue, Scott asserts that Huerta violated a duty imposed by law or committed an abuse of discretion by declaring him ineligible to run for the position of mayor for the City of Corpus Christi. This Court requested that the real parties in interest, the "Citizens of the City of Corpus Christi" as identified in the petition, Huerta, the City Council of Corpus Christi, or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ of mandamus. See TEX. R. APP. P. 52.2 (governing the designation of parties to an original proceeding).

We received a response to the petition for writ of mandamus from Huerta, in her official capacity as the City Secretary for the City of Corpus Christi, Texas. Huerta contends that the City Charter prohibits a person from serving more than four consecutive terms as a city council member or mayor, and if Scott were to be elected to the office he currently seeks, he would have been elected to five consecutive terms. Huerta alleges that this result would be "clearly inconsistent with the will of the City's voters as expressed by their approval of the relevant charter provisions limiting a council member to no more than four consecutive terms in office." Huerta further contends that the voters' intention in adopting a charter amendment providing for a new date for the City's general election and for a shortened term of office to make the transition was not to create an exception to the four-term limit.

II. MANDAMUS STANDARD OF REVIEW

Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). Section 273.061 of the Texas Election Code authorizes a court of appeals to issue a writ of mandamus "to compel the performance of any duty imposed by law in connection with holding an election . . . regardless of whether the person responsible for performing the duty is a public officer." TEX. ELEC. CODE ANN. § 273.061 (West, Westlaw through 2015 R.S.); see In re Woodfill, 470 S.W.3d 473, 481 (Tex. 2015) (orig. proceeding) (per curiam). Mandamus does not issue unless the relator has a clear legal right to performance of the acts he or she seeks to compel, and the duties of the persons sought to be compelled are clearly fixed and required by the law. In re Watkins, 465 S.W.3d 657, 659 (Tex. App.—Austin 2014, orig. proceeding); In re Cercone, 323 S.W.3d 293, 295 (Tex. App.—Dallas 2010, orig. proceeding).

Thus, mandamus may issue to compel public officials to perform ministerial acts, as well as to correct a clear abuse of discretion by a public official. In re Williams, 470 S.W.3d 819, 821 (Tex. 2015) (orig. proceeding); Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (orig. proceeding). "An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion." Anderson, 806 S.W.2d at 793; see In re Williams, 470 S.W.3d at 793. In this regard, city officials must perform their ministerial duties. In re Woodfill, 470 S.W.3d at 475; see Anderson, 806 S.W.2d at 793. When officials refuse to do so, and when there is no adequate remedy by appeal, mandamus may issue. In re Woodfill, 470 S.W.3d at 475.

III. STATUTORY CONSTRUCTION

The analysis in this case revolves around the appropriate construction and interpretation of the City Charter and the ordinances passed by the City Council. We construe a city charter provision according to the rules governing the interpretation of statutes generally. In re Arnold, 443 S.W.3d 269, 274 (Tex. App.—Corpus Christi 2014, orig. proceeding); City of Houston v. Todd, 41 S.W.3d 289, 297 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Rossano v. Townsend, 9 S.W.3d 357, 363 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Further, we apply the same principles used to construe statutes to construe municipal ordinances. BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 20 (Tex. 2016); Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002); Howeth Invs., Inc. v. City of Hedwig Vill., 259 S.W.3d 877, 904 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).

We review statutory construction de novo. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389 (Tex. 2014). In other words, statutory construction is a question of law for the court to decide. Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). In this regard, constitutional or statutory provisions that restrict the right to hold a public office are strictly construed against ineligibility. See In re Francis, 186 S.W.3d 534, 542 (Tex. 2006) (orig. proceeding); Dawkins v. Meyer, 825 S.W.2d 444, 448 (Tex. 1992); Hall v. Baum, 452 S.W.2d 699, 702 (Tex. 1970); In re Cullar, 320 S.W.3d 560, 563-64 (Tex. App.—Dallas 2010, orig. proceeding).

In construing statutes our primary objective is to give effect to the enacting body's intent. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 164 (Tex. 2016); Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); Bolton v. Sparks, 362 S.W.2d 946, 951 (Tex. 1962); Howeth Invs., Inc., 259 S.W.3d at 904. To discern that intent, under well-settled principles of statutory construction, we begin with the statutory language itself. BCCA Appeal Group, Inc., 496 S.W.3d at 20; State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). "The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results." Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011); see Colorado Cnty. v. Staff, No. 15-0912, 2017 WL 461363, at *6, ___ S.W.3d ___, ___ (Tex. Feb. 3, 2017). We further presume the enacting body chose statutory language deliberately and purposefully. Crosstex Energy Servs., L.P., 430 S.W.3d at 390. We endeavor to interpret each word, phrase, and clause in a manner that gives meaning to them all. Levinson Alcoser Assocs., L.P. v. El Pistolón II, Ltd., No. 15-0232, 2017 WL 727269, at *4, ___ S.W.3d ___, ___ (Tex. Feb. 24, 2017); PlainsCapital Bank v. Martin, 459 S.W.3d 550, 556 (Tex. 2015). We read statutes as a whole so as to render no part inconsistent, superfluous, or devoid of meaning. Levinson, 2017 WL 727269, at *4.

