City Response To Phyllis Lister Brown

NO.
11-14290-E

PHYLLIS LISTER BROWN, IN THE DISTRICT COURT
Plaintiff,

v. DALLAS COUNTY, TEXAS

CITY OF DALLAS, TEXAS, et al.,
Defendants. 101st JUDICIAL DISTRICT

DEFENDANTS PLEA TO THE JURISDICTION AND APPENDIX

THOMAS P. PERKINS, JR.
Dallas City Attorney

James B. Pinson
Barbara Rosenberg
Assistant City Attorneys

Dallas City Attorneys Office
1500 Marilla Street, Room 7BN
Dallas, Texas 75201
(214) 670-3519 / fax (214) 670-0622
james.pinson@dallascityhall.com
barbara.rosenberg@dallascityhall.com

ATTORNEYS FOR DEFENDANTS,
THE MAYOR AND OTHER MEMBERS
OF THE DALLAS CITY COUNCIL
Filed
11 December 29 P4:14
Gary Fitzsimmons
District Clerk
Dallas District
ii

TABLE OF CONTENTS

INDEX OF AUTHORITIES.......................................................................................................... iv
INTRODUCTION ...........................................................................................................................1
PROCEDURAL AND FACTUAL BACKGROUND.....................................................................2
GROUNDS FOR THE PLEA TO THE JURISDICTION ..............................................................4
1. Brown does not and cannot plead a valid violation of her free speech rights under
the Texas Constitution to establish subject-matter jurisdiction.
2. There is no waiver of immunity to sue the Council Members because removing a
municipal judge from office is not an ultra vires act under the Texas Constitution.
municipal judge from office is not an ultra vires act under the Dallas City Charter.
4. There is no waiver of immunity from Browns suit to enforce city charter
provisions.
5. There is no waiver of immunity from Browns request for relief under the
declaratory judgment act.
6. There is no waiver of immunity from Browns request for injunctive relief.
MATTERS ON WHICH THE COUNCIL MEMBERS RELY ......................................................4
ARGUMENT AND AUTHORITY .................................................................................................5
I. Standard of review for a plea to the jurisdiction. .................................................................5
II. Sovereign immunity protects the Council Members from suit unless there is a
waiver of immunity. .............................................................................................................6
III. Brown does not and cannot plead a valid free speech claim under the Texas
Constitution to invoke the subject-matter jurisdiction of this Court....................................7
IV. There is no waiver of immunity to sue the Council Members because removing a
municipal judge from office is not an ultra vires act under the Texas Constitution. ........10
V. There is no waiver of immunity to sue the Council Members because removing a
municipal judge from office is not an ultra vires act under the city charter. .....................12
A. Removing Brown from office is not an ulta vires act, because the
forfeiture provision does apply to Brown as a matter of law. ............................... 13
iii
B. Removing Brown from office is not an ultra vires act, because even if
Brown is a state judge, the removal will not violate Browns statutory or
constitutional rights or exceed express limitations on the Council
Members powers.................................................................................................. 17
VI. There is no waiver of immunity from Browns suit to enforce Dallas City Charter
provisions. ..........................................................................................................................20
VII. There is no waiver of immunity from Browns request for relief under the
declaratory judgment act. ...................................................................................................21
VIII. There is no waiver of immunity from Browns request for injunctive relief.....................22
PRAYER ........................................................................................................................................22
APPENDIX

Exhibit 1: Plaintiffs Second Amended Original Petition and Application for
Temporary and Permanent Injunction
Exhibit 2: Dallas city ordinance appointing municipal judges in 2010
Exhibit 3: Dallas City Charter provisions regarding municipal judges appointment,
term of office, compensation, and removal
Exhibit 4: Dallas City Charter provision regarding city officer forfeiture of place or
position by becoming a candidate for public office
Exhibit 5: Phyllis Lister Browns application for the ballot in the Democratic primary
Exhibit 6: Elizabeth Davis Frizells 2002 memo regarding her resignation to run for
Dallas County Criminal Court No. 10
Exhibit 7: Texas Attorney General Opinion No. DM-377 (1996)
Exhibit 8: Texas Attorney General Letter Opinion No. 96-014 (1996)
iv
INDEX OF AUTHORITIES
Cases
Anderson v. City of Dallas,
No. 3:98-CV-0793-D, 1999 WL 637223 (N.D. Tex. 1999), affd 218 F.3d 743
(5th Cir. 2000) (table) ....................................................................................................... 21
Barnett v. City of Plainview,
848 S.W.2d 334 (Tex. App.Amarillo 1993, no writ) ........................................ 14, 15, 16
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547 (Tex. 2000) ................................................................................................. 5
Bolton v. Sparks,
362 S.W.2d 946 (Tex. 1962) ............................................................................................. 14
Broadrick v. Okla.,
413 U.S. 601 (1973) ............................................................................................................ 8
City of Brookside Village v. Comeau,
633 S.W.2d 790 (Tex. 1982) ............................................................................................. 15
City of Coppell v. Gen. Homes Corp.,
763 S.W.2d 448 (Tex. App.Dallas 1988, writ denied) ........................................... 14, 15
City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ....................................................................................... 21, 22
City of Lancaster v. Chambers,
883 S.W.2d 650 (Tex. 1994) ............................................................................................... 6
Clements v. Fashing,
457 U.S. 957 (1982) ............................................................................................................ 8
Cnty. of Cameron v. Brown,
80 S.W.3d 549 (Tex. 2002) ................................................................................................. 6
Cobb v. Harrington,
144 Tex. 360, 190 S.W.2d 709 (1945) .............................................................................. 13
Collins v. City of El Campo,
684 S.W.2d 756 (Tex. App.Corpus Christi 1984, writ refd n.r.e.) .............................. 14
Dallas Cnty. v. Wadley,
168 S.W.3d 373 (Tex. App.Dallas 2005, pet. denied) .................................................... 6
v
Dir. of the Dept of Agriculture & Envt v. Printing Indus. Assn,
600 S.W.2d 264 (Tex. 1980) ....................................................................................... 18, 22
Fed. Sign v. Tex. S. Univ.,
951 S.W.2d 401 (1997) ..................................................................................................... 13
Gen. Servs. Commn v. Little-Tex Insulation Co.,
39 S.W.3d 591 (Tex. 2001) ................................................................................................. 7
Griffin v. Hawn,
161 Tex. 422, 341 S.W.2d 151 (1960) .............................................................................. 13
Heard v. City of Dallas,
456 S.W.2d 440 (Tex. Civ. App.Dallas 1970, writ refd n.r.e.) ................................... 14
Johnson ex rel. MAII Holdings, Inc. v. Jackson Walker, L.L.P.,
247 S.W.3d 765 (Tex. App.Dallas 2008, pet. denied) .................................................. 12
Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682 (1949) .............................................................................................. 18, 19, 20
Manning v. Harlan,
122 S.W.2d 704 (Tex. Civ. App.El Paso 1938, writ dismd) ....................................... 17
McLane Co. v. Strayhorn,
148 S.W.3d 644 (Tex. App.Austin 2004, pet. denied).............................................. 6, 12
Mills v. Brown,
316 S.W.2d 720 (Tex 1958) .............................................................................................. 14
Morial v. Judiciary Commn,
565 F.2d 295 (5th Cir. 1977) .......................................................................................... 8, 9
Nueces Cnty. v. San Patricio Cnty.,
246 S.W3d 651 (Tex. 2008) (per curiam) ......................................................................... 20
Operation RescueNatl v. Planned Parenthood of Houston & Se. Tex., Inc.,
975 S.W.2d 546 (Tex. 1998) ............................................................................................... 7
Patterson v. City of Dallas,
355 S.W.2d 838 (Tex. Civ. App.Dallas 1962, writ refd n.r.e.) ................................... 14
Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984) ...................................................................................................... 18, 19
Rossano v. Townsend,
9 S.W.3d 357 (Tex. App.Houston [14th Dist.] 1999, no pet.) ...................................... 14
vi
State v. Williams,
938 S.W.2d 456 (Tex. Crim. App. 1997).......................................................................... 12
Tex. Assn of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993) ....................................................................................... 5, 6, 7
Tex. Dept of Criminal Justice v. Miller,
51 S.W.3d 583 (Tex. 2001) ................................................................................................. 6
Tex. Dept of Transp. v. Jones,
8 S.W.3d 636 (Tex. 1999) ............................................................................................... 5, 6
Tex. Dept of Transp. v. Sefzik,
No. 08-0943, 2011 WL 5041969 (Tex. Oct. 21, 2011) .................................................... 21
Tex. Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ........................................................................................... 5, 6
Tex. Educ. Agency v. Leeper,
893 S.W.2d 432 (Tex. 1994) ............................................................................................. 13
Tex. Natural Res. Conservation Commn v. IT-Davy,
74 S.W.3d 849 (Tex. 2002) ......................................................................................... 12, 13
Thompson v. City of Austin,
979 S.W.2d 676 (Tex. App.Austin 1998, no pet.) .................................................. 15, 21
U.S. Civil Serv. Commn v. Natl Assn of Letter Carriers,
413 U.S. 548 (1973) ............................................................................................................ 8
W.D. Haden Co. v. Dodgen,
158 Tex. 74, 308 S.W.2d 838 (1958) .................................................................... 13, 19, 20
Williams v. Houston Firemens Relief & Ret. Fund,
121 S.W.3d 415 (Tex. App.Houston [1st Dist.] 2003, no pet.) .................................... 20
Statutes
Tex. Govt Code 30.00006..................................................................................................... 3, 15
Tex. Govt Code 30.000085................................................................................. 3, 11, 12, 13, 20
Tex. Govt Code 30.010975....................................................................................................... 11
Tex. Loc. Govt Code 26.041 .................................................................................................... 16
vii
Constitutional Provisions
Tex. Const. art. II, 1 ................................................................................................................... 11
Tex. Const. art. XI, 5.................................................................................................................. 10
Tex. Const. art. XVI, 17 ............................................................................................................. 17
Tex. Const. art. XVI, 65 ............................................................................................................... 7
City Charter Provisions
Dallas, Tex., Charter ch. III, 17 ......................................................................................... 3, 7, 13
Dallas, Tex., Charter ch. VIII, 4 ............................................................................................ 3, 17
Dallas, Tex., Charter ch. VIII, 4A .............................................................................. 3, 13, 16, 20
Dallas, Tex., Charter ch. VIII, 7 .................................................................................................. 3
Other Authorities
Op. Tex. Atty Gen. No. DM-377 (1996) ..................................................................................... 17
Tex. Atty Gen. Op. LO-96-014 (1996) ........................................................................................ 17

Defendants Plea to the Jurisdiction Page 1
NO. 11-14290-E

PHYLLIS LISTER BROWN, IN THE DISTRICT COURT
Plaintiff,

v. DALLAS COUNTY, TEXAS

CITY OF DALLAS, TEXAS, et al.,
Defendants. 101st JUDICIAL DISTRICT

DEFENDANTS PLEA TO THE JURISDICTION
TO THE HONORABLE COURT:
Defendants, the Dallas Mayor and the other Members of the Dallas City Council (the
Council Members), hereby file their plea to the jurisdiction for all claims in Plaintiffs Second
Amended Original Petition and Application for Temporary and Permanent Injunction in the
above-styled and numbered cause. Even though Plaintiff, Phyllis Lister Brown, has amended her
petition in response to the Courts order sustaining the Council Members special exception, the
new amended petition still does not state jurisdictional facts demonstrating a valid cause of
action falling within a constitutional or legislative waiver of the Council Members governmental
immunity from suit and therefore does not invoke the Courts subject-matter jurisdiction.
Therefore, the Court should dismiss this case with prejudice.
INTRODUCTION
Brown asserts three theories that she contends are causes of action. First, she claims to
have a cause of action to prevent the Council Members from exceeding their authority under the
Dallas City Charter by allegedly misapplying the City Officer Resign to Run Provision to her as
a municipal court judge. (Second Am. Pet. [Exhibit 1] at 12-13.) Second, she claims to have a
cause of action to prevent the Council Members from exceeding their authority under the
Separation of Powers Clause and the Home Rule Amendment of the Texas Constitution by
allegedly acting as if they own the municipal court and treating municipal judges as subordinate
officers of the City, who must act under the direction and control of the city council or the city
manager. (Id. at 13-14.) And third, she claims to have a cause of action to prevent the Council
Members from allegedly violating her freedom of speech under the Texas Constitution by
allegedly misapplying the City Officer Resign to Run Provision to remove her from her office of
municipal judge. (Id. at 14.) She seeks a declaratory judgment stating that she as a municipal
judge is not subject to Dallas City Charter chapter III, section 17(a), which requires an
appointive officer of the city who becomes a candidate for nomination or election to any
public office to forfeit his or her position with the city (Id. at 3, 14-15), and temporary and
permanent injunctions to prevent the Council Members from removing her from, or otherwise
treating her as having forfeited, her office based on section 17(a) (Id. at 3, 15-21).
The new amended petition is defective and fails to invoke jurisdiction because it still does
not state jurisdictional facts demonstrating a violation of Browns right to freedom of speech
under the article I, section 8 of the Texas Constitution for her forfeiture of office and removal
under the city charter. Further, the Court does not have subject-matter jurisdiction for Browns
claims that the Council Members actions to remove her would be ultra vires acts under the
Dallas City Charter or the Texas Constitution because she does not and cannot state an ultra
vires act under the city charter or the constitution. Finally, because Brown does not and cannot
allege an ultra vires act, she still fails to allege a waiver of immunity for her claims under the
city charter, and for her requests for declaratory and injunctive relief.
PROCEDURAL AND FACTUAL BACKGROUND
In 2010, Brown was appointed by the Dallas City Council for a two-year term to serve as
a Dallas municipal judge. (Exhibit 2.) A municipal judge holds office for two years from the
date of appointment or until a successor is appointed and qualified, unless sooner removed by the
council. Dallas, Tex., Charter ch. VIII, 4 (Exhibit 3). As a municipal judge, Brown is paid by
and receives benefits from the City of Dallas (the City), Dallas, Tex., Charter ch. VIII, 7
(Exhibit 3), and her salary may not be diminished during her term or made dependent upon court
fines, fees, or costs, Tex. Govt Code 30.00006(h). As a municipal judge, Brown serves as an
officer of the City and is subject to forfeiting her office if she seeks another public office.
Dallas, Tex., Charter ch. III, 17 (Exhibit 4). The charter provides that [i]f . . . any appointive
officer of the city becomes a candidate for nomination or election to any public office, he or she
shall immediately forfeit his or her place or position with the city. Id. On December 15, 2011,
Brown became a candidate for another judicial office. (Exhibit 5.) Thus, on December 15,
2011, Brown forfeited her office of municipal judge. The Government Code authorizes a
municipality to remove a municipal judge. Tex. Govt Code 30.000085 (A municipal judge
of a home-rule municipality may be removed from office by the governing body for the reasons
stated and by the procedures provided for the removal of judges in the charter of the municipality
. . . .). Based on this grant of power to remove, the citizens of Dallas in 2005 adopted a charter
provision that allows the removal of a municipal judge for violations of applicable residency
restrictions and any other qualifications for office or requirements for municipal judges
established by city ordinance, state or federal law, or other applicable law. Dallas, Tex.,
Charter ch. VIII, 4A (emphasis added) (Exhibit 3).
Until 2006, municipal judges and other city officers voluntarily resigned to run for
elective office. (E.g., Exhibit 6.) In 2006, however, Elizabeth Davis Frizell, an associate
municipal judge for the City, refused to resign to run for Dallas County Criminal Court No. 11
although she had previously resigned to run for Dallas County Criminal Court No. 10. (Exhibits
6, 1.) And now Brown apparently refuses to resign and thereby acknowledge the forfeiture of
her office. (Exhibit 1.) Thus, because Brown intends to continue in office as a holdover, the
Council Members will invoke the removal proceedings to enforce the city charter. That action is
authorized and does not violate any of Browns rights under the city charter or the Texas
Constitution to establish jurisdiction to prohibit Browns removal.
In anticipation of the Council Members initiation of the removal process, Brown filed
this suit seeking declaratory and injunctive relief to prevent the Council Members from removing
her from office. (Exhibit 1.)
GROUNDS FOR THE PLEA TO THE JURISDICTION
1. Brown does not and cannot plead a valid violation of her free speech rights under
the Texas Constitution to establish subject-matter jurisdiction.
municipal judge from office is not an ultra vires act under the Dallas City Charter.
4. There is no waiver of immunity from Browns suit to enforce city charter
provisions.
5. There is no waiver of immunity from Browns request for relief under the
6. There is no waiver of immunity from Browns request for injunctive relief.
MATTERS ON WHICH THE COUNCIL MEMBERS RELY
The Council Members rely on the following matters in support of this plea to the
jurisdiction:
Exhibit 1: Plaintiffs Second Amended Original Petition and Application for Temporary and
Permanent Injunction
Exhibit 3: Dallas City Charter provisions regarding municipal judges appointment, term of
office, compensation, and removal
Exhibit 4: Dallas City Charter provision regarding city officer forfeiture of place or position
by becoming a candidate for public office
Exhibit 6: Elizabeth Davis Frizells 2002 memo regarding her resignation to run for Dallas
County Criminal Court No. 10
In addition, the Council Members may rely on any evidence admitted in evidence at the hearing
of this plea to the jurisdiction.
ARGUMENT AND AUTHORITY
I. Standard of review for a plea to the jurisdiction.
A plea to the jurisdiction contests a trial courts subject-matter jurisdiction. Tex. Dept of
Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The purpose of the plea is not to force the
plaintiffs to preview their case on the merits, but to establish a reason why the merits of the
plaintiffs claims should never be reached. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554
(Tex. 2000).
In Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004), the
supreme court explained the proper analysis for deciding whether a plea to the jurisdiction
should be granted. Id. at 226-27. When a plea to the jurisdiction challenges the pleadings, the
court determines whether the pleader has alleged facts that affirmatively demonstrate the courts
jurisdiction to hear the cause. Id. (citing Tex. Assn of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 446 (Tex. 1993)). The court construes the pleadings liberally in favor of the plaintiff and
looks to the pleaders intent. Id. at 226. If the pleadings do not contain sufficient facts to
affirmatively demonstrate the trial courts jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should
be afforded the opportunity to amend. Id. at 226-27 (citing Cnty. of Cameron v. Brown, 80
S.W.3d 549, 555 (Tex. 2002)). If the pleadings affirmatively negate the existence of jurisdiction,
then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to
amend. Id. at 227.
II. Sovereign immunity protects the Council Members from suit unless there is a
waiver of immunity.
In Texas, sovereign immunity deprives a trial court of subject-matter jurisdiction for
lawsuits against the State or other governmental units unless the State consents to suit. See
Miranda, 133 S.W.3d at 224; Dallas Cnty. v. Wadley, 168 S.W.3d 373, 376 (Tex. App.Dallas
2005, pet. denied). A suit that seeks to control a state officials exercise of discretion within her
legal authority is a suit to control state action and cannot be maintained without legislative
permission. McLane Co. v. Strayhorn, 148 S.W.3d 644, 649 (Tex. App.Austin 2004, pet.
denied). A discretionary act is one that requires the exercise of personal deliberation, decision
and judgment. City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994).
To establish subject-matter jurisdiction against a governmental unit, a plaintiffs pleading
must establish, either by reference to a statute or express legislative permission, the legislatures
consent to its lawsuit, or immunity from suit will deprive the trial court of subject-matter
jurisdiction. Jones, 8 S.W.3d at 638. Mere reference to a legislative waiver, however, does not
establish a governmental entitys consent to be sued and is not enough to confer jurisdiction on
the trial court. See Tex. Dept of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)
(holding that merely alleging the Tort Claims Act is not sufficient to establish jurisdiction). The
plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-
matter jurisdiction. See Tex. Assn of Bus., 852 S.W.2d at 446. For the waiver to be effective, a
plaintiff must plead a constitutional or legislative waiver with facts that make the waiver
applicable. See Gen. Servs. Commn v. Little-Tex Insulation Co., 39 S.W.3d 591, 599 (Tex.
2001) (holding that the plaintiff had failed to allege facts to demonstrate a valid takings claim to
invoke a waiver of immunity from suit); Tex. Assn of Bus., 852 S.W.2d at 446 (holding that the
pleader must allege facts that affirmatively demonstrate the courts jurisdiction to hear the
cause).
III. Brown does not and cannot plead a valid free speech claim under the Texas
Constitution to invoke the subject-matter jurisdiction of this Court.
Brown claims that the forfeiture provision of the city charter violates her freedom of
speech rights under the Texas Constitution. (Exhibit 1, at 14 42.) She does not plead any facts
that would implicate her constitutional rights, nor can she. Her complaint about the forfeiture of
the office of municipal judge does not implicate free speech rights. Browns speech rights under
the Texas Constitution are analyzed using the same standard as they would be analyzed under the
First Amendment to the Federal Constitution. See Operation RescueNatl v. Planned
Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 559 (Tex. 1998). And in fact, the
Supreme Court of the United States and the Fifth U.S. Circuit Court of Appeals have upheld the
constitutionality of similar forfeiture provisions.
For example, the Texas Constitution has a forfeiture provision for county officeholders,
including judges, that is similar to the city charters forfeiture provision. Compare Tex. Const.
art. XVI, 65 with Dallas, Tex., Charter ch. III, 17. If a county judge
becomes a candidate, in any General, Special or Primary Election,
for any office of profit or trust under the laws of this State or the
United States other than the office then held, at any time when the
unexpired term of the office then held shall exceed one year and 30
days, such announcement or such candidacy shall constitute an
automatic resignation of the office.
Tex. Const. art. XVI 65. The Supreme Court has held that this clause, providing for forfeiture
when the officer seeks another office, was not a violation of the First Amendment. Clements v.
Fashing, 457 U.S. 957, 971-72 (1982). The Court concluded that the burden on the office-
holders First Amendment interests in candidacy were insignificant. Id. at 971.
Similarly, the Fifth Circuit has held that enforcement of forfeiture provisions similar to
the city charters forfeiture provision is not subjected to the strictest constitutional scrutiny.
Morial v. Judiciary Commn, 565 F.2d 295, 302 (5th Cir. 1977). The Council Members are
required to show only a reasonable necessity for the forfeiture requirement when an officer runs
for office. Brown does not and cannot plead facts demonstrating that her interests are sufficient
to negate the Council Members reasonable necessity under the Morial standard for her
challenge to the forfeiture provision.
In Morial, prior to filing for election, an appellate judge challenged a Louisiana Supreme
Court rule that required judges to resign their office before running for a nonjudicial office.
Morial, 565 F.2d at 299. The Fifth Circuit recognized that the Supreme Court has approved
restrictions on the rights of federal employees to be partisan candidates for elective office. Id.
(citing U.S. Civil Serv. Commn v. Natl Assn of Letter Carriers, 413 U.S. 548 (1973);
Broadrick v. Okla., 413 U.S. 601 (1973)). The court noted that the Supreme Court uses different
standards of scrutiny depending on the severity of impairment of First Amendment interests, id.
at 300, and that the Supreme Court has not declared the right to candidacy fundamental, id. at
301.
In reviewing the impact of the Louisiana rule, the Fifth Circuit came to the conclusion
that the reasonable necessity standard applied. Id. at 302. It reached that conclusion by
analyzing first the judges interests in being free to run while retaining his seat. Id. at 301.
Morial, a judge on an intermediate appellate court in Louisiana, would have to give up a
remunerative position of considerable prestige and power in order to run. Second, the court then
looked at the effect of the provision on the First Amendment. The Louisiana rule did not did not
burden the judges right to vote for the candidate of his choice or make statements regarding his
private opinions on public issues outside the campaign context, nor did it penalize his belief in
any particular idea. No core values were implicated. The court then evaluated the impact on the
voters. Id. at 301-02. The court found that that effect to be even less substantial. The restriction
did not exclude candidates from an identifiable group or viewpoint. Third and finally, the court
analyzed whether excluding a judge impacted the availability of candidates. Id. at 302. The
court held that it did not have any more of a qualitative effect on the interest of the voters than
excluding federal or state employees. Accordingly, the state was required to show only a
reasonable necessity for requiring judges to resign before becoming candidates.
This case is similar to Morial. Morials position was a full-time paid position, as is
Browns. While Morials position as an appeals court judge was of significant prestige and
power, Browns position as a municipal judge has less prestige and power. Similarly, Browns
core Texas constitutional right to vote or speak out has not been affected by the charter
provision. As with Morial, the impact of the provision on Brown is not substantial. Not only is
the impact on Brown insubstantial, but the forfeiture and removal provisions have less impact on
the voters. Like the rule in Morial, the charter does not restrict candidates from an identifiable
group or viewpoint. As in Morial, exclusion of municipal judges does not have any more of an
effect on the pool of candidates than exclusion of state and federal employees under similar
provisions. Therefore, as in Morial, the proper level of scrutiny requires the Council Members to
show only a reasonable necessity.
The Citys forfeiture requirement provision is reasonably necessary to achieve legitimate
city interests. The city charter section providing that council appointees forfeit their office by
running for another office has been a part of the charter since at least 1907. The City has a long
history of preventing city positions from being used as a platform for elective office or to inject
partisan politics into the Citys workings. This forfeiture provision encourages the appointed
officials to devote themselves only to the office to which they were appointed. The provision
prevents officials from using their city title as a stepping stone to higher office. For example,
it prevents the abuse of office before and after the election. It prevents appointed officials from
fundraising using the influence of their office. It also prevents judges from trying to influence
attorneys, parties, and venires. The Citys forfeiture requirement is designed to insure the actual
and perceived integrity of city officers, including, in this case, municipal judges. The City wants
to prevent abuse of judicial office by a judge-candidate during the course of a campaign. The
City also wants to prevent abuse of the judicial office by judges who have lost their electoral bids
and return to the bench. The City has an interest in eliminating even the appearance of
impropriety by judges both during and after the campaign. The City is particularly interested in
preventing undue influence and the appearance of impropriety with appointed officials using
their offices to engage in fundraising. Under Morial, this rationale is sufficient to uphold the
provision as constitutional.
Accordingly, Brown does not and cannot plead a valid free speech claim. The court
should dismiss this claim for want of jurisdiction.
IV. There is no waiver of immunity to sue the Council Members because removing a
Brown acknowledges that the Texas Constitution empowers home-rule municipalities to
adopt charters so long as the charters do not conflict with the constitution or general laws.
(Second Am. Pet. [Exhibit 1] at 13 [citing Tex. Const. art. XI, 5].) She does not and cannot
allege any conflict based on a limitation of home-rule powers because nothing in the Citys
charter provision conflicts with any provision of the state constitution or a state statute. In fact,
the charter provision that allows the removal is authorized by a state statute, Texas Government
Code section 30.00085. The statute allows a home-rule municipality to set the reasons for
removal in the charter. Tex. Govt Code 30.00085. And the charter provides for a municipal
officers forfeiture of her position when she seeks an elective office and also provides for that
officers removal from office. There is nothing unusual about the forfeiture provision in the
Citys charter. The Citys forfeiture provision is similar to other statutory provisions for
municipal courts of record. For example, Government Code section 30.010975, applicable to the
City of Carrollton, provides for the automatic resignation of a judge:
If the municipal judge or an assistant municipal judge announces a
candidacy or becomes a candidate in a general, special, or primary
election, for any office of profit or trust under the laws of the state
or the United States, the announcement or the candidacy
constitutes an automatic resignation of the appointment, effective
the date of the announcement or candidacy.
Tex. Govt Code 30.010975. Thus, the city charter removal provisions are consistent with and
authorized by state statute.
Nevertheless, Brown asserts that the Dallas City Council will be violating the separation
of powers provision of the Texas Constitution if it removes her from office. (Second Am. Pet.
[Exhibit 1] at 13-14.) Article II, section 1 of the Texas Constitution provides that the Texas
government shall consist of three distinct departments, legislative, executive, and judicial; and
no person or collection of persons, being one of these departments, shall exercise any power
properly attached to either of the others, except in the instances herein expressly permitted.
Tex. Const. art. II, 1. The separation of powers clause may be violated in either of two ways:
(1) one branch of government assumes or is delegated a power that is more properly attached to
another branch, or (2) one branch unduly interferes with another branch to the extent that the
other branch cannot effectively exercise its constitutional powers. Johnson ex rel. MAII
Holdings, Inc. v. Jackson Walker, L.L.P., 247 S.W.3d 765, 777 (Tex. App.Dallas 2008, pet.
denied) (citing State v. Williams, 938 S.W.2d 456, 458 (Tex. Crim. App. 1997). The judicial
power encompasses the authority to hear evidence, resolve issues of fact, decide questions of
law, and enter judgments in accordance with the facts and the law. Id. Brown does not and
cannot allege that the Council Members, by removing her from office, are assuming a judicial
