How many votes does a Texas general-law city need to remove a city officer, and what is an emergency-meeting quorum?

Plain-English summary

When a small Texas city wants to fire one of its officers, the number of votes it needs depends on why. The City of Hardin, a Type A general-law municipality with a mayor and five aldermen, ran into a fight over that, and the Liberty County District Attorney asked the AG to sort it out along with two related questions about emergency meetings.

Section 22.077 of the Local Government Code sets out two different removal tracks, and the AG concluded they are alternatives, not a single procedure stacked together. Subsection (a) lets the governing body remove an officer for "incompetency, corruption, misconduct, or malfeasance in office," but only after giving the officer notice and a hearing. That subsection does not state a vote count, so the default rule applies: a majority of a quorum, meaning a majority of the aldermen present and voting. Subsection (b) is the "lack of confidence" route, which can be used at any time and without cause, but it carries a higher price: it is effective only if two-thirds of the elected aldermen vote for the resolution. In Hardin, with five aldermen, that means at least four. Crucially, the AG rejected the idea that the two-thirds threshold in (b) is an extra requirement layered onto (a). A court interpreting the older version of this statute had already called these "two methods," and dividing the statute into separate subsections reinforced that reading.

The other two questions were about emergency meetings. Chapter 22 does not define "called meeting," but the AG read section 22.039 in context: a regular meeting is the one set by resolution under section 22.038(a), and a special meeting is one the mayor calls under section 22.038(b). So a "called meeting" is simply a meeting held at a time or place other than the regular one, and an emergency meeting counts as a called meeting unless it happens at the regular time and place. That matters for quorum: while a regular meeting needs only a majority of aldermen, section 22.039 says a called meeting needs two-thirds. So convening an emergency (called) meeting in Hardin takes a two-thirds quorum of the aldermen.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG 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. Chapter 22 of the Local Government Code and the Open Meetings provisions on emergency meetings may have been amended since 2016, so confirm the current statutes before relying on these specifics.

What the opinion meant for those who asked

The City of Hardin and Type A general-law cities (as the opinion described it): The opinion described section 22.077 as providing two separate removal procedures: a majority of those present and voting for cause under subsection (a) after notice and a hearing, and a two-thirds vote of the elected aldermen for a lack-of-confidence removal under subsection (b).

City officers facing removal (as the opinion described it): The opinion described a for-cause removal as requiring notice and an opportunity to be heard, and a lack-of-confidence removal as requiring two-thirds of the elected aldermen, not merely a majority of those present.

Cities holding emergency meetings (as the opinion described it): The opinion described an emergency meeting held at a time or place other than the regular one as a "called meeting" under section 22.039, for which two-thirds of the aldermen constitute a quorum.

Common questions

How many votes does it take to remove a Texas city officer for misconduct?
The AG concluded that removal under subsection 22.077(a) for incompetency, corruption, misconduct, or malfeasance takes a majority of the aldermen present and voting at a meeting with a quorum, after notice and a hearing.

What about removing an officer for "lack of confidence"?
The AG concluded that subsection 22.077(b) requires two-thirds of the elected aldermen, which in a five-alderman city means at least four, to vote for the no-confidence resolution.

Is the two-thirds vote always required to remove an officer?
No. The AG concluded the two-thirds requirement applies only to the lack-of-confidence route in subsection (b); it is not an extra requirement for a for-cause removal under subsection (a).

Is an emergency meeting a "called meeting"?
The AG concluded an emergency meeting is a called meeting under section 22.039 unless it is held at the regular meeting time and place set by resolution.

What is the quorum for an emergency meeting?
The AG concluded that two-thirds of the municipality's aldermen constitute a quorum for a called emergency meeting of a Type A general-law municipality.