If a statute is clear and unambiguous, we must apply its words according to their common meaning without resorting to rules of construction. Shumake, 199 S.W.3d at 284. If a statute is ambiguous—i.e., there is more than one reasonable interpretation—we give "serious consideration" to the construction of the statute by the administrative agency charged with its enforcement, "so long as the construction is reasonable and does not conflict with the statute's language." R.R. Comm'n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628-30 (Tex. 2011); Tex. Ass'n of Acupuncture & Oriental Med. v. Tex. Bd. of Chiropractic Exam'rs, No. 03-15-00262-CV, 2017 WL 672455, at *4, ___ S.W.3d ___, ___ (Tex. App.—Austin Feb. 17, 2017, no. pet. h.); Howeth Invs., Inc., 259 S.W.3d at 905. However, "deferring to an agency's construction is appropriate only when the statutory language is ambiguous." Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404 (Tex. 2016); see Paxton v. City of Dallas, No. 15-0073, 2017 WL 469597, at *7, ___ S.W.3d ___, ___ (Tex. Feb. 3, 2017) ("We reject the limitations the Attorney General champions because they are not textually supportable."); Boeing Co. v. Paxton, 466 S.W.3d 831, 838 (Tex. 2015) ("While the Attorney General's interpretation of the [PIA] is entitled to due consideration, as with other administrative statutory constructions, such deference must yield to unambiguous statutory language.").

IV. ANALYSIS

Scott contends that Huerta has a duty to place his name on the May 2017 ballot for the office of mayor because he is eligible as a matter of law to serve in that position. Scott argues that this case is governed by "plain language, plain math." Scott asserts that there is no dispute that he has served three "two-year" terms and one shortened term of eighteen months as a member of the city council. Scott contends that an eighteen-month term does not constitute a "two-year term" as specified in the term limits provision of the City Charter. See CORPUS CHRISTI, TEX., CITY CHARTER, art. II, § 1(d). In support of this argument, Scott asserts that the Charter amendments to subsections (b) and (d) of Section 1 in Article II of the Charter were made contemporaneously, so these provisions should be construed together. See id. § 1(b),(d). He contends that if the term limitation in subsection (d) were to apply to all "terms," no matter the specified term length, then the "two-year" modifier in subsection (d) is meaningless. He further asserts that this interpretation runs contrary to the rule of statutory construction that disfavors surplusage. See, e.g., TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016).

Huerta asserts that she has no duty to place Scott's name on the ballot because he has reached his term limit and he is ineligible to serve until three consecutive terms of office for the council have expired. Huerta argues that the record conclusively establishes Scott's ineligibility because he has held four consecutive terms as a city council member. Huerta contends that we should construe the City Charter as a whole and not by isolated provisions, and that the language regarding "two-year terms" found in Section 1(d) is redefined and expanded by Section 1(b). According to Huerta, Section 1(b) "establish[es] a single, transitional term of office beginning in May 2011 and ending in November 2012 to adjust the terms of office to meet the state election law requirements." See TEX. ELEC. CODE ANN. § 41.052(b) (West, Westlaw through 2015 R.S.). Huerta contends that Sections 1(b) and 1(d) of the City Charter are of "equal dignity" and "each must be given effect as a legislative act of the voters of the City of Corpus Christi." In other words, Huerta argues that the 2010 amendments to the City Charter established two "new" types of terms of office—the new uniform term beginning in November 2012 and a "single transitional term of office" from May 2011 to November 2012. Huerta contends that Scott's interpretation would "render meaningless the clear intent to impose term limits of four consecutive terms."

In a separate argument, Huerta further contends that changes to the Texas Election Code control over any inconsistent City Charter provisions. Huerta argues that the City was required to change its election date to a uniform November date to comply with a general statewide mandate, and that it had the duty to adjust the terms of office to conform to the new election date. See TEX. CONST. art. XI, § 5 (providing that "no charter . . . shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State"). Huerta thus argues that "[u]pon the voters' approval of a charter amendment to change the election date, the City Council was authorized to enforce the terms of office of its members, including a discretion to declare ineligible any council member who had served as a council member more than four terms of office as redefined by the 2010 amendment to Article II, Section 1(b)."