function delegated to a municipal court. In fact, the power to remove municipal judges from
office has been delegated to the city council. Tex. Govt Code 30.00085. Moreover, removing
a judge from office for seeking higher office does not interfere with the functioning of the
municipal court. The action actually insures that the duties of the judge of the municipal court
are effectively exercised without the distraction of campaigning and fundraising. Accordingly,
Brown does not and cannot allege facts demonstrating a violation of the separation of powers
under the Texas Constitution to support a claim that removing Brown from office is an ultra
vires act.
V. There is no waiver of immunity to sue the Council Members because removing a
municipal judge from office is not an ultra vires act under the city charter.
Brown asserts that the forfeiture provision of the charter does not apply to municipal
judges. Based on that assertion she claims that her removal under the charter would be an ultra
vires act. Thus, she seeks to control council action, preventing it from voting on whether to
remove her from office. A suit that seeks to control a state officials exercise of discretion within
her legal authority is a suit to control state action and cannot be maintained without legislative
permission. McLane Co., 148 S.W.3d at 649. A suit to compel a state officer to act within his or
her official capacity does not attempt to subject the State to liability. Tex. Natural Res.
Conservation Commn v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (citing Griffin v. Hawn, 161
Tex. 422, 341 S.W.2d 151, 152 (1960)). Therefore, in order to seek declaratory relief against the
Council Members, Brown must show that in removing her from office the Council Members
would act without legal or statutory authority. See IT-Davy, 74 S.W.3d at 855 (Private parties
may seek declaratory relief against state officials who allegedly act without legal or statutory
authority.) (citing Tex. Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994); W.D. Haden Co.
v. Dodgen, 158 Tex. 74, 75, 308 S.W.2d 838, 838 (1958)); Fed. Sign v. Tex. S. Univ., 951
S.W.2d 401, 405 (1997) ([A] an action to determine or protect a private partys rights against a
state official who has acted without legal or statutory authority is not a suit against the State that
sovereign immunity bars.) (citing Cobb v. Harrington, 144 Tex. 360, 366, 190 S.W.2d 709, 712
(1945)).
A. Removing Brown from office is not an ulta vires act, because the forfeiture
provision does apply to Brown as a matter of law.
In this case, the Council Members will not act outside the limits of their powers if they
vote to remove Brown from office for becoming a candidate for election as a district judge,
because the forfeiture provision unambiguously does apply to municipal judges. State law
expressly authorizes the city council to remove a municipal judge for the reasons stated and by
the procedures for removal of judges provided in the city charter. Tex. Govt Code 30.000085.
The city charter allows the removal of a municipal judge for violations of any . . . qualifications
for office or requirements for municipal judges established by city ordinance, state or federal
law, or other applicable law. Dallas, Tex., Charter ch. VIII, 4A(2) (Exhibit 3). And the
charter, which is other applicable law, provides that [i]f . . . any appointive officer of the city
becomes a candidate for nomination or election to any public office, he or she shall immediately
forfeit his or her place or position with the city. Id. ch. III, 17 (Exhibit 4). This charter
provision makes it a requirement for municipal judges that they not become candidates for other
public offices.
As the basis of her ultra vires claim, Brown seeks a construction of the forfeiture
provision that would exclude municipal judges from its application. She argues that she is not an
appointive officer of the City but rather is an officer of the State (Second Am. Pet. [Exhibit 1] at
5), but that argument fails as a matter of law. Courts construe city charter provisions and city
ordinances by the same rules of construction that apply to statutes. Mills v. Brown, 316 S.W.2d
720, 723 (Tex 1958) (The same rules apply to the construction of municipal ordinances as to the
construction of statutes.), cited in Patterson v. City of Dallas, 355 S.W.2d 838, 841 (Tex. Civ.
App.Dallas 1962, writ refd n.r.e.); Rossano v. Townsend, 9 S.W.3d 357, 363 (Tex. App.
Houston [14th Dist.] 1999, no pet.) (We construe a city charter provision according to the rules
governing the interpretation of statutes generally.). A court must construe a city charter to give
effect to the intent and must construe the language as it is written, unless this would defeat the
intent. Barnett v. City of Plainview, 848 S.W.2d 334, 339 (Tex. App.Amarillo 1993, no writ).
Likewise, in construing a city ordinance, the courts primary duty is to carry out the intentions of
the municipal legislative body. City of Coppell v. Gen. Homes Corp., 763 S.W.2d 448, 453
(Tex. App.Dallas 1988, writ denied) (citing Bolton v. Sparks, 362 S.W.2d 946, 951 (Tex.
1962); Collins v. City of El Campo, 684 S.W.2d 756, 759 (Tex. App.Corpus Christi 1984, writ
refd n.r.e.); Heard v. City of Dallas, 456 S.W.2d 440, 444 (Tex. Civ. App.Dallas 1970, writ
refd n.r.e.)). In determining an ordinances purpose, the court must look to the plain language
used in the ordinance and may not go beyond that language. Gen. Homes Corp., 763 S.W.2d at
453-54. The court must examine the wording of the entire ordinancenot just one word or
phraseto determine the underlying intent of the municipal legislative body. Id. The court
should give the language used in an ordinance its ordinary meaning and, if it is capable of more
than one meaning, should give it the meaning that will carry out the manifest purpose of the
ordinance. Id. A city ordinance or Charter provision is presumed to be valid, and the courts
have no authority to interfere unless it is unreasonable and arbitrary, amounting to a clear abuse
of municipal discretion. Barnett, 848 S.W.2d at 338 (citing City of Brookside Village v.
Comeau, 633 S.W.2d 790, 792 (Tex. 1982)).
Brown seeks an interpretation of the charter that a municipal judge is not an appointive
officer of the City. (Exhibit 1, at 7.) Her assertion is contradicted by the plain meaning of the
terms. Brown is appointed. She was appointed by the Dallas City Council for a two-year term to
serve as a Dallas municipal judge. (Exhibit 2.) She holds office for two years from the date of
appointment or until a successor is appointed and qualified, unless sooner removed by the
council. Dallas, Tex., Charter ch. VIII, 4 (Exhibit 3). As a municipal judge, Brown is paid and
receives benefits from the City of Dallas, Dallas, Tex., Charter ch. VIII, 7 (Exhibit 3), but her
salary may not be diminished during her term or made dependent upon court fines, fees, or costs,
Tex. Govt Code Ann. 30.00006(h). She is also an officer of the City. See Thompson v. City of
Austin, 979 S.W.2d 676, 682 (Tex. App.Austin 1998, no pet.) (holding that an Austin
municipal judge was an officer). The intent that is manifest from an examination of the entire
charter is that all persons who are employees and decision makers for the City may not remain
employees or officers of the City while they seek other public office. In the context of the
charter provision, there is no intent that municipal judges would be excluded from the
prohibition while all other officers and employees of the City would be subject to it. Thus, the
language of the city charters forfeiture provision applies to Brown as an appointive judicial
officer of the City.
Section 26.041 of the Local Government Code grants home-rule municipalities broad
authority to create and regulate municipal offices:
The [home-rule] municipality may:
(1) create offices;
(2) determine the method for selecting officers; and
(3) prescribe the qualifications, duties, and tenure of
office for officers.
Tex. Loc. Govt Code 26.041. The charter provision that [i]f . . . any appointive officer of the
city becomes a candidate for nomination or election to any public office, he or she shall
immediately forfeit his or her place or position with the city is a qualification for office within
the authority of the City under section 26.041, which may be applied to its municipal judges. See
Barnett 848 S.W.2d at 339 (Tex. App.Amarillo 1993, no writ) (While [Local Government
Code chapter 26] expressly provides for a minimum term of two years for a municipal court
judge, the existence of the limitation does not preclude the City from making provisions
governing the creation of the office, the selection of the judge, and prescribing his qualifications
and duties.) (citing Tex. Loc. Govt Code 26.041).
Brown also argues that the general prohibition does not apply because the specific
provisions of the charter involving removal of municipal judges conflicts with the general
forfeiture provision. There is no conflict. The removal provision allows for the removal of a
municipal judge who does not meet the requirements for municipal judges established by city
ordinance, state or federal law, or other applicable law. Dallas, Tex., Charter ch. VIII, 4A(2)
(Exhibit 3). The forfeiture provision is just such a requirement of other law.
The fact that one provision provides the forfeiture and the other allows removal does not
present a conflict either. The Texas Constitution states that all officers within the State shall
continue to perform the duties of their offices until their successors shall be duly qualified. Tex.
Const. art. XVI, 17. The charter, similarly, provides for holdover status for a municipal judge.
See Dallas, Tex., Charter ch. VIII, 4 (Each municipal judge shall hold office for two years
from the date of appointment or until a successor is appointed and qualified, unless sooner
removed by the council.) (Exhibit 3). The commentary to the constitutional section provides
that the provision was placed in the Texas Constitution, in part, to prevent public convenience
from suffering because of a vacancy in the office . . . . Tex. Const. art. XVI, 17 interp.
commentary. The holdover status applies to forfeiture provisions for county and city officials.
Op. Tex. Atty Gen. No. DM-377 (1996) (Exhibit 7); Tex. Atty Gen. Op. LO-96-014 (1996)
(Exhibit 8). However, the right to hold over does not reside in one who has been removed from
office. See Manning v. Harlan, 122 S.W.2d 704, 707 (Tex. Civ. App.El Paso 1938, writ
dismd). The Council Members use of the removal procedure will effectuate the forfeiture of
Browns office and the termination of her status as municipal judge for the City.
Thus, contrary to Browns allegations, the Council Members have authority to remove
her when she is a candidate for office. Accordingly, this Court should dismiss this ultra vires
