The 3rd Court of Appeals has ruled that the city must make two changes to recently approved ballot language related to an attempt to limit city spending on the Austin Convention Center. In a ruling issued Thursday, the court of appeals for the third district of Texas issued an opinion that City Council omitted a key portion of a proposed ordinance that was the result of a petition drive by the Unconventional Austin political action committee, while also adding misleading language.

Specifically, the opinion found the statement that the city would have to bear the cost of future elections over capital projects on the convention center costing more than $20 million to be misleading. This is because the city could position the question during general elections at little if any additional cost. The court said in part: “the City’s statement is misleading because it suggests that the proposed ordinance necessitates additional election costs and because it does not accurately reflect that it would be the City’s choice to incur additional election costs by setting the issue outside an otherwise-occurring election.”

Its second finding was that Council’s decision to remove language specifying how Hotel Occupancy Tax money diverted away from convention center expenses – proposed by the petition to be capped at 34 percent of all hotel tax revenue – was improper because a chief feature of the petition drive was to increase spending on cultural tourism after allocating 30 percent of hotel tax revenue evenly between cultural arts and historic preservation.

The court said in part: “The ballot language completely omits the proposed ordinance’s emphases on prioritization of revenue funds towards cultural arts and historic preservation. Likewise, it also omits any mention of the third prioritization feature, which directs the City to prioritize ‘remaining funds’ – the other 36 percent of Hotel Occupancy Tax revenue – to Austin’s Cultural Tourism Industry.”

Council approved the ballot language early on Aug. 9 by an 8-2 vote with Council members Ann Kitchen and Leslie Pool voting against and Council Member Alison Alter abstaining. During discussion ahead of the vote, Mayor Steve Adler said state law already dictates how hotel tax funds can be spent and it would be unnecessary to include language in the ballot measure on allocation of those funds.

Council will have to submit new language to Travis County by Sept. 5 to meet the deadline for the ordinance to appear on the ballot for the November election.

A city spokesperson responded to the court’s decision, saying, “We appreciate the Court’s quick attention to this matter. While we believe the Council appropriately fulfilled its obligation to set the ballot language, we will post a meeting shortly for the Council to discuss the Court’s ruling.”

Unconventional Austin held the petition drive in response to Council’s recent decision to pursue a $1.2 billion expansion of the convention center that would be paid for by the current 17 percent tax on hotel room stays in Austin.

Group organizer and attorney Fred Lewis helped put together last week’s filing, which was made by Nelson Linder, executive director of the Austin NAACP.

“We felt that the language was intentionally misleading … and the court has agreed with us on every count,” Linder said to Austin Monitor. “They have to refile the language as specified by the court, and make sure it’s very clear on what the money should be used for.”

Read the entire ruling below.

Download (PDF, 183KB)

Photo by JD Lasica made available through a Creative Commons license.

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