     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 home-
Austin, 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 JuanJ. Hinojosa, Chair, Committee on Criminal Jurisprudence,Texas House of
Representatives,to Honorable JohnComyn, Texas Attorney General(May 22,200O) (on tile with Opinion Committee)
[hereinafterRequest 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.CODEANN. $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
