Untitled Texas Attorney General Opinion: KP-0433

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 24, 2023

The Honorable Luis V. Saenz
Cameron County District Attorney
964 East Harrison Street, Fourth Floor
Brownsville, Texas 78520

Opinion No. KP-0433

Re: Commencement of the terms of city council positions after an election under Texas
Constitution article XI, section 11, and the validity of the election in particular
circumstances (RQ-0472-KP)

Dear Mr. Saenz:

You write to ask several questions on behalf of the city attorney of the City of Combes
(“City”), a Type A general-law municipality. 1 You tell us that on May 7, 2022, the City held: (1)
a general election to fill three aldermen 2 positions; and (2) a special election on the question of
whether to extend the terms of office of the mayor and aldermen from two to four years. See
Request Letter at 1–2. You further tell us that the ballot at the general election listed six candidates
and instructed voters to “Vote for None, One, [T]wo or Three” of the candidates. Id. at 2;
Attachment at 4. The three winning candidates received 26.39%, 23.77%, and 22.99% of the vote,
respectively, and were sworn into office on May 18, 2022. 3 You explain that the ballot proposition 4
presented to the voters at the special election read as follows: “To Extend Combes Mayor &

1
See Letter and Attachment from Honorable Luis V. Saenz, Cameron Cnty. Dist. Att’y, to Honorable Ken
Paxton, Tex. Att’y Gen. at 1 (Aug. 15, 2022), https://texasattorneygeneral.gov/sites/default/files/request-
files/request/2022/RQ0472KP.pdf (“Request Letter” and “Attachment,” respectively); Letter from Honorable Luis V.
Saenz, Cameron Cnty. Dist. Att’y, to Honorable Ken Paxton, Tex. Att’y Gen. at 1 (Nov. 4, 2022) (on file with the Op.
Comm.).
2
You use the term “city commissioner” to describe members of the City’s governing body. See Request Letter
at 1. We use the term “aldermen” because that is the statutory term used to describe members of the governing body
for a Type A general-law municipality. See, e.g., TEX. LOC. GOV’T CODE § 22.031.
3
See Official Minutes for City of Combes Comm’rs Special Workshop of May 18, 2022 (on file with the Op.
Comm.); Cameron Cnty. Elec. Dep’t, SPECIAL & GENERAL ELECTION: UNOFFICIAL ELECTION RESULTS 4 (May 7,
2022), https://cameroncountytx.gov/elections/wp-content/uploads/2022/05/summary-050722-bb-debbie.pdf; see also
TEX. LOC. GOV’T CODE § 22.036 (providing for installation of governing body).
4
A ballot “proposition” is “the wording appearing on a ballot to identify a measure” while the “measure” is
the “question or proposal submitted in an election for an expression of the voters’ will.” TEX. ELEC. CODE § 1.005(15),
(12).
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Commissioners Terms from 2 to 4 years” (“Proposition”). 5 Request Letter at 1; Attachment at 4.
The voters approved the Proposition.6

You ask: (1) whether the aldermen elected at the general election serve two- or four-year
terms, given that the special election to extend the terms occurred at the same time; and (2) if the
special election was “valid given that the language approved by the voters did not have an enabling
date[.]” Request Letter at 2.

As an initial matter, the resolution of your questions requires consideration of factual
matters, a task outside the purview of an attorney general opinion. See Tex. Att’y Gen. Op. No.
KP-0397 (2022) at 3. Accordingly, we cannot definitively answer your questions and can only
advise you of the law relevant to your questions.

The Proposition

The Election Code grants discretion to the authority ordering the election to prescribe the
wording of a proposition unless otherwise provided by law. TEX. ELEC. CODE § 52.072(a); see also
Dacus v. Parker, 466 S.W.3d 820, 826 (Tex. 2015) (explaining that municipalities generally have
broad discretion in wording propositions). In this instance, the law does not provide the form in
which the Proposition must be submitted to voters; thus, the question is whether the issue was
substantially submitted to the voters with definiteness and certainty. See Dacus, 466 S.W.3d at 826
(holding that, in a case challenging the sufficiency of ballot language, the issue is whether the
ballot substantially submits the question with such definiteness and certainty that the voters are
not misled). The court in Dacus explained, “not every detail need be on the ballot, and short,
general descriptions are often acceptable.” Id. But “the ballot must identify the measure by its chief
features, showing its character and purpose.” Id. at 825. A ballot measure may be inadequate when
it: (1) affirmatively misrepresents the measure’s character and purpose or its chief features; or (2)
misleads the voters by omitting certain chief features that reflect its character and purpose. Id. at
826.

A Houston Court of Appeals decision, Bryant v. Parker, involved a similar situation in that
the court considered the challenge of a measure extending the terms of office based on the lack of
transitional information. 580 S.W.3d 408 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). In
Bryant, the City of Houston sought to amend its charter “to establish four-year terms of office for
City elective offices and to set a two-term limit for holding elective office two individuals
challenged the following ballot language.” Id. at 410. The proposed amendment also included
provisions for transitioning from the then-existing terms, which provided for two-year terms of

5
See also City of Combes, NOTICE OF GENERAL ELECTION FOR MUNICIPALITIES (2022), https://
www.cameroncountytx.gov/elections/wp-content/uploads/2022/03/City-of-Combes-Notice-of-General-Election-
2022.pdf (setting out the Proposition).
6
See Official Minutes for City of Combes Comm’rs Regular Session of June 27, 2022 (on file with the Op.
Comm.); see also Cameron Cnty. Elec. Dep’t, SPECIAL & GENERAL ELECTION: UNOFFICIAL ELECTION RESULTS 4
(May 7, 2022), https://cameroncountytx.gov/elections/wp-content/uploads/2022/05/summary-050722-bb-debbie.pdf.
The Honorable Luis V. Saenz - Page 3

office and a limit of three terms in office, to the new provisions in the proposed amendment. Id.
The following ballot language was submitted to voters:

Relating to Term Limits for City Elective Offices) Shall the City
Charter of the City of Houston be amended to reduce the number of
terms of elective offices to no more than two terms in the same office
and limit the length for all terms of elective office to four years,
beginning in January 2016; and provide for transition?

