Thursday, January 15, 2015


Two readers are debating each other as to whether an automatic resignation of a city commissioner, allows them to hold over and continue to vote until their replacement is sworn in.  The answer as it turns out is yes and no.

The main problem is the city is without competent legal counsel.  Assuming Chavez-Vasquez taking up residence in Los Fresnos on October 27, 2014, [I've been too busy to form my own opinion on this] created an automatic resignation, how does it affect her voting rights on the commission?  In the end it is all moot, because she can continue to serve and the city commission can appoint an interim replacement.


I hate these kind of posts - if reading my research gives me a headache it must certainly irritate my readers.  So again I am going to post this with a simple summary, and then for those of you who want more detail - you can read on.

Assuming Commissioner Chavez-Vaquez was disqualified to hold office because of her move to Los Fresnos, under AG opinion, she remains as a holdover until her replacement is in office.  This means Tony Martinez can complete the Lincoln Park deal before the election, assuming Chavez-Vasquez is willing to act in her hold over capacity.  The AG opinion expressly states, disqualification from the office does not negate their holdover status.

If she is not, the city is in a pickle - under the current constitution the city can appoint an interim city commissioner because there is less than 12 months left in her term.  But prior to the constitutional Amendment two years ago, the city could not even if the city charter allowed for this.

The problem the city faces is, based on the legislative history and intent, are Home Rule Cities required to hold elections formally incorporating the constitutional change before they can appoint a replacement?  Or does an old provision which had previously been held to violate the Texas Constitution now take effect?  This is a question whether in Brownsville or elsewhere will end up in court.

But it is all moot if Commissioner Chavez-Vasquez chooses to exercise her hold over rights. Sort of - the city has an election within 120 days or they appoint a new commissioner.  If they do not appoint a new commissioner because they believe they cannot for failure to Amend the City Charter after the Texas Constitutional Amendment was passed, then they must have an election within 120 days. 

The constitutional amendment was designed for the express problem Brownsville is facing.  Before the Amendment, Brownsville would have been force to hold an election by April, to only then hold another in May.  The Amendment makes sense.  But the question is, to avoid the double election was the city after the Amendment forced to Amend the City Charter, or will the old previously declared unconstitutional provision come into effect now that it is no longer unconstitutional?  This is one for the courts.

Update:  see last link.

If the Supreme Court holds a law unconstitutional and then several years later finds they were wrong and now find it constitutional, then the original laws are reinstated - Boy could this play havoc with gay marriage.  But if the legislature changes the constitution the laws which were unconstitutional under the old constitution remain so, until they are reinstated by the legislature.  But I am sure if I were to spend hours more on this I could find a million exceptions.

Someone I know, who is not a source beyond I know this person told me, city employees involved in the Lincoln Park deal have been told to expedite all paperwork to complete this deal before the election.  This is the key to this riddle.  It hit me what was happening when I was told this.  Then two of my readers started a debate as to the impact of the possible automatic resignation.
Compounding all of this is the city of Brownsville is without competent counsel to guide them through this.  But in the end, assuming Chavez-Vasquez is willing to exercise her hold over status, she is good to go for at least 120 days and can vote to consummate the Lincoln Park deal.
This opinion holds, one that the Texas Constitution trumps the city charger which allows for appointment of an interim commissioner, thereby forcing the city to hold a special election within 120 days., but then the Texas Constitution was Amended.
The problem in the AG opinion is not exactly like ours. 
Texas Constitution Article XI Section 11:
(c)  Any vacancy or vacancies occurring on such governing body shall not be filled by appointment but must be filled by majority vote of the qualified voters at a special election called for such purpose within one hundred and twenty (120) days after such vacancy or vacancies occur except that the municipality may provide by charter or charter amendment the procedure for filling a vacancy occurring on its governing body for an unexpired term of 12 months or less.
The except part is interesting - The legislative history on the amendment which begins at the "except language" clearly provides that the city commission can make an appointment if there are fewer than 12 months left in the persons term.  The reasoning is, the 120 rule put cities in the position of possibly holding the 120 day election and then two months later holding the general election.
Here is an interesting part of the legislative history in justifying the Amendment.
"Because any amendment to a municipal charter authorizing such an alternative to a special election would require approval of the municipality's voters, such a change would preserve democratic accountability."
So the question is, once the Texas Constitution was amended two years ago, did that require the Home Rule Cities have a vote on changing the city charter to allow for appointments for short term periods?
Legislative history is the last place a court will look to when construing a statute or constitutional amendment. 
But there is significant case law on the general issue.  It is presumed that when a legislative body acts they act with knowledge of judicial decisions on the issue.  This is pretty well established law.
The law before the Amendment was clear - the Texas Constitution on this issue trumped any city charter contrary to the 120 day rule.
This means prior to the Constitutional Amendment the City Charter provision was unenforceable.  The people had every right to rely on the Texas Constitution as the guiding light on the issue meaning the city charter was unenforceable concerning appointments.
Given this reality, I see litigation against any city which tries an appointment in violation of 120 day Rule unless since the Amendment of the Texas Constitution the city has had an election to Amend the City Charter in compliance with the Constitutional Amendment and the intent of the legislature that an election through City Charter Amendment be held for short term appointments before the option is exercised by the city.
Only the AG can make such a mess of things - well the elected official holds over unless there are other constitutional provisions which says they do not.  The below AG opinion lists examples of when the holdover does not apply.
Former AG Hill found, that even if an officer is disqualified from office, they remain a holdover officer until their replacement is elected or appointment.


35. Fuqua v. Fuqua, 104 So. 2d 925, 926 (Ala. 1958); see also United States
v. Heth, 7 U.S. 399, 413 (1806) (Paterson, J.) ("Words in a statute ought not to
have a retrospective operation, unless they are so clear, strong, and imperative,
that no other meaning can be annexed to them, or unless the intention of the
legislature cannot be otherwise satisfied.")

Click  see pages 166. 167 - the author is arguing that legislative changes do not bring back into force previous laws,  Theoretically this would mean that the City would need a new Charter Amendment election to provide for appointments.  But like I said - this is really one for the courts - someone in the state is going to file the lawsuit and in time the Texas Supreme Court will resolve it.

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