How Should a Texas Home Rule City Fill a Vacancy on City Council?
City attorneys are called upon to guide city councils are legal procedures and processes for host of municipal actions, including how to fill a vacancy on city council. In Texas, home rule cities look to their charters as well as Texas law for the proper steps.
Various issues that could arise if the City Council needs to fill a vacancy on the council. Let’s walk through this scenario with a hypothetical city charter.
The city’s Charter, which controls the filling of any vacancy on the council, specifies that vacancies may be filled either by appointment of the remaining members of the council or by special election. However, the council is not required to fill the vacancy by the charter, which would mean the vacancy could remain open until the next regular election.
All of the current city council members, whether or not they were elected before the passage of the city Charter, are subject to the Charter’s provisions. As long as the Charter does not extend the terms of the city council members beyond two years, the Charter governs how vacancies are created and filled. (If the Charter were to extend the terms beyond two years, then the Texas Constitution requires that vacancies be filled by special election notwithstanding the Charter.)
A section of the Charter provides that “if for any reason a single vacancy exists amount the Mayor and the members of the City Council, then a majority of the remaining Council Members may fill the vacancy by appointment.” However, it should be noted that in most cases, if a council vacancy is created by charter, removal, or resignation, the vacated council member usually remains on the council as a holdover until the new member is appointed or elected. In the case of a removal due to dual office holding or incompatibility, the removed member does not hold over.
If there are two vacancies at the same time, the Charter provides that the vacancies “shall” be filled by a special election. However, according to the Texas Election Code, resignations do not result in legal vacancies until the council votes to accept the resignation, or until eight days have passed, whichever occurs earlier. Therefore, the city council could accept one resignation, fill that vacancy by appointment, then accept the second vacancy and fill it by appointment, avoiding the special election. The Texas Attorney General is of the opinion that this is a completely legal way for a council to avoid the expense and hassle of a special election. Of course, the resignation of two council members at the same time could present quorum problems.
The eight-day rule could also come into play where there is a question of whether a council member has resigned or not. The Charter does not specify a process for the resignation of a council member, but it is instructive that if the city were still a general law city, the Local Government Code and the Election Code would both require a resignation to be in writing, submitted to the council, and approved by the council.
It is worth noting in our example that a section of the Charter sets out the specific mechanism for expanding the council from five to seven members. The first election of a district place onto the council will take place at the next regular election, when two district places are to be elected. Therefore, any vacancy that occurred on the council before the next regular election would be an at-large position, and any appointment to that vacancy would also be an at-large position.
Finally, although a city’s Charter may provide that a council member who becomes a candidate for another office automatically resigns his or her place on the council, the City’s Charter does not include such a provision. However, the Texas Constitution generally prohibits dual office holding; a full explanation of those rules is beyond the scope of this article.
Drew Shirley is a Houston attorney with experience in tort and business litigation and business and real estate transactions. Shirley graduated cum laude from Duke University, then received two advanced degrees – a master’s in journalism and a law degree – from the University of Texas at Austin. He joined the Randle Law Office in 2015.