NO. 05-14-00187-CV ____________________________________________________________

IN THE COURT OF APPEALS

FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS

____________________________________________________________

In re: Herbert Gears,

Relator,

____________________________________________________________

RESPONSE TO PETITION FOR WRIT OF MANDAMUS AND APPENDIX

____________________________________________________________

OFFICE OF THE CITY ATTORNEY 825 W. Irving Blvd. CITY OF IRVING, TEXAS Irving, Texas 75060 CHARLES R. ANDERSON, CITY ATTORNEY Telephone: 972-721-2541 canderson@cityofirving.org Telecopier: 214-721-2750 JANET M. SPUGNARDI (Texas Bar No. 24039192) jspugnardi@cityofirving.org KURUVILLA OOMMEN (Texas Bar No. 24007780) koommen@cityofirving.org JASON MCCLAIN (Texas Bar No. 00797032) jmcclain@cityofirving.org SAUL PEDREGON (Texas Bar No. 00797231) spedregon@cityofirving.org Assistant City Attorneys

ATTORNEYS FOR RESPONDENT AND REAL PARTIES IN INTEREST

ACCEPTED05-14-00187-CV

FIFTH COURT OF APPEALSDALLAS, TEXAS

2/21/2014 4:53:38 PMLISA MATZ

CLERK

FILED IN5th COURT OF APPEALS DALLAS, TEXAS

2/21/2014 4:53:38 PM

LISA MATZ Clerk

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SUPPLEMENTAL LIST OF PARTIES AND COUNSEL

In accordance with Texas Rule of Appellate Procedure 52.4 (a), the following is a supplemental list of the name and address of appellate counsel not included in Relator’s list: Counsel for Respondent and Real Parties in Interest Janet M. Spugnardi Kuruvilla Oommen Jason McClain Saul Pedregon Assistant City Attorneys

Office of the City Attorney 825 West Irving Boulevard Irving, Texas 75060 Tel.: 972-721-2541 Fax: 972-721-2750

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TABLE OF CONTENTS

SUPPLEMENTAL LIST OF PARTIES AND COUNSEL …..……………………….. i INDEX OF AUTHORITIES ….……………………………………………………….. iv STATEMENT OF THE CASE ….…………………………………………………….. vii RESPONSE TO RELATOR’S ISSUES ….…………………………………………… viii RECORD REFERENCES …..…………………………………………………………. ix FACTS ….……………………………………………………………………………… 1 OBJECTION TO RELATOR’S PETITION FOR MANDAMUS……………………... 3 SUMMARY OF ARGUMENT …..……………………………………………………. 3 ARGUMENTS AND AUTHORITIES ….…………………………………………….. 4

I. Mandamus is not proper since the City has not failed to perform a clear, ministerial duty.……………………………………… 4 A. The City has discretion to determine if the petition

complies with the Election Code……………………………………… 5

B. The City’s duty to call an election on a voter-initiated petition is not clear………………………………………………..…. 10

II. A writ of mandamus should not be issued at this premature stage before the City has had the time to act…..…………………..……... 11

III. Mandamus cannot be used to compel the City to violate the

Texas Constitution …………………………………………….………… 12 PRAYER ….…………………………………………………………………………… 14 CERTIFICATE OF SERVICE…..…………………………………………………….. 16 CERTIFICATE OF COMPLIANCE…………………………………………………... 17

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APPENDIX…………………………………………………………………………….. 18 Tab 1 Petition Requesting a City of Irving Special Election1 Tab 2 Affidavit of City Secretary Shanae Jennings Tab 3 Certified agenda posting of February 19, 2014 work session of Irving

City Council Tab 4 Tex. Tax Code § 11.13 Tab 5 Texas Constitution, Article 8, §1-b Tab 6 Affidavit of Chief Financial Officer Max Duplant VERIFICATION….…………………………………………………………………….. 19

1 Due to some confidential personal information of the petition signers, Respondent is e-filing a representative sample page with the confidential information redacted pursuant to Local Rule 3(d)(1). However, because the petition is material to this proceeding, Respondent is also submitted the entire, unredacted petition under seal with the Court pursuant to Local Rule 3(d)(3).

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INDEX OF AUTHORITIES

CASES

Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) .................................................................................... 4

Boynton v. Brown, 164 S.W. 893 (Tex. Civ. App. – San Antonio 1914, writ ref’d) .............................. 5

Chisholm v. Bewley Mills, 287 S.W.2d 943 (Tex. 1956) .................................................................................... 9

City Commission of Pampa v. Whatley, 366 S.W.2d 620 (Tex. Civ. App. – Amarillo 1963, no writ) ................................. 10

City Council of Austin v. Save Our Springs Coalition, 828 S.W.2d 340 (Tex. App. – Austin 1992, reh’g overruled) ................................ 12

Coalson v. City Council of Victoria, 610 S.W.2d 744 (Tex. 1980) .................................................................................... 4

Determan v. City of Irving, 609 S.W.2d 565 (Tex. Civ. App. – Dallas 1980, no writ) ...................................... 14

Eades v. Drake, 332 S.W.2d 553 (Tex. 1960) .................................................................................. 13

Edgewood Ind. School Dist. v. Meno, 917 S.W.2d 717 (Tex. 1995, reh’g overruled) ....................................................... 14

Holt v. Trantham, 575 S.W.2d 83 (Tex. Civ. App. 1978, ref. n.r.e.) ..................................................... 5

In re Butler, 270 S.W.3d 757 (Tex. App. – Dallas 2008, no writ). .............................................. 3

In re Cercone, 323 S.W.3d 293 (Tex. App. – Dallas 2010, no writ) ............................................... 4

In re Smith, 279 S.W.3d 714 (Tex. App. – Amarillo 2007, no writ) ........................................... 3

In re Winters, 2008 WL 4816379 (Tex. App. – Dallas 2008, no writ) ........................................... 3

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Lueders v. Ehlinger, 31 S.W.2d 1099 (Tex. Civ. App. – Austin 1930, no writ) ....................................... 4

Lydick v. Chairman of Dallas County Republican Executive Committee, 456 S.W.2d 740 (Tex. Civ. App. – Dallas 1970, reh’g denied) ............................. 12

Morrison Seifert Murphy, Inc. v. Zion, 384 S.W.3d 421 (Tex. App. – Dallas 2012, reh'g overruled) ................................... 8

One 1985 Chevrolet v. State, 852 S.W.2d 932 (Tex. 1993, reh’g overruled) ......................................................... 7

Oney v. Ammerman, 458 S.W.2d 54 (Tex. 1970) .................................................................................... 10

Pulliam v. Trawalter, 120 S.W.2d 108 (Tex. Civ. App. – San Antonio 1938, reh’g overruled) .......... 5, 12

Satterfield v. Satterfield, 448 S.W.2d 456 (Tex. 1969) ................................................................................... 7

Taxpayers’ Political Action Committee v. City of Houston, 596 S.W.2d at 147 (Tex. App. - Houston [1st Dist.] 1979, no writ) ................. 10, 13

TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) .................................................................................... 8

Williams v. Sorrell, 71 S.W.2d 944 (Tex. Civ. App. – San Antonio 1934, no writ) ................................ 4

Womack v. Berry, 291 S.W.2d 677, 682 (Tex. 1956) ............................................................................ 4

CONSTITUTIONAL PROVISIONS AND STATUTES TEX. CONST., art. 8, §1-b (b) ....................................................................................... 13, 14

TEX. TAX CODE ANN § 11.13 (e) ......................................................................................... 7

TEX. TAX CODE ANN. § 11.13(n) ........................................................................................ 8

TEX. TAX CODE ANN. § 273.061 ......................................................................................... 4

TEX. TAX CODE ANN. §11.13(d) ............................................................................... 7, 9, 11

vi

TEX. TAX. CODE ANN. §11.13(f) ......................................................................................... 6

OTHER AUTHORITIES BLACK'S LAW DICTIONARY, Sixth Ed., p. 1162 (1990). ..................................................... 9

vii

STATEMENT OF THE CASE

The City is dissatisfied with Relator’s statement of the case. Pursuant to Texas

Rule of Appellate Procedure 52.4 (b) the City presents its own statement of the case.

1. This is an original proceeding seeking issuance of a mandamus ordering the City of Irving to call an election under the Tax Code based upon a voter-initiated petition related to residential homestead tax exemptions for persons sixty-five years of age or older.

