Frisco Enterprise
Attorneys for city and TBYR volley legalities 
1/28/2005
Mike Raye

An attorney representing Take Back Your Rights sent a letter to the Frisco City Council and the city attorney this week demanding the council put the group's charter amendment proposals on the May 7 election ballot by Feb. 8. In a response letter, the city refused, saying the deadline isn't until March.

In a work session on the amendments Jan. 19, the council stopped short of calling for a May charter amendment election, saying there were still many unresolved issues and unanswered questions.

The group took exception.

"The Beckas hereby make a formal legal demand that at the next city council meeting, on or before Feb. 8, 2005, that you officially place the two Take Back Your Rights charter amendments on the May 2005 election ballot," wrote Fred Lewis, an Austin-based attorney representing the group headed by Frisco orthodontist Dr. David Becka. "The law is clear that you are required to put the amendments on the May 2005 ballot and failure to do so is a violation of your non-discretionary duties," Lewis wrote. Lewis is the leader of government watchdog groups called "Campaign for the People and "Clean Up Texas Politics." He said he is offering his services to TBYR pro bono, free of charge.

Whether the proposals will be on a ballot have long been settled, by TBYR fulfilling a requirement in Frisco's Home Rule Charter that specifies the number of certified signatures on a petition necessary to force an election to decide to amend it or not. The charter does not specify the time interval between the certification of a petition and an election, but in Section 5.01 requires that "the regular city election" is held "annually on the first Saturday in May or such other date as required by the Texas Election Code." Section 5.01(3) grants the council the power to order a special election on another date and charges it with the responsibility of setting the time and place.

Texas state law requires an election must be called no less than 62 days before election day to ensure all requirements are met, including publicizing the election and working out the design and structure of the ballot and setting up polling place logistics.

City Attorney Richard Abernathy said at the work session he recommended the city place the proposals on the May 7 ballot, but saw no legal requirement for the city to do so. He reiterated that in his response to Lewis' letter.

"You have accused the Frisco City Council of refusing to call an election to place the charter amendments on the May 2005 ballot," Abernathy wrote. "Your accusation is false. You also demand that the City Council on or before February 8, 2005, pass an ordinance to place the charter amendments on the May 2005 election. The city declines your demand. As you know, the city has until March 2005 to place items on the May 2005 election."

Lewis cited a section of the Texas Local Government Code and a 1980 Texas Supreme Court opinion as bases for his arguments.

Section 9 of the Code requires a charter amendment to be placed on a ballot if the requirements for petitions are met. It also requires a city to put the measure on "the first authorized uniform election date" or "on the earlier of the date of the next municipal general election or presidential election." The next uniform election date is in February, but does not fit the 62-day requirement, leaving May as the logical choice, Lewis argued. A uniform election date is available in August according to City Secretary Nan Parker, but Lewis said that isn't timely enough.

Lewis wrote that Coalson vs. the City Council of Victoria takes away an option for the city, and makes putting the TBYR amendments on the ballot "non-discretionary" - a fact undisputed by the city.

"The City Council's duty is clear, and its compliance with the law is ministerial in nature," Lewis wrote, meaning that they must follow the higher authority of the state.

Abernathy responded that Lewis' case authority in citing Coalson is inapposite, or an unsuitable base for argument. In that case, brought against the City council of Victoria, Tex., the city council refused to place charter amendment proposals on a ballot after they ordered a charter amendment election for other propositions.

"In this case, the City Council has not refused to call an election," Abernathy wrote, "It has repeatedly stated it will call an election."

Dr. Becka said time is of the essence in resolving the legal disagreements.

"There was quite a lot of discussion about August (at the work session Jan. 19)," he said. "I thought it should be clear that the election should be in May. How did August come up? It would be a colossal waste of taxpayer money if the election is not in May. The city has got to get the ball rolling. It is time to get specific," Becka said.

Becka said he realizes it is an election year and the amendments could become a campaign issue - even a plank in his own possible mayoral campaign. He said he is considering a run at Mayor Mike Simpson's job, but hasn't made a final decision. He said he has until March to make a formal announcement either way. The deadline for candidates to announce their intent to run is 5 p.m. March 7. Becka filed papers with the city late last year identifying a campaign treasurer.

"We're not looking for a short-term solution to this," he said. "Homebuilder problems are not unique to Frisco. I represent 4,600 people when I stand up there (and speak before the council). I have a commitment to this organization and a responsibility to the people of Frisco. This will be a long-term benefit for all of Frisco."

Mayor Mike Simpson said he hopes a key question is not overlooked in the debate over TBYR's charter amendment proposals - the overall impact on the city and the individual taxpayer. He said Wednesday that the city's property tax rate is projected over the next few years based upon the projected number of new homes built in Frisco. He said if building is slowed or even halted as some homebuilders predict, Frisco residents will get hit in a most vulnerable spot - their wallets. Having more homes to generate ad valorem taxes keeps the tax rate low, he said.

"What will happen to the guy that built his house 15 years ago?" Simpson asked. "What will he do when all of a sudden building is stopped and his taxes skyrocket? That is one of the most important unanswered questions we have to get answers to, and one of the most important issue for voters to consider."

One thing all sides - the city, TBYR, builders, insurance agents and realtors - agree on is that the amendments are issues that require a great deal of study and time.

©Star Community Newspapers 2005