Id. at 413 (emphasis added). Two contestants argued that the transition provisions were a chief
feature of the measure and should have been included in the ballot language. Id. at 414–15. The
court disagreed, finding the chief features of the measure were the reduction in the number of terms
and length for all terms of elective office. Id. at 413, 415.

Similar to the measure in Bryant, a court would likely conclude the length of terms of office
of the mayor and aldermen, not the enabling date, was the chief feature of the measure submitted
to voters and that the City of Combes’ May 2022 special election was not invalid because of the
absence of that date in the Proposition language. Id.; see also id. at 412 (stating that when “there
is no dispute regarding the language used in the measure or the language used in the ballot, the
determination of whether the ballot language substantially submitted the measure with definiteness
and certainty is a question of law”).

Terms of Office

Article XI, section 11, authorizes municipalities to establish municipal offices with a term
exceeding two years but not exceeding four years:

A Home Rule City may provide by charter or charter amendment,
and a city, town or village operating under the general laws may
provide by majority vote of the qualified voters voting at an election
called for that purpose, for a longer term of office than two (2) years
for its officers, either elective or appointive, or both, but not to
exceed four (4) years[.]

TEX. CONST. art. XI, § 11(a) (emphasis added). A provision in the Local Government Code
governing Type A general-law municipalities acknowledges that a two-year term may be extended
pursuant to this constitutional provision. See TEX. LOC. GOV’T CODE § 22.035 (“The mayor and
aldermen of the municipality are elected for a term of two years unless a longer term is established
under Article XI, Section 11, of the Texas Constitution.”).

Several changes to the election system may occur as a result of extending the term of office.
First, if a municipality sets a term of office at more than two but not more than four years, article
XI, section 11 requires that the municipality “elect all of the members of its governing body by
The Honorable Luis V. Saenz - Page 4

majority vote of the qualified voters . . . .” 7 TEX. CONST. art. XI, § 11(b); see also Estrada v.
Adame, 951 S.W.2d 165, 167 (Tex. App.—Corpus Christi 1997, orig. proceeding). Prior to
extending the term, the mayor and aldermen of a Type A general-law city are elected under a
plurality system. See TEX. LOC. GOV’T CODE § 22.004 (“Plurality Vote Required for Election of
Municipal Officer”); see also TEX. ELEC. CODE § 2.001 (“Except as otherwise provided by law, to
be elected to a public office, a candidate must receive more votes than any other candidate for the
office.”).

Second, when a municipality extends the term of office, it may be necessary to change the
system of election in order to implement the shift from a plurality to a majority system. See Kilgore
v. City of Lakeway, No. 03-18-00598-CV, 2020 WL 913051, at *2 (Tex. App.—Austin Feb. 26,
2018) (“Once place numbers were assigned, the Secretary [of State] advised, the charter
amendment could be implemented and council members (and the mayor) could be ‘elected by
majority to three year terms.’”); Tex. Att’y Gen. Op. No. GA-0025 (2003) at 4 (“As the secretary
of state has suggested, an ‘other method consistent with majority vote’ for the purposes of
section 275.003(d) may be election by single-member district.”).

As noted previously, we do not find facts in an Attorney General opinion, but to the extent
the City did not have the necessary changes in place to implement a majority system and the
candidates were not elected by majority vote, a court would likely conclude the candidates elected
at the May 2022 general election serve two-year terms.

7
“If no candidate for a particular office receives the vote necessary to be elected in an election requiring a
majority vote, a runoff election for that office is required.” TEX. ELEC. CODE § 2.021; see also Estrada, 951 S.W.2d
at 167.
Other consequences of a general-law city extending the terms of office beyond two years include: (1) having
to fill vacancies by election; and (2) subjecting officers to resign-to-run in certain circumstances. See TEX. CONST. art.
XI, § 11(a), (c); TEX. LOC. GOV’T CODE § 22.010(a) (regarding filling vacancies).
The Honorable Luis V. Saenz - Page 5

S U M M A R Y

A ballot measure may be inadequate when it misleads the
voters by omitting certain chief features that reflect its character and
purpose. A court would likely conclude the length of terms of office
of the mayor and aldermen, not the enabling date, was the chief
feature of the measure submitted to voters and that the City of
Combes’ May 2022 special election was not invalid because of the
absence of that date in the Proposition language.

When a municipality sets the terms of office at more than
two but not more than four years under article XI, section 11 of the
Texas Constitution, it must elect members of its governing body by
majority vote. To the extent the City did not have the necessary
changes in place to implement a majority system and the candidates
were not elected by majority vote, a court would likely conclude the
candidates elected at the May 2022 general election serve two-year
terms.

Very truly yours,

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KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

CHRISTY DRAKE-ADAMS
Assistant Attorney General, Opinion Committee