Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 2, 2016

The Honorable Logan Pickett Opinion No. KP-0061
Liberty County District Attorney
1923 Sam Houston, Suite 112 Re: Majority vote requirement to remove a
Liberty, Texas 77575 municipal officer under section 22.077 of the
Local Government . Code and related
questions (RQ-0043-KP)

Dear Mr. Pickett:

On behalf of the City of Hardin, you ask questions concerning emergency meetings and
the voting requirements to remove a municipal officer under Local Government Code section
22.077. 1 That section, which applies fo Type A general-law municipalities, provides:

(a) The governing body of the municipality may remove a
municipal officer for incompetency, corruption, misconduct, or
malfeasance in office after providing the officer with due notice
and an opportunity to be heard.

(b) If the governing body lacks confidence in a municipal officer
appointed by the governing body, the governing body may
remove the officer at any time. The removal is effective only if
two-thirds of the elected aldermen vote in favor of a resolution
declaring the lack of confidence.

TEX. Loe. Gov'T CODE§ 22.077; see id.§ 22.001 (applying chapter 22 "only to a Type A general-
law municipality"). Your first two questions ask about the vote that is required to remove a
municipal officer under subsections (a) and (b) respectively. Request Letter at 1. Briefing
submitted to this office questions whether section 22.077 provides two separate procedures for

'See Letter from Honorable Logan Pickett, Liberty Cty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at I (July 31, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Logan Pickett - Page 2 (KP-0061)

removing a municipal officer or, instead, whether the two-thirds vote in subsection (b) is an
additional requirement for removal under subsection (a). 2

Section 22.077 was originally adopted in 1987 as a "nonsubstantive revision" to its
predecessor statute, article 1006 of the Revised Civil Statutes. 3 See TEX. Gov'T CODE§ 311.023( 4)
(stating that courts may consider former statutory provisions in construing a statute). Prior to the
nonsubstantive revision, article 1006 stated:

The city council shall have power to remove any officer for
incompetency, corruption, misconduct or malfeasance in office,
after due notice and an opportunity to be heard in his defense. The
city council shall also have power at any time to remove any officer
of the corporation elected by them, by resolution declaratory of its
want of confidence in said officer; provided, that two-thirds of the
aldermen elected vote in favor of said resolution. 4

A court construing article 1006 explained that the provision created "two methods" for removal:

If an officer is charged with incompetency, misconduct, corruption
or malfeasance, he may be removed after due notice and an
opportunity to be heard in his defense. Otherwise-and this is
clear-a city officer can be discharged at any time for "a want of
confidence" by a two-thirds vote of a city council.

Hamilton v. City of Wake Village, 593 F. Supp. 1294, 1296-97 (E.D. Tex. 1984).

The plain language of section 22.077 continues to support this construction, and the
Legislature's decision to divide this provision into separate subsections upon recodification
reinforces construction of the statute as providing two alternative procedures, depending on the
underlying reasons for the municipal officer's removal. Under subsection (a), a governing body,
may remove a municipal officer for four specific reasons: "incompetency, corruption, misconduct,
or malfeasance in office." TEX. Loe. Gov'T CODE § 22.077(a). While removal under this

2
See Brief from Honorable Stephanie Blume, Mayor, City of Hardin at I (Aug. 19, 2015); Brief from Mr.
Timothy Kirwin, Hardin City Att'y at 2 (Sept. 9, 2015) ("Kirwin Brief') (briefs on file with the Op. Comm.).

3
Act of Apr. 30, 1987, 70th Leg., R.S., ch. 149, §§I, 49, 1987 Tex. Gen. Laws 707, 731, 1306 (amended
200 I) (current version at TEX. Loe. Gov'T CODE § 22.077).

4
Act approved Mar. 15, 1875, 14th Leg., 2d C.S., ch. C, § 145, 1875 Tex. Gen. Laws 113, 153, reprinted in
8 H.P.N. Gammel, The laws of Texas 1822-1897 at 485, 525 (amended 1901), repealed by Act of Apr. 30, 1987,
70th Leg., R.S., ch. 149, § 49, 1987 Tex. Gen. Laws 707, 1306.
The Honorable Logan Pickett - Page 3 (KP-0061)

subsection requires notice and a hearing, the subsection does not provide for the number of votes
required in order to remove an officer for these reasons. See id.

Unless a statute specifically provides otherwise, a governing body must conduct its
business on the basis of a majority of a quorum of members. Comm 'rs Ct. of Limestone Cty. v.
Garrett, 236 S.W. 970, 973 (Tex. Comm'n App. 1922,judgm't adopted); Tex. Att'y Gen. Op. No.
GA-0554 (2007) at 2. A quorum of a Type A general-law municipality is generally a "majority of
the number of alderman established by Section 22.031" of the Local Government Code. TEX. Loe.
Gov'T CODE § 22.039; see also TEX. Gov'T CODE § 31 l.013(b) (establishing that generally a
"quorum of a public body is a majority of the number of members fixed by statute"). 5 Thus, if a
quorum of aldermen is present at a regular meeting, subsection 22.077(a) authorizes a majority of
those present and voting to remove a municipal officer for the stated reasons. Removal under
subsection 22.077(b), on the other hand, expressly requires "two-thirds of the elected aldermen"
to vote in favor of a resolution declaring the lack of confidence. TEX. Loe. Gov'T CODE
§ 22.077(b); Johnson v. City of Dublin, 46 S.W.3d 401, 409 (Tex. App.-Eastland 2001, pet.
denied). Thus, regardless of the number of aldermen present, two-thirds, or at least four of the five
aldermen, must vote for removal due to a lack of confidence under subsection 22.077(b).

You also ask whether an emergency meeting is a "called" meeting. Request Letter at 1.
The phrase "called meeting" is not defined within chapter 22 of the Local Government Code. In
other contexts, however, the Legislature has distinguished between "regular" and "called"
meetings. See, e.g., TEX. Gov'T CODE § 551.002 (providing that every "regular, special, or called
meeting of a governmental body shall be open to the public,'' except as provided by chapter 551);
TEX. Loe. Gov'T CODE§ 152.015(b) (authorizing the selection of certain members of a county
grievance committee at a "regular or called commissioners court meeting"); see also Webster v.
Tex. & Pac. Motor Transp. Co., 166 S.W.2d 75, 77 (Tex. 1942) (discussing common-law rule that
a board must "act as a body at a regular meeting or at a called meeting"). One commentator has
explained that regular meetings are usually "prescribed by charter" or "provided for by ordinance,
resolution, or motion under legal authority,'' whereas called meetings are "convened by the mayor
... or in some other definite way." 4 EUGENE McQUILLIN, LAW OF MUNICIPAL CORPORATIONS
§ 13:17, 1152-53 (3d ed. 2004).

Subsection 22.038(a) of the Local Government Code requires the governing body of a Type
A general-law municipality to adopt a resolution establishing the time and place the governing
body will meet. TEX. Loe. Gov'T CODE§ 22.038(a). Subsection (b) stipulates that "[t]he mayor
may call a special meeting on the mayor's own motion and shall call a special meeting on the
application of three aldermen." Id. § 22.038(b). Section 22.039 establishes quorum requirements
for Type A general-law municipalities, providing:

5
Briefing submitted to this office states that the City of Hardin has a mayor and five aldermen. See Kirwin
Brief at 2; see also TEX. Loe. Gov'T CODE § 22.031 (b) (providing that "[i]f the municipality is not divided into
wards, the governing body consists of a mayor and five aldermen"). Thus, generally, three aldermen would constitute
a quorum of the governing body of the City of Hardin. See TEX. Loe. GOV'T CODE § 22.037(a) (providing that
except in elections, the mayor "may vote only ifthere is a tie"). ·
The Honorable Logan Pickett - Page 4 (KP-0061)

A majority of the number of aldermen established by Section 22.031
for the municipality constitutes a quorum. However, at a called
meeting or at a meeting to consider the imposition of taxes, two-
thirds of the number of aldermen established by that section
constitutes a quorum unless provided otherwise.

Id. § 22.039 (emphasis added).

Reading section 22.039 in the context of chapter 22 suggests that the Legislature intended
to distinguish between a regular meeting, held pursuant to a resolution adopted under subsection
22.038(a), and special meeting, called by the mayor pursuant to subsection 22.038(b). Thus, for
purposes of section 22.039, a "called meeting" of a Type A general-law municipality is a meeting
called and held at a time or place other than the regular meeting time and place. Unless a Type A
general-law municipality's emergency meeting is held at the regular meeting time and place
established by resolution, the emergency meeting is a called meeting under section 22.039. 6

Finally, you ask "[w]hat constitutes a quorum at an emergency meeting." Request Letter
at 1. Generally, a quorum of a public body "is a majority of the number of members fixed by
statute." TEX. Gov'T CODE§ 311.013(b). As already discussed, however, section 22.039 provides
that for purposes of a called meeting of a Type A general-law municipality, "two-thirds of the
number of aldermen" established by section 22.031 constitutes a quorum unless provided
otherwise. TEX. Loe. Gov'T CODE § 22.039. Thus, two-thirds of a municipality's aldermen
constitute a quorum for a called emergency meeting of a Type A general-law municipality. 7

6
It is possible that an emergency item could be supplemented to the agenda of a regular meeting, in which
case the discussion of the emergency would not be conducted at a called meeting but instead at a regular meeting.
See TEX. Gov'T CODE§ 55 l .045(a) (describing notice requirements for emergency meetings).

7
Y ou do not ask, and we do not address, whether the circumstances surrounding your question provided
sufficient justification to convene an emergency meeting. See id. § 551.045(b) (providing that .an emergency or
urgent public necessity exists only if "immediate action is required of a governmental body because of: ( 1) an
imminent threat to public health and safety; or (2) a reasonably unforeseeable situation").
The Honorable Logan Pickett - Page 5 (KP-0061)

SUMMARY

Subsection 22.077(a) of the Local Government Code
authorizes a Type A general-law municipality to remove a
municipal officer for incompetency, corruption, misconduct, or
malfeasance at a regular meeting by a majority vote of those present
and voting.

Subsection 22.077(b) of the Local Government Code
authorizes a Type A general-law municipality to remove a
municipal officer for a lack of confidence if two-thirds of the elected
aldermen vote in favor of a resolution declaring the lack of
confidence.

For purposes of Local Government Code section 22.039, a
"called meeting" of a Type A general-law municipality is a meeting
called and held at a time or place other than the regular meeting time
and place adopted pursuant to subsection 22.038(a). An emergency
meeting will be considered a called meeting for purposes of section
22.039 if it is held at a time or place other than the regular meeting
time and place established by a resolution adopted pursuant to
section 22.038.

Two-thirds of a municipality's aldermen constitute a quorum
for purposes of convening a called emergency meeting of a Type A
general-law municipality.

Very truly yours,

~?~
KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee