We had a number of comments from yesterdays’ article, by Richard Rothfelder, on Lamar vs TxDOT including the following post from Richard Hamlin of Hamlin Cody based in California.

State officials have two types of duties, ministerial and discretionary. A discretionary duty gives the official room to interpret facts and regulations. A good example: deciding if an application for a permit satisfies an ordinance’s requirements for consistency with a neighborhood.

A ministerial duty is one that leaves no room for a decision by the official. It sounds like Texas law requires officials to issue notices. As such, they have no discretion to decide whether or not to issue the notices.

The typical remedy for an official’s failure to perform a ministerial duty is traditional mandamus. That’s a request to the court to compel officials to perform their duties. I’m this case, issue the required notices.

Often, an official will argue that the duty is discretionary. If so, the remedy becomes administrative mandamus, where an injured party must prove that the official acted without jurisdiction or in excess of the official’s discretion. Given the ruling that the Texas officials were not acting ultra vires, it sounds as though their duty to issue notices is ministerial.

Good luck with the outcome. Even if mandamus is barred by collateral estoppel or res judicata for these structures, it will be available for other signs in the future.

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