Background and statutory framework

Section 22.077 of the Local Government Code applies to Type A general-law municipalities and authorizes removal of a municipal officer either for cause after notice and a hearing (subsection (a)) or for lack of confidence by a two-thirds vote of the elected aldermen (subsection (b)) (Tex. Loc. Gov't Code §§ 22.077, 22.001). The provision descends from former article 1006 of the Revised Civil Statutes, which a court had read to create "two methods" of removal (Hamilton v. City of Wake Village, 593 F. Supp. 1294; Tex. Gov't Code § 311.023). Because subsection (a) sets no vote count, the default majority-of-a-quorum rule governs (Comm'rs Ct. of Limestone Cty. v. Garrett, 236 S.W. 970; Tex. Gov't Code § 311.013), while subsection (b) expressly requires two-thirds of the elected aldermen (Johnson v. City of Dublin, 46 S.W.3d 401).

On meetings, a Type A municipality sets its regular meeting by resolution and the mayor may call a special meeting (Tex. Loc. Gov't Code § 22.038). Section 22.039 makes a majority of aldermen a quorum for a regular meeting but two-thirds a quorum for a called meeting or a meeting to consider taxes (Tex. Loc. Gov't Code §§ 22.031, 22.037, 22.039). Distinguishing regular from called meetings (Webster v. Tex. & Pac. Motor Transp. Co., 166 S.W.2d 75; Tex. Gov't Code § 551.002), the AG concluded an emergency meeting held away from the regular time and place is a called meeting requiring a two-thirds quorum, while noting it did not address whether an emergency was justified (Tex. Gov't Code § 551.045; Tex. Loc. Gov't Code § 152.015).

Citations

Statutory provisions:

• Tex. Loc. Gov't Code § 22.077 (removal of a municipal officer; two procedures)
• Tex. Loc. Gov't Code § 22.001 (chapter 22 applies only to Type A general-law municipalities)
• Tex. Loc. Gov't Code § 22.031 (composition of the governing body)
• Tex. Loc. Gov't Code § 22.037 (mayor votes only to break a tie)
• Tex. Loc. Gov't Code § 22.038 (regular and special meetings)
• Tex. Loc. Gov't Code § 22.039 (quorum requirements, including for called meetings)
• Tex. Loc. Gov't Code § 152.015 (regular or called commissioners court meeting reference)
• Tex. Gov't Code § 311.013 (quorum of a public body is a majority unless otherwise fixed)
• Tex. Gov't Code § 311.023 (courts may consider former statutory provisions)
• Tex. Gov't Code § 551.002 (open meetings: regular, special, or called meetings)
• Tex. Gov't Code § 551.045 (notice and justification for emergency meetings)

Cases:

• Hamilton v. City of Wake Village, 593 F. Supp. 1294, 1296-97 (E.D. Tex. 1984)
• Comm'rs Ct. of Limestone Cty. v. Garrett, 236 S.W. 970, 973 (Tex. Comm'n App. 1922, judgm't adopted)
• Johnson v. City of Dublin, 46 S.W.3d 401, 409 (Tex. App.-Eastland 2001, pet. denied)
• Webster v. Tex. & Pac. Motor Transp. Co., 166 S.W.2d 75, 77 (Tex. 1942)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0061
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0061.pdf

Original opinion text

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

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 to 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. LOC. 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 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. LOC. GOV'T CODE § 22.077(a). While removal under this 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. LOC. GOV'T CODE § 22.039; see also TEX. GOV'T CODE § 311.013(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. LOC. 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. LOC. 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. LOC. 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:

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. LOC. 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]

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

[1] See Letter from Honorable Logan Pickett, Liberty Cty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (July 31, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] See Brief from Honorable Stephanie Blume, Mayor, City of Hardin at 1 (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, §§ 1, 49, 1987 Tex. Gen. Laws 707, 731, 1306 (amended 2001) (current version at TEX. LOC. 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.

[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. LOC. 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. LOC. GOV'T CODE § 22.037(a) (providing that except in elections, the mayor "may vote only if there is a tie").

[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 § 551.045(a) (describing notice requirements for emergency meetings).

[7] You 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").