2. Respondent and the Real Parties in Interest have not failed to perform a ministerial act in connection with the voter-initiated petition and have not violated a duty under Section 11.13(d) of the Tax Code.

viii

RESPONSE TO RELATOR’S ISSUES

The City of Irving has not failed to take mandatory ministerial steps under either

the Election Code or Tax Code to certify Relator’s proposed tax ordinance for the

upcoming May 10, 2014 election.

ix

RECORD REFERENCES

In this response the record will be referred to as follows:

Appendix for Respondent and Real Parties: City’s Apx

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NO. 05-14-00187-CV ____________________________________________________________

IN THE COURT OF APPEALS

FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS

____________________________________________________________

In re: Herbert Gears,

Relator,

RESPONSE TO PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE COURT OF APPEALS:

Respondent City of Irving (the “City”) and Real Parties in Interest, City Secretary

Shanae Jennings and Mayor Beth Van Duyne, submit this response to Relator’s

complaint that the City of Irving, its City Secretary and its Mayor have failed to perform

a ministerial act of certifying Relator’s tax ordinance in a timely manner.

FACTS

On February 10, 2014, the Irving City Secretary’s Office received a voter-initiated

petition requesting a City of Irving special election to amend Article I, Sec. 16-3.1 of

Irving’s code of ordinances to increase the homestead tax exemption for persons sixty-

five years of age or older to 100 percent of the assessed value of the homestead. (City’s

Apx. Tab 1). The voter-initiated petition was purportedly filed pursuant to Section

11.13(f) of the Texas Tax Code. (City’s Apx. Tab 1). After receipt of the voter-initiated

petition, City Secretary Shanae Jennings began to verify the signatures on the petition on

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February 11, 2014. (City’s Apx. Tab 2). In order to verify the petition, the City

Secretary searched the Dallas County Elections website by the voter identification

numbers provided that information on the voter-initiated petition to ensure that those

individuals are registered voters of the City of Irving. (City’s Apx. Tab 2). On February

12, 2014, the City Secretary completed the petition signature verification. (City’s Apx.

Tab 2). Of the 818 signatures submitted with voter identification numbers, the City

Secretary verified 789 as qualified voters in Irving. (City’s Apx. Tab 2). The City

Secretary only verified whether the voter-initiated petition had the requisite number of

signatures. (City’s Apx. Tab 2). She did not, nor was she required to, verify whether the

voter-initiated petition met the other conditions precedent of the statute. (City’s Apx.

Tab 2).

Eight days after the City received the voter-initiated petition, Relator filed this

petition for writ of mandamus. Importantly, during those eight days, the City of Irving

did not have any City Council meeting scheduled such that it could consider the voter-

initiated petition. In fact, at the time that Relator filed this original proceeding in this

Court, the City had an item posted on its work session agenda to receive legal advice

from its attorney in closed, executive session about the voter-initiated petition. (City’s

Apx. Tab 3). Without waiting for that meeting to occur to see what the Irving City

Council would decide to do with the voter-initiated petition, Relator filed this hasty

proceeding for mandamus relief.

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OBJECTION TO RELATOR’S PETITION FOR MANDAMUS

Respondent and the Real Parties in Interest object to Relator’s petition for

mandamus as it is defective and should be rejected by the Court. Specifically, Relator

does not have an appendix or any factual statements supported and verified by affidavit

made by someone with personal knowledge who is competent to testify on the matters

stated. Therefore, Relator’s petition for mandamus does not comply with the

requirements of TEX. R. APP. P. 52.3 and 52.7 and should be denied based upon the

deficiencies in the petition. In re Winters, 2008 WL 4816379 (Tex. App. – Dallas 2008,

no writ); In re Smith, 279 S.W.3d 714 (Tex. App. – Amarillo 2007, no writ). Due to the

lack of an appendix, Relator’s certification also fails and without a certification, the

request for mandamus relief should be denied. In re Butler, 270 S.W.3d 757 (Tex. App.

– Dallas 2008, no writ).

SUMMARY OF ARGUMENT

Relator’s request for a writ of mandamus commanding the City and the Real

Parties in Interest to certify Relator’s voter-initiated petition and to add it to the May 10,

2014 election ballot does not meet the extraordinary standard for mandamus relief. The

City and Real Parties in Interest have the ability to exercise judgment and discretion in

reviewing and certifying a voter-initiated petition under the Tax Code and to call an

election on the proposal and therefore these acts do not qualify as ministerial. There is

not a clear duty on the part of Respondent or the Real Parties in Interest and thus

mandamus is not proper. Further, mandamus may not lie to compel an unconstitutional

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act, as this voter-initiated petition would require. Accordingly, the Court should not grant

the Relator’s petition for writ of mandamus.

ARGUMENTS AND AUTHORITIES

I. Mandamus in not proper since the City has not failed to perform a clear, ministerial duty.

A writ of mandamus is an extraordinary remedy that is available only to compel

the performance of a purely ministerial duty by an election official in connection with the

holding of an election. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex.

1991); Coalson v. City Council of Victoria, 610 S.W.2d 744 (Tex. 1980); TEX. TAX CODE

ANN. § 273.061. 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. The Election Code does not grant a court

power to issue mandamus relief ordering performance of a duty not clearly and precisely

identified as a duty by statute. In re Cercone, 323 S.W.3d 293 (Tex. App. – Dallas 2010,

no writ). A mandamus is not proper to review or control an action that involves the

exercise of judgment or discretion. Womack v. Berry, 291 S.W.2d 677, 682 (Tex. 1956);

Williams v. Sorrell, 71 S.W.2d 944 (Tex. Civ. App. – San Antonio 1934, no writ);

Lueders v. Ehlinger, 31 S.W.2d 1099 (Tex. Civ. App. – Austin 1930, no writ). As has

been aptly stated,

Under the operation of this rule, whenever the law directs an officer or officers to order an election when a certain number of qualified voters have joined in a petition for the same, it is made the duty of the officers to ascertain whether the requisite number of voters have joined in the petition, and whether they are qualified, and mandamus will not lie to control them in the exercise of that duty; but the officers upon whom is devolved the duty

5

of calling the election will be allowed to exercise their own judgment. Their action must be based upon reason and fairness, however, and not be impelled by fraud, caprice or unfairness.

Boynton v. Brown, 164 S.W. 893, 895 (Tex. Civ. App. – San Antonio 1914, writ ref’d)

(emphasis added).

Election officials are entitled to exercise discretion in determining whether a

voter-initiated petition is sufficient, i.e. whether it complies or does not comply with the

conditions precedent to call an election on a voter-initiated petition. Holt v. Trantham,

575 S.W.2d 83, 86 (Tex. Civ. App. 1978, ref. n.r.e.). Only on the presentation of a

proper petition where the conditions precedent have been complied with will a mandamus

be granted. Id. Conversely, if a submitted petition is not proper and does comply with

all conditions precedent, then mandamus may not lie. The Relator bears the burden to

show he is entitled to mandamus relief under applicable law. Pulliam v. Trawalter, 120

S.W.2d 108, 111 (Tex. Civ. App. – San Antonio 1938, reh’g overruled).

A. The City has discretion to determine if the petition complies with the Election Code.

Relator’s argument appears to be that submission of a voter-initiated petition,

regardless of whether it is a proper petition, is sufficient to create a non-discretionary,

ministerial duty on the part of the City to call an election on the petition. This argument

is without merit. If the petition is not proper, the City may exercise its discretion and

judgment in not calling an election. Holt, supra at 86. There are fatal errors with

Relator’s voter-initiated petition, and thus no ministerial duty attached to calling an

election on the petition because the condition precedent of the petition had not been met.

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First, and quite notably, the voter-initiated petition purports to be filed pursuant to

Section 11.13(f) of the Texas Tax Code. (City’s Apx. Tab 1). That provision of the

Texas Tax Code provides that:

Once authorized, an exemption adopted as provided by Subsection (d) of this section may be repealed or decreased or increased in an amount by the governing body of the taxing unit or by the procedure authorized by Subdivision (2) of Subsection (d) of this section. In the case of a decrease, the amount of the exemption may not be reduced to less than $3,000 of the market value.

TEX. TAX. CODE ANN. §11.13(f) (emphasis added) (City’s Apx. Tab 4).

Section 11.13(f) does not authorize any voter-initiated petition. Id. Thus, the

petition is not proper because the statutory authority relied upon by Relator does not

confer any right to submit a voter-initiated petition related to residential tax exemptions.

Likewise the City does not have any ministerial duty under Section 11.13(f). Any action

to be taken by a governing body of a taxing unit under Section 11.13(f) is discretionary,

as that subsection of the statute specifically uses the word “may.” Since Section 11.13(f)

does not authorize a voter-initiated petition, the City has the discretion to refuse to call an

election for an improper petition that does not comply with the conditions precedent of

the statute. Relator has not met his burden to show a clear right to the relief he seeks.

Secondly, there is a provision in the Tax Code which allows a voter-initiated

petition for a tax exemption for individuals who are 65 years or older, but Relator’s

petition does not meet those requirements either. Section 11.13(d) of the Tax Code reads:

In addition to the exemptions provided by Subsections (b) and (c) of this section, an individual who is disabled or is 65 or older is entitled to an exemption from taxation by a taxing unit of a portion (the amount of which

7

is fixed as provided by Subsection (e)2 of this section) of the appraised value of his residence homestead if the exemption is adopted either:

(1) by the governing body of the taxing unit; or (2) by a favorable vote of a majority of the qualified voters of the

taxing unit at an election called by the governing body of a taxing unit, and the governing body shall call the election on the petition of at least 20 percent of the number of qualified voters who voted in the preceding election of the taxing unit.

TEX. TAX CODE ANN. §11.13(d) (emphasis added) (City’s Apx. Tab 4). Assuming that Relator intended to submit the petition pursuant to subsection (d)

and not subsection (f)3, the petition importantly still does not meet the conditions

precedent for a voter-initiated petition on a tax exemption because it does not specify an

amount. Section 11.13(d) requires that for a tax exemption for an individual who is 65

years or older, the exemption must be for an “amount which is fixed.” Id. It is a basic

rule of statutory construction that clear statutory language should be given its common

everyday meaning. One 1985 Chevrolet v. State, 852 S.W.2d 932, 935 (Tex. 1993, reh’g

overruled) (“When a statute is clear and unambiguous, a court should not use rules of

construction or extrinsic aids to construe it, but should give the statute its common

meaning); Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969) (“Words in

common use, when used by the Legislature in a statute … are to be interpreted as

intending to express the meaning in which they are ordinarily understood.). The clear

interpretation of the plain language of the statute is that “the amount of which is fixed”

2 Subsection (e) provides that “The amount of an exemption as adopted by Subsection (d) of this section is $3,000 of the appraised value of the residence homestead unless a larger amount is specified by: (1) the governing body authorizing the exemption if the exemption is authorized as provided by Subdivision (1) of Subsection (d) of this section; or (2) the petition for the election if the exemption is authorized as provided by Subdivision (2) of Subsection (d) of this section.” TEX. TAX CODE ANN § 11.13 (e) (emphasis added) (City’s Apx. Tab 4). 3 This appears to be what Relator in fact intended based upon the citations given in Relator’s petition for mandamus.

8

means and is ordinarily understood to mean “a fixed amount.” Despite the clear language

in the statute, Relator’s petition is not for a fixed amount. Relator’s petition requests a

100 percent tax exemption for individuals 65 years or older. If there is any doubt that the

statutory language in subsection (d) would allow for a percentage instead of a fixed

amount, the Court need look no further than the rest of the statute to aid in its

construction. In another part of the same statute, subsection (n), the Legislature has

provided:

(n) In addition to any other exemptions provided by this section, an individual is entitled to an exemption from taxation by a taxing unit of a percentage of the appraised value of his residence homestead….If the percentage set by the taxing unit produces an exemption in a tax year of less than $5,000 when applied to a particular residence homestead, the individual is entitled to an exemption of $5,000 of the appraised value. The percentage adopted by the taxing unit may not exceed 20 percent.

TEX. TAX CODE ANN. § 11.13(n) (emphasis added) (City’s Apx. Tab 4).

The use of the word “percentage” in subsection (n) when contrasted with the

words “amount of which is fixed” in subsection (d) provides further confirmation that

subsection (d) does not authorize a percentage, but in fact requires a fixed amount.

Certainly, if the Legislature intended for a percentage to be authorized for a voter-

initiated petition under subsection (d), it could have used the word percentage as it does

in subsection (n). In construing a statute, courts are to presume that the Legislature

chooses a statute's language with care, including each word chosen for a purpose, while

purposefully omitting words not chosen. Morrison Seifert Murphy, Inc. v. Zion, 384

S.W.3d 421, 427-28 (Tex. App. – Dallas 2012, reh'g overruled), citing TGS-NOPEC

Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). The fact that the

9

Legislature does not use the word “percentage” in subsection (d) must mean that the

Legislature did not intend for a “percentage” to be allowed, but instead intentionally

requires that a voter-initiated petition for a tax exemption under subsection (d) may only

be for a fixed amount. Any other interpretation of the statute would be contrary to the

legislative intent as guided by the plain meaning of the words in the statute when

construed together as a whole. The Court should also consider the consequences were it

to construe “an amount which is fixed” to mean percentage, as urged by the Relator.

Sayre v. Mullins, 68 S.W.2d 25, 27-28 (Tex. 1984), citing Chisholm v. Bewley Mills, 287

S.W.2d 943 (Tex. 1956) (“consideration should be given to the entire act, its nature and

object, and the consequences that would follow from each construction”). The Relator’s

construction of the statute would result in wildly different tax relief depending on the

value of a person’s residential homestead. Such an outcome would be manifestly unjust

and the Court should decline to construe the statute in the manner.

Additionally, the use of the word “a portion” in Subsection (d)4 affirms that

Relator’s petition is improper and does not comply with the statutory prerequisites.

Relator’s voter-initiated petition requests a tax exemption for persons 65 or older of 100

percent of the assessed value of their homestead. The common meaning of “portion” is

defined as “an allotted part; a share, a parcel.” BLACK’S LAW DICTIONARY, Sixth Ed., p.

1162 (1990). A portion is not a whole. Relator’s petition requesting a 100 percent tax

exemption results in all of the appraised value being exempt, not just “a portion (the

4 The relevant statutory language, cited in full on page 6, is as follows: “[a]n individual who is disabled or is 65 or older is entitled to an exemption from taxation by a taxing unit of a portion (the amount of which is fixed as provided by Subsection (e) of this section) of the appraised value…” TEX. TAX CODE ANN. §11.13(d) (emphasis added).

10

amount of which is fixed…) of the appraised value of his residence homestead…” as

required by Subsection (d).

Relator’s petition is infirm for several reasons as outlined above. The result of

these deficiencies means that this petition is not proper under Section 11.13(d) of the Tax

Code and the City has the ability to exercise discretion and judgment to determine that

the petition does not meet the conditions precedent of the statute. With the City’s

discretion intact, there is no ministerial duty on the part of the City to call an election on

the voter-initiated petition and mandamus may not issue to compel the City to call an

election. City Commission of Pampa v. Whatley, 366 S.W.2d 620, 622-23 (Tex. Civ.

App. – Amarillo 1963, no writ).

B. The City’s duty to call an election on a voter-initiated petition is not clear.

Furthermore, even if Relator’s petition complied with the statutory conditions

precedent for a voter-initiated petition under the Tax Code, the City’s duty as to when to

call an election is not clearly defined in the statute. Mandamus will not lie to compel

performance of an official act unless the complaining party shows a clear right to such

performance and a clear duty to perform by the official. Taxpayers’ Political Action

Committee v. City of Houston, 596 S.W.2d 147, 148 (Tex. Civ. App. – Houston [1st Dist.]

1979, no writ. The duty must be one clearly fixed and required by the law, or the writ

will not issue. Oney v. Ammerman, 458 S.W.2d 54 (Tex. 1970).

The statute in question, Tex. Tax Code §11.13, does not impose a clear duty on the

City to call an election within a certain timeframe. (See City’s Apx. Tab 4). The statute

is silent as to if the governing body receives a proper petition and must call an election,

11

when that duty must be carried out. One of Relator’s main arguments appears to be that

if the City Council does not call the election by February 28, 2014, then Relator’s petition

will not appear on the May 10, 2014 ballot. However, nothing in the statute gives Relator

a clear right to have the election on a voter-initiated petition under §11.13(d) at a

particular election or at the election of the Relator’s choosing. (See City’s Apx. Tab 4).

