The State of Texas, by and Through the Office of the Attorney General of Texas v. City of San Marcos; Jane Hughson, Mayor of San Marcos; Matthew Mendoza, Saul Gonzales, Alyssa Garza, Shane Scott, Lorenzo Gonzalez, and Amanda Rodriguez, Members of the City Council of San Marcos; Stephanie Reyes, City Manager of San Marcos; And Stan Standridge, Chief of Police of San Marcos; In Their Official Capacities

ACCEPTED 15-24-00084-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 2/20/2025 5:06 PM CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS 2/20/2025 5:06:05 PM Ms. Smith’s Direct Line: (512) 322-5820 CHRISTOPHER A. PRINE Email: [email protected] Clerk

February 20, 2025 Via e-filing Mr. Christopher A. Prine, Clerk Fifteenth Court of Appeals W. 15th Street, Suite 607 Austin, Texas 78701 Re: Court of Appeals No.: 15-24-00084-CV Trial Court Case No.: 24-0267 The State of Texas v. City of San Marcos; et al.

Dear Mr. Prine: Appellees are in receipt of Appellant’s post-submission letter dated February 13, 2025 and offer the following in response for the Court’s consideration in the disposition of this appeal. I would respectfully request that you please distribute this letter to Chief Justice Brister, Justice Farris, and Justice Field.

The authority cited in the State’s post-submission briefing does not address the issue of remedies. More importantly, the authority certainly does not stand for the proposition that repeal is an available remedy here. In neither of these cases did the Supreme Court order repeal to remediate a void ordinance or initiative.

Both cases involved a citizen referendum to repeal an existing ordinance—not an attempt by the people to adopt an ordinance and order to the City to undo it. In re Woodfill, 470 S.W.3d 473, 475 (Tex. 2015) (Houston residents “filed a referendum petition requesting the City Council to reconsider and repeal its equal rights ordinance and, if it did not repeal the ordinance, to put it to popular vote”); In re Williams, 470 S.W.3d 819, 820 (Tex. 2015). The conditional writ ordered by the Supreme Court was not that the ordinance should be repealed; it was a directive to the City to act on the initiative or hold an election for the citizens to act on it.

The State mischaracterizes the holding, as well as the duties and grant of authority of a municipal government and this Court. The conclusion the State advises the Court to adopt would not follow case law, but rather disturb settled February 20, 2025 Page 2 precedent in this area. In the cases involving the Houston ordinance, the City Council refused to adopt the action proposed by the citizens or give the citizens the right to vote themselves. Neither case holds that a court can order repeal of an ordinance adopted by the people. The proposition brought by the San Marcos citizens was not to repeal an ordinance, but to adopt an ordinance. Following the courts’ reasoning in both Williams and Woodfill, the City Council had a ministerial obligation to either adopt the ordinance itself or put it on the ballot.

The chief act at issue in this appeal, adoption of the Enforcement Ordinance by the people, is not a workaround for City action—it’s an example of citizens actively participating in their government. In re Morris, 663 S.W.3d 589, 597–98 (Tex. 2023) (“The initiative process . . . affords direct popular participation in lawmaking.”). In fact, as recognized in the authority cited by the State in its letter brief, “‘the power of . . . referendum . . . is the exercise by the people of power reserved to them,’ and this power should be protected.” Woodfill, 470 S.W.3d at 475, citing Taxpayers’ Ass’n of Harris Cnty. v. City of Houston, 105 S.W.2d 655, 657 (Tex. 1937) (emphasis added); see also Morris, 663 S.W.3d at 598 (“The power of initiative is reserved to the people, not granted to them.”).

These two cases are consistent with the Supreme Court precedent previously cited by Appellees. Last year the Supreme Court reiterated its longstanding position that to do anything other than hold and canvas an election for a citizen petition that meets all administrative requirements would be a violation of a ministerial obligation. In re Rogers, 690 S.W.3d 296, 301 (Tex. 2024) (“once it is determined that the requisite signatures were included, the mandatory duty to call the election arises, leaving no room for the exercise of any discretion,” and “our precedents reflect a strong preference in favor of holding elections on qualified ballot measures even where there is some question about whether the measure, if passed, would be subject to valid legal challenge”)1; see also Glass v. Smith, 244 S.W.2d 645, 653 (Tex. 1951) (“When the people exercise their rights and powers under the initiative provisions of a city charter . . . the City Council . . . become ministerial officers in the legislative process, burdened with the mandatory obligations of performing the duties imposed upon them incidental to carrying out the initiative procedure.”).

That is what Woodfill and Williams speak to—the ministerial obligation to either act on a citizen initiative or put it on a ballot for a vote of the people. As If a proposition receives the majority of the votes, it passes. The State is effectively trying to bring an election contest without calling it such. See In re Morris, 663 S.W.3d 589, (Tex. 2023) (“The City Council’s duty is to place the proposed amendment before the voters. We have held that even concerns about the constitutionality of an amendment are no justification for it to refuse to do otherwise . . . [w]hether the [proposition] violates the Local Government Code or other state law, and the remedy for such violations, are questions that the courts may resolve in an election contest or other post-election proceeding if the proposition passes.”)

C/M.

February 20, 2025 Page 3 Woodfill says, for the City to have done anything other hold the election and certify the results would “thwart[]….the will of the public.” Woodfill, 470 S.W.3d at 481, citing Coalson v. City Council of Victoria, 610 S.W.2d 744, 747 (Tex. 1980)(orig. proceeding).

Repeal is not a remedy on the table in this case. As further set out in the briefing before the Court and during oral argument, the City’s only acts were in line with their ministerial obligations. The only actors who adopted any policy in this case were the people of San Marcos.

Preemption arguments notwithstanding, Texas Local Government Code Section 370.003 prohibits certain government actors and officials from taking action to adopt a policy but is silent on acts of self-governance and expression of public sentiment by the citizens. Further, the statute is about prohibition, not affirmative obligation, including the affirmative obligation of City Council to undo a vote of the citizens. For this Court to order such would not only ignore the sound discretion of the trial court, but would in fact “thwart the will of the public” and the exercise of inherent right by the people of this state that Texas courts have long protected.

Sincerely,

/s/ Gabrielle C. Smith Gabrielle C. Smith Counsel for Appellees GCS/cad cc: All counsel of record (via efile)

C/M.

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Cathy Daniels on behalf of Gabrielle Smith Bar No. 24093172 [email protected] Envelope ID: 97624690 Filing Code Description: Letter Filing Description: Correspondence from Attorney Gabrielle Smith post-argument Status as of 2/21/2025 7:02 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Jose De La Fuente 793605 [email protected] 2/20/2025 5:06:05 PM SENT James Parker 24027591 [email protected] 2/20/2025 5:06:05 PM SENT Johnathan Stone 24071779 [email protected] 2/20/2025 5:06:05 PM SENT Gabrielle Smith 24093172 [email protected] 2/20/2025 5:06:05 PM SENT Barbara Quirk 16436750 [email protected] 2/20/2025 5:06:05 PM SENT Sydney Sadler 24117905 [email protected] 2/20/2025 5:06:05 PM SENT Jacob Przada 24125371 [email protected] 2/20/2025 5:06:05 PM SENT Nancy Villarreal [email protected] 2/20/2025 5:06:05 PM SENT Cory Scanlon [email protected] 2/20/2025 5:06:05 PM SENT