claim for want of jurisdiction.
B. Removing Brown from office is not an ultra vires act, because even if Brown
is a state judge, the removal will not violate Browns statutory or
constitutional rights or exceed express limitations on the Council Members
powers.
Furthermore, even if the forfeiture provision does not apply to municipal judges, the
Dallas City Council will not act outside the limits of its powers if it votes to remove Brown from
office based on that provision. Sovereign immunity is not avoided as to any and every claim that
an officer is acting unlawfully. To be acting ultra vires, an officer must be acting outside the
limits of the officers powers. Assuming arguendo that the forfeiture provision does not apply to
Brown, then the Council Members removal of Brown from office for the reason that she
forfeited her position as municipal judge would be incorrect, but that does not make the Council
Members exercise of the removal power unauthorized or void. A plaintiff can avoid sovereign
immunity under the ultra vires theory only when a government officer has acted in a complete
absence of authority, either by violating the plaintiffs statutory or constitutional right or by
acting in excess of express limitations of the officers powers. Cf. Larson v. Domestic &
Foreign Commerce Corp., 337 U.S. 682, 702 (1949) (holding that conduct is ultra vires only if
it is not within the officers statutory powers or, if within those powers, only if the powers, or
their exercise in the particular case, are constitutionally void). A plaintiff may seek injunctive
relief when the government officer acts in a way that exceeds the officers authority granted by
the constitution. Dir. of the Dept of Agriculture & Envt v. Printing Indus. Assn, 600 S.W.2d
264, 265-66 (Tex. 1980). The removal of Brown for becoming a candidate for another public
office would be ultra vires only if there were a statutory denial of that power or if a
constitutional limitation made the exercise of that power, at least in the circumstances of this
case, constitutionally void. Brown does not allege such a statutory denial of power to remove or
a valid constitutional limitation that would make her removal from office void.
The Supreme Court of the United States has rejected the view of agency law that would
treat all allegedly illegal actions of government officers as ultra vires their authority and hence
as not being actions of the sovereign. Instead, the Supreme Court has held that an ultra vires
claim requires that the challenged actions be either completely outside the officers delegated
powers or else constitutionally void. In Pennhurst State School & Hospital v. Halderman, 465
U.S. 89 (1984), for example, the Supreme Court held that state sovereign immunity prevents a
federal court from requiring a state officer to conform his conduct to state law when the relief
sought has a direct impact on the State itself. Id. at 117. Pennhurst was a plaintiff class action
involving a claim that governmental action was ultra vires because it violated legislation.
Specifically, the plaintiffs asserted a pendent state-law claim that the conditions at a state
institution for the mentally retarded violated a state statute. Id. at 92. They sought both damages
and injunctive relief. Id. The court of appeals concluded that the state law required habilitation
of the mentally retarded in the least restrictive environment, and held that the Eleventh
Amendment did not bar a federal court from considering this pendent claim. Id. at 95-96. The
Supreme Court reversed, finding the Eleventh Amendment challenge dispositive. Id. at 97. The
majority, among other things, rejected the dissents theory that an allegation that official
conduct is contrary to a state statute would suffice to override the States protection under th[e
Eleventh] Amendment. Id. at 106. The Court held that an error of law by state officers acting
in their official capacities will not suffice to override the sovereign immunity of the State where
the relief effectively is against it. Any resulting disadvantage to the plaintiff was outweigh[ed]
by the necessity of permitting the Government to carry out its functions unhampered by direct
judicial intervention.] Id. at 114.
The Texas Supreme Court has similarly rejected the view of agency law that would treat
as ultra vires alleged mistakes by government officers in the application of state law. In W.D.
Haden Co., 158 Tex. 74, 308 S.W.2d 838, the Court quoted with approval the following passage,
among others, from Larson, 337 U.S. 682:
It is argued that an officer given the power to make decisions is
only given the power to make correct decisions. If his decisions
are not correct, then his action based on those decisions is beyond
his authority and not the action of the sovereign. There is no
warrant for such a contention in cases in which the decision made
by the officer does not relate to the terms of this statutory authority
. . . .
W.D. Haden Co., 158 Tex. at 81-82, 308 S.W.2d at 842 (quoting Larson, 337 U.S. at 695). And
the court held in Nueces Cnty. v. San Patricio Cnty., 246 S.W3d 651, 562 (Tex. 2008) (per
curiam), that a countys mistaken taxation of property in another county is not an action beyond
its delegated constitutional authority. See also Williams v. Houston Firemens Relief & Ret.
Fund, 121 S.W.3d 415, 430 (Tex. App.Houston [1st Dist.] 2003, no pet.) (holding that a
complaint of erroneous statutory interpretation does not invoke the ultra vires doctrine).
Here, state law authorizes the City through its city council to remove a municipal judge
for the reasons stated and by the procedures for removal of judges provided in the city charter.
Tex. Govt Code 30.000085. Browns allegation of the Council Members threatened violation
of the removal provision, Dallas, Tex., Charter ch. VIII, 4A(2), does not relate to the terms of
the Council Members statutory authority to remove a municipal judge. That is, the Council
Members are authorized to remove a municipal judge for reasons statedregardless of
whether the reasons are correctand by the procedures for removal in the city charter, which
procedures Brown does not challenge. Furthermore, Brown does not and cannot assert any valid
constitutional claims that would raise an issue regarding the validity of any threatened removal.
Because Brown challenges only the correctness of the alleged anticipated basis for removal and
does not assert actions that would be ultra vires, her ultra vires claims are barred by the Citys
governmental immunity from suit which protects the Council Members in their official
capacities.
VI. There is no waiver of immunity from Browns suit to enforce Dallas City Charter
provisions.
Brown asserts she has a cause of action to prevent the Council Members from allegedly
misapplying the City Officer Resign to Run Provision to her as a municipal court judge. (Second
Am. Pet. [Exhibit 1] at 12-13.) Because Brown is unable to state a valid ultra vires cause of
action, she must plead a waiver of immunity. There is no waiver of governmental immunity for
this claim. A private cause of action does not exist for an alleged violation of the city charter.
Thompson, 979 S.W.2d at 679 (holding there was no private right of action created by length-or-
term provisions for municipal court judges); Anderson v. City of Dallas, No. 3:98-CV-0793-D,
1999 WL 637223, at *4 (N.D. Tex. 1999) (holding there was no implied private right of action
for violation of the Dallas City Charter), affd 218 F.3d 743 (5th Cir. 2000) (table). After
amending her petition by order of this Court, Brown still has pled no authority and has no
authority that governmental immunity is waived for a cause of action to enforce the city charter.
VII. There is no waiver of immunity from Browns request for relief under the
Brown sues for a declaratory judgment stating that she as a municipal judge is not subject
to Dallas City Charter chapter III, section 17(a), which requires an appointive officer of the
city who becomes a candidate for nomination or election to any public office to forfeit his or
her position with the city. (Second Am. Pet. [Exhibit 1] at 3, 14-15.) Because Brown is unable
to state a valid ultra vires cause of action, she must plead a waiver of immunity. The Uniform
Declaratory Judgments Act does not waive the states sovereign immunity when the plaintiff
seeks a declaration of his or her rights under a statute or other law. Tex. Dept of Transp. v.
Sefzik, No. 08-0943, 2011 WL 5041969, at *2 (Tex. Oct. 21, 2011). For a claim challenging the
validity of an ordinance or statute, the UDJA requires the appropriate government entity to be
joined, thereby waiving immunity. City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex.
2009). But Brown is not challenging the validity of an ordinance; instead, she is challenging the
Council Members actions under it, and she does not and cannot cite a provision of the UDJA
that waives immunity for such a claim. See Sefzik, 2011 WL 5041969, at *3 (But Sefzik is not
challenging the validity of a statute; instead, he is challenging TxDOTs actions under it, and he
does not direct us to any provision of the UDJA that expressly waives immunity for his claim.).
After amending her petition by order of this Court, Brown still has pled no authority and has no
authority that governmental immunity is waived for the declaratory judgment she requests.
VIII. There is no waiver of immunity from Browns request for injunctive relief.
Finally, Brown sues for temporary and permanent injunctions to prevent the Dallas City
Council from removing her from, or otherwise treating her as having forfeited, her office based
on Dallas City Charter chapter III, section 17(a). (Second Am. Pet. [Exhibit 1] at 3, 15-21.)
Because Brown is unable to state a valid ultra vires cause of action, she must plead a waiver of
immunity. The supreme court has held that sovereign immunity applies to suits for injunctive
relief. See, e.g., Dir. of the Dept of Agric. & Envt v. Printing Indus. Assn, 600 S.W.2d at 270
(holding that the State was immune from a suit for injunctive relief). That court has also held
that sovereign immunity does not preclude prospective injunctive remedies in official-capacity
suits against government actors who violate statutory or constitutional provisions. Heinrich, 284
S.W.3d at 369. In other words, governmental entities maintain their sovereign immunity for
claims for declaratory or injunctive relief that is prospective in nature. After amending her
petition by order of this Court, Brown still has pled no authority and has no authority that
governmental immunity is waived for the injunctive relief she requests.
PRAYER
WHEREFORE, the Council Members request that this Court grant Defendants Plea to
the Jurisdiction and dismiss this cause for want of subject-matter jurisdiction.
Respectfully submitted,

