Untitled Texas Attorney General Opinion, GA-0870

Jacinto City's home-rule charter requires the Harris County Judge to discharge duties of the City Council in ordering a recall election when the council fails to act.
A petition for recall of a Jacinto City council member was certified sufficient by the city secretary, but the city council refused to order the recall election.
The question is whether the County Judge has authority under Texas law to order a municipal recall election.
Texas law recognizes home-rule cities with broad powers, but limits on the County Judge’s authority to order elections exist, especially for special elections like recalls.
A recall election is a special election; generally, only authorities expressly designated by law may order such elections.
Appellate and Supreme Court authorities have held that where a charter imposes a duty on the City Council to order a recall, mandamus can compel the council, but the county judge lacks inherent power to order a recall.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Authority of county judge to order municipal recall	County Judge is empowered by charter to call recall when council refuses.	Texas law does not authorize county judges to order municipal recall elections.	No authority for county judge to order municipal recall.
Effect of charter imposing duty on county judge	Charter provision makes the county judge's duties mandatory.	Such a duty is inconsistent with Texas law and unenforceable.	Charter-imposed duty on judge to perform an act the judge lacks authority for is unenforceable.
Remedies for failure to act on recall under charter	Charter provisions can compel recall by mandamus against council.	Only state-law authorities govern who may order such elections; mandamus may compel ministerial duties but not contradict law.	Appellate courts have held that similar charter provisions impose a ministerial duty on council to order recall, subject to mandamus.

Countz v. Mitchell, 38 S.W.2d 770 (Tex. 1931) (recall and special elections must be ordered by the authority designated by law)
Burns v. Kelly, 658 S.W.2d 731 (Tex. App.-Fort Worth 1983, orig. proceeding) (recall charter provisions can mandate council action and permit mandamus)
Duffy v. Branch, 828 S.W.2d 211 (Tex. App.-Dallas 1992, orig. proceeding) (recall charter provision mandatory; no discretion in city council; mandamus to order recall)
In re Jones, 335 S.W.3d 772 (Tex. App.-Beaumont, orig. proceeding) (writ of mandamus to order recall election pursuant to charter duties)
Howard v. Clack, 589 S.W.2d 748 (Tex. Civ. App.-Dallas 1979, orig. proceeding) (charter imposed mandatory, ministerial duty to call recall election)
Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) (mandamus to compel performance of ministerial duty)
Dallas Merchants & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993) (home-rule ordinance preemption and conflicts with state statute are unenforceable)