Following a ruling from the Texas Supreme Court, City Council has made two changes to the language that will appear with Proposition B on the May 1 ballot, the citizen initiative to reinstate criminal penalties for public camping, panhandling, and other facets of visible homelessness in certain parts of town.
In a 6-3 ruling issued Tuesday, March 2, the Court ordered Council to remove the word “anyone” from the ballot language. In the court’s majority opinion, Justice Jimmy Blacklock asserted the ordinances would not apply to anyone, because it includes exceptions – for example, if someone were having a medical emergency or waiting on a bus, they would not be in violation. Leaving the word in would “suggest to voters that the ordinance criminalizes and penalizes a much wider swath of conduct than it actually does,” Blacklock wrote. Shortly after the ruling was issued, Council voted unanimously to adopt the language changes.
The court did not side with the plaintiffs – three signers of the petition organized by Save Austin Now to place Prop B on the ballot – on other, more significant changes to the ballot language. In their filings, submitted simultaneously to SCOTX and the 3rd Court of Appeals, attorneys for the plaintiffs argued that the City Charter requires Council to adopt the language used on the SAN petition without any changes. They also sought to strike Council’s references to a “criminal penalty”; former Republican Party of Texas General Counsel Donna Garcia Davidson and former Travis County Judge Bill Aleshire wrote in their filing that the language adopted by Council was “inflammatory, misleading, and prejudicial.” The 3rd Court ruled against the plaintiffs on Feb. 24 on all three requests without issuing an opinion.
In Blacklock’s opinion, SCOTX ruled that the plaintiffs did not provide enough evidence in this “expedited proceeding” (rushed to meet deadlines for printing ballots) that the charter prevents Council from modifying the language of citizen initiatives. As for criminalization, Blacklock noted that the court has previously held that city governments have “broad discretion in wording propositions” and that this one “correctly states that the ordinance creates criminal offenses and penalties.” Blacklock continues that plaintiffs “would prefer that this aspect of the ordinance appear less prominently in the proposition, but it is not the courts’ job to micromanage the sentence structure of ballot propositions.” The job of the court “is to ensure voters are not misled by inaccuracies or material omissions in the proposition while preserving the governing body’s discretion to select ballot language.”
This article appears in March 5 • 2021.