THOMAS P. PERKINS, JR.
Dallas City Attorney

/s/ James B. Pinson
James B. Pinson
Texas Bar No. 16017700
Barbara Rosenberg
Texas Bar No. 17267700
Assistant City Attorneys

Dallas City Attorneys Office
1500 Marilla Street, Room 7BN
Dallas, Texas 75201
(214) 670-3519 / fax (214) 670-0622
james.pinson@dallascityhall.com
barbara.rosenberg@dallascityhall.com

ATTORNEYS FOR DEFENDANTS,
THE MAYOR AND OTHER MEMBERS
OF THE DALLAS CITY COUNCIL

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing instrument was served by certified mail on
December 29, 2011, upon the following person:
Mr. T. Ray Guy
Weil, Gotschal & Manges LLP
200 Crescent Court, Suite 300
Dallas, Texas 75201-6950
Attorney for Judge Phyllis Lister Brown

/s/ James B. Pinson
James B. Pinson

APPENDIX

Exhibit 1: Plaintiffs Second Amended Original Petition and Application for Temporary and
Permanent Injunction
Exhibit 3: Dallas City Charter provisions regarding municipal judges appointment, term of
office, compensation, and removal
Exhibit 4: Dallas City Charter provision regarding city officer forfeiture of place or position
by becoming a candidate for public office
Exhibit 6: Elizabeth Davis Frizells 2002 memo regarding her resignation to run for Dallas
County Criminal Court No. 10

Filed
11 December 16 P2:19
Gary Fitzsimmons
District Clerk
Dallas District
Exhibit 1
City of Dallas
STATE OF TEXAS
S
COUNTY OF DALIAS
$
CITY OF DAL1AS $
l, ROSA A. RIOS, Acting City Secretary, of the City of Dallas, Texas, do hereby
certify that the attached is a true and correct copy of:
ORDINANCE NO. 27928
Which was passed by the Dallas City Council on June 23,2010.
WITNESS MY HAND AND THE SEAL OF THE CITY OF DALLAS, TEXAS, this thE
28th day of December, 2011.
ACTING CITY SECRETARY
CITY OF DALLAS, TEXAS
Prepared By: AG
ROSA A. RIOS
OFFICE OF THE CITY SECRETARY CITY HALL DALLAS, TEXAS 7520,1 TELEPHONE 214-670.3734
Exhibit 2
1016
87
June 23, 201 0
ORDINANCE
27 928
An ordinance appointing certain
persons as full{ime municipal
judges
and associate
(part-time) municipal
judges
for a two-year term ending May 31, 2012; designating
Victor Lander as administrative municipal
judge
for a two-year term ending May 31,
2Q12; establishing the annual salaries for the administrative municipal
judge,
full-time
municipal
judges
and associate municipal
judges; providing restrictions on the practice
of law by fulltime municipal
judges; providing a severability clause; and
providing
an
effective date.
WHEREAS, state law (Chapters 29 and 30, Texas Government Code) and Chapter Vll
of the Dallas City Charter
provide
that the municipal court of record be
presided
over
by municipal court
judges;
and
WHEREAS, the Dallas City Charter
provides that the city council shall appoint the
municipal court
judges
and designate the administrative
judge
biennially in May of each
even-numbered year to serve a two-year term; and
WHEREAS, as required by Section 13-5.2(d) of the Dallas City Code, on May 24,2010
the
judicial
nominating commission recommended to the city council ad hoc legislative
committee 18 nominees for eleven full-time municipal
judge
vacancies and 28
nominees for 18 associate municipaljudge vacancies; and
WHEREAS, as required by Section 13-5.2(g) of the Dallas City Code, on June 18, 2010
the
judicial
nominating commission recommended to the full city council for its
consideration three nominees for administrative municipaljudge vacancy; and
WHEREAS, on June 1 and 3, 2010, the ad hoc legislative committee interviewed the
nominees for the full-time municipal
judge
vacancies and the administrative municipal
judge
vacancy and forwarded its list of nominees for the administrative, full-time and
associate municipaljudge vacancies, to the city council; and
WHEREAS, on June 23, 2010, the city council, at its regularly scheduled meeting,
considered the full-time and associate municipal
judge
nominees and the nominees for
administrative municipal
judge;
Now, Therefore,
-{r','
t . ,
"
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DALLAS:
27 928
101687
following eleven
persons are appointed as full-time municipal
Dallas municipal court of record for a two-year term ending May
Carrie Chavez
Tim Gonzalez
Mi chael Acufra
Ruth Catherine Logan
David Indorf
Section 1. That the
judges
for the City of
31,2012:
Victor Lander
Section 2. That the following 18 persons are appointed as associate municipal
judges
for the City of Dallas municipal court of record for a two-year term ending May 31
,2012:
Phyllis Lister-Brown
Daniel Solis
Jay Robinson
Cheryl Wi l l i ams
Julie Clancy
Raquel Brown
Roland Anderson
Preston Robinson, Jr.
Melodee Armstrong-Mota
Anthony Randall
Jennifer Goldman
Marilyn Davis
Esther Grossman
Raul Elizondo
Carl Hays
Daniel McDonald
John McCully
Ti m Menchu
Stephen Autrey
Monica Purdy
Frieda Fiske
Tonya Goffrey
E.A. Srere
Section 3. That Victor Lander is hereby designated administrative municipal
judge
for
the City of Dallas municipal court of record for a two-year term ending May 31
,2012.
Section 4. That during the current term of office the salary is
$109,242.00
per year for
the administrative municipal
judge,
$101,198.73
per year for full-time municipal
judges
with two or more years of
judicial
experience,
$90,043.20
per year for full-time
municipal
judges
with less than two years of
judicial
experience,
$48.65
per hour for
associate municipal
judges
with two or more years of
judicial
experience, and $43.29
per hour for associate municipal
judges
with less than two years of
judicial
experience,
in each case the salary to include such adjustments in salaries and number of paid
working days and furlough days as are designated by the City of Dallas as to its
salaried non-uniformed employees generally.
Section 5. That a full-time municipal
judge
for the City of Dallas shall not practice law
except as
permitted
by the authorization of the Dallas City Council. Notwithstanding
this prohibition, a
judge
may act pro se and may, without compensation, give legal
advice to and draft or review documents for a member of the
judge's
family.
27928
101687
Section 6. That it is the intent of the city council that the
judicial
appointments set forth
in this ordinance are severable, and if any appointment is dectared invalid by the valid
judgment
or decree of any court of competent
jurisdiction,
such invalidity shall not affect
any of the remaining
judicial
appointments, since the same would have been approved
by the city council without the invalid appointment.
Section 7. That this ordinance shall take effect immediately from and after its passage
and publication
in accordance with the provisions
of the Charter of the City of Dallas,
and it is accordingly so ordained.
APPROVED AS TO FORM:
JUN
2 3 20fi
Passed
100687
'?[*HIV{
r:
2010 JUI{ Zb
pll
3:
r+7
CI TY
SECR[ ' f Ai -r' .
DALLAS,
f [ Xr\ S
Memorandum
CITY OF DALI.AS
Date:
To:
Re:
June 23,2010
Deborah Watkins
City Secretary
Correction to Ordinance No. 10-1687
Approved on June 23,2010
Section 2 of Ordinance No. 10-1687 has a typographical error. The name of Carl Hayes should
be Hays instead of Hayes. The subject wording on the city council agenda and on the agenda
information sheet are correct however. Attached is the corrected ordinance for you to process.
Please contact me if you have any questions.
WARREN ERNST
Administrative Assistant City Attorney
Attachment
c: Kurt Steward, Office of Financial Services
Wendy Nalls, City Attomey's Office
Emily Wiseman, City Attorney's Office
Carol Johnson, City Attorney's Office
"Dallas, The City That Works: Diverse, Vibrant and
progressive.,,

Ch. VIII, 2 DALLAS CITY CHARTER Ch. VIII, 4

(5) enIorce all process oI the courts in accordance with state law and city
ordinances, punish witnesses Ior Iailing to obey subpoenas, and compel their attendance by
process oI attachment; (Amend. oI 6-12-73, Prop. No. 16)

(6) punish Ior contempt, admit to bail, and IorIeit bonds under such
circumstances and as provided by county courts, or county courts exercising criminal jurisdiction
only;

(7) over all other matters and cases provided Ior by state law or city
ordinance.

SEC. 3. PRACTICE AND PROCEDURE.

Except as otherwise provided by state law, practices and procedures in the municipal
courts and appeals thereIrom shall be as established by ordinances oI the city council. (Amend.
oI 11-8-05, Prop. No. 3)

SEC. 4. MUNICIPAL 1UDGES; APPOINTMENT.

Each oI the municipal courts oI the City oI Dallas shall be presided over by a judge or
judges, each oI whom shall be designated as municipal judge. Each judge shall be a practicing
attorney oI good standing. Biennially in May oI each even-numbered year, the municipal judges
shall be appointed by the council, which appointment shall designate the administrative judge.
Each municipal judge shall hold oIIice Ior two years Irom the date oI appointment or until a
successor is appointed and qualiIied, unless sooner removed by the council. In the event oI any
vacancy in the oIIice oI municipal judge by death, resignation, or otherwise, the city council
shall appoint a qualiIied attorney to Iill the unexpired term as municipal judge. The
administrative judge designated by the city council shall be the administrative head oI the
judiciary oI the city. As such, the administrative judge shall promulgate work rules concerning
the administration oI the court dockets, the times and places Ior holding court, equalizing oI the
case assignments, the vacation schedules, and other administrative details concerned with the
judicial perIormance oI the municipal courts, which rules shall be submitted to the city manager
and city attorney Ior comment prior to adoption by the city council. Once adopted, the
administrative judge shall be responsible to see that the rules are adhered to by all courts. The
administrative judge shall make such reports as may be required by the city council. (Amend. oI
6-12-73, Prop. No. 17; Amend. oI 4-6-85, Prop. No. 2; Amend. oI 11-8-05, Prop. No. 13)

31
Exhibit 3

Ch. VIII, 4A DALLAS CITY CHARTER Ch. VIII, 7

SEC. 4A. REMOVAL OF MUNICIPAL 1UDGES.

A Iull-time or associate municipal judge may be removed Irom oIIice by a majority vote
oI all members oI the city council iI the council determines, aIter a hearing beIore the council,
that the municipal judge Iailed to comply with, or maintain compliance with:

(1) any residency requirements Ior municipal judges established by city
council ordinance; or

(2) any other qualiIications or requirements Ior municipal judges established
by city ordinance, state or Iederal law, or other applicable law. (Amend. oI 11-8-05, Prop. No. 3)

SEC. 5. MUNICIPAL 1UDGES; AUTHORITY.

The municipal judges shall have power and authority to administer oIIicial oaths and
aIIirmations and to give certiIicates thereoI, and shall have Iull power and authority to place
persons upon probation, to issue subpoenas, writs oI capias, search warrants, executions and all
other process known to the law which justice courts are by law authorized to issue in similar
cases. (Amend. oI 6-12-73, Prop. No. 18)

SEC. 6. ASSOCIATE MUNICIPAL 1UDGES.

II, Ior any cause, any oI the municipal judges shall temporarily Iail to act, then and in
such case the council is hereby authorized to appoint some qualiIied attorney who shall act in the
place and stead oI such municipal judge, and who shall have powers and discharge all the duties
oI said oIIice and shall receive the compensation thereIor accruing while so acting. Such
temporary judges shall be known as associate municipal judges. Associate municipal judges,
during their appointments, shall not represent clients on matters pending in the municipal courts.
The appointment oI an associate municipal judge shall be by resolution oI the city council, Iiled
in the oIIice oI the city secretary. In the event oI civil emergency, such appointment may be
made by the mayor; provided, however, no compensation shall be paid to such judges so
appointed unless conIirmed by the city council. (Amend. oI 6-12-73, Prop. No. 19; Amend. oI
11-8-05, Prop. No. 13)

SEC. 7. COMPENSATION.

Each oI the municipal judges shall receive such compensation as may be determined by
the council. (Amend. oI 11-8-05, Prop. No. 3)

32

Ch. III, 17 DALLAS CITY CHARTER Ch. III, 19

SEC. 17. PROHIBITING HOLDING OR RUNNING FOR OTHER OFFICE.

(a) No person elected to the city council shall, during the term Ior which he or she
was elected, be appointed to any oIIice or position oI emolument in the service oI the city. II a
member oI any board appointed by the council or any appointive oIIicer oI the city becomes a
candidate Ior nomination or election to any public oIIice, he or she shall immediately IorIeit his
or her place or position with the city.

(b) A member oI the city council shall IorIeit his or her place on the council iI he or
she becomes a candidate Ior nomination or election to any public oIIice other than a place on the
city council or iI he or she becomes a candidate Ior election to any diIIerent place on the city
council that requires taking oIIice prior to the end oI his or her elective term.

