Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
)ecamber 2, 1985
JIM MA-i-l-OX
Attorney General
Supreme Court Building Honorable Lloyd Cxiss Opinion No. JM-389
P. 0. BOX 12548 Chairman
Austin, TX. 78711. 2548 Committee on Labor, and Employment Ret Whether the city of
512/475-2501 Relations Galveston may remove persons
Telex 9101874.1367
Telecopier 51214750266
Taxas House of RsFKeSentetiVaS appointed to a city board,
P. 0. Box 2910 and related questions
Austin, Texas 78769
714 Jackson. Suite 700
Dallas. TX. 752024508 Dear Representative Criss:
214l742.6944
You ask whetF.er the city of Galveston may enact a valid ordinance
4824 Alberta Ave.. Suite 180 which changes the terms of office for members of the city's boards and
El Paso, TX. 79305-2793 agencies. You inquire particularly about the city's authority to
915/533-3484 change the terms of office of the Park Board of TNstees established
pursuant to article 6081g-1, V.T.C.S.
1001 Texas. Suite 700
Houston, TX. 77002-3111 Galveston is s home rule city. You state that the Galveston city
713!223-5958 code initially provided a two year term of office for the Park Board
of Trustees, begtnning September 1 and ending two years later.
Recently, Galvestm enacted an ordinance which altered the terms of
606 Broadway. Suite 312
Lubbock, TX. 79401.3479
office for the city's various boards and agencies so that all terms
806/747-5238 would begin on June 1. This ordinance also shortened the terms of
present members of the Park Board of TNstees. Those terms scheduled
to expire September 1, 1985, were shortened to expire June 1, 1985.
4309 N. Tenth, Suite S Terms scheduled to expire on September 1, 1986, are set to expire on
McAllen, TX. 78501-1885
512lSS2-4547
June 1, 1986. Ycsu Btate that the city of Galveston wishes to know
whether it can :restNcture the terms of office of city boards,
specifically the lPark Board of Trustees, to provide for uniform
200 Main Plaza, Suite 400 transition of membership. You ask the following questions:
San Antonio, TX. 782052797
5121225.4191
1. Toes the city of Galveston have the
authority to shorten terms of office of the Park
An Equal OpportunitYI Board o,E TNSteeS in order to effectuate a re-
Affirmative Action Employer StNCtWing of the terms of office of all city
offices?
2. If not, does the city of Galveston have the
authority, implied or expressed, to remove
appointt,d board members at will and without
showing good cause?
p. 1780
Eonorable Lloyd Criss - Page 2 (JM-389)
3. Does article XVI, section 27 of the Texas
Constitution appl,y to appointed officials as well
as to those elrfcted; and are there any other
statutes or prorisions that would require the
replacements far the removed or resigned
appointees to fill out only that portion of the
unexpired terms of the removed or resigned
appointees or may they serve their full two year
terms beginning with their appointment date?
As a home Nle city, Galveston has full power of local self-
government. It may enact suy charter provision or city ordinance not
inconsistent with the const.itution or general law. Tex. Const. art.
XI, 55; V.T.C.S. arts. 1165, 1175, 1176; State ex rel. Rose v. City of
La Porte, 386 S.W.2d 782 ('Iex.1965); City of Eouston v. State ex rel.
City of West University Elate, 176 S.W.2d 928 (Tex. 1943), appeal
dism'd, 322 U.S. 711 (194rqqo substantial federal question). The
home rule power of Galveston over the Park Board of Trustees must be
exercised consistently with article 6081g-1, V.T.C.S. This statute
authorizes home rule cities with a population in excess of 40,000
persons to create a "Pars Board of Trustees" for the purpose of
acquiring, improving, equipping, maintaining, financing or operating
public parks. V.T.C.S. art. 6081g-1, 511, 2. The board has numerous
express powers, including the power to issue revenue bonds. -Id.
97(k). Section 3 fixes the,tNstees' terms of office:
Sec. 3. The Park Board of Trustees shall be
composed of ni.ne members appointed by the
governing body of such city, one of whom shall be
a member of such governing body. Such tNstees
shall serve for ;rterm of two years from the date
of their appointment and any vacancies shall be
filled by appoirz=t of the governing body of
such c@y; provided that five tNstees first
appointed shall serve for initial terms of two
years and four 'trustees first appointed shall
serve for initia::terms of one year, such initial
terms to be des:;f;natedby the governing body of
such city. . . . (Emphasis added).