Nor does the statute impose a clear duty on the City to call an election by a certain

deadline or to ensure that the petition is presented to the voters at the next available

election. (See City’s Apx. Tab 4). Significantly, Relator’s petition for mandamus does

not cite this Court to any authority as when the City must call election on the voter-

initiated petition. If the statute does not impose a clear duty on the City to act within a

certain timeframe, then the City retains the discretion on when to act on the voter-

initiated petition. Without that clear duty as to when the City must call an election or as

to Relator’s clear right to have an election at a date of his choosing, there is not a

ministerial duty to call the election by February 28th or to have the election on May 10th.

Therefore, mandamus should not issue compelling such action.

II. A writ of mandamus should not be issued at this premature stage before the City has had the opportunity to act.

As discussed above, Relator is pressing the urgency of this matter by insisting that

the election must be called by February 28th and that the petition must appear on the May

10th ballot. The assumptions underlying this argument are without merit and without

support in the law. Accordingly, Relator’s request for mandamus relief at this time is

premature. In City Council of Austin v. Save Our Springs Coalition, 828 S.W.2d 340,

12

343 (Tex. App. – Austin 1992, reh’g overruled), the Austin Court of Appeals held that a

writ of mandamus to compel a city council to set an election on a certified initiative

petition from citizen organizations was premature, where the city council still had

discretion in determining their response to petition and when to set the election. That

court held that “[city] council does and should have a reasonable time to deliberate.” Id.

Here, the City Council has had virtually no time to deliberate its response to the Relator’s

petition. The petition was filed on February 10th, and a mere eight days later, during

which no City Council meetings occurred, the Relator seeks a writ of mandamus

compelling the City Council to act when it has not yet had any time to act.5 Relator’s

request for issuance of a mandamus is thus premature and should be dismissed. Save Our

Springs Coalition, supra at 343.

III. Mandamus cannot be used to compel the City to violate the Texas Constitution.

“It is elementary that a mandamus will not be issued to compel the doing of that

which the law forbids…” Pulliam v. Trawalter, 120 S.W.2d 108, 111 (Tex. Civ. App. –

San Antonio 1938, reh’g denied. In fact, this Court has previously held that it does not

have jurisdiction to grant a writ of mandamus to compel performance of duties which

would be in defiance of the law. Lydick v. Chairman of Dallas County Republican

Executive Committee, 456 S.W.2d 740, 742 (Tex. Civ. App. – Dallas 1970, reh’g denied).

It is clear that mandamus will not lie to compel election officials to take action which

5 The City acknowledges that the item was not posted for the regular City Council agenda for February 20, 2014 for any action to be taken. However, as evidenced by City’s Apx Tab 3, the item was posted for a closed, executive session for City Council to receive legal advice regarding the petition. The City Council could still take action on the petition at a future agenda.

13

violates a constitutional provision. Taxpayers’ Political Action Committee v. City of

Houston, 596 S.W.2d at 149-150, citing Eades v. Drake, 332 S.W.2d 553 (Tex. 1960).

This Court should not issue a mandamus ordering the City to call an election on

Relator’s petition for a 100 percent tax exemption for persons 65 or older because the

petition would be unconstitutional if approved for two reasons.

First, the Texas Constitution provides that:

[U]pon receipt of a petition signed by twenty percent (20%) of the voters who voted in the last preceding election held by the political subdivision, the governing body of the subdivision shall call an election to determine by majority vote whether an amount not less than Three Thousand Dollars ($3,000) as provided in the petition, of the market value of residence homesteads of disabled persons or persons sixty-five (65) years of age or over shall be exempt from ad valorem taxes thereafter levied by the political subdivision. TEX. CONST., art. 8, §1-b (b) (emphasis added) (City’s Apx. Tab 5).

Like the Tax Code, the Texas Constitution uses the word “amount,” not

percentage. As previously briefed herein, the word “amount” should be construed to

mean a fixed number, not a “percentage.” Since the Texas Constitution does not

authorize a “percentage” for residential tax exemptions, the Relator’s petition is

unconstitutional and mandamus is improper. Taxpayers’ Political Action Committee, 596

S.W.2d at 149-150.

Second, the Texas Constitution also states in pertinent part:

Where any ad valorem tax has therefore been pledged for the payment of any debt, the taxing officers of the political subdivision shall have authority to continue to levy and collect the tax against the homestead property at the same rate as the tax so pledged until the debt is discharged, if the cessation of the levy would impair the obligation of the contract by which the debt was created.

14

TEX. CONST. art. 8, §1-b (b) (City’s Apx. Tab 5).

The effect of a 100 percent tax exemption for residential homesteads of persons 65

or older in the City of Irving would be to impair the City’s debt obligations under existing

contracts. Specifically, the City has outstanding bond obligations in the principal amount

of over $349 million (through the year 2033) to which the ad valorem tax has been

pledged. (City’s Apx. Tab 6). If the voter-initiated petition were approved, the City’s

ability to repay its $349 million of debt obligations would be impaired. (City’s Apx. Tab

6). Practically, the effect of this voter-initiated petition could result in a huge influx of

persons over 65 to the City of Irving so that they could avail themselves of a 100 percent

property tax exemption on their residential homesteads. To the extent that this is a

possibility, the potential financial loss to the City is unquantifiable if the voter-initiated

petition were approved. (City’s Apx. Tab 6). It would harm the City’s ability to repay its

existing bond indebtedness. (City’s Apx. Tab 6). Since the City’s tax rate would be

insufficient to meet its debt service requirements if the voter-initiated petition were

approved, the petition constitutes an unconstitutional impairment of the City’s contracts.

Determan v. City of Irving, 609 S.W.2d 565, 570 (Tex. Civ. App. – Dallas 1980, no writ),

distinguished on other grounds, Edgewood Ind. School Dist. v. Meno, 917 S.W.2d 717

(Tex. 1995, reh’g overruled).

PRAYER

For the reasons stated in this brief, the City asks the Court to deny Relator’s

Petition for Writ of Mandamus.

15

Respectfully submitted,

OFFICE OF THE CITY ATTORNEY CITY OF IRVING, TEXAS CHARLES R. ANDERSON City Attorney

/s/ Janet M. Spugnardi

JANET M. SPUGNARDI Texas Bar No. 24039192 KURUVILLA OOMMEN Texas Bar No. 24007780 JASON MCCLAIN Texas Bar No. 00797032 SAUL PEDREGON Texas Bar No. 00797231 Assistant City Attorneys

825 West Irving Boulevard Irving, Texas 75060 Tel.: 972-721-2541 Fax: 972-721-2750

ATTORNEYS FOR RESPONDENT AND REAL PARTIES IN INTEREST

16

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the Response to Petition for Mandamus and Appendix was served, in accordance with Local Rule 3(B)(c)(1), through an electronic filing service provider (EFSP) upon each party below who has consented to e-service and by facsimile transmission to each party below who has not so consented on February 21, 2014 in accordance with the Texas Rules of Appellate Procedure:

Scott Phillips

Bryce King Attorneys for Relator 777 Lonesome Dove Trail, Suite A Hurst, Texas 76054 Facsimile: (817) 485-7588

/s/ Janet M. Spugnardi JANET M. SPUGNARDI

17

CERTIFICATE OF COMPLIANCE WITH RULE 9.4

Certificate of Compliance with Type-Volume Limitation, Typeface requirements and Type Style Requirements

1. This motion complies with the type volume limitation of Tex. R. App. P. 9.4(i)(2)

because:

this brief contains 4,210 words, excluding the parts of the brief

exempted by Tex. R. App. P. 9.4(i)(l).

2. This motion complies with the typeface requirements and the type style

requirements of Tex. R. App. P. 9.4(e) because:

this brief has been prepared in proportionally spaced typeface

using Microsoft Word 2007 in 13-point Times New Roman.

/s/ Janet M. Spugnardi

JANET M. SPUGNARDI Dated: February 21, 2014

18

CITY’S APPENDIX Respondent, City of Irving, and Real Parties in Interest, Shanae Jennings and Beth Van Duyne, submit the following documents in support of their response to petition for writ of mandamus. Petition Requesting a City of Irving Special Election6 ............................................... Tab 1 Affidavit of City Secretary Shanae Jennings………………………………………… Tab 2 Certified agenda posting of Feb. 19, 2014 work session of Irving City Council......... Tab 3 Section 11.13 of the Texas Tax Code…..…………………………………………… Tab 4 Texas Constitution, Article 8, §1-b…………………………………………………...Tab 5 Affidavit of Chief Financial Officer Max Duplant.…………………………………. Tab 6

6 See fn. 1, p. iii.

VERIFICATION

STATE OF TEXAS § DALLASCOUNTY §

Before me the undersigned authority, on this day personally appeared Shanae

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

upon her oath under penalty of perjury, she said the following.

1. "My name is Shanae Jennings, and I am capable of making this affidavit, and the

facts in this affidavit are true and correct and based upon my personal knowledge.

2. I am the City Secretary for the City of Irving, Respondent, and am a Real Party in

Interest in this matter.

3. I have reviewed the facts stated on pages 1 and 2 within the foregoing Response to

Petition for Mandamus and the facts are true and correct and based upon my personal

knowledge. "

Sworn to and Subscribed before me by _.....).:;../ ... _• l_l_a_,_l t_te.._'_' __ "_J _1 J_1_1_ll_tfi_,i2>___ on q ~

February~,2014.

e of Texas

19

City's Appendix Tab 1

City of Irving, Texas Certificate of City Secretary

THE STATE OF TEXAS § COUNTY OF DALLAS § CITY OF IRVING §

CERTIFICATION

I, Shanae Jennings, City Secretary for the City of Irving, Texas, do hereby certify that I am the custodian of the records of the City of Irving, Texas, and that the attached document is a true and correct copy of page 1 (out of 203 total pages) of the petition requesting a Special Election to amend the city's ordinance to increase homestead exemption for persons sixty-five years of age or older to 1 00% of the assessed value of the homestead that was submitted to the Office of the City Secretary on February 10, 2014, with the confidential personal information of the petition signers redacted.

WITNESS MY HAND AND OFFICIAL SEAL of the City of Irving, Texas this the 21st day of February, 2014.

Sfi~~~ City Secretary City of Irving

Name of Petition Clrculator ;k.g 6f..<r ,4. bf/Yt S Page -)_. of2D2- @) PETITION REQUESTING A CITY OF IRVING SPECIAL ELECTION As a qualified voter In Irving, Texas, I am requesting that the City of Irving conduct a special election, allowed by Section 11.13(f) of the Texas Tax Code, In order to amend the current Irving, Texas, Code of Ordinances, Article I, Section 16-3.1, entitled •Homestead tax exemption for persons sixty-five years of age or older", by Increasing the current exemption amount to 10(),.; of the assessed value of the homestead.

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AFFIDAVIT OFCIRCULATOR 'J--, Q /'/. ~~- ~ 6 eLJA STATE OF TEXAS, COUNTY OF DALLAS, BEFORE ME, the undersigned, on this ~j_JJ_T(date), personally appeared i1:l lftLT" f7 " r-'-5 , (Name of person who circulated petition) -who being duly sworn, deposes and says: "I called each signer's attention to the above statements and read them to the signer before the signer affixed their signature to the petition. I witnessed the affixing of each signature. The correct date of signing Is shown on the petition. I verified each signer's registration status and believe that each signature Is the genuine signature of the person whose name Is signed and that the corresponding lnformallon lor each signer is comet.~

SWOJlA TO AND SUBS~IBED BEFORE ME THIS DATE ~ It 'f (SEAl)

~a.

ll\istering oath

Alo Tit,l.¥ Pt-t ~Lf(, ~ ~r oF'/'iK~ Title of officer .fdmlnlsterlng oath

AMANDA RODRIGUEZ

J~ - ...... lc.Sioleot-" Mv CommiSsion Expires •• !! bruqrv l A 2017

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:· FEB f 0 2014 J~. City Secretary's Office

City's Appendix Tab 2

AFFIDAVIT OF SHANAE JENNINGS

STATE OF TEXAS § §

COUNTY OF DALLAS §

BEFORE ME, the undersigned authority, personally appeared Shanae Jennings, who being by me duly sworn, deposed and stated:

"My name is Shanae Jennings. I am the City Secretary for the City of Irving, Texas. I am over the age of 18 years. I have personal knowledge of the following facts and am fully competent and able to testify here, and all the facts and statements herein contained are true and correct and based upon my personal knowledge.

1. On February 10, 2014, the Irving City Secretary's Office received a voter-initiated petition requesting a City of Irving special election to amend Article I, Sec. 16-3.1 of Irving's code of ordinances to increase the homestead tax exemption for persons sixty-five years of age or older to 100% of the assessed value of the homestead.

2. After receipt of the voter-initiated petition, I began to verify the signatures on the petition on February 11, 2014. In order to verify the petition, I searched the Dallas County Elections website by the voter identification numbers provided on the voter­initiated petition to ensure that those individuals are registered voters of the City of Irving.

3. On February 12, 2014, I completed the petition signature verification. Of the 818 signatures submitted with voter identification numbers, I verified 789 as qualified voters in Irving.

4. In my capacity as City Secretary, I only verified whether the voter-initiated petition had the requisite number of signatures. I did not verify whether the voter-initiated petition was otherwise sufficient or proper.

5. I declare under penalty of perjury that the foregoing is true and correct.

Further, Affiant sayeth not.

Affidavit of Shanae Jennings Page 1

This Affidavit was subscribed and sworn to before me on this J/ 9-day of February, 2014.

I have verified the identity of the affiant by a current identification card or other document

used by a state or federal government containing a photograph and the signature of the ~

affiant.

Affidavit of Shanae Jennings Page2

\fi~Ju lll J7/a~ Notary Public Signi ture

My Commission Expires (PERSONALIZED SEAL)

City's Appendix Tab 3

..;:;;w IRVING

T E X A S

City of Irving, Texas Certificate of City Secretary

THE STATE OF TEXAS § COUNTY OF DALLAS § CITY OF IRVING §

CERTIFICATION

'{kolm Bald,;ge A,~fl1.r .... Qu•li•t Aw .. d

"~012 1\ward Recipient

I, Shanae Jennings, City Secretary for the City of Irving, Texas, do hereby certify that I am the custodian of the records of the City of Irving, Texas, and that the attached is a true and correct copy of City of Irving Work Session Council Agenda for Wednesday, February 19, 2014. This record is a public document kept by me in the regular course of business as my duties as City Secretary.

WITNESS MY HAND AND OFFICIAL SEAL of the City of Irving, Texas this the 19th day of February 2014.

Shanae Jennin City Secretary City of Irving

City of Irving 1 825 W. lrving Blvd I Irving, TX 75060 I (972) 721-2600 I www.cityofirving.org

IRVING CITY COUNCIL AGENDA WORK SESSION

WEDNESDAY, FEBRUARY 19,2014 1:00PM

First Floor City Council Conference Room - Civic Center Complex - 825 West Irving Boulevard - Irving, Texas

This meeting can be adjourned and reconvened, If necessary, the following regular business day.

DISCUSSION TOPIC

1 Review of Regular Agenda

2 Affordable Care Act

3 Home Restoration Program

4 Update on Transportation RFP

5 Urban Center Development Requirements

6 Natatorium Update

EXECUTIVE SESSION

7 Economic Development - Consider Economic Incentives for the North Shore Development Texas Open Meetings Act§ 551.087

8 legal Advice- Petition Under Section 11.13, Texas Tax Code

Texas Open Meetings Act § 551.071

CERTIFICATION

I, the undersigned authority, do hereby certify that this Notice of Meeting was posted on the Kiosk at the City Hall of the City of Irving, Texas, a place nvenient and readily accessible to the general public at all times, and said Notice was posted by the following date and lime:

14 2 1 ., and remained so posted at least 72 hours before said meeting convened.

Date Notice Removed

ANY ITEM ON THIS POSTED AGENDA COULD BE DISCUSSED IN EXECUTIVE SESSION AS LONG AS IT IS WITHIN ONE OF THE PERMITTED CATEGORIES UNDER SECTIONS 551.071 THROUGH 551 .076 AND SECTION 551 .087 OF THE TEXAS GOVERNMENT CODE. This facility is wheel chair accessible and handicap-parking spaces are available. Requests for Interpretation services of assistive hearing devices must be made 48 hours prior to the meeting. Contact the City Secretary's Office at (972) 721-2493 or (TOO) 1-800-RELAY TX (1-800-735-2989) for assistance.

City's Appendix Tab 4

TAX CODE

TITLE 1. PROPERTY TAX CODE

SUBTITLE C. TAXABLE PROPERTY AND EXEMPTIONS

CHAPTER 11. TAXABLE PROPERTY AND EXEMPTIONS

SUBCHAPTER A. TAXABLE PROPERTY

Sec. 11.13. RESIDENCE HOMESTEAD. (a) A family or single

adult is entitled to an exemption from taxation for the county

purposes authorized in Article VIII, Section 1-a, of the Texas

Constitution of $3,000 of the assessed value of his residence

homestead.

(b) An adult is entitled to exemption from taxation by a

school district of $15,000 of the appraised value of the adult's

residence homestead, except that $10,000 of the exemption does

not apply to an entity operating under former Chapter 17, 18,

25, 26, 27, or 28, Education Code, as those chapters existed on

May 1, 1995, as permitted by Section 11.301, Education Code.

(c) In addition to the exemption provided by Subsection

(b) of this section, an adult who is disabled or is 65 or older

is entitled to an exemption from taxation by a school district

of $10,000 of the appraised value of his residence homestead.

(d) In addition to the exemptions provided by Subsections

(b) and (c) of this section, an individual who is disabled or is

65 or older is entitled to an exemption from taxation by a

taxing unit of a portion (the amount of which is fixed as

provided by Subsection (e) of this section) of the appraised

value of his residence homestead if the exemption is adopted

either:

(1) by the governing body of the taxing unit; or

{2) by a favorable vote of a majority of the

qualified voters of the taxing unit at an election called by the

governing body of a taxing unit, and the governing body shall

call the election on the petition of at least 20 percent of the

number of qualified voters who voted in the preceding election

of the taxing unit.

(e) The amount of an exemption adopted as provided by

Subsection (d) of this section is $3,000 of the appraised value

of the residence homestead unless a larger amount is specified

by:

(1) the governing body authorizing the exemption if

the exemption is authorized as provided by Subdivision (1) of

Subsection (d) of this section; or

(2) the petition for the election if the exemption is

authorized as provided by Subdivision (2) of Subsection (d) of

this section.

(f) Once authorized, an exemption adopted as provided by

Subsection (d) of this section may be repealed or decreased or

increased in amount by the governing body of the taxing unit or

by the procedure authorized by Subdivision (2) of Subsection (d)

of this section. In the case of a decrease, the amount of the

exemption may not be reduced to less than $3,000 of the market

value.

(g) If the residence homestead exemption provided by

Subsection (d) of this section is adopted by a county that

levies a tax for the county purposes authorized by Article VIII,

Section 1-a, of the Texas Constitution, the residence homestead

exemptions provided by Subsections (a) and (d) of this section

may not be aggregated for the county tax purposes. An

individual who is eligible for both exemptions is entitled to

take only the exemption authorized as provided by Subsection (d)

of this section for purposes of that county tax.

(h) Joint, community, or successive owners may not each

receive the same exemption provided by or pursuant to this

section for the same residence homestead in the same year. An

eligible disabled person who is 65 or older may not receive both

a disabled and an elderly residence homestead exemption but may

choose either. A person may not receive an exemption under this

section for more than one residence homestead in the same year.

(i) The assessor and collector for a taxing unit may

disregard the exemptions authorized by Subsection (b), (c), (d),

or (n) of this section and assess and collect a tax pledged for

payment of debt without deducting the amount of the exemption

if:

( 1) prior to adoption of the exemption, the unit

pledged the taxes for the payment of a debt; and

(2) granting the exemption would impair the

obligation of the contract creating the debt.

(j) For purposes of this section:

(1) "Residence homestead" means a structure

(including a mobile home) or a separately secured and occupied

portion of a structure (together with the land, not to exceed 20

acres, and improvements used in the residential occupancy of the

structure, if the structure and the land and improvements have

identical ownership) that:

(A) is owned by one or more individuals, either

directly or through a beneficial interest in a qualifying trust;

(B) is designed or adapted for human residence;

(C) is used as a residence; and

(D) is occupied as his principal residence by an

owner or, for property owned through a beneficial interest in a

qualifying trust, by a trustor of the trust who qualifies for

the exemption.

(2) "Trustor" means a person who transfers an

interest in residential property to a qualifying trust, whether

by deed or by will, or the person's spouse.

(3) "Qualifying trust" means a trust:

(A) in which the agreement, will, or court order

creating the trust provides that the trustor of the trust or the

beneficiary of the trust if created by court order has the right

to use and occupy as the trustor's or beneficiary's principal

residence residential property rent free and without charge

except for taxes and other costs and expenses specified in the

instrument or court order:

(i) for life;

(ii) for the lesser of life or a term of

years; or

(iii) until the date the trust is revoked

or terminated by an instrument or court order that describes the

property with sufficient certainty to identify it and is

recorded in the real property records of the county in which the

property is located; and

(B) that acquires the property in an instrument

of title or under a court order that:

(i) describes the property with sufficient

certainty to identify it and the interest acquired;

(ii) is recorded in the real property

records of the county in which the property is located; and

(iii) in the case of a trust that is not

created by court order, is executed by the trustor or the

personal representative of the trustor.

(k) A qualified residential structure does not lose its

character as a residence homestead if a portion of the structure

is rented to another or is used primarily for other purposes

that are incompatible with the owner's residential use of the

structure. However, the amount of any residence homestead

exemption does not apply to the value of that portion of the

structure that is used primarily for purposes that are

incompatible with the owner's residential use.

(1) A qualified residential structure does not lose its

character as a residence homestead when the owner who qualifies

for the exemption temporarily stops occupying it as a principal

residence if that owner does not establish a different principal

residence and the absence is:

(1) for a period of less than two years and the owner

intends to return and occupy the structure as the owner's

principal residence; or

(2) caused by the owner's:

(A) military service outside of the United

States as a member of the armed forces of the United States or

of this state; or

(B) residency in a facility that provides

services related to health, infirmity, or aging.

(m) In this section:

(1) "Disabled" means under a disability for purposes

of payment of disability insurance benefits under Federal Old­

Age, Survivors, and Disability Insurance.

(2) "School district" means a political subdivision

organized to provide general elementary and secondary public

education. ''School district" does not include a junior college

district or a political subdivision organized to provide special

education services.

(n) In addition to any other exemptions provided by this

section, an individual is entitled to an exemption from taxation

by a taxing unit of a percentage of the appraised value of his

residence homestead if the exemption is adopted by the governing

body of the taxing unit before July 1 in the manner provided by

law for official action by the body. If the percentage set by

the taxing unit produces an exemption in a tax year of less than

$5,000 when applied to a particular residence homestead, the

individual is entitled to an exemption of $5,000 of the

appraised value. The percentage adopted by the taxing unit may

not exceed 20 percent.

(o) For purposes of this section, a residence homestead

also may consist of an interest in real property created through

ownership of stock in a corporation incorporated under the

Cooperative Association Act (Article 1396-50.01, Vernon's Texas

Civil Statutes) to provide dwelling places to its stockholders

if:

(1) the interests of the stockholders of the

corporation are appraised separately as provided by Section

23.19 of this code in the tax year to which the exemption

applies;

(2) ownership of the stock entitles the owner to

occupy a dwelling place owned by the corporation;

(3) the dwelling place is a structure or a separate l y

secured and occupied portion of a structure; and

(4) the dwelling place is occupied as his principal

residence by a stockholder who qualifies for the exemption.

(p) Exemption under this section for a homestead described

by Subsection (o) of this section extends only to the dwelling

place occupied as a residence homestead and to a portion of the

total common area used in the residential occupancy that is

equal to the percentage of the total amount of the stock issued

by the corporation that is owned by the homestead claimant. The

size of a residence homestead under Subsection (o) of this

section, including any relevant portion of common area, may not

exceed 20 acres.

(q) The surviving spouse of an individual who qualifies

for an exemption under Subsection (d) for the residence

homestead of a person 65 or older is entitled to an exemption

for the same property from the same taxing unit in an amount

equal to that of the exemption for which the deceased spouse

qualified if:

(1) the deceased spouse died in a year in which the

deceased spouse qualified for the exemption;

(2) the surviving spouse was 55 or older when the

deceased spouse died; and

(3) the property was the residence homestead of the

surviving spouse when the deceased spouse died and remains the

residence homestead of the surviving spouse.

(r) An individual who receives an exemption under

Subsection (d) is not entitled to an exemption under Subsection

( q) •

(s) Expired.

Acts 1979, 66th Leg., p. 2234, ch. 841, Sec. 1, eff. Jan. 1,

1980. Amended by Acts 1981, 67th Leg., 1st C.S., p. 127, ch.

13, Sec. 31, eff. Jan. 1, 1982; Acts 1983, 68th Leg., p. 4822,

ch. 851, Sec. 6, eff. Aug. 29, 1983; Acts 1985, 69th Leg., ch.

301, Sec. 1, eff. June 7, 1985; Acts 1987, 70th Leg., ch. 547,

Sec. 1, eff. Jan. 1, 1988; Acts 1991, 72nd Leg., ch. 20, Sec.

18, eff. Aug. 26, 1991; Acts 1991, 72nd Leg., ch. 20, Sec.

19(a}, eff. Jan. 1, 1992; Acts 1991, 72nd Leg., ch. 391, Sec.

14; Acts 1993, 73rd Leg., ch. 347, Sec. 4.08, eff. May 31,

1993; Acts 1993, 73rd Leg., ch. 854, Sec. 1, eff. Jan. 1, 1994;

Acts 1995, 74th Leg., ch. 76, Sec. 15.01, eff. Sept. 1, 1995;

Acts 1995, 74th Leg., ch. 610, Sec. 1, eff. Jan. 1, 1996; Acts

1997, 75th Leg., ch. 194, Sec. 1, eff. Jan. 1, 1998; Acts 1997,

75th Leg., ch. 592, Sec. 2.01; Acts 1997, 75th Leg., ch. 1039,

Sec. 6, eff. Jan. 1, 1998; Acts 1997, 75th Leg., ch. 1059, Sec.

2, eff. June 19, 1997; Acts 1997, 75th Leg., ch. 1071, Sec. 28,

eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1199, Sec. 1,

eff. June 18, 1999; Acts 1999, 76th Leg., ch. 1481, Sec. 1,

eff. Jan. 1, 2000; Acts 2003, 78th Leg., ch. 240, Sec. 1, eff.

June 18, 2003.

Amended by:

Acts 2005, 79th Leg., Ch. 159, Sec. 1, eff. January 1,

2006.

City's Appendix Tab 5

THE TEXAS CONSTITUTION

ARTICLE 8. TAXATION AND REVENUE

Sec. 1-b. RESIDENCE HOMESTEAD EXEMPTION. (a) Three

Thousand Dollars ($3,000) of the assessed taxable value of all

residence homesteads of married or unmarried adults, male or

female, including those living alone, shall be exempt from all

taxation for all State purposes.

(b) The governing body of any county, city, town, school

district, or other political subdivision of the State may exempt

by its own action not less than Three Thousand Dollars ($3,000)

of the market value of residence homesteads of persons, married

or unmarried, including those living alone, who are under a

disability for purposes of payment of disability insurance

benefits under Federal Old-Age, Survivors, and Disability

Insurance or its successor or of married or unmarried persons

sixty-five (65) years of age or older, including those living

alone, from all ad valorem taxes thereafter levied by the

political subdivision. As an alternative, upon receipt of a

petition signed by twenty percent (20%) of the voters who voted

in the last preceding election held by the political

subdivision, the governing body of the subdivision shall call an

election to determine by majority vote whether an amount not

less than Three Thousand Dollars ($3,000) as provided in the

petition, of the market value of residence homesteads of

disabled persons or of persons sixty-five (65) years of age or

over shall be exempt from ad valorem taxes thereafter levied by

the political subdivision. An eligible disabled person who is

sixty-five (65) years of age or older may not receive both

exemptions from the same political subdivision in the same year

but may choose either if the subdivision has adopted both.

Where any ad valorem tax has theretofore been pledged for the

payment of any debt, the taxing officers of the political

subdivision shall have authority to continue to levy and collect

the tax against the homestead property at the same rate as the

tax so pledged until the debt is discharged, if the cessation of

the levy would impair the obligation of the contract by which

the debt was created.

(c) Fifteen Thousand Dollars ($15,000) of the market value

of the residence homestead of a married or unmarried adult,

including one living alone, is exempt from ad valorem taxation

for general elementary and secondary public school purposes.

The legislature by general law may provide that all or part of

the exemption does not apply to a district or political

subdivision that imposes ad valorem taxes for public education

purposes but is not the principal school district providing

general elementary and secondary public education throughout its

territory. In addition to this exemption, the legislature by

general law may exempt an amount not to exceed Ten Thousand

Dollars ($10,000) of the market value of the residence homestead

of a person who is disabled as defined in Subsection (b) of this

section and of a person sixty-five (65) years of age or older

from ad valorem taxation for general elementary and secondary

public school purposes. The legislature by general law may base

the amount of and condition eligibility for the additional

exemption authorized by this subsection for disabled persons and

for persons sixty-five (65) years of age or older on economic

need. An eligible disabled person who is sixty-five (65) years

of age or older may not receive both exemptions from a school

district but may choose either. An eligible person is entitled

to receive both the exemption required by this subsection for

all residence homesteads and any exemption adopted pursuant to

Subsection (b) of this section, but the legislature shall

provide by general law whether an eligible disabled or elderly

person may receive both the additional exemption for the elderly

and disabled authorized by this subsection and any exemption for

the elderly or disabled adopted pursuant to Subsection (b) of

this section. Where ad valorem tax has previously been pledged

for the payment of debt, the taxing officers of a school

district may continue to levy and collect the tax against the

value of homesteads exempted under this subsection until the

debt is discharged if the cessation of the levy would impair the

obligation of the contract by which the debt was created. The

legislature shall provide for formulas to protect school

districts against all or part of the revenue loss incurred by

the implementation of Article VIII, Sections 1-b(c), 1-b(d), and

1-d-1, of this constitution. The legislature by general law may

define residence homestead for purposes of this section.

(d) Except as otherwise provided by this subsection, if a

person receives a residence homestead exemption prescribed by

Subsection (c) of this section for homesteads of persons who are

sixty-five (65) years of age or older or who are disabled, the

total amount of ad valorem taxes imposed on that homestead for

general elementary and secondary public school purposes may not

be increased while it remains the residence homestead of that

person or that person's spouse who receives the exemption. If a

person sixty-five (65) years of age or older dies in a year in

which the person received the exemption, the total amount of ad

valorem taxes imposed on the homestead for general elementary

and secondary public school purposes may not be increased while

it remains the residence homestead of that person's surviving

spouse if the spouse is fifty-five (55) years of age or older at

the time of the person's death, subject to any exceptions

provided by general law. The legislature, by general law, may

provide for the transfer of all or a proportionate amount of a

limitation provided by this subsection for a person who

qualifies for the limitation and establishes a different

residence homestead. However, taxes otherwise limited by this

subsection may be increased to the extent the value of the

homestead is increased by improvements other than repairs or

improvements made to comply with governmental requirements and

except as may be consistent with the transfer of a limitation

under this subsection. For a residence homestead subject to the

limitation provided by this subsection in the 1996 tax year or

an earlier tax year, the legislature shall provide for a

reduction in the amount of the limitation for the 1997 tax year

and subsequent tax years in an amount equal to $10,000

multiplied by the 1997 tax rate for general elementary and

secondary public school purposes applicable to the residence

homestead.

(d-1) Notwithstanding Subsection (d) of this section, the

legislature by general law may provide for the reduction of the

amount of a limitation provided by that subsection and

applicable to a residence homestead for the 2007 tax year to

reflect any reduction from the 2006 tax year in the tax rate for

general elementary and secondary public school purposes

applicable to the homestead. A general law enacted under this

subsection may also take into account any reduction in the tax

rate for those purposes from the 2005 tax year to the 2006 tax

year if the homestead was subject to the limitation in the 2006

tax year. A general law enacted under this subsection may

provide that, except as otherwise provided by Subsection (d) of

this section, a limitation provided by that subsection that is

reduced under the general law continues to apply to the

residence homestead in subsequent tax years until the limitation

expires.

