Cause No. NO.

17-________________

IN THE THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

___________________________________________________
In re Mark Scott,
Relator
___________________________________________________________
ORIGINAL PROCEEDING
____________________________________________________________
PETITION FOR WRIT OF MANDAMUS
___________________________________________________________

Huseman & Stewart, PLLC

615 North Upper Broadway, Suite 2000
Corpus Christi, Texas 78401
(361) 883-3563
(361) 883-0210 Fax
vhuseman@husemanstewart.com
estewart@husemanstewart.com

By: __/s/_Van Huseman____________

Van Huseman
State Bar ID. #10323500
Eric Stewart
State Bar ID #24058133

ATTORNEYS FOR MARK SCOTT,

RELATOR
 IDENTITIES OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 52.3 (a), Relator submits the following list of parties
and the names and addresses of their legal counsel in this Original Proceeding:

RELATOR Mark Scott .

RELATORS COUNSEL: Van Huseman

Eric Stewart
Huseman & Stewart, PLLC
615 North Upper Broadway, Suite 2000
Corpus Christi, Texas 78401
(361) 883-3563
(361) 883-0210 Fax

RESPONDENT: Rebecca L. Huerta, City Secretary on behalf of

the City of Corpus Christi

RESPONDENTS COUNSEL: Miles Risley

City Attorney
Corpus Christi City Hall
1201 Leopard St., 5th Floor
Corpus Christi, TX 78401-2825

Charles Williams
Olson & Olson, LLP
2727 Allen Parkway, Suite 600
Houston, TX 77019
(713) 533-3800
(713) 533-3888

REAL PARTIES IN INTEREST: Citizens of the City of Corpus Christi

i
 TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL....................................................... i

TABLE OF CONTENTS............................................................................................ ii

TABLE OF AUTHORITIES ..................................................................................... iii

STATEMENT OF THE CASE/SUMMARY OF THE ARGUMENT .............. 1

STATEMENT OF JURISDICTION......................................................................... 2

STANDARD OF REVIEW ........................................................................................ 3

ISSUE PRESENTED................................................................................................... 4

STATEMENT OF FACTS.......................................................................................... 5

ARGUMENT ................................................................................................................ 8

Plain Language, Plain Math...8

Construction of Charter........8

NO OTHER ADEQUATE REMEDY AT LAW ................................................... 9

CONCLUSION ........................................................................................................... 10

PRAYER ....................................................................................................................... 10

CERTIFICATE OF SERVICE................................................................................. 11

VERIFICATIONS

ii
 TABLE OF AUTHORITIES

CASES
Brown v. Meyer, 787 S.W.2d 42 (Tex. 1990) ........................................................................ 10
Dos Republicas Coal Pship v. Saucedo, 477 S.W.3d 828 (Tex. AppCorpus Christi
Edinburg, 2015, no writ) .................................................................................................... 10
In re Dupont, 142 S.W.3d 528 (Tex. App.Fort Worth 2004) (orig. proceeding) .......... 4
In re Francis, 186 S.W.3d 534 (Tex. 2006)........................................................................... 10
In re Palomo, 366 S.W.3d 193 (Tex.2012) (orig. proceeding))............................................. 2
In re Triantaphyllis, 68 S.W.3d 861 (Tex. App.Houston [14th Dist.] 2002) (orig.
proceeding) .......................................................................................................................... 4
In re Vela, 399 S.W.3d 265 (Tex. App.San Antonio 2012) (orig. proceeding) ............ 2
Mills v. Brown, 159 Tex. 110, 316 S.W.2d 720 (Tex. 1958) ............................................... 10
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding) ..................................... 4
STATUTES
TEX. ELEC. CODE 145.003(f)(2) ........................................................................................ 7
TEX. ELEC. CODE 145.037 (a)............................................................................................ 3
TEX. ELEC. CODE 145.003 ............................................................................................... 10
TEX. ELEC. CODE 273.061, Ch. 145.................................................................................. 3
TEX. ELEC. CODE 273.062 ................................................................................................. 3
RULES
TEX. R. APP. P. 52.3 (a) ........................................................................................................... i
TEX. R. APP. P. Ch 52 ............................................................................................................ 1

iii
 Cause No. 17-________________

IN THE THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

___________________________________________________
In re Mark Scott,
Relator
___________________________________________________________
ORIGINAL PROCEEDING
____________________________________________________________
PETITION FOR WRIT OF MANDAMUS
___________________________________________________________
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
COMES NOW Mark Scott, Relator, pursuant to TEX. R. APP. P. Ch 52 and

submits his Petition for Writ of Mandamus, and in support thereof shows the Court

the following:

STATEMENT OF THE CASE/SUMMARY OF THE ARGUMENT

The City of Corpus Christi has denied Mark Scott a place on the May ballot for

Mayor. Scott served three two-year terms and one uniquely shortened term of 18

months, occasioned by a 2010 change in the City Charter. His total time of consecutive

service is 90 months. The charter limits him to . . . four two-year terms consecutively

. . . . (96 months). The Corpus Christi City Council, having received conflicting legal

opinions, directed the City Secretary to deny Mark Scott a place on the ballot. The

1
question presented by this Petition for Writ of Mandamus asks whether the City

Secretary, acting on behalf of the City of Corpus Christi, violated a duty imposed by

law and/or committed an abuse of discretion by declaring Relator, mayoral candidate

Mark Scott, ineligible to run for the position of Mayor.

STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a Writ of Mandamus under TEXAS ELECTION

CODE ANNOTATED 273.061. See App. 6 (Copy of Statute). This section provides in

relevant part: The Supreme Court and Court of Appeals may issue a writ of mandamus

to compel the performance of any duty imposed by law in connection with the holding

of an election or a political party convention, regardless of whether the person

responsible for performing the duty is a public officer. TEX. ELEC. CODE 273.061.

As such, a Writ of Mandamus will issue to compel a City Secretary, as the party

responsible for certifying the candidates name for placement on the election ballot, to

certify a candidate wrongfully declared ineligible, and to compel that the candidates

name be placed on the ballot for the election. See In re Palomo, 366 S.W.3d 193

(Tex.2012) (orig. proceeding)); In re Vela, 399 S.W.3d 265 (Tex. App.San Antonio

2012) (orig. proceeding).

2
 STANDARD OF REVIEW

In deciding whether a writ of mandamus is appropriate, the courts have

concluded that mandamus will issue only to correct a clear abuse of discretion or the

violation of a duty imposed by law when there is no other adequate remedy at law.

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Mandamus will

lie to compel a public officer to place an individuals name on a ballot if the individual

is entitled to be placed on the ballot. See TEX. ELEC. CODE ANN. 145.037 (a)and

273.061; see also In re Dupont, 142 S.W.3d 528, 530 (Tex. App.Fort Worth 2004) (orig.

proceeding). In short, the courts have the power to direct a public officer to perform

his duty correctly. See TEX. ELEC. CODE 273.061, 273.062; see also In re Triantaphyllis,

68 S.W.3d 861, 864 (Tex. App.Houston [14th Dist.] 2002) (orig. proceeding). See

App. 6, 7 (TEX. ELEC. CODE 273.061, Ch. 145).

3
 ISSUE PRESENTED

Did the City Secretary violate a duty imposed by law and/or commit an abuse

of discretion by declaring Relator, mayoral candidate Mark Scott, ineligible to run for

the position of Mayor of the City of Corpus Christi, Texas?

4
 STATEMENT OF FACTS

The relevant facts in this case are undisputed and are a part of the Public Record.

Copies of the relevant documents in the Public Record are included in the Appendix

and referenced herein.

By adoption of Article II, Section 1, on November 2, 2010, the Corpus Christi

City Charter was amended in two respects: (1) the City Charter changed the election

date from May to November, thereby shortening the term by approximately six months;

and (2) the City Charter increased the break in service from one term to three

consecutive terms. Most specifically, Subsection (b) was amended to read:

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.

Subsection (d) was amended to provide:

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.

Emphasis Added. See App. 5 (City Ordinance No. 031086, page 1)

(emphasis added).

5
 Mark Scott was elected to an at-large council member position in May of 2009,

May of 2011, November of 2012, and November of 2014, thereby serving 7 years and

six months on the City Council.

