CITY OF HOUSTON

Legal Department

interoffice
Correspondence

To: VIA

Hon. Annise D. Parker, Mayor and Council Members Marta Crinejo, Agenda Director

From:

David M. Feidman City Attorney May 27, 2011 Term limits

Date: Subject:

OPINION NO. 2011004 This opinion addresses Article V, section 6a of the City Charter ("Charter") relating to term limits and the related issue of vacancies in office. The Charter term limits provision is a single sentence that reads: "No person, who has already served two full terms, shall be eligible to file for that same office." Notwithstanding the reference to "two full terms" in the term limits provision, this department has interpreted this provision to allow a person to serve in an office for three full terms.1 The Charter provisions for the holding of city general elections, coupled with the timing of the filing for office under the Texas Election Code, require a person seeking a third term in the "same office" to file for reelection during, but prior to, the expiration of the person's second term. Eligibility for a third term, therefore, exists at the time of filing as the person has not, at that time, "already served two full terms." This result will always occur so long as the second and third terms in the same office are served consecutively.2 A break in service in an office between the first and second term does not change this result. If an elected official does not file for re-election to his/her office while still serving in the second term in such office, then the official would be term limited and barred from running for a third term in such office. Prior legal opinions have also established that the Charter provides for only three elective City offices-Mayor, Council Member and City Controller.3 The analysis of various Charter provisions in City Attorney Opinion 940074 provides ample support for the premise that the Charter makes no distinction between a District Council Member and an At-Large

City Atty. Opin. Nos. 970074 (8/26/94) & 970038 (4/8/97). City Atty. Opin. Nos. 970074 (8/26/94) Charter, Art. V, 1-6; City Atty. Opin. No. 940074 (8/26/94).

Hon. Annise D. Parker Mayor Term Limits Page 2

Council Member and that, for purposes of term limits, such positions constitute the "same office," i.e., that of Council Member.

Vacancy in office Vacancies in public office are governed by the Texas Constitution, the Local Government Code and, as regards City elective offices, the City Charter.4 Article 16, section 17 of the Constitution provides that "[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified" and is commonly referred to as the "holdover rule"; elected city officials are considered "officers" for purposes of Article 16, section 17. The legal department has recently addressed the law relating to the creation of a "vacancy" in a City elective office in response to an attempt by a former Council Member to vacate his office prior to the end of his second term. The timing of the "resignation" (resignation letter dated and delivered December 30, 2009), coupled with the date of the expiration of the Council Member's second term (January 1, 2010), appeared to be an effort to create a vacancy in his office prior to the end of his second term and thereby avoid the application of the term limits provision. Upon review, we concluded (no formal opinion was issued) that the Council Member had not created a vacancy, but rather had completed his second term because (1) the "holdover" rule deemed his service in office to continue until his successor was appointed (or elected, if applicable) and qualified for the office and (2) the resignation was not accepted by the City Council prior to the expiration of his second term.5 Finally, a person elected to fill a vacancy in a City elective office serves only the remainder of the unexpired term in such office.6 An individual who serves the unexpired term of a former officer is not deemed to have served a full "term" under a prior interpretation of the Charter's term limit provision.7

David M. Ferclman City Attorney

TEX. CONST., Art. XVI, 16, 27; Charter, Art. VI, 4 (Mayor), Art. VII, 2 (Council Members), & Art. VIII, 2a (Controller).
TEX. ELEC. CODE, 201.023

TEX. CONST., ART. 16, 27.

City Atty. Opin. No. 970038(4/8/97)