(e) The governing body of a political subdivision, other

than a county education district, may exempt from ad valorem

taxation a percentage of the market value of the residence

homestead of a married or unmarried adult, including one living

alone. In the manner provided by law, the voters of a county

education district at an election held for that purpose may

exempt from ad valorem taxation a percentage of the market value

of the residence homestead of a married or unmarried adult,

including one living alone. The percentage may not exceed

twenty percent. However, the amount of an exemption authorized

pursuant to th i s subsection may not be less than Five Thousand

Dollars ($5,000) unless the legislature by general law

prescribes other monetary restrictions on the amount of the

exemption. An eligible adult is entitled to receive other

applicable exemptions provided by law. Where ad valorem tax has

previously been pledged for the payment of debt, the governing

body of a political subdivision may continue to levy and collect

the tax against the value of the homesteads exempted under this

subsection until the debt is discharged if the cessation of the

levy would impair the obligation of the contract by which the

debt was created. The legislature by general law may prescribe

procedures for the administration of residence homestead

exemptions.

(e-1) Expired.

(f) The surviving spouse of a person who received an

exemption under Subsection (b) of this section for the residence

homestead of a person sixty-five (65) years of age or older is

entitled to an exemption for the same property from the same

political subdivision in an amount equal to that of the

exemption received by the deceased spouse if the deceased spouse

died in a year in which the deceased spouse received the

exemption, the surviving spouse was fifty-five (55) years of age

or older when the deceased spouse died, and the property was the

residence homestead of the surviving spouse when the deceased

spouse died and remains the residence homestead of the surviving

spouse. A person who receives an exemption under Subsection (b)

of this section is not entitled to an exemption under this

subsection. The legislature by general law may prescribe

procedures for the administration of this subsection.

(g) If the legislature provides for the transfer of all or

a proportionate amount of a tax limitation provided by

Subsection (d) of this section for a person who qualifies for

the limitation and subsequently establishes a different

residence homestead, the legislature by general law may

authorize the governing body of a school district to elect to

apply the law providing for the transfer of the tax limitation

to a change of a person's residence homestead that occurred

before that law took effect, subject to any restrictions

provided by general law. The transfer of the limitation may

apply only to taxes imposed in a tax year that begins after the

tax year in which the election is made.

(h) The governing body of a county, a city or town, or a

junior college district by official action may provide that if a

person who is disabled or is sixty-five (65) years of age or

older receives a residence homestead exemption prescribed or

authorized by this section, the total amount of ad valorem taxes

imposed on that homestead by the county, the city or town, or

the junior college district may not be increased while it

remains the residence homestead of that person or that person's

spouse who is disabled or sixty-five (65) years of age or older

and receives a residence homestead exemption on the homestead.

As an alternative, on receipt of a petition signed by five

percent (5%) of the registered voters of the county, the city or

town, or the junior college district, the governing body of the

county, the city or town, or the junior college district shall

call an election to determine by majority vote whether to

establish a tax limitation provided by this subsection. If a

county, a city or town, or a junior college district establishes

a tax limitation provided by this subsection and a disabled

person or a person sixty-five (65) years of age or older dies in

a year in which the person received a residence homestead

exemption, the total amount of ad valorem taxes imposed on the

homestead by the county, the city or town, or the junior college

district may not be increased while it remains the residence

homestead of that person's surviving spouse if the spouse is

fifty-five (55) years of age or older at the time of the

person's death, subject to any exceptions provided by general

law. The legislature, by general law, may provide for the

transfer of all or a proportionate amount of a tax limitation

provided by this subsection for a person who qualifies for the

limitation and establishes a different residence homestead

within the same county, within the same city or town, or within

the same junior college district. A county, a city or town, or a

junior college district that establishes a tax limitation under

this subsection must comply with a law providing for the

transfer of the limitation, even if the legislature enacts the

law subsequent to the county's, the city's or town's, or the

junior college district's establishment of the limitation. Taxes

otherwise limited by a county, a city or town, or a junior

college district under this subsection may be increased to the

extent the value of the homestead is increased by improvements

other than repairs and other than improvements made to comply

with governmental requirements and except as may be consistent

with the transfer of a tax limitation under a law authorized by

this subsection. The governing body of a county, a city or town,

or a junior college district may not repeal or rescind a tax

limitation established under this subsection.

(i) The legislature by general law may exempt from ad

valorem taxation all or part of the market value of the

residence homestead of a disabled veteran who is certified as

having a service-connected disability with a disability rating

of 100 percent or totally disabled and may provide additional

eligibility requirements for the exemption. For purposes of

this subsection, "disabled veteran" means a disabled veteran as

described by Section 2(b) of this article.

(j) The legislature by general law may provide that the

surviving spouse of a 100 percent or totally disabled veteran

who qualified for an exemption in accordance with Subsection (i)

of this section from ad valorem taxation of all or part of the

market value of the disabled veteran's residence homestead when

the disabled veteran died is entitled to an exemption from ad

valorem taxation of the same portion of the market value of the

same property to which the disabled veteran's exemption applied

if:

(1) the surviving spouse has not remarried since the

death of the disabled veteran; and

(2) the property:

(A) was the residence homestead of the surviving

spouse when the d i sabled veteran died; and

(B) remains the residence homestead of the

surviving spouse.

(k) The l egislature by genera l l aw may provide that if a

surviving spouse who qualifies for an exemption in accordance

with Subsection (j) of this section subsequently qualifies a

different property as the surviving spouse's residence

homestead, the surviving spouse is entitled to an exemption from

ad valorem taxation of the subsequently qualified homestead in

an amount equal to the dollar amount of the exemption from ad

valorem taxation of the former homestead in accordance with

Subsection (j) of this section in the last year in which the

surviving spouse received an exemption in accordance with that

subsection for that homestead if the surviving spouse has not

remarried since the death of the disabled veteran.

(Added Nov. 2, 1948; Subsec. (b) added Nov. 7, 1972; Subsecs.

(a) and (b) amended Nov. 6, 1973; Subsec. (b) amended and (c)

and (d) added Nov. 7, 1978; Subsecs. (e) and (e-1) added Nov. 3,

1981; Subsec. (e-1) expired Jan. 2, 1982; Subsec. (d) amended

Nov. 3, 1987; Subsecs. (b) and (e) amended Aug. 10, 1991;

Subsec. (f) added Nov. 7, 1995; Subsecs. (c) and (d) amended

Aug. 9, 1997; Subsec. (g) added Nov. 4, 1997; Subsec. (b)

amended Nov. 2, 1999; Subsec. (d) amended and (h) added Sept.

13, 2003; Subsec. (d-1) added May 12, 2007; Subsec. (i) added

Nov. 6, 2007; Subsecs. (j) and (k) added Nov. 8, 2011.)

(TEMPORARY TRANSITION PROVISIONS for Sec. 1-b: see Appendix,

Notes 1 and 5. )

City's Appendix Tab 6

AFFIDAVIT OF MAX DUPLANT, C.P.A.

STATE OF TEXAS § §

COUNTY OF DALLAS §

BEFORE ME, the undersigned authority, personally appeared Max Duplant, C.P.A., who being by me duly sworn, deposed and stated:

"My name is Max Duplant. I am the Chief Financial Officer for the City of Irving, Texas and a Certified Public Accountant. I am over the age of 18 years. I have personal knowledge of the following facts and am fully competent and able to testify here, and all the facts and statements herein contained are true and correct and based upon my personal knowledge.

1. The City of Irving has outstanding bond obligations in the principal amount of over $349 million, through the year 2033, to which the ad valorem tax has been pledged.

2. If the voter-initiated petition were approved, the City's ability to repay its $349 million of debt obligations would be impaired or present undue hardship on other taxpayers.

3. If persons 65 years or older were to receive 100% ad valorem tax exemption on their residential homesteads in Irving, depending on the future influx of persons 65 or older, this could result in a potential financial burden to the City that is unquantifiable.

4. The voter-initiated petition if approved would harm the City's ability to repay its existing bond indebtedness and would result in harm to other taxpayers.

5. I declare under penalty of perjury that the foregoing is true and correct.

Further, Affiant sayeth not.

Affidavit of Max Duplant, C.P.A. Page 1

This Affidavit was subscribed and sworn to before me on this Jl ':)'day of February, 2014.

I have verified the identity of the affiant by a current identification card or other document

used by a state or federal government containing a photograph and the signature of the

affiant. J I . '

'1 bau~ ~ r&/ l o.itUuu

Affidavit of Max Duplant, C.P.A. Page2

Notary Public Signat e

1-J lf -J.o/7 My Commission Expires (PERSONALIZED SEAL)