OFFlCE OF THE ATTCIRNEV GENERAL. STATE OF TEXAS JOHN CORNYN

October 11,200O

The Honorable Juan J. Hinojosa Opinion No. JC-0293 Chair, Committee on Criminal Jurisprudence Texas House of Representatives Re: Assuming that the term ofoffice has expired, P.O. Box 2910 whether an incumbent elected official of ahomeAustin, Texas 78768-2910 rule municipality who received aplurality ofvotes in the most recent election holds over in office under article XVI, section 17 of the Texas Constitution (RQ-0236.JC)

Dear Representative Hinojosa:

If ahome-rule municipality sets terms of office at more than two but less than four years, article XI, section 11ofthe Texas Constitution requires that an elected officer win “by majority vote of the qualified voters.” TEX. CONST. art. XI, 5 11. Under another constitutional provision, article XVI, section 17, every officer “within this State” holds office until a successor is “duly qualified.” Id. art. XVI, 5 17. You ask whether an incumbent official who, in his or her most recent attempt to be reelected, received aplurality, not amajority, ofthe votes holds over in office pending the runoff election.’ Assuming that the incumbent’s term ofoffice has expired, we conclude that the incumbent holds over until after the runoff, when his or her successor (which may be the incumbent) is duly qualified.

You state that the City of Elsa held an election on May 6,2000, for commissioner, place 3. See Request Letter, note 1, at 1. The incumbent, Pete Riojas, garnered 755 votes; Leo Gonzalez received 719 votes; and Bene Valdez received 99 votes. See id. Although the City of Elsa is a home-rule city whose charter requires election by plurality, the city believes Estrada v.Adame, 95 1 S.W.2d 165 (Tex. App.Corpus Christi 1997, no writ), requires election by majority. See Request Letter, note 1, at 1. Because ofEsfmda, the mayor of Elsa did not permit Riojas to be sworn in as commissioner for place 3. See id. at 2. Rather, a runoff election was called and held on June 3, 2000. See id. In addition, and especially relevant to your question, the mayor intended to declare the commissioner, place 3, seat vacant pending the runoff election. See id. You ask, in essence, whether the mayor has correctly interpreted E$rada and other relevant law to require that Riojas’ seat be declared vacant pending the runoff election.

‘SeeLetterfrom HonorableJuan J.Hinojosa,Chair,CommitteeonCriminalJurisprudence, Texas Houseof Representatives,

toHonorableJohn

Comyn,TexasAttorneyGeneral(May 22,200O)(ontilewithOpinionCommittee) [hereinafterRequestLetter].The Honorable Juan J. Hinojosa - Page 2 (X-0293)

Estrudu isbased, in pertinent part, upon article XI, section 11ofthe Texas Constitution. See Estrudu, 951 S.W.2d at 167. Article XI, section 11 permits a home-rule municipality, by charter or charter amendment, to provide “by majority vote of the qualified voters voting at an election

. ,for alonger term ofoffice than two (2) years for its officers, but not to exceed four (4) years.” TEX.CONST.art. XI, 5 11 (emphasis added). As this office explained in Attorney General Opinion JM-179, article XI, section 11ensures “that amaioriw vote, rather than aw vote, ofthe qualified voters so voting isnecessary in an election for members ofthe governing body of ahome rule city.” Tex. Att’y Gen. Op. No. JM-179 (1984) at l-2.

Estrudu was an action to mandamus the mayor of the City of Donna to order a runoff election. See Estrada, 951 S.W.2d at 166; TEX. ELEC. CODEANN. 4 273.061 (Vernon 1986) (granting jurisdiction to “issue awrit ofmandamus to compel the performance of any duty imposed by law in connection with the holding of an election”). The relator was a candidate for the office of Donna city councilman, place 4, in the May 3, 1997, municipal election. See Estruda, 951 S.W.2d at 166. Ofthree candidates for the place 4position, the relator received the second highest number of votes, but the candidate who received the highest number of votes received only a plurality. See id. The candidate who received aplurality ofthe votes was “declared the winner and

sworn into office.” Id.

Because members ofthe Donna City Council are elected to three-year terms, the city must comply with article XI, section 11ofthe Constitution: “[Mlembers ofthe Donna City Council must be elected by amajority vote (and not by mere plurality).” Id. at 166-67; cf: Tex. Att’y Gen. Op. No. JIM-179 (1984) at 1-2. The relator insisted that article XI, section 11, as well as some provisions in the Election Code, “entitle him to arunoff against” the highest vote-getter. Estradu, 951 S.W.2d at 167;seealsoTEX.ELEC. CODE ANN.$42.021, ,023 (Vernon 1986). The court agreed that the mayor
was compelled to order arunoff and granted the petition for writ of mandamus. See Estruda, 951 S.W.2d at 167, 168. The court also ordered the place 4position vacated. See id. at 168.
Consistently with article XI, section 11ofthe Texas Constitution, Attorney General Opinion JM-179, and Estrada, we agree that the office ofcommissioner, place 3,ofthe City ofElsa must be elected by amajority vote. Aplurality vote is insufficient. See TEX.CONST. art.XI, 5 11;Estradu, 951 S.W.2d at 167; Tex. Att’y Gen. Op. No. JM-179 (1984) at l-2. In the event of aplurality vote, the appropriate official must order arunoff election. See Estrada, 95 1S.W.2d at 167. Ifthe mayor ofthe City ofElsa isthe appropriate authority to order arunoff election, the mayor correctly ordered the June 3,200O runoff.

