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 of office has expired, 

P.O. Box 2910 whether an incumbent elected official of a homeAustin, Texas 78768-2910 rule municipality who received a plurality 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 a home-rule municipality sets terms of office at more than two but less than four years, 

article XI, section 11 ofthe 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 a plurality, not a majority, ofthe votes holds over in office pending the runoff 

election.’ Assuming that the incumbent’s term of office 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 of Esfmda, 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. 

‘See Letter from Honorable Juan J. Hinojosa, Chair, Committee on Criminal Jurisprudence, Texas House of 

Representatives, to Honorable John Comyn, Texas Attorney General (May 22,200O) (on tile with Opinion Committee) 

[hereinafter Request Letter]. 
The Honorable Juan J. Hinojosa - Page 2 (X-0293) 

Estrudu is based, in pertinent part, upon article XI, section 11 of the 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 a longer term of office 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 11 ensures “that a maioriw vote, rather than a w 

vote, of the qualified voters so voting is necessary in an election for members of the governing body 

of a home 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. CODE ANN. 4 273.061 (Vernon 1986) 

(granting jurisdiction to “issue a writ 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. Of three candidates for the place 4 position, 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 a plurality of the votes was “declared the winner and 

sworn into office.” Id. 

Because members of the Donna City Council are elected to three-year terms, the city must 

comply with article XI, section 11 of the Constitution: “[Mlembers ofthe Donna City Council must 

be elected by a majority 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 a runoff against” the highest vote-getter. Estradu, 951 S.W.2d at 

167; see also TEX. ELEC. CODE ANN. $4 2.021, ,023 (Vernon 1986). The court agreed that the mayor 

was compelled to order a runoff and granted the petition for writ of mandamus. See Estruda, 951 

S.W.2d at 167, 168. The court also ordered the place 4 position vacated. See id. at 168. 

Consistently with article XI, section 11 ofthe Texas Constitution, Attorney General Opinion 

JM-179, and Estrada, we agree that the office of commissioner, place 3, of the City of Elsa must be 

elected by a majority vote. A plurality 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 a plurality vote, 

the appropriate official must order a runoff election. See Estrada, 95 1 S.W.2d at 167. If the mayor 

of the City of Elsa is the appropriate authority to order a runoff 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 a plurality but not a majority 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 of office 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’T CODE ANN. 5 601.003(a) 

(Vernon 1994). Municipal elective officers are not subject to this requirement by statute, however. 

Under article XVI, section 17 of the Texas Constitution, an officer in this state “continue[s] 

to perform the duties of. office[],” or holds over in office, until a successor 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 of this 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 1 S.W.2d at 166. The holdover issue you raise appears to be one of tirst 

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) at 4. But article XI, section 11 does not create a vacancy in office should 

an election result in a plurality 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 

17 generally 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 17 does 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 is ineligible to hold a state office ofprofit or trust under article XVI, section 

12, which deems ineligible for such office a person 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 or her successor is duly qualified. Consequently, assuming 

that Riojas’ term of office expired, he holds over in office until a successor is duly qualified, whether 

the successor be the candidate who receives the majority vote in the run-off election (possibly Riojas 

himself), or a person 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 of office 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