Thursday, March 26, 2009

TO REMOVE MAYOR AHUMADA THE CITY COMMISSION MAY NEED TO AMEND THE CITY CHARTER

Brownsville is a Home Rule City. This gives Brownsville effective control over how it is run unless there is an express limitation as to its powers by law.

"The City of Alamo is a home rule city governed by its city charter. A home rule city looks to the legislature only to ascertain whether the legislature has limited the city's constitutional power. Garza v. Garcia, 785 S.W.2d 421, 422 (Tex.App.--Corpus Christi 1990, writ denied). "A grant of power of removal from office is strictly construed and whatever is not given in unequivocal terms is withheld and not implied." Id."

City of Alamos v. Garcia, 960 S.W.2nd 221 (Tex. App.-Corpus Christi, 1997)

As Home Rule City Brownsville through its City Charter decides when the mayor can be removed from office. I reviewed a lot of city charters and many of them have provisions which say Recall and Removal. Brownsville’s City Charter only provides for recall.

Now there will be a lot of online experts quoting the Texas Local Government Code. The code as to removal from office does not apply to Home Rule Cities.

I have searched the City Charter for anything which provides for removal of the mayor or city commissioners . I can find nothing. There may be something there - I simply cannot find it. So for those of you who find joy in me being wrong here is the City Charter - see what you can find. Let me know and I will post it.

http://www.cob.us/docs/citysec/CityCharter.pdf

Here are some other quotes of interest from the above case.

"Texas courts, in recognition of the autonomy and separate powers of municipal legislatures, "will not interfere to protect a person from removal from office by a man or body of men to whom the power to remove is given by law." Huntress v. McGrath, 946 S.W.2d 480, 484-85 (Tex.App.--Fort Worth 1997, n.w.h.) (quoting Callaghan v. Tobin, 40 Tex.Civ.App. 441, 90 S.W. 328, 330 (1905, writ ref'd)). The courts will, however, be able to review a city council's (or commission's) actions for abuse of discretion and due process. Garza, 785 S.W.2d at 422."

11 comments:

Chris Davis said...

Can't disagree with anything in this post. As far as I can tell (and other than the currently ridiculous standards to meet recall), a guilty plea or a guilty verdict is the only way the Mayor can be forced out. Voluntarily resigning just isn't in his DNA, like it was in 1994.

And it truly sucks that the charter can't even again be reviewed and amended with a removal process for at least another couple of years.

BobbyWC said...

Chris thanks for adding to the discussion - I am not disagreeing with you but have you found a statute, constitutional provision or something in the city charter which says he must resign if convicted.

Look to the case of Poteet, Texas - they could not get rid of a child molester

http://www.mysanantonio.com/news/local_news/Latest_charges_tied_to_alleged_actions_as_trial_neared.html

nothing in our city charter provides for removal if the mayor misses meetings because he is in jail - nothing for a conviction -

it seems to me, unless there is a state law or constitutional provision he can be convicted and serve out his term.

BobbyWC

Chris Davis said...

"I am not disagreeing with you but have you found a statute, constitutional provision or something in the city charter which says he must resign if convicted."

It took me a while, BWC, but I think I did.

According to the indictment and then the Penal Code, each of the three counts are at least third-degree felony offenses.

The first line of Article V, Section 4 in our City Charter reads:
The mayor and each commissioner shall be citizens of the United States and resident citizens of the City of Brownsville, and have the qualifications of electors therein.

Section 11.002 of the Texas Election Code defines a qualified voter (a.k.a. elector) as one who has not been finally convicted of a felony.

Section 4 of the charter goes on to read:
Any elected officer, appointed managerial officer, or managerial employee of the city who shall cease to possess any of the qualifications herein required shall forthwith forfeit his office...

So when one connects the dots, the prescribed outcome becomes clear (at least to me).

BobbyWC said...

Chris I think you nailed it - thanks for the team effort on this one.

Bobby WC

Anonymous said...

Here's a little tune.......loosely based on Puff the Magic Dragon

Oh Pat the magic martyr lived on the border by the sea.
Cashed himself $26,000 vendor check and began to spend with glee!
Oh Pat the magic martyr lived on the border by the sea.
Cashed himself a vendor check that was the property of the city.
Though he traveled to the bank and cashed the check, “They framed me!!”, he would wail.
Chief Garcia and Cabler kept a look out, protecting Pat’s gigantic tail.
The royalty of Matamoros would pretend to bow whenever he came. But truth be known they laughed inside when Pat roared out his name!
A martyr lives forever but not for loco Pat.
Arrests, recalls, and reelections make way for other cats.
One grey night it happened and his supporters helped no more,
and Pat the magic martyr was quickly shown the door.
Pat the magic martyr lived on the border by the sea.
Showed the world just who he was, low down and dirty like a flea.
The End
-Luno Loredo
...and yes I have too much time on my hands.

BobbyWC said...

Anony, I love creativity - I think you captured how many people in B-Town feel. It is all so sad for me because I truly believe he cared about B-Town and the weir dam issue - but I also believe the only solution to public corruption is zero tolerance - the jury will decide his fate

Again thanks for your creativity and representing a large portion of the Brownsville Voice (The People)

Bobby WC

Anonymous said...

Anytime....and you keep up goodwork with this blog. You are by far my favorite bear in Brownsville!
-LL

Anonymous said...

Ditto, BWC!!!

Keep on telling it like it is!!!!

Anonymous said...

Funny how Villalobos felt the need for a special prosecutor when Atkinson was arrested for DWI because of the close association between the DA's office and the city commission, according to Villalobos, but apparently doesn't feel the need regarding Ahumada. Does this mean he no longer feels there is a close relationship or only that the plan from the start isn't to let Ahumada walk. I think I know the answer. This is more equal justice, Brownsville style. It's not what you did, it's who you know.
Mescalero

Anonymous said...

What are we to infer from Villalobo's statements that there was no need for a special prosecutor to be assigned in Ahumada's case as opposed to Atkinson's case? Does he mean that his office had more contact with Atkinson that with Mayor Ahumada? Does it mean that in the DA's eyes the a commissioner has more of a standing with the DA's office than the Mayor? Does he feel that his office works more closely with the commish than with the Mayor?

Just wondering

BobbyWC said...

My view is Villalobos is mad because he offered a good deal to Ahumada and Ahumada turned it down - so now he just wants to be the one to nail him - he wants to send a message that public officials better take his deals or else.

Bobby WC