But the issue you ask remains: under article XVI, section 17 of the Texas Constitution, whether the incumbent who has received aplurality but not amajority of the votes cast holds over in oftice or whether the office is vacant. If the incumbent does not hold over, the office is vacant and a successor may be appointed.The Honorable Juan J. Hinojosa - Page 3 (JC-0293)

We assume, as you appear to, that the incumbent’s term ofoffice expired after the plurality election. Article XVI, section 17, the constitutional holdover provision, becomes operative only after an officer’s term of office has expired. See Tex. Att’y Gen. Op. No. JM-423 (1986) at 3. Normally, the regular term of office of an elective state, district, county, or precinct office “begins

on January 1 of the year following the general election.” TEX.GOV’TCODEANN. 5 601.003(a) (Vernon 1994). Municipal elective officers are not subject to this requirement by statute, however.

Under article XVI, section 17ofthe Texas Constitution, an officer in this state “continue[s] to perform the duties of. office[],” orholds over in office, until asuccessor is duly qualified. TEX. CONST.art. XVI, 5 17. A successor may be chosen either by election by majority vote or, if the office is vacant, by appointment. See Plains Common Consol. Sch. Dist. No. I v. Hayhurst, 122 S.W.2d 322,326-27 (Tex. Civ. App.-Amarillo 1938, no writ) (discussing holdover provision).

Estrudu does not dispose ofthis holdover issue. Riojas, the high vote-getter in the situation about which you ask, was an incumbent. See Request Letter, supru note 1,at 1. It does not appear from the judicial opinion that the person who received the most votes in Estrudu was likewise an incumbent. See Estrada, 95 1S.W.2d at 166. The holdover issue you raise appears to be one oftirst impression.

We conclude that article XVI, section 17 applies here. In general, that constitutional provision “does not apply to vacancies created by operation of the constitution.” Tex. Att’y Gen. Op. No. DM-377 (1996) at4. But article XI, section 11 does not create avacancy in office should

an election result in aplurality vote. See TEX.CONST.art. XI, 5 11. It requires only election by a majority vote. Other constitutional provisions, by contrast, create vacancies, and article XVI, section 17generally does not apply to those vacancies. See Tex. Att’y Gen. Op. No. DM-377 (1996) at 3-4 (and cases cited therein). For example, article XVI, section 17does not apply to an officer who has vacated office by operation of article XVI, section 40, which generally prohibits a person from simultaneously holding “more than one civil office of emolument.” Id. at 3 (citing Pruitt v. Glen Roselndep. Sch. Dist. No. I, 84 S.W.2d 1004, 1007 (Tex. 1935)). Nor does articleXV1, section 17 apply to an officer who isineligible to hold astate office ofprofit or trust under article XVI, section 12, which deems ineligible for such office aperson who holds or exercises a federal office ofprofit

or trust. Id. at 3-4 (citing Lowe v. State, 201 S.W. 986 (Tex. Crim. App. 1918)).

Because article XI, section 11 does not create a vacancy, article XVI, section 17 applies to

an incumbent officer who has received only a plurality in his or her quest for reelection, and the incumbent holds over in office until his orher successor isduly qualified. Consequently, assuming that Riojas’ term ofoffice expired, he holds over in office until asuccessor is duly qualified, whether the successor be the candidate who receives the majority vote inthe run-off election (possibly Riojas himself), or aperson appointed by the appropriate authority.The Honorable Juan J. Hinojosa - Page 4 (X-0293)

SUMMARY

In a home-rule municipality that has established terms of office longer than two years but no longer than four years, article XVI, section 17 of the Texas Constitution applies to a situation in which an incumbent municipal commissioner receives only a plurality of the votes cast at an election for the incumbent’s reelection. Assuming that the incumbent’s term ofoffice has expired, the incumbent holds over in office until a successor is duly qualified, whether the successor receives the majority vote in the run-off election (and may be the incumbent his- or herself), or is a person appointed by the appropriate authority.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General

CLARK KENT ERVIN Deputy Attorney General -General Counsel

SUSAN D. GUSKY Chair, Opinion Committee
Kymberly K. Oltrogge Assistant Attorney General - Opinion Committee