With the exception of the initial one year term for part of the
board, the statute establishes a two year term, to begin on the date
of the first appointment. See generally Spears v. Davis, 398 S.W.2d
921 (Tex. 1966). Section 8 of article 6081g-1, V.T.C.S., provides
that
[tlhis Act shall be cumulative of all other laws
and of all Home-Rule Charter provisions, but this
p. 1781
Honorable Lloyd Criss - Page:3 (m-389)
..
Act shall take precedence in the event of con-
flict.
The term of office and commencement date established by section 3 of
article 6081g-1, V.T.C.S., take precedence over any conflicting
charter provisions. Therefore, the city of Galveston does not have
authority to shorten the terms of office of the .Park Board of
Trustees, nor has it authority to change the previously determined
date on which the terms b@n. See Spears v. Davis, 398 S.W.2d 921
(Tex. 1966); cf. Attorney Gene= Opinion B-955 (1977) (absent
legislative direction. Texas Youth Council may reduce chairman's term
by resolution). The city of Galveston does not have authority to
shorten the terms of office of the Park Board of Trustees established
under article 6081g-1, V.T.C.S. See also Tex. Const. art. XI, 85 (no
home rule charter or ordinance passed thereunder shall contain any
provision inconsistent with the constitution or general laws of the
state).
You next ask whether, the city of Galveston has authority to
remove appointed board members at will and without showing good cause.
A home rule city may remove a city officer pursuant to applicable
statutes and charter provisions. For example, the Housing Authorities
Law permits the mayor to remove housing commissioners for ineffici-
e*cy, neglect of duty, or :misconduct. V.T.C.S. art. 1269k, 5§5, 7;
see White v. Bolner, 223 8.W.2d 686 (Tex. Civ. App. - San. Antonio
1949, writ ref'd). The courts have upheld city charter provisions
authorizing a city to remove an officer by recall election. Banner v.
Belsterling. 138 S.W. 571 i:Tex.1911). aff'g, 137 S.W. 1154 (Tex. Civ.
APP. - Dallas 1911). In City of San Benito v. Cervantes, 595 S.W.2d
917 (Tex. Cl". App. - Ea&and 1980, writ ref'd n.r.e.). the court
upheld the city commissioner's dismissal of the city manager at will
and without cause, pursuant to the following charter provision: "He
shall be r-able at the vi11 of the city commission on thirty days'
notice." City of San Benils)v. Cervantes, 595 S.W.2d at 918.
To determine whether s particular city officer is removable at
will and without good cause, it is necessary to examine the statutes
and valid charter provisions applicable to that office. You have
specifically inquired only about the Park Board of Trustees; there-
fore, we will not attempt to deal individually with each of the
numerous boards and agencies affected by the new city ordinance.
As already determined in answer to your first question, the city
of Galveston does not have authority to remove members of the Park
Board of Trustees by reducing the term of office to less than two
years. See Bonner v. Belsterling. 137 S.W. 1154 (Tex. Civ. App. -
Dallas 1911). aff'd 138 S.V. 571 (Tex. 1911) (stating in dicta that
officer may be removed by abolishing office or by legal action
declaring it vacant). Art::cle6081g-1, V.T.C.S., does not contain any
p. 1782
Honorable Lloyd Criss - Pags 4 (J-M-389)
provision for removing a mamber of the Park Board of Trustees from
office for the remainder cf his unexpired term. A brief which you
submitted with your opinicn request states that the Galveston City
Charter contains only one provision on r-al, which reads as
follows:
An9 member of the council or elected or appointed
officer ore emplo:rae of the city who shall will-
fully violate any provision of this charter shall
be guilty of mn:lfeasance in office and upon
conviction thereof shall forfeit his office or
employment and may be punished by a fine not
exceeding Two Hundred Dollars ($200.00) for each
offense.
Galveston City Charter, art. 14. 54. This provision does not
authorize the Galveston city council to remove members of the Park
Board of Trustees or any other officer at will and without good
reason. The city may not employ a method of removal which is not
authorized by statute or charter provision. See generally City of
Austin v. Thompson, 219 S.W.:Ld57 (Tex. 1949) (city charter provisions
on filling vacancies in office must be followed by city council). We
answer your second question :Lnthe negative.
Our answers to your :iirst two questions render it unnecessary
that we address your third question.
SUMMARY
The city of G,r:Lvestondoes not have authority
to shorten the two year term of members of the
Park Board of Tzustees established by the city
pursuant to articlte6081g-1, V.T.C.S. No statute,
city ordinance or 'charterprovision authorizes the
city of Galveston to remove members of the Park
Board of TNSteeS .atwill and without good cause.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWHR
First Assistant Attorney Gea'eral
p. 1783
Honorable Lloyd Criss - Page 5 (3-i-389)
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1784