                              ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                             December 20, 2007



The Honorable Armando R. Villalobos                     Opinion No. GA-0585
Cameron County District Attorney
974 East Harrison Street                                Re: Whether article XI, section 11 of the Texas
Brownsville, Texas 78520                                Constitution prevails over the Harlingen City
                                                        Charter regarding the filling of vacancies on the
                                                        city commission (RQ-0594-GA)

Dear Mr. Villalobos:

       You state that "[a]n issue has arisen in the City ofHarlingen regarding the filling" ofa vacant
position on the Harlingen City Commission.! You ask whether article XI, section 11 of the Texas
Constitution prevails over the Harlingen City Charter's provisions about the filling of such a
vacancy. See Request Letter, supra note 1, at 1.

        The City of Harlingen, a home-rule municipality, is governed by a city commission
comprising five city commissioners and a mayor. See HARLINGEN, TEX., CITY CHARTER art. IV,
§ 1 (2006);2 see also Tex. Att'y Gen. Ope No. JM-0394 (1985) at 3 (stating that Harlingen is a home-
rule municipality); http://www.myharlingen.us/chap5vis.htm (same). The city charter sets three-year
terms for the commissioners and mayor. See HARLINGEN, TEX., CITY CHARTER art. IV, § 3 (2006).
The city charter further specifies that three commissioners and either the mayor or the mayor pro
tempore constitute a quorum. See ide art. V, § 2. The city charter does not provide an exception to
the quorum requirement in the event of a vacancy on the commission. See generally ide

        You indicate that Chris Boswell was elected and apparently sworn in as mayor of Harlingen
in May 2007. See Request Letter, supra note 1, at 1. Prior to the May election, Mr. Boswell held
the Place 4 position on the Harlingen City Commission. See ide No candidate running to fill the
Place 4 position received a clear majority in the May election, and the city commission set June 23,
2007, as the date for a runoff election. See ide




         1Letter from Honorable-Armando R. Villalobos, Cameron County District Attorney, to Honorable Greg Abbott,

Attorney General of Texas, at 1 (June 18, 2007) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].

        2Available at http://www.myharlingen.us/(last visited Dec. 19,2007).
The Honorable Armando R. Villalobos - Page 2                        (GA-0585)




        Under the Harlingen City Charter, a vacancy in a city'commissioner's position that occurs
"within ninety (90) days of the end of the term" shall be filled by majority vote of the city
commission. See HARLINGEN, TEX., CITY CHARTER art. IV, § 4 (2006). After the May election and
swearing in, the city commission apparently assumed that the Place 4 position was vacant and
appointed an interim commissioner to fill the position until the winner of the runoff election was
determined, thus (you assert) ensuring a quorum and the continuation of city business without
interruption. See Request Letter, supra note 1, at 1-2. A citizen suggested, however, that article XI,
section 11 of the Texas Constitution may preempt the city charter provision regarding the filling of
vacancies. See id. at 2.

        You ask about the correctness ofthe citizen's suggestion. See id. at 1. Although the runoff
election has occurred and the winner has taken office,3 you ask for guidance in light of "the
likelihood that this situation could arise in the future." Request Letter, supra note 1, at 3. You do
not ask, and we do not therefore consider, whether Place 4 was actually vacant in these
circumstances. See id.

       Article XI, section 11(a) of the Texas Constitution authorizes a home-rule municipality to
lengthen its non-civil-service officers,4 terms of office from two years to no more than four years,
which the City of Harlingen, by setting three-year terms for city commissioners and the mayor, has
done. See TEX. CONST. art. XI, § 11(a). A municipality that so lengthens non-civil-service officers'
terms must elect members of its governing body and fill vacancies on the governing body in
accordance with subsection (b):

                          A municipality so providing a term exceeding two (2) years
                  but not exceeding four (4) years for any of its non-civil service
                  officers must elect all of the members of its governing body by a
                  majority vote of the qualified voters in such municipality, and 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.

Id. § II(b).



        3See Bulletin: Leftwich defeats Zamora, 1,486-1,290, Valley Morning Star, June 23,2007, available athttp://www
.valleymorningstar.com (last visited Dec. 19, 2007).

          4Article XI, section II(a) provides "that tenure under Civil Service shall not be affected" by article XI, section
11 's provisions. TEX. CaNsT. art. XI, § 11. Article XI, section 11 is thus inapplicable to fIre fighter,S, police officers,
and others who are civil-service employees under Local Government Code section 143.005. See TEX. Lac. GOV'T CODE
ANN. § 143.005(a) (Vernon Supp. 2007). Local Government Code chapter 143 authorizes certain municipalities to
establish a civil-service system to cover its fire fighters and police officers. See TEX. Lac. GOV'T CODE ANN. §§
143.001-.363 (Vernon 1999 & Supp. 2007) (chapter 143).
The Honorable Armando R. Villalobos - Page 3                   (GA-0585)