(c) II any employee oI the city becomes a candidate Ior nomination or election to any
elective public oIIice within Dallas County; or elective public oIIice in another county within the
state, having contractual relations with the city, direct or indirect; or any elective public oIIice
that would conIlict with his or her position as an employee oI the city, the employee shall
immediately IorIeit his or her place or position with the city. (Amend. oI 6-12-73, Prop. No. 8;
Amend. oI 11-8-05, Prop. No. 13) NO1E: See Section 12A-1 of the Dallas City Code for
judicial interpretation of this section.

SEC. 18. INVESTIGATIONS.

The council, the city manager or any person or committee authorized by either or both oI
them shall have power to inquire into the conduct oI any department or oIIice oI the city; to
make investigations as to city aIIairs, and Ior that purpose may subpoena witnesses, administer
oaths and compel the production oI books, papers and other evidence material to said inquiry.
The council shall provide by ordinance penalties Ior contempt in reIusing to obey any such
subpoenas or Iailure to produce books, papers and other evidence, and shall have the power to
punish any such contempt in the manner provided by ordinance.

SEC. 19. INDEPENDENT AUDIT.

The city council shall cause an independent audit to be made oI the books oI account,
records, and transactions oI all the administrative departments oI the city at least once yearly.
Such audits, during such Iiscal year, shall be made by one or more certiIied public accountants
who, Ior the three years next preceding, have held a certiIicate issued by the state board oI

16
Exhibit 4
Exhibit 5
MEMORANDUM
To: Chief Judge Michael O'Neal
All City of Dallas Municipal Court Judges
All City of Dallas Municipal Court Bailiffs
Date: January 28,2002
Re: Candidacy for Judge of County Criminal Court #10
As you are aware,I am a candidate for Judge of County Criminal Court #10 in
Dallas County for November 2002. I have enjoyed serving as an Associate Municipal
Court Judge for the City of Dallas over the past six years and will cherish the experience
as well as the friendships I have gained.
I will miss serving on the bench with you. However,I look forward to the
challenge of adjudicating cases for Dallas County.
I appreciate the confidence the City of Dallas and the Municipal Court Judges
have shown in me over the years by allowing me to serve and look forward to continuing
the relationships and friendships I have come to enjoy while working with each of the
Judges, bailiffs and staffmembers.
If I can be of assistance to you in the future, do not hesitate to contact me.
Exhibit 6
5 DAN MORALES
.ATT,>RSEY GLSLH.,,
Office of tfp IZIttornep
%tate of PCexas
February 7,1996
&mral
The Honorable Robert Newsom
Hopkins County Attorney
110 Main Street
Sulphur Springs, Texas 75482
Opinion No. DM-377
Re: Whether a county court at law judge,
with an unexpired term greater than one
year, who declared at a county commis-
sioners court meet ing that he was a
candidate for the district judgeship has
announced his candidacy or in faa become
a candidate for purposes of article XVI,
section 65 of the Texas Constitution and
related questions (RQ-820)
Dear Mr. Newsom:
You indicate that, at the March 27, 1995, meeting of the Hopkins County
Commissioners Court, the county court at law judge (the judge) stated he was at that
moment a candidate for the judgeship of the Eighth Judicial District Court. You have
included with your letter a copy of a newspaper article that provides the following account
of the judges remarks at the March 27, 1995. meeting of the Hopkins County
Commissioners Court:
It is my pledge to you gent[le]men, as well as the people of
Delta, Hopkins, Franklin and Rains counties, that upon taking office I
will do whatever is necessary to promptly and efficiently conduct
their legal business. . . Its certainly something Ive thought about
for some time, but it was so far away, it seemed ridiculously
premature. . [After the present district judge amtounced that he
did not intend to seek re-election], it became clear the only
reasonable course of business was to announce for the Eighth
bench. . .
Ive worked hard to make the Count y Court-At-Law a pop&r
court. . . I believe it will be possible to do the same to the district
COW-t.
Bruce Alsobrook, Cable Seeking Eight h Dist rict Judge Posit ion, THE NEWS-TELEGFMM,
(Sulphur Springs), Mar. 27, 1995, at 1, 10.
Exhibit 7
The Honorable Robert Newsom - Page 2 @M-377)
You also state that, at the time of the commissioners court meeting, the unexpired
term of the judges current offtce exceeded one year. With this situation in mind, you ask
several questions about article XVI, sections 17 and 65 of the Texas Constitution.
You first ask whether the judges declarations at the county commissioners court
meeting constitute an announcement for purposes of article XVI. section 65. The final
paragraph of article XVI, section 65 provides as follows:
[I]f any of the officers named herein [including a county court at law
judge] shall announce their candidacy, or shall in fact become a
candidate, in any General, Special or Primary Election, for any office
of profit or trust under the laws of this State or the United States
other than the office then held, at any time when the unexpired term
of the office then held shall exceed one (1) year, such announcement
or such candidacy shall constitute an automatic resignation of the
office then held, and the vacancy thereby created shall be filled
pursuant to law in the same maturer as other vacancies for such office
are filled.
To %nnounce is to deliver news; to make public or oflicial intimation of to
proclaim . . .* 1 THE OXFORD ENGLISH DICTIONARY 485 (2d ed. 1989). On the
assumption that the county judge made the statements reported in the newspaper, we
conclude. as a matter of law, that the county judge has announced his candidacy or has in
fact become a candidate for purposes of article XVI, section 65. Consequently, pursuant
to article XVI, section 65, the county judge has automatically resigned his office. See
Attorney General Opinions IM-395 (1985) at 4, WW-1253 (1962) at 3.
Your second question concerns the interrelationship of atticle XVI, section 65 and
article XVI, section 17 of the Texas Constitution, which provides that [a]li officers within
this State shall continue to perform the duties of their offices until their successors shall be
duly qualified. The purpose of this provision is to prevent vacancies in office and the
consequent cessation of the finctions of government. Pluins Common Consol. Sch. Dist .
No. I v. Hayhrrrst , 122 S.W.Zd 322 (Tex. Civ. App.-Amarillo 1938, no writ). You ask
whether an officer who, with more than one year remaining in his term of office,
amtounces his candidacy for another of& and who therefore automatically resigns the
current office pursuant to article XVI, section 65 remains in office pursuant to article
XVI, section 17 until a successor is duly qualified.
Attorney General Opinion WW-1253 (1962) addressed this question and
concluded that the officer held over under article XVI, section 17. This conclusion was
followed in Attorney General Opinions C-43 (1963) and H-161 (1973). However,
p. 2049
because of the time that has passed since this office considered the interaction of sections
17 and 65 of article XVI, we will address your question.
The resign to run paragraph was added to section 65 in November 1958. HI.
Res. No. 31,55th Leg., R.S., 1957 Tex. Gen. Laws 1641; Amendments to Constitution of
Texas, 1959 Tex. Gen. Laws I[XXV, XXXVIII. Article XVI, section 65 had been adopted
in 1954 to extend the terms of certain county officers from two to four years, TEXAS
LEGISLATIVE COUNCIL, INFORMATION CONCERNING CONSTITUTIONAL ,~~~ENDMENTS TO
BE CONSIDEREDNOVEMBER 4, Amena?nenr No. 4 - HJ.R. No. 31 1 (1958); see S.J. Res.
No. 4, 4 12. 53d Leg., R.S., 1953 Tex. Gen. Laws 1164, 1166; Amendments to
Constitution of Texas. 1955 Tex. Gm. Laws Xxxv, XLIV. The terms were staggered so
that approximately one-half of the ofiices are regularly filled by election every two years.
TEXAS LEGI~I,,~TWE COUNCIL, supru, at 1. The increase in term length made it possible
for county officers to devote almost their entire terms to the duties of office, in contrast to
the old system of having to run for re-election one year out of every two. Id. at 2
(arguments for amendment). However, the staggered four-year terms of office made it
possible for an officer to run for a different office at the general election in the middle of
his temt, thus defeating the purpose of the 1954 amendment-to pemtit an official to give
his undivided attention to his office for at least three years. Id. at 1. The legislature
proposed the resign to run provision to correct this result of the 1954 amendment. Id.;
see uh Attorney General Opinion WW-788 (1960) at 3 (citing press reports). *
We do not know of any judicial decision that addresses the interaction of sections
17 and 65 of article XVI. but we are aware of numerous judicial decisions and Attorney
General Opinions concluding that article XVI, section 17 does not apply in when an
officer vacates the office pursuant to other constitutional provisions. The Texas Supreme
Court determined, in Pruit t v. Glen Rose Independent School Dist rict No. 1, 84 S.W.Zd
1004, 1007 (Tex. 1935). that article XVI. section 17 did not apply to an officer who has
stepped down from office by operation of article XVI, section 40, which prohibits, with
certain specified exceptions, any person from simultaneously holding more than one civil
office of emolument. See also St at e ex rel. Peden v. Valent ine. 198 S.W. 1006, 1007
(Tex. Civ. App.--Fort Worth 