In October 2016, the City of Corpus Christi asked for Charles E. Zech, an

attorney, to give a legal opinion addressing the effect of the one and one-half year

(1 ) term served by Relator on the Citys term limits. In his letter opinion, he notes

that the charter amendments passed in November of 2010 created a term of one and

one-half years (the shortened term). Zech noted [it] is well settled law, and the

courts have repeatedly recognized the principle, that any constitutional or statutory

provision which restricts the right to hold office must be strictly construed against

ineligibility. After reviewing Charter Amendments, he concluded that Relators

shortened term does not count towards the charters term limits which prohibit serving

consecutive two-year terms. See App. 8 (City Ordinance No. 031086, page 1); and

App. 3 (Charles E. Zech letter opinion); App. 4 (Caller Times Article).

On February 28, 2017, the City Council called 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. On March 6, 2017, Relator applied for a place on the ballot. See

App. 1 (Mark Scotts Application); App. 2 (City Secretary Letter, Ordinance 031086,

pages 2-3).

On Friday, March 10, 2017, the City Council passed and approved Ordinance

031086. The Ordinance, concluded that Relator has served four two-year terms
6
consecutively as a council memberignoring the fact that one of the terms was only

one and one-half years (1). In addition, they concluded that Relator has reached the

limitation on terms provided in City Charter Article II Section 1(d) and concluded that

he is not eligible for election or appointment to City Council . . . . They directed the

City Secretary to utilize this Resolution and the facts stated herein to administratively

declare [Relator] ineligible for election or appointment to City Council, and authorized

the City Secretary to issue an administrative declaration of ineligibility to [Relator]

regarding the May 6, 2017 special election. See App. 2 (City Secretary Letter,

Ordinance 031086, page 3).

On Friday, March 10, 2017, at 3:58 p.m., Rebecca L. Huerta, as the City Secretary,

sent Relator a letter by email entitled NOTICE OF ADMINISTRATIVE

DECLARATION OF INELIGIBILITY. See App. 2 (City Secretary Letter). The

notice states that she is declaring Relator ineligible to run for the position of Mayor and

denying his application for a place on the ballot, pursuant to 145.003(f)(2) of the Texas

Election Code. On Wednesday, March 15, 2017, Relator received a copy by certified

mail. As support for her declaration, Rebecca L. Huerta: (1) identifies Resolution No.

031086, dated March 10, 2017, wherein the City Council found that Relator has served

four two-year terms consecutively as a council member; and (2) identifies City

Ordinance Nos. 028115, 029069, 029676, and 030328 to show the length of Relators

terms. The Ordinances, however, on their face, show that Relator has not served four

7
two-year terms. See App. 2 (City Secretary Letter); See Apps. 8-12 (City Ordinance

Nos. 031086, 028115, 029069, 029676, 030328).

ARGUMENT

Plain Language, Plain Math

An 18-month term is not a two-year term.

The City Council has substituted political calculation for mathematical clarity.

The Citys Charter, Article II, Sec.1 Membership and Term forbids more than, ...four two-

year terms consecutively.... There is no dispute that Mark Scott has served three two-

year terms and one shortened term of 18 months. The Council has, in effect, ignored

the plain language of the Charter, saying that although the Charter specifies two years,

it really means 18 months. This cannot be right.

This is the same view given to the City in the latest opinion by its own outside

counsel, Charles E. Zech, given on October 19, 2016:

Conclusion: Council member Scotts shortened term does not

count towards the charters term limits which prohibit serving consecutive
two-year terms.

Construction of Charter

Since the charter amendment setting the two-year term limits occurred during

the same period as the ordinance setting the single shortened term, can any conclusion

be made but that the City knew what it was doing? See App. 8 (City Ordinance No.

031086). The Citys current position argues that two years does not mean two

8
years. Relator does not admit to any question about the meaning of the words.

However, were any such issue to exist, the issue presumptively should be decided in

favor of the candidate. It is well settled that any restriction against holding office shall

be strictly construed against ineligibility. In re Francis, 186 S.W.3d 534, 542 (Tex. 2006);

Brown v. Meyer, 787 S.W.2d 42, 45 (Tex. 1990).

When interpreting a statute, the reader also should give meaning to all of the

words used, so that none are rendered mere surplusage. Dos Republicas Coal Pship v.

Saucedo, 477 S.W.3d 828, 842 (Tex. AppCorpus ChristiEdinburg, 2015, no writ).

Were the term-limitation to apply to all termsno matter the specified term length

then the two-year modifier is meaningless. This interpretation runs contrary to

common laws disfavor of surpuslage. The same rules that govern statutory

construction apply to municipal ordinances. Mills v. Brown, 159 Tex. 110, 316 S.W.2d

720, 723 (Tex. 1958).

Therefore, the City must overcome two rules of construction/presumption in

order to arrive at the conclusion that two years really does not mean two years.

NO OTHER ADEQUATE REMEDY AT LAW

Relator has no other adequate remedy at law because of the extremely short time

constraints involved. The Special Election of May 6, 2017, is less than sixty days from

this date. Relator filed this Petition for Writ of Mandamus less than one week after he

received notice that he had been declared ineligible. As such, Relator has been diligent.

To preclude mandamus relief would be to foreclose judicial review.

9
 CONCLUSION

The public records presented conclusively establish, as a matter of law, Relators

eligibility as a candidate for mayor of the City of Corpus Christi, Texas. Therefore,

Rebecca L. Huerta, in her capacity as City Secretary (albeit, directed by the City

Council), violated her legal duty and/or committed an abuse of discretion by declaring

Relator ineligible. See TEX. ELEC. CODE 145.003(f).

PRAYER

WHEREFORE, PREMISED CONSIDERED, Relator respectfully requests

this Court to GRANT the relief herein requested, and issue Writ of Mandamus

compelling Respondent to: (1) find Relator 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 or as it may be subsequently held. Relator further

prays for all other relief, at law or in equity, to which he is justly entitled.

10
 CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and

foregoing Petition for Writ of Mandamus was served upon the Respondent and known

counsel for Respondent on this the 16th day of March, 2017, in the manner specified

below.

Rebecca L. Huerta Via Email

City Secretary
Corpus Christi City Hall
1201 Leopard St., 1st Floor
Corpus Christi, TX 78401-2825
Citysecretary@cctexas.com

Miles Risley Via Email

City Attorney
Corpus Christi City Hall
1201 Leopard St., 5th Floor
Corpus Christi, TX 78401-2825
milesr@cctexas.com

Charles Williams Via Email

2727 Allen Parkway, Suite 600
Houston, TX 77019
cwilliams@olsonllp.com

_/s/_Van Huseman________________
Van Huseman

11
 VERIFICATION

THE STATE OF TEXAS

COUNTYOFNUECES

BEFORE ME, the undersigned notary, on this day personally appeared,

Van Huseman, the affiant, person whose identity is known to me. After I administered

an oath to affiant, affiant testified:

1. My name is Van Huseman. I am over 18 years of age, of sound mind, and

capable of making this affidavit.

2. The City Secretary letter, dated March 10, 2017, Notice of Administrative

Declaration of Ineligibility, including the attachment City Ordinance No.

031086 is a true and correct copy of the original public record.

Van Huseman

II ,.,11,,. SUBSCRIBED AND SWORN TO BEFORE ME by Van Huseman on

this ~ day of March, 2017.

NOTARY PUBLIC, STATE OF TEXAS

 VERIFICATION

THE STATE OF TEXAS

COUNTY OF NUECES

BEFORE ME, the undersigned notary, on this day personally appeared, Martin L. Scott, the

affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant

testified:

1. My name is Martin L. Scott. I am over 18 years of age, of sound mind, and capable of

making this affidavit.

2. The facts stated herein are true and correct and the Application for a Place on the City

of Corpus Christi Special Election Ballot is a true and correct copy of the original. Additionally, the

Charles E. Zech Letter, dated October 19, 2016, and the Corpus Christi Caller-Times article, dated

March 9, 2017 are true and correct copies of the originals.

SUBSCRIBED AND SWORN TO BEFORE ME by Martin L. Scott on this the 16th day of

March 2017.

MELISSA RIOS
Notary Public
STATE OF TEXAS NOTARY PUBLIC: STATE OF TEXAS
My Comm. Exp . 06-25-2019