We conclude that this case is controlled by the plain language of Article II, Section 1, subsection (d) of the City Charter, which provides that "[n]o person shall serve more than four two-year terms consecutively as council member, or four two-year terms consecutively as mayor, or six two-year terms consecutively in any combination of such offices." All parties agree that one of Scott's terms of office as a city council member was truncated from two years to eighteen months when the City Charter was amended to provide uniform election dates in accordance with the provisions of the Texas Election Code. There is no factual dispute regarding the fact that Scott served four terms as a member of the city council, or that three of these terms were "two-year terms" and one term comprised a period of eighteen months. Thus, Scott's terms of office encompassed a total period of seven and one half years.

The express statutory language of the City Charter provision governing the term limits for council members and the mayor refers to "two-year terms." See Houston Belt & Terminal Ry. Co., 487 S.W.3d at 164. Specifically, the City Charter states that "[n]o person shall serve more than four two-year terms consecutively as a council member, or four two-year terms consecutively as mayor, or six two-year terms consecutively in any combination of such offices." This language is not ambiguous. Accordingly, while the City Council's interpretation of the City Charter is entitled to due consideration, such deference must yield to the unambiguous language of the City Charter. See Boeing Co., 466 S.W.3d at 838. Contrary to Huerta's arguments, subsection (b) of Article II, Section 1, does not impact our analysis of subsection (d) insofar as it refers to "terms of two years" and implements a regular election and a transition election. On its face, subsection (b) does not affect or implicate the definition of a term for the purposes of term limits. Under the plain meaning of the Charter, Scott has not served four "two-year terms," and thus remains eligible to run for the office of mayor. See Colorado Cnty., 2017 WL 461363, at *6. To hold otherwise would be to render the phrase "two-year terms" superfluous and meaningless. See Levinson, 2017 W. 727269, at *4. And, while the provisions of the Texas Election Code clearly mandated and authorized the change in election dates and the adjustment in terms of office necessary to accomplish the change in election dates, the relevant provisions neither define term limits nor affect the term limits provision of the City Charter. See TEX. ELEC. CODE ANN. §§ 41.001(a) (West, Westlaw through 2015 R.S.) (establishing uniform election dates); id. § 41.0052 (West, Westlaw through 2015 R.S.) (providing that a governing body changing an election date "shall" adjust the terms of office to conform to the new election date).

Moreover, the parties to this proceeding have focused exclusively on the statement in section 1(d) that "[n]o person shall serve more than four two year terms consecutively as a council member" in debating Scott's eligibility for placement on the ballot. CORPUS CHRISTI, TEX., CITY CHARTER, art. II, § 1(d). Leaving this provision aside, the City Charter also states that "[n]o person shall serve more than . . . six two-year terms consecutively in any combination" of the offices of council member or mayor. See id. Because we are considering Scott's eligibility to serve as mayor after serving four terms as a city council member, the "six two-year" term limitation would apply in this case because we are examining the term limits applicable to "any combination" of the offices of mayor and city council member. See id. Thus, even if we were to construe the City Charter such that Scott's shortened term of office as a council member counted as a two-year term for term limit purposes, which we do not, Scott's four terms would not meet the term limit of "six two-year terms consecutively" in the combination of offices so as to prevent Scott from running for mayor. See id.

Applying rules of statutory construction, we conclude that the plain language of the City Charter establishes Scott's eligibility as a candidate for mayor of the City of Corpus Christi, Texas. Therefore, Huerta violated her ministerial duty and abused her discretion in declaring him ineligible for office and refusing him a place on the ballot for the May 2017 mayoral election. See generally TEX. ELEC. CODE ANN. § 145.003 (West, Westlaw through 2015 R.S.).

V. CONCLUSION

We understand that the City Council has faced a difficult question in determining the correct application of the term limits contained in the City Charter when construed in conjunction with the requirements of the Texas Election Code and in context of the complexities caused by the change in election dates. Nevertheless, we conclude that the plain language of the City Charter supports Scott's contention that his seven and one half years of service as a City Council member does not render him ineligible to serve without the mandated hiatus contemplated by the Charter. Consequently, Scott is eligible to be on the ballot and Huerta had a duty to declare that he was eligible and allow him a place on the ballot.

Therefore, the Court, having examined and fully considered the petition for writ of mandamus, the response, and the applicable law, is of the opinion that Scott is entitled to relief. We conditionally grant mandamus relief and order Huerta to grant Scott's application for a place on the ballot for the May 6, 2017 mayoral election. We are confident that Huerta will comply, and our writ will issue only if she does not.

GINA M. BENAVIDES,

Justice Delivered and filed the 29th day of March, 2017.