Can a Texas city use its city attorney to sue and stop a recall election against its own council members?

Plain-English summary

In the city of Sinton, a group of citizens filed a petition to recall three city council members, and the city secretary certified the petition as sufficient under the city charter. Rather than ordering the recall election, the three council members who were the targets of the petition voted to have the City Attorney sue. The City's lawsuit asked a district court to declare that the petition did not meet the charter's requirements and to enjoin the election while the petition's sufficiency was litigated, and it sought to stop the petitioners from filing a mandamus action to force the election. The District Attorney for the 36th Judicial District, Michael Welborn, asked the Attorney General whether it was proper for the City, rather than the individual council members, to take those actions. (The City's suit was later dismissed on a non-suit.)

The AG started with who normally has the right to sue. Under the Uniform Declaratory Judgments Act, a "person" affected by a municipal ordinance can ask a court to determine the ordinance's construction or validity, and the Act's definition of "person" includes a municipal corporation. But standing requires a particularized, legally protected interest. The AG found that many Texas courts have recognized the right of an individual officeholder who is the subject of a recall to bring a declaratory action testing the petition's sufficiency. By contrast, the AG located no case recognizing that a city itself has the legal interest needed to challenge a recall petition, and at least one court had expressly left that question open.

Reading those cases together, the AG observed that individual officeholders, not cities, appear to be the appropriate plaintiffs in suits challenging recall petitions, because the officeholder has a concrete interest in keeping the office while the city has no authority to act contrary to its own charter. Where a charter requires the council to order a recall election once the petition is certified, a court could conclude the city has no legally protected interest in avoiding that duty. The AG stopped short of deciding the point, though: whether a particular city has standing to challenge a recall petition is a fact question for a court, and the opinion process does not resolve fact questions. The AG added that where a court had already ruled, it was not the AG's place to second-guess the court.

On the rest of the District Attorney's concerns, the AG spoke generally. Texas courts have held that a city council has a ministerial duty to order a recall election when the charter requires one, and that a pending challenge to the petition's sufficiency does not relieve the council of that duty. If a court reviewing the petition decides to enjoin the election, the city should of course follow that order.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

District Attorney Welborn (as the opinion described it): The opinion answered his core concern in general terms, explaining that individual officeholders are the recognized plaintiffs to challenge a recall petition's sufficiency, that no case it found gave a city that standing, and that whether the City of Sinton specifically had standing was a fact question for a court rather than the AG.

City council members facing recall (as the opinion described it): The opinion described an individual officeholder who is the subject of a recall as generally having standing to file a declaratory action testing the petition's sufficiency, citing a line of Texas cases recognizing that right.

Cities and city attorneys (as the opinion described it): The opinion noted it found no case recognizing a city's legal interest in challenging a recall petition, observed that a city has no authority to act contrary to its charter, and described the council's duty to order a certified recall election as ministerial, one that pending sufficiency challenges do not suspend. It treated the city's own standing as an unresolved fact question for a court.

Common questions

Can a city sue to stop a recall election against its council members?
The AG would not say a city categorically can or cannot. It found no case recognizing a city's standing to challenge a recall petition's sufficiency, but concluded that whether a particular city has that standing is a fact question for a court, not the opinion process.

Who normally has the right to challenge a recall petition?
The AG described the individual officeholder who is the target of the recall as the recognized plaintiff, pointing to Texas cases holding that such an officeholder generally has standing to file a declaratory action to test the petition's sufficiency.

Does a court challenge to the petition pause the recall election?
No. The AG explained that Texas courts treat ordering a certified recall election as a ministerial duty, and that a pending challenge to the petition's sufficiency does not relieve the council of that duty. The election goes forward unless a court enjoins it.

What if a court has already ruled on the dispute?
The AG said that to the extent a court has already acted to resolve a particular recall dispute, it is not for the AG's office to question the court's action.

Background and statutory framework

The Uniform Declaratory Judgments Act lets a "person" whose rights are affected by a municipal ordinance obtain a declaration of the ordinance's construction or validity, and defines "person" to include a municipal corporation (Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a), § 37.001 (West 2008)). Standing under the Act still requires a particularized, legally protected interest actually or imminently affected by the alleged harm (Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 882 (Tex. App.-Austin 2010, pet. denied)).

