Austin camping ban ordinance supporters lose first appeal, turn to Texas Supreme Court

After striking out with their first appeal, supporters of a camping ban ordinance for Austin turned to the Texas Supreme Court on Thursday in hopes of voiding ballot language they argue is unfair and biased.

The Austin City Council — presented with enough petition signatures to force a vote on limits to public camping, aggressive panhandling and loitering — added the proposed ordinance to the May 1 election and approved language for the ballot two weeks ago.

Save Austin Now, the organization behind the petition drive, sued, arguing that the council-approved ballot language was purposefully written to encourage "no" votes.

Late Wednesday night, however, the Austin-based 3rd Court of Appeals denied the organization's challenge in a one-sentence ruling that gave no reasons for the rejection beyond citing an appellate rule indicating that the challengers were not entitled to the relief sought.

All three justices on the 3rd Court panel were Democrats.

A different partisan makeup awaits camping ban supporters at the state Supreme Court, where all nine justices are Republicans.

"I am just hopeful that the Supreme Court will agree with us and restrain the City Council from violating the City Charter and trying to prejudice the election results by tampering with the ballot language," said Bill Aleshire, an Austin lawyer for Save Austin Now.

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One bit of tampering, Save Austin Now argues, is ballot language that overemphasizes, by repetition, the creation of a criminal offense and penalties in ways not reflected in the citizen petition.

Lawyers for Austin disagree, arguing that the City Charter and the Texas Constitution do not require ballots to repeat language used on petitions, as Save Austin argues.

"If the ballot language for the proposition had to be mindlessly cut and pasted from the caption of a petitioned initiative ordinance, then the City Council would be the captive of petition circulators, no matter how misleading or pernicious the language of the caption of their petition," city lawyers told the 3rd Court.

The language on petitions also was inadequate, omitting any mention of criminal penalties and stating only that the proposed ordinance would be "creating offenses," city lawyers said.

The Supreme Court will have less than a week to act before final ballot language must be finalized by Wednesday, according to court documents.

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Austin changed its approach to people experiencing homelessness when the City Council voted in June 2019 to repeal a ban on camping in the city, arguing that it was unfair to punish people living outdoors because they can't afford shelter, particularly by imposing fines that worsen their financial situations.

But supporters of the camping ban said the petition drive was fueled by concern over the rise of unsafe and unsightly homeless encampments in downtown Austin and near neighborhoods and businesses.

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The ballot language for Proposition B, as approved by the City Council on Feb. 9, states:

"Shall an ordinance be adopted that would create a criminal offense and a penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors in and near the Downtown area and the area around the University of Texas campus; create a criminal offense and penalty for solicitation, defined as requesting money or another thing of value, at specific hours and locations or for solicitation in a public area that is deemed aggressive in manner; create a criminal offense and penalty for anyone camping in any public area not designated by the Parks and Recreation Department?"

Save Austin Now complained that the language, in addition to emphasizing new criminal offenses and penalties, improperly flipped the order of offenses to emphasize the loitering provisions over the limits on camping.

Lawyers for Austin, however, argued that it isn't the City Council's job to further the political goals of Save Austin Now by framing the ballot language "in a way that they wish them framed."

"The council’s job is to provide a fair picture of the chief features of the ordinance. And the criminal offenses it creates are among the chief features. In fact, they are the chief features," they said in court documents.