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In re Linder

Court of Appeals of Texas, Third District, Austin

August 22, 2019

In re Nelson Linder

          ORIGINAL PROCEEDING FROM TRAVIS COUNTY

          Before Chief Justice Rose, Justices Triana and Smith

          MEMORANDUM OPINION

          JEFF ROSE, CHIEF JUSTICE

         Relator Nelson Linder seeks a writ of mandamus ordering the City of Austin and the Austin City Council (collectively, "the City") to modify the ballot language of a proposition to adopt a citizen-initiated ordinance. Because the ballot language adopted by the City inadequately describes the proposed ordinance, we conditionally grant the writ.

         Background

         Linder and approximately 31, 900 registered Austin voters signed a citizen-initiative petition proposing an ordinance regarding the City's use of revenue from hotel-occupancy taxes. See Austin, Tex., Charter Art. IV, § 1 (allowing citizens of Austin to direct legislation by initiative by petition signed by sufficient number of qualified voters). The petition described the proposed ordinance as follows:

A petitioned ordinance prioritizing the use of Austin's hotel occupancy tax revenue for the promotion and support of local cultural, heritage and environmental tourism; requiring voter approval and public oversight for significant expansions of the Austin Convention center; and establishing other local requirements for the use of hotel occupancy tax revenue.

         The proposed ordinance explains that its purpose is "to re-prioritize Austin's investment of Hotel Occupancy Tax revenue to promote and support tourism that emphasizes and enhances Austin's diverse culture, heritage, environment and locally owned businesses." The chief features of the proposed ordinance, stated generally, require the City to:

• spend 15% of hotel-occupancy tax revenue on cultural arts and 15% on historic preservation;
• limit its spending on the convention center to 34% of hotel-occupancy tax revenue;
• spend any of the remaining hotel-occupancy tax revenue "to support and enhance Austin's Cultural Tourism Industry"; and
• obtain voter approval for convention-center improvement and expansion costing more than $20, 000, 000.

         After the Austin City Clerk certified that the citizen-initiated petition met the signature requirements of Austin's city charter, the Austin City Council ordered that the ordinance be submitted for voter approval in the upcoming November 2019 election. See id. § 3 (specifying form and validation of citizen-initiative petitions), § 4 (requiring council to pass the citizen-initiated ordinance as presented or to submit the citizen-initiated ordinance to a popular vote as presented). The City Council chose to submit the issue to voters as follows:

Shall an ordinance be adopted that limits, beyond existing limits in state statute and city ordinance, the use of Austin's Hotel Occupancy Tax revenue, including the amount of Hotel Occupancy Tax revenue that may be used to construct, operate, maintain or promote the Austin Convention Center; requires any private third-party entity managing such funds to comply with open meetings and public information laws applicable to the city; and requires voter approval for ...

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