        Your letter appears to suggest that section 11 (b) applies only where, by operation of article
XVI, section 65 of the constitution, an officer automatically resigns from office by becoming a
candidate for another office with more than one year remaining in the officer's term. See Request
Letter, supra note 1, at 2-3. Section II(a) provides, as a limitation on the authority ofa home,-rule
municipality to lengthen its non-civil-service officers' terms of office, that "such officers ... are
subject to Section 65(b), Article XVI, of this constitution, providing for automatic resignation in
certain circumstances, in the same manner as a county or district officer to which that section
applies." TEX. CONST. art. XI, § II(a); see also id. art. XVI, § 65(b) (providing that if an officer
becomes a candidate for an office of profit or trust other than the office then held at any time when
the unexpired term of the office then held exceeds one year, the officer automatically resigns the
office then held). Because Mr. Boswell apparently did not become a candidate for mayor with more
than a year remaining in his term as city commissioner, you indicate that section II(b)'s special
election requirement would not apply. See Request Letter, supra note 1, at 2; Daisy Martinez,
Boswell wins: 3-term commissioner Harlingen "s next mayor, Valley Morning Star, May 13, 2007;
Daisy Martinez, Boswell only candidate to officiallyfile, Valley Morning Star, Feb. 20, 2007;5 see
also TEX. CONST. art. XI, § 11 (a) (providing that ifa home-rule municipality extends terms ofoffice
beyond two years, the officeholders are subject to article XVI, section 65 of the constitution in the
same manner as a county or district officer); id. art. XVI, § 65(b) (providing that a county or district
officer who becomes a candidate for another office of profit or trust under this state or the United
States "at any time when"the unexpired term of the office then held shall exceed one (1) year"
automatically resigns the office then held).

        Under section 11 's plain language, section II(b) applies to all vacancies occurring on the
governing body of a municipality that has lengthened terms of office under section II(a), and not
only to those vacancies caused by operation of article XVI, section 65. See Doody v. Ameriquest
Mortgage Co., 49 S.W.3d 342,344 (Tex. 2001) ("When interpreting our state constitution, we rely
heavily on its literal text and must give effect to its plain language." (citing Stringer v. Cendant
Mortgage Corp., 23 S.W.3d 353,355 (Tex. 2000); Republican Party ofTex. v. Dietz, 940 S.W.2d
86,89 (Tex. 1997)). Very few cases or attorney general opinions construe article XI, section 11.
See Tex. Att'y Gen. Ope No. JC-0318 (2000) at 3 (stating that very few cases or attorney general
opinions construe article XI, section 11); see also TEX. CONST. art. XVI, § 65 (providing that an
officer, not including a member of a city governing body, who becomes a candidate for another
office with more than one year left in the term of the first office automatically resigns the first
office). In at least one official election law opinion, the Texas Secretary ofState indicates that article
XI, section II(b) applies to vacancies other than those created by virtue of the constitution's
automatic-resignation provision. See Ope Tex. Sec'y State No. MAM-l (1984) at 1-2; see also
TERRELL ,BLODGETT, TEXAS HOME RULE CHARTERS 69 (1994) (stating that article XI, section 11 (b)
requires all municipalities with three- or four-year terms to fill "all vacancies by election"); 2
GEORGE D. BRADEN ET AL., THE CONS1;'ITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND
COMPARATIVE ANALYSIS 700 (1977) (listing as one ofthe consequences ofa municipality extending
the terms longer than two years under article XI, section 11 that "[v]acancies on the governing body
must be filled by election (rather than appointment) within 120 days after the vacancy occurs").


        5Both articles available at www.valleymomingstar.com (last visited Dec. 19, 2007).
The Honorable Armando R. Villalobos - Page 4             (GA-0585)




       A city charter may not be inconsistent with the constitution. See TEX. CONST. art. XI, § 5
(prohibiting a city charter from containing "any provision inconsistent with the Constitution"); Tex.
Att'y Gen. Ope No. GA-0217 (2004) at5 (citing article XI, section 5 of the Texas Constitution).
More particularly, article XI, section II(b) "prevails over a provision in a home-rule city charter."
See Tex. Att'y Gen. Ope No. JC-0318 (2000) at 5.

        Accordingly, article XI, section 11 (b) ofthe Texas Constitution prevails over the Harlingen
City Charter provision. The Harlingen City Commission may not fill a vacancy on the commission
that occurs "within ninety (90) days ofthe end ofthe term" by majority vote ofthe city commission
as the city charter directs. See HARLINGEN, TEX., CITY CHARTER art. IV, § 4 (2006). Rather, the
vacancy must be filled "by majority vote of the qualified voters at a special election called for such
purpose within one hundred andtwe_nty (120) days after" the vacancy occurs. TEX. CONST. art. XI,
§ II(b).
The Honorable Armando R. Villalobos - Page 5           (GA-0585)



                                      SUMMARY

                      Article XI, section 11 (b) ofthe Texas Constitution requires a
              municipality that has lengthened its non-civil service officers' terms
              of office to fill a vacancy by majority vote of the qualified voters at
              a special election. This constitutional requirement prevails over an
              inconsistent city charter provision.

                                             Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
