Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
November 30, 1981
MARK WHITE
Attorney General
Honorable John R. MacLean Opinion No. MW-401
Supreme Court Suildlng
P. 0. BOX 12548
District Attorney
Auslln, TX. 76711 Honorable Dan M. Boulware Re: Resignations of council
5121475.2501 County Attorney members for general law city
Telex 9101674-1367 P. 0. Box 350
TelecoDier 512/475-0266
Cleburne, Texas 76031
1607 Main St.. Suite 1400 Dear Gentlemen:
Dallas, TX. 75201
2141742.6944 You have asked if the city council of a city incorporated under
the general laws of this state may refuse to accept resignations from
4624 Alberta Ave., Suite 160
two council members at the same time in order to avoid holding an
El Paso, TX. 79905 election.
91515333464
You advise that the city secretary of the city of Alvarado, a
general law city, received resignations from two members of the city
1220 Dallas Ave., Suite 202
Houston. TX. 77002
council; after which neither member submitting a resignation attended
713/6500866 council meetings. The remaining members of the council accepted one
of the resignations, but refused to accept the other until a
replacement for the one whose resignation was accepted had been
606 Broadway. Suite 312
appointed and qualified. The purported reason for refusing to accept
Lubbock, TX. 79401
6W747-5236
both resignations at the same time was to avoid two simultaneous
vacancies on the council and the necessity of holding an election to
fill them.
4309 N. Tenth, Suite B
McAllen, TX. 76501
As amended in 1965, article 989, V.T.C.S., provides that if no
5121662.4547
more than one vacancy exists on the city council of a general law
city, it may be filled by appointment by a majority of the remaining
200 Main Plaza, Suite 400 council members. But if two or more vacancies on the city council
San Antonio, TX. 76205 exist at the same time, a special election must be called to fill the
5121225-4191
vacancy.
An Equal OpporiU~iiVl In this case, article 1005, V.T.C.S., provides in pertinent part:
Affirmative Action Employel
Resignation by any officer authorized by this
title [Title 28, Cities, Towns, and Villages] to
be elected or appointed shall be made to the city
council In writing, subject to their approval and
acceptance. (Emphasis added).
p. 1361
Honorable John R. MacLean - Page 2 (Mw-401)
In our opinion the Alvarado City Council was free to act on one
resignation and not the other, if it so chose. Nothing in the law
required the council to accept either member's resignation, whatever
its motive for refusal might be. See generally Sawyer v. City of San
Antonio, 234 S.W.2d 398 (Tex. 1950); Tobin v. Valerio, 309 S.W.2d 479
(Tex. Civ. App. - San Antonio 1958, writ ref'd). Cf. State v.
Valentine, 198 S.W. 1006 (Tex. Civ. App. - Fort Worth 1917, writ
ref'd); Gambill v. City of Denton, 215 S.W.2d 389 (Tex. Civ. App. -
Fort Worth 1948, writ dism'd).
SUMMARY
The city council of a general law city may
refuse to accept one of two resignations submitted
by council members in order to avoid the necessity
of holding an election to fill vacancies.
AS
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 1362