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C I TY OF HOU STON interofficeLegal Department Correspondence

To: Ho n. Ann ise D. Parker, Mayo r From: David M. Feidm anand Co unci l Me mb ers City AttorneyV I A Marta Crinejo, Agenda Director

Date: Ma y 27 , 20 11Subject: Te rm limits

OPINION NO. 2011004Th is opinion a ddresse s Art ic le V, sect ion 6a of the City Charter ("Charter") relat ing

to term l imits and the related issue of vacancies in off ice. Th e Ch arter term l imits provisionis a single sentence tha t reads:"No person, who has already served two ful l terms, shal l beeligible to f i le for that same office."

Notwithstanding the reference to " two ful l terms" in the term l imits provision, thisdep artme nt has interpreted this provision to al low a pe rson to serve in an off ice for threeful l terms.1 The Charter prov isions for the ho lding of city general elect ions, cou pled withthe t iming of the fi ling for of f ice under the Tex as E lection Co de, require a person seekinga third term in the "same office" to f i le for reelection during, but prior to, the expirat ion ofthe p erson 's second te rm . El igibil ity for a third term , therefore, exists at the t ime o f f il ingas the person has not, at that t ime, "already served two ful l terms ." This result wi ll alwaysoccur so long as the sec ond and third term s in the sam e off ice are served consecutively.2A break in service in an off ice between the f i rst and second term does not change thisresult. If an elected o fficial do es no t f i le for re-election to his/her off ice while stil l servingin the se con d term in such off ice, then the off ic ial wo uld be term l imited and barred fromrunning for a third term in such off ice.

Prior legal opinions have also establ ished that the Charter provides for o nly threeelective City o f f ice s-M ay or , Counci l Member and C i ty Contro ller.3 Th e analysis of var iousCha rter provisions in City Attorney Opinion 94 0074 provides ample supp ort for the prem isethat the Charter makes no dist inct ion be tween a D istr ict Counci l Mem ber and an At-La rge

1 City Atty. Opin. Nos. 970074 (8/26/94) & 970038 (4/8/97).2 City Atty. Opin. Nos. 970074 (8/26/94)3 Charter, Art. V, 1-6; City Atty. Opin. No. 940074 (8/26/94).

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Hon. Annise D. Parker MayorTerm LimitsPage 2

Council Mem ber and that, forpurposes of term limits, such posit ions constitute the "sam eoffice," i.e., that of Council Member.

Vacancy in officeVacancies in public office are governed by the Texas Const i tut ion, the LocalGovernment Code and, as regards City elective off ices, the City Charter.4 Article 16,section 17 of the C onstitut ion provides that "[a]ll off icers w ithin this State sha ll continue toperform the duties of their off ices until their successors shall be duly quali f ied" and iscom mon ly referred to as the "holdove r rule"; elected city off icials are co nsidered "off icers"for purposes ofArticle 16, section 17.The legal department has recently addressed the law relating to the creation of a"vacancy" in a City elective office in response to an at tempt by a former Council Member

to vacate his office prior to the end of his second term. The t iming of the "resignation"(resignation letter dated and de livered Decem ber 3 0, 200 9), coupled with the date of th eexpiration of the Council Member 's second term (January 1, 2010), appeared to be aneffort to create a vaca ncy in his office prior to the end of his second term a nd thereby avoidthe app lication of the term limits provision. Upon review, we co ncluded (no forma l opinionwas issued) that the C ouncil Mem ber had not created a vacancy, but rather had comp letedhis second term because (1) the "holdover" rule deemed his service inoffice to continueuntil his successo r was app ointed (or elected, i f applicable) and qualif ied for the off ice and(2) the resignation was not accepted by the City Council prior to the expiration of hissecond term.5

Finally, a person elected to fill a vacancy in a City elective office serves only theremainder of the unexpired term in such off ice.6 An individual who serves the unexpiredterm of a former off icer is not deemed to have served a full "term" under a priorinterpretation of the C harter's term limit provision.7

David M. FerclmanCity A ttorney

4 TEX. CONST., Art. X VI, 16, 27; Charter, Art. V I, 4 (Mayor), Art. VII, 2 (Council Mem bers), & Art. VIII, 2a (Controller).5 TEX. E L E C . C O D E , 201.023

T E X . C O N S T . , A R T . 16, 27.

7 City Atty. Opin. No. 970038(4/8/97)