Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 6,2004
The Honorable Jane Nelson Opinion No. GA-0175
Chair, Health & Human Services Committee
Texas State Senate Re: Consequences for a municipality if five of its
Post Office Box 12068 seven council members are removed at a recall
Austin, Texas 787 1 l-2068 election (RQ-0 156-GA)
Dear Senator Nelson:
You ask about the consequences for a home-rule municipality if five of its seven council
members are removed at a recall election.’ You indicate that Haltom City, a home-rule municipality,
held an election on February 7, 2004, which resulted in the recall of five of seven elected council
members.
The Haltom City charter provides that the “governing body of the city shall consist of a
mayor and seven (7) council members.” HALTOMCITY,TEX.,MUNICIPALCHARTER, art. III, 9 3.01
(200 1). The charter further states that “[a] quorum will be established by the presence of at least five
(5) members. The mayor’s presence may not be counted toward a quorum.” Id. 5 3 -08. Article VI
of the charter provides for the recall of city officials.
Recall is initiated by a petition to the council of “at least twenty-five (25) per centum of the
number of votes cast at the last regular municipal election of the city, but in no event less than two
hundred fifty (250) such petitioners.” Id. art. VI, $3 6.02-6.05. “If the officer whose removal is
sought does not resign then it shall become the duty of the city council to order an election,” to be
held on “the next state uniform election date that is not less than forty-five (45) days from the date
such petition was certified to the city council.” Id. 0 6.07. Five council members were recalled in
the election of February 7, 2004. See Brandon Formby, City in Quandary After Recall Results,
DALLASMORNING NEWS, Feb. 20, 2004, at 6B. Section 6.09 of the charter provides that “[i]f a
majority of the votes cast at such an election be for the recall of the person named on the ballot, he
shall . . . be deemed removed from office and the vacancy shall be filled as vacancies in the city
council are filled.” HALTOMCITY, TEX., MUNICIPALCHARTER, art. VI, 5 6.09 (2001). The
scheduled election to till the vacant seats will occur in May 2004, the state’s next uniform election
date. See id. 8 6.07.
‘Letter from Honorable Jane Nelson, Chair, Senate Health & Human Services Committee, to Honorable Greg
Abbott, Texas Attorney General (Dec. 17,2003) (on file with Opinion Committee) [hereinafter Request Letter]; Request
Letter also available at http://www.oag.state.tx.us.
The Honorable Jane Nelson - Page 2 (GA-0175)
You first ask whether each of the five council members who were removed by the voters
“continue to serve in office under Article 16, Section 17 of the Texas Constitution until his successor
is elected and qualifies at the next regular election in May of 2004.” Request Letter, sup-a note 1,
at 2. That provision declares that “[a]11officers within this State shall continue to perform the duties
of their offices until their successors shall be duly qualified.” TEX.CONST. art. XVI, 0 17. In
Willmann v. City of San Antonio, 123 S.W.3d 469 (Tex. App.-San Antonio 2003, pet. denied), the
court considered a complaint of three San Antonio municipal judges who challenged a city ordinance
providing that “all persons presently holding an appointed position as judge but who were not listed
in the ordinance would not be reappointed to their office.” Id. at 472. The court, citing Manning
v. Harlan, 122 S.W.2d 704,707 (Tex. Civ. App.-El Paso 1938, writ dism’d), held that “the right to
holdover does not reside in one who has been removed from office,” and that the ordinance in
question “effectively removed appellants from office.” Willmann, 123 S.W.3d at 48 1.* In the
situation you pose, the five council members have been removed from office not merely by operation
of a municipal ordinance, but by the voters in an election held pursuant to a city charter provision
that provided for the recall of municipal officers. The electorate expressed a clear desire that these
individuals were to be immediately ousted from their respective offices. We conclude that the five
council members who have been removed from office by the voters do not hold over until their
successors have been elected and qualified. Rather, they ceased to hold office as of the date the
results of the recall election were certified. Were we to find otherwise, the will of the voters would
be thwarted.
Your second question is premised upon a “yes” answer to your first question. Accordingly,
we need not address it.
Finally, you ask whether, following the removal of the five council members, a quorum of
the council exists to conduct business until the May 2004 election. The Open Meetings Act, chapter
55 1 of the Government Code, defines “quorum” as “a majority of a governmental body, unless
defined differently by applicable law or rule or the charter of a governmental body.” TEX.GOV’T
CODE ANN. 8 55 1.001(6) (Vernon Supp. 2004). As we have noted, section 3.08 of the Haltom City
municipal charter defines “quorum” as “the presence of at least five (5) members,” adding that the
“mayor’s presence may not be counted toward a quorum.” HALTOMCITY, TEX., MUNICIPAL
CHARTER, art. III, 0 3.08 (2001). Moreover, a quorum of a governmental body established by statute,
or, in this case, by a municipal charter, is not reduced by virtue of a vacancy. See Tex. Att’y Gen
Op. No. MW-562 (1982) at 3 (quorum of a board remains at all times a majority of the authorized
*You suggest that Willmann stands for the proposition that “when a person is removed from office, he does not
continue to serve under Article 16, Section 17 of the Texas Constitution, unless there is ‘inconvenience’ that the public
would suffer if the officer does not continue to serve until the next election.” Request Letter, sup-a note 1, at 3.
Willmann does not stand for this proposition, however. The court, after holding that article XVI, section 17 does not
apply to a person who has been removed from office, states that “no vacancy occurred in the office of municipal court
judge that resulted in public inconvenience to warrant the application of Article 16, Section 17 of the Texas
Constitution.” Willmann, 123 S.W.3d at 48 1. The court apparently added this language to address the interpretative
commentary to article XVI, section 17 which states that “this provision was placed in the Texas Constitution, in part,
to ‘prevent public convenience from suffering because of a vacancy in the office.“’ Id. As it stands, however, no legal
standard of “public inconvenience” exists in Texas, and the application of any such standard would of necessity have
to be made by a court, rather than by this office.
The Honorable Jane Nelson - Page 3 (GA-0175)
membership, although there are vacancies on a board) (citing Thomas v. Abernathy County Line
Indep. Sch. Dist., 290 S.W. 152,153 (Tex. Comm’n App. 1927, judgm’t adopted)). Accord Walker
v. Walter, 241 S.W. 524 (Tex. Civ. App.-Fort Worth 1922, no writ); Tex. Att’y Gen. Op. No. JM-
1127 (1989) at 4. As of this date, only two positions on the Haltom City municipal council are
occupied. A quorum, as we have noted, consists of five members. Consequently, the charter
prevents the convening of a quorum of the council until at least three of the five vacancies on the
council have been filled. As you indicate, this situation will be resolved by the May 2004 election.
The Honorable Jane Nelson - Page 4 (GA-0175)
SUMMARY
Members of a city council who have been removed from
office in a recall election do not hold over until their successors are
duly qualified. Only two seats on the Haltom City municipal council
are currently occupied. Because the municipal charter of Haltom City
defines a quorum as requiring the presence of at least five members
of its council, the municipal council of Haltom City cannot convene
a quorum until at least three of its five vacancies are filled by special
election in May 2004.
neral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee