Can a Texas county judge order a city recall election if the city council refuses to?

Plain-English summary

Jacinto City, a home-rule city in Harris County, received a petition to recall a member of its city council. The city secretary certified the petition as sufficient, but the city council refused to order the recall election. The city's charter has a clause saying that if the council fails or refuses to call the election, the Harris County Judge must step in and discharge the council's duty. Harris County Attorney Vince Ryan asked the Attorney General whether the county judge actually has authority to order that recall election.

The opinion concluded that Texas law does not authorize a county judge to order a municipal recall election. A county judge has only limited authority to order specific elections that statutes name, such as a county general election or certain incorporation elections, and no statute lets a county judge order a municipal recall election. A recall election is a "special election," and the opinion stressed a long-standing rule from the Texas Supreme Court that a special election may be called only by the authority the law expressly designates, with the court having said a county judge has no inherent power to order special elections. Because the county judge had no such authority, the opinion reasoned that a city charter provision purporting to impose that duty on the judge tries to make the judge perform an act he has no legal power to perform. That kind of charter clause is inherently inconsistent with Texas law and unenforceable.

The opinion did not leave the recall stuck. It pointed out that Texas appellate courts have repeatedly treated charter provisions requiring the city council to order a recall election as imposing a mandatory, ministerial duty on the council, a duty that allows the council no discretion and that a court can enforce by writ of mandamus. In other words, the route to forcing a stalled recall ran through the city council and the courts, not through the county judge.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

County judges (as the opinion held for them): The opinion told county judges they had no authority under Texas law to order a municipal recall election, and that a city charter could not validly impose that duty on them.

Home-rule cities and their charters (as the opinion described it): The opinion treated a charter clause assigning the recall-calling duty to the county judge as unenforceable, because it sought to compel an official to do something the law gave him no power to do.

City councils (where the opinion pointed): The opinion explained that appellate courts had found charter clauses requiring the council to order a recall election to impose a mandatory, ministerial duty on the council, enforceable by mandamus.

Petitioners and voters (what the opinion meant for them): Under the opinion, a certified recall petition did not become unenforceable just because the council balked; the remedy ran against the council through the courts, not through the county judge.

Common questions

Can a county judge in Texas call a city recall election when the council won't?
No. The opinion concluded that Texas law does not authorize a county judge to order a municipal recall election.

Why can't the county judge do it if the city charter says so?
The opinion reasoned that a recall is a special election, which only an authority expressly designated by law may call, and no statute gives the county judge that power. A charter clause cannot validly require an official to perform an act he has no legal authority to perform, so the clause is unenforceable.

If the council refuses, is the recall just dead?
Not according to the opinion. It noted that appellate courts have treated the council's charter duty to order a recall election as mandatory and ministerial, and have compelled councils to act by writ of mandamus.

What is a "special election" in this context?
The opinion used the Election Code definition: an election that is not a general or primary election. Texas courts have recognized that a recall election is a special election.

Background and statutory framework

Home-rule cities draw their broad powers of self-government from the Texas Constitution, not from the Legislature, and look to the Legislature only for limits on those powers. Tex. Const. art. XI, § 5; Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998); Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975). The word "shall" in the charter clause imposed a duty. Tex. Gov't Code Ann. § 311.016(2) (West 2005). A county judge has only limited, statute-specific authority to order elections, such as a county general election or certain incorporation elections. Tex. Elec. Code Ann. § 3.004(a)(1) (West 2010); Tex. Loc. Gov't Code Ann. §§ 7.003, 8.003 (West 2008).

A recall election is a special election. Tex. Elec. Code Ann. § 1.005(18) (West 2010). A special election may be ordered only by an authority expressly designated by law, and the Texas Supreme Court has held that a county judge has no inherent authority to order special elections. Countz v. Mitchell, 38 S.W.2d 770, 773 (Tex. 1931); Burns v. Kelly, 658 S.W.2d 731, 734 (Tex. App.-Fort Worth 1983, orig. proceeding). An ordinance or charter provision of a home-rule city is unenforceable to the extent it conflicts with state law. Dallas Merch's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993). At the same time, courts have enforced the city council's own charter duty to order a recall election as a ministerial act subject to mandamus. In re Jones, 335 S.W.3d 772, 776 (Tex. App.-Beaumont, orig. proceeding); Howard v. Clack, 589 S.W.2d 748, 752 (Tex. Civ. App.-Dallas 1979, orig. proceeding); see Tex. Elec. Code Ann. § 273.061 (West 2003); Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).

Citations

Statutes:

• Tex. Const. art. XI, § 5
• Tex. Const. art. V, §§ 15, 18(b)
• Tex. Gov't Code Ann. § 311.016(2) (West 2005)
• Tex. Elec. Code Ann. § 3.004(a)(1) (West 2010)
• Tex. Loc. Gov't Code Ann. § 7.003 (West 2008)
• Tex. Loc. Gov't Code Ann. § 8.003
• Tex. Elec. Code Ann. § 1.005(18) (West 2010)
• Tex. Elec. Code Ann. § 273.061 (West 2003)

Cases:

• Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)
• Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975)
• Countz v. Mitchell, 38 S.W.2d 770, 773 (Tex. 1931)
• Burns v. Kelly, 658 S.W.2d 731, 734 (Tex. App.-Fort Worth 1983, orig. proceeding)
• Duffy v. Branch, 828 S.W.2d 211, 213 (Tex. App.-Dallas 1992, orig. proceeding)
• Blanchard v. Fulbright, 633 S.W.2d 617, 624 (Tex. App.-Houston [14th Dist.] 1982, orig. proceeding)
• Dallas Merch's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993)
• In re Jones, 335 S.W.3d 772, 776 (Tex. App.-Beaumont, orig. proceeding)
• Howard v. Clack, 589 S.W.2d 748, 752 (Tex. Civ. App.-Dallas 1979, orig. proceeding)
• Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0870
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0870.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 2, 2011

The Honorable Vince Ryan Opinion No. GA-0870
Harris County Attorney
1019 Congress, 15th Floor Re: Authority of a county judge to order a
Houston, Texas 77002 municipal recall election (RQ-0945-GA)

Dear Mr. Ryan:

You seek our opinion on the authority of the Harris County Judge to order a recall election pursuant to Jacinto City's (the "City") municipal charter.[1] You tell us that the City, a home-rule city within Harris County, received a petition for the recall of a member of the city council. See Brief at 1. You indicate the petition was certified as sufficient by the city secretary, as required by the City's charter, and that the city council refused to order the recall election. See id. You direct us to a provision in the City's charter which, in the event the city council fails or refuses to order the recall election, requires the County Judge of Harris County to discharge the duties of the city council in calling the election. See id. (quoting Jacinto City Charter, art. 9, § 13) (portion of charter attached to Request Letter).

Home-rule cities have broad powers of self government, derived not from the Legislature but from the Texas Constitution. TEX. CONST. art. XI, § 5; see Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998). Such cities look to the Legislature only for limitations on their powers. Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975). A home-rule city has all the powers of the state not inconsistent with the Texas Constitution and general laws of the state. See Proctor, 972 S.W.2d at 733. Here, with its charter requirement that the county judge "shall discharge any such duties herein provided to be discharged by the ... City Council," the City imposes a duty on the judge. Brief at 1 (quoting Jacinto City Charter, art. 9, § 13); see also TEX. GOV'T CODE ANN. § 311.016(2) (West 2005) (absent context to the contrary, "'[s]hall' imposes a duty"). Thus, we consider whether the imposition on a county judge of this duty by city charter is inconsistent with Texas law.

In the context of ordering elections, a county judge[2] has limited authority to function independently of the county court or the commissioners court. See TEX. ELEC. CODE ANN. § 3.004(a)(1) (West 2010) (authorizing county judge to order the "general election for officers of the county government"); TEX. LOC. GOV'T CODE ANN. §§ 7.003 (West 2008) (authorizing a county judge to call an incorporation election upon satisfactory proof regarding an application to incorporate as a Type B general-law city), 8.003 (authorizing a county judge to call an incorporation election for a Type C general-law city upon proof of the requisite population). Though a county judge has some authority to order specific elections, we find no statute authorizing a county judge to order a municipal recall election. Moreover, because a recall election is a special election, it may be ordered by only an authority expressly designated by law. See Countz v. Mitchell, 38 S.W.2d 770, 773 (Tex. 1931) ("[W]here the election is a special one, to be called and the time and place fixed by some authority, it is essential to the validity thereof that it be called or ordered by the very authority designated by law and none other."). See also TEX. ELEC. CODE ANN. § 1.005(18) (West 2010) (defining "special election" as "an election that is not a general or primary election"); Burns v. Kelly, 658 S.W.2d 731, 734 (Tex. App.-Fort Worth 1983, orig. proceeding) (recognizing pursuant to definition of "special election" that a recall election is a special election). And the Texas Supreme Court has recognized that a county judge does not have inherent authority to order a special election. See Countz, 38 S.W.2d at 773 (stating in the context of a school annexation special election that "[t]he county judge has been authorized in various statutes to order special elections provided for, but there is no statute conferring general power upon the county judge to order special elections").

Texas law does not authorize a county judge to order a special municipal recall election. In addition, although no Texas court has directly considered the question, some state appellate courts in the municipal recall context have questioned whether a county judge has authority to order such an election. See Duffy v. Branch, 828 S.W.2d 211, 213 (Tex. App.-Dallas 1992, orig. proceeding) ("[W]e question whether the Town ... can impose this duty [to call a city recall election] on the ... County Judge."); Blanchard v. Fulbright, 633 S.W.2d 617, 624 (Tex. App.-Houston [14th Dist.] 1982, orig. proceeding) ("We believe there is considerable question as to the authority of the City ... through adoption of a City Charter to impose on the County Judge ... the duty and obligation to order a recall election when there is otherwise no statutory or constitutional authority for doing so."). We therefore believe that a city charter provision imposing a duty upon a county judge to perform an act the county judge has no authority under Texas law to perform is inherently inconsistent with Texas law and unenforceable. See Dallas Merch's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993) ("An ordinance of a home-rule city that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with the state statute.").

We advise you that charter provisions, similar to the City's, requiring a city council to order the recall election, have been determined by the state's appellate courts to impose upon the city council the ministerial duty, subject to compulsion by mandamus, to order the recall election. See In re Jones, 335 S.W.3d 772, 776 (Tex. App.-Beaumont, orig. proceeding) (granting writ of mandamus to city council members to order recall election pursuant to duties under charter provision), Duffy, 828 S.W.2d at 212-13 (stating that recall charter provision is mandatory, allowing no discretion in the city council, and ordering city council to vote to order recall election), Burns, 658 S.W.2d at 734 (issuing writ of mandamus to city council to call recall election), Howard v. Clack, 589 S.W.2d 748, 752 (Tex. Civ. App.-Dallas 1979, orig. proceeding) (finding charter imposed mandatory, ministerial duty on city council to call recall election and issuing writ of mandamus); see also TEX. ELEC. CODE ANN. § 273.061 (West 2003) (providing that "[t]he supreme court or a court of appeals may issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election"); Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (mandamus will lie to compel the performance of a ministerial duty).

SUMMARY

Texas law does not authorize a county judge to order a municipal recall election. We believe that a city charter provision imposing a duty upon a county judge to perform an act that the county judge has no authority under Texas law to perform is inherently inconsistent with Texas law and unenforceable.

We advise you that appellate courts have determined that similar municipal charter provisions impose upon a city council the ministerial duty, subject to compulsion by mandamus, to order the recall election.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] See Letter and attached Memorandum Brief from Honorable Vince Ryan, Harris County Attorney, to Honorable Greg Abbott, Attorney General of Texas at 1 (Feb. 14, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter" and "Brief" respectively).

[2] A county judge is a constitutional officer with both administrative and judicial powers. See TEX. CONST. art. V, §§ 15 (establishing county court to be presided over by an elected county judge), 18(b) (providing that the county judge presides over the county commissioners court).