The AG canvassed the recall case law. Courts have recognized an individual officeholder's right to file a declaratory action testing a recall petition's sufficiency (Blanchard v. Fulbright, 633 S.W.2d 617, 622 (Tex. App.-Houston [14th Dist.] 1982, orig. proceeding); In re Lee, 412 S.W.3d 23, *4 (Tex. App.-Austin 2013, orig. proceeding); In re Susan, 120 S.W.3d 477, 480 (Tex. App.-Corpus Christi 2003, orig. proceeding); Burns v. Kelly, 658 S.W.2d 731, 733 (Tex. App.-Fort Worth 1983, orig. proceeding)). At least one court left open whether a city is a proper party to bring such a challenge (Duffy v. Branch, 828 S.W.2d 211, 214 & n.3 (Tex. App.-Dallas 1992, orig. proceeding)). Because a home-rule city's powers cannot be inconsistent with its charter (City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007); Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)), and Sinton's charter required the council to order a recall election once the secretary certified the petition (Sinton, Tex., Charter art. IV, § 4.10), the AG reasoned a court could find the city lacked a protected interest in avoiding compliance, while leaving the city's standing as a fact question for the court (citing Tex. Att'y Gen. Op. No. GA-0876 (2011)). On the council's duty, the AG relied on cases holding that ordering a certified recall election is ministerial and that sufficiency challenges do not suspend it (Blanchard, 633 S.W.2d at 621-22; Duffy, 828 S.W.2d at 212-14; Burns, 658 S.W.2d at 733-34).

Citations

Statutory and charter provisions:

• Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 2008) (Uniform Declaratory Judgments Act, challenges to municipal ordinances)
• Tex. Civ. Prac. & Rem. Code Ann. § 37.001 (West 2008) (definition of "person" includes a municipal corporation)
• Sinton, Tex., Charter art. IV, § 4.10 (council "shall" order a recall election upon a certified petition)

Cases:

• Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 882 (Tex. App.-Austin 2010, pet. denied)
• Blanchard v. Fulbright, 633 S.W.2d 617, 622 (Tex. App.-Houston [14th Dist.] 1982, orig. proceeding)
• In re Lee, 412 S.W.3d 23, *4 (Tex. App.-Austin 2013, orig. proceeding)
• In re Susan, 120 S.W.3d 477, 480 (Tex. App.-Corpus Christi 2003, orig. proceeding)
• Burns v. Kelly, 658 S.W.2d 731, 733 (Tex. App.-Fort Worth 1983, orig. proceeding)
• Duffy v. Branch, 828 S.W.2d 211, 214 & n.3 (Tex. App.-Dallas 1992, orig. proceeding)
• City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007)
• Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0876 (2011) (fact questions are not resolved in the opinion process)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1043
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1043.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 3, 2014

The Honorable Michael E. Welborn Opinion No. GA-1043
District Attorney
36th Judicial District Re: Whether a city council may authorize its
Post Office Box 1393 city attorney to seek injunctive relief to
Sinton, Texas 78387 prohibit a recall election of city council
members (RQ-1147)

Dear Mr. Welborn:

You describe a situation in which a group of citizens in the city of Sinton (the "City") filed a petition with the city secretary to recall three council members.[1] The city secretary certified the petition "in accordance with ... the Sinton City charter." Request Letter at 1. You tell us that the City did not order the recall election but that the "three council members named in the recall petition voted to authorize the City Attorney" to file suit in the 343rd Judicial District Court of San Patricio County. See id. The lawsuit sought a declaratory judgment that the recall petition did not meet the requirements of the city charter.[2] The lawsuit also sought to enjoin the holding of an election while the sufficiency of the recall petition was being determined and petitioned for an injunction to keep the defendants, named as the citizens who filed the recall petition, from filing a mandamus action to compel the City to order the recall election.[3] City's Petition at 5. You question the legality of these actions by the City. See Request Letter at 1. We understand your primary concern to be whether the City should have been the party to take these actions on behalf of the individual council members who were the subject of the recall petition.

The Uniform Declaratory Judgments Act (the "Act") authorizes a "person ... whose rights, status, or other legal relations are affected by a ... municipal ordinance" to "have determined any question of construction or validity arising under the . . . ordinance . . . and obtain a declaration of rights, status, or other legal relations thereunder." TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West 2008). The Act defines a "person" to include a "municipal or other corporation of any character." Id. § 37.001. As in any other lawsuit, to establish standing under the Act, a party "must show a particularized, legally protected interest that is actually or imminently affected by the alleged harm." Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 882 (Tex. App.-Austin 2010, pet. denied).

In the context of a legal challenge to the sufficiency of a recall petition, we have found no case recognizing that a city itself has the requisite legal interest necessary to establish standing. Numerous courts, however, have consistently recognized the right of an individual officeholder who is the subject of a recall petition to file a declaratory judgment action to establish the sufficiency of a recall petition. See Blanchard v. Fulbright, 633 S.W.2d 617, 622 (Tex. App.-Houston [14th Dist.] 1982, orig. proceeding); see also In re Lee, 412 S.W.3d 23, *4 (Tex. App.-Austin 2013, orig. proceeding) (citing Blanchard for the mayor's right to file a declaratory action); In re Susan, 120 S.W.3d 477, 480 (Tex. App.-Corpus Christi 2003, orig. proceeding) (citing Blanchard for the right of "those parties subject to recall" to file suit); Burns v. Kelly, 658 S.W.2d 731, 733 (Tex. App.-Fort Worth 1983, orig. proceeding) (citing Blanchard and referring to a council member's right to file suit). At least one court has acknowledged, without resolving, the question of whether a city is the appropriate party to challenge the sufficiency of a recall petition. See Duffy v. Branch, 828 S.W.2d 211, 214 & n.3 (Tex. App.-Dallas 1992, orig. proceeding) (citing Blanchard for the proposition that "[t]he ... district court is the forum to argue the sufficiency issues" but expressing "no opinion on whether the Town of Addison is the proper party to contest the sufficiency of the recall petition").

Taken together, these cases could be interpreted to indicate that individual officeholders, not cities, are the appropriate plaintiffs to bring lawsuits challenging the sufficiency of petitions to recall city council members. Generally speaking, the legal interest of the individual officeholder in defeating a petition to remove him or her from office is the kind of concrete, particularized interest necessary to establish standing. The city, on the other hand, has no authority to act contrary to the requirements of its charter. See City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007) (stating that home-rule cities "have 'all the powers of the state not inconsistent with the Constitution, the general laws, or the city's charter'") (quoting Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)). In a situation in which a city's charter requires the city council to order a recall election, a court could conclude that the city has no legally protected interest in avoiding compliance with its charter. See Sinton, Tex., Charter art. IV, § 4.10 (mandating that the city council "shall" order a recall election if the city secretary certifies the sufficiency of a recall petition). Nonetheless, whether a particular city has a legal interest that confers standing on the city to challenge the sufficiency of a recall petition is a fact question for a court and not this office. See Tex. Att'y Gen. Op. No. GA-0876 (2011) at 1 (noting that questions of fact are not resolved in the opinion process). To the extent that a court has already made this determination, it is not for this office to question the court's judgment.

We can address your remaining concerns only in general terms. Texas courts have held that a city council has a ministerial duty to order a recall election when the city's charter so requires. Blanchard, 633 S.W.2d at 621-22; Duffy, 828 S.W.2d at 212-13; In re Lee, 412 S.W.3d at *4. Texas courts have further held that the existence of challenges to the sufficiency of the recall petition does not relieve the city council of its duty to follow the charter by ordering a recall election. Duffy, 828 S.W.2d at 214 (stating that the pendency of a declaratory judgment action to determine the sufficiency of a recall petition "does not have any bearing" on the issues in a mandamus proceeding to compel a recall election); Burns, 658 S.W.2d at 733-34 (holding that the court was not required to abate a mandamus proceeding to await the outcome of a suit challenging the "factual sufficiency" of a recall petition). If, however, a court reviewing the sufficiency of the recall petition enjoins the recall election, the city should of course abide by the court's order. See Duffy, 828 S.W.2d at 214 (stating that "[i]f the district court determines that the recall petition is insufficient, then it may enjoin the recall election").

To the extent that a court has already acted in a way that resolves the particular dispute about which you inquire, it is not for this office to question the court's action.

SUMMARY

An individual officeholder who is the subject of a recall petition would generally have standing to file a declaratory action to establish the sufficiency of the recall petition. Whether any particular city can likewise establish standing to challenge the sufficiency of a recall petition is for a court to determine.

The existence of challenges to the sufficiency of a recall petition does not relieve a city council of its duty to order a recall election if the city charter so requires. To the extent that a court has already acted to resolve any particular recall dispute, it is not for this office to question the court's action.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Michael E. Welborn, Dist. Att'y, 36th Jud. Dist., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Apr. 26, 2013) attached to cover letter dated Aug. 19, 2013, http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] See Plaintiff's Original Petition for Declaratory Judgment and Injunctive Relief at 4, City of Sinton v. Rigotti, No. S-12-5822-CV-C (343rd Jud. Dist. Ct., San Patricio Cnty., Tex. Sept. 18, 2012) (on file with the Op. Comm.) ("City's Petition").

[3] The city's lawsuit has been dismissed. See Motion for and Dismissal on Non-Suit, City of Sinton v. Rigotti, No. S-12-5822-CV-C (343rd Jud. Dist. San Patricio Cnty., Tex. Aug. 7, 2013) attached to Request Letter (on file with the Op. Comm.).