Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 2, 2011
The Honorable Vince Ryan Opinion No. GA-0870
Harris County Attorney
10 19 Congress, 15th Floor Re: Authority of a county judge to order a
Houston, Texas 77002 municipal recall election (RQ-0945-GA)
Dear Mr. Ryan:
You seek our opinion on the authority of the Harris County Judge to order a recall election
pursuant to Jacinto City's (the "City") municipal charter.! You tell us that the City, a home-rule city
within Harris County, received a petition for the recall of a member of the city council. See Brief
at 1. You indicate the petition was certified as sufficient by the city secretary, as required by the
City's charter, and that the city council refused to order the recall election. See id. You direct us to
a provision in the City's charter which, in the event the city council fails or refuses to order the recall
election, requires the County Judge of Harris County to discharge the duties of the city council in
calling the election. See id. (quoting Jacinto City Charter, art. 9, § 13) (portion of charter attached
to Request Letter).
Home-rule cities have broad powers of self government, derived not from the Legislature but
from the Texas Constitution. TEX. CONST. art. XI, § 5; see Proctor v. Andrews, 972 S.W.2d 729,
733 (Tex. 1998). Such cities look to the Legislature only for limitations on their powers. Lower
Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641,643 (Tex. 1975). A home-rule city has
all the powers of the state not inconsistent with the Texas Constitution and general laws of the state.
See Proctor, 972 S.W.2d at 733. Here, with its charter requirement that the county judge "shall
discharge any such duties herein provided to be discharged by the ... City Council," the City
imposes a duty on the judge. Brief at 1 (quoting Jacinto City Charter, art. 9, § 13); see also TEX.
GOV'T CODE ANN. § 311.016(2) (West 2005) (absent context to the contrary, "'[slhall' imposes a
duty"). Thus, we consider whether the imposition on a county judge of this duty by city charter is
inconsistent with Texas law.
ISee Letter and attached Memorandum Brief from Honorable Vince Ryan, Harris County Attorney, to
Honorable Greg Abbott, Attorney General of Texas at 1 (Feb. 14,2011), https:/Iwww.oag.state.tx.us/opiniindex_rq.shtml
("Request Letter" and "Brief' respectively).
The Honorable Vince Ryan - Page 2 (GA-0870)
In the context of ordering elections, a county judge2 has limited authority to function
independently of the county court or the commissioners court. See TEX. ELEC. CODE ANN. §
3.004(a)(1) (West 2010) (authorizing county judge to order the "general election for officers of the
county government"); TEX. Loc. GOy'T CODE ANN. §§ 7.003 (West 2008) (authorizing a county
judge to call an incorporation election upon satisfactory proof regarding an application to
incorporate as a Type B general-law city), 8.003 (authorizing a county judge to call an incorporation
election for a Type C general-law city upon proof of the requisite population). Though a county
judge has some authority to order specific elections, we find no statute authorizing a county judge
to order a municipal recall election. Moreover, because a recall election is a special election, it may
be ordered by only an authority expressly designated by law. See Countz v. Mitchell, 38 S.W.2d 770,
773 (Tex. 1931) ("[W]here the election is a special one, to be called and the time and place fixed by
some authority, it is essential to the validity thereof that it be called or ordered by the very authority
designated by law and none other."). See also TEX. ELEC. CODE ANN. § 1.005(18) (West 2010)
(defining "special election" as "an election that is not a general or primary election"); Burns v. Kelly,
658 S.w.2d 731, 734 (Tex. App.-Fort Worth 1983, orig. proceeding) (recognizing pursuant to
definition of "special election" that a recall election is a special election). And the Texas Supreme
Court has recognized that a county judge does not have inherent authority to order a special election.
See Countz, 38 S.W.2d at 773 (stating in the context of a school annexation special election that
"[t]he county judge. has been authorized in various statutes to order special elections provided for,
but there is no statute conferring general power upon the county judge to order special elections").
Texas law does not authorize a county judge to order a special municipal recall election. In
addition, although no Texas court has directly considered the question, some state appellate courts
in the municipal recall context have questioned whether a county judge has authority to order a such
an election. See Duffy v. Branch, 828 S.W.2d 211, 213 (Tex. App.-Dallas 1992, orig. proceeding)
("[W]e question whether the Town ... can impose this duty [to call a city recall election] on
the ... County Judge."); Blanchard v. Fulbright, 633 S.W.2d 617, 624 (Tex. App.-Houston
[14th Dist.] 1982, orig. proceeding) ("We believe there is considerable question as to the authority
of the City ... through adoption of a City Charter to impose on the County Judge ... the duty and
obligation to order a recall election when there is otherwise no statutory or constitutional authority
for doing so."). We therefore believe that a city charter provision imposing a duty upon a county
judge to perform an act the county judge has no authority under Texas law to perform is inherently
inconsistent with Texas law and unenforceable. See Dallas Merch's & Concessionaire's Ass'n v.
City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993) ("An ordinance of a home-rule city that attempts
to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts
with the state statute.").
We advise you that charter provisions, similar to the City's requiring a city council to order
the recall election, have been determined by the state's appellate courts to impose upon the city
2 A county judge is a constitutional officer with both administrative and judicial powers. See TEx. CONST. art.
y, §§ 15 (establishing county court to be presided over by an elected county judge), 18(b) (providing that the county
judge presides over the county commissioners court),
The Honorable Vince Ryan - Page 3 (GA-0870)
council the ministerial duty, subject to compulsion by mandamus, to order the recall election. See
In re Jones, 335 S.W.3d 772, 776 (Tex. App.-Beaumont, orig. proceeding) (granting writ of
mandamus to city council members to order recall election pursuant to duties under charter
provision), Duffy, 828 S.W.2d at212-13 (stating that recall charter provision is mandatory, allowing
no discretion in the city council, and ordering city council to vote to order recall election), Burns,
658 S.W.2d at 734 (issuing writ of mandamus to city council to call recall election), Howard v.
Clack, 589 S.W.2d 748, 752 (Tex. Civ. App.-Dallas 1979, orig. proceeding) (finding charter
imposed mandatory, ministerial duty on city council to call recall election and issuing writ of
mandamus); see also TEX. ELEC. CODE ANN. § 273.061 (West 2003) (providing that "[t]he supreme
court or a court of appeals may issue a writ of mandamus to compel the performance of any duty
imposed by law in connection with the holding of an election"); Anderson v. City of Seven Points,
806 S.W.2d 791, 793 (Tex. 1991) (mandamus will lie to compel the performance of a ministerial
duty).
The Honorable Vince Ryan - Page 4 (GA-0870)
SUMMARY
Texas law does not authorize a county judge to order a
municipal recall election. We believe that a city charter provision
imposing a duty upon a county judge to perform an act that the county
judge has no authority under Texas law to perform is inherently
inconsistent with Texas law and unenforceable.
We advise you that appellate courts have determined that
similar municipal charter provisions impose upon a city council the
ministerial duty. subject to compulsion by mandamus, to order the
recall election.
Very truly yours,
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee