Untitled Texas Attorney General Opinion
GA-1043
| Tex. Att'y Gen. | Jul 2, 2014Background
- Citizens in Sinton filed a recall petition against three city council members; the city secretary certified the petition under the city charter.
- The city did not order a recall election, and instead the three council members authorized the city attorney to file suit challenging the petition's sufficiency.
- The City's lawsuit sought declaratory relief that the petition failed to meet charter requirements, an injunction halting the election while sufficiency was resolved, and to enjoin petitioners from seeking mandamus to compel an election.
- The Attorney General was asked whether a city may act on behalf of individual council members in such suits and whether the city had standing to bring the challenge.
- The opinion explains that individual officeholders generally have standing to challenge recall-petition sufficiency; whether a city has standing is a fact-specific question for the courts.
- The opinion also reiterates that when a charter mandates ordering a recall election, the council has a ministerial duty to do so even if sufficiency is contested, unless a court enjoins the election.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a city has standing to challenge the sufficiency of a recall petition | City (on behalf of council members) argued it could bring declaratory action under the Uniform Declaratory Judgments Act | Petitioners contended only the officeholders have a concrete, particularized interest to sue | Standing for a city is not presumed; individual officeholders generally have standing; whether a city has standing is a fact question for the court |
| Whether individual officeholders may sue to determine petition sufficiency | Council members claimed right to seek declaratory relief to avoid an election | Petitioners argued the city charter procedure (mandating council action) controls | Courts have consistently recognized that officeholders subject to recall may bring declaratory suits to challenge petition sufficiency |
| Whether pending sufficiency challenges relieve the council of its duty to order a recall election | City argued it could delay ordering election while suit proceeded | Petitioners argued council must order election if charter requires it | Existence of sufficiency challenges does not relieve the council of a charter-mandated duty to order the election; a court may enjoin the election if petition is found insufficient |
| Whether this office should question actions of a court that already resolved the dispute | City asked AG to opine on legality of city's lawsuit and actions | Petitioners relied on court rulings and procedural resolution | AG declines to revisit or question determinations already made by courts; factual determinations are for the courts |
Key Cases Cited
- Blanchard v. Fulbright, 633 S.W.2d 617 (Tex. App.—Houston [14th Dist.] 1982) (recognizing officeholder's right to challenge recall-petition sufficiency)
- In re Lee, 412 S.W.3d 23 (Tex. App.—Austin 2013) (same: mayor's right to file declaratory action)
- In re Susan, 120 S.W.3d 477 (Tex. App.—Corpus Christi 2003) (recognizing right of parties subject to recall to sue)
- Burns v. Kelly, 658 S.W.2d 731 (Tex. App.—Fort Worth 1983) (refusing to abate mandamus to await outcome of sufficiency challenge)
- Duffy v. Branch, 828 S.W.2d 211 (Tex. App.—Dallas 1992) (holding pendency of declaratory action does not negate mandamus issues; court acknowledged question whether municipality is proper party)
- City of Galveston v. State, 217 S.W.3d 466 (Tex. 2007) (cities derive powers from charter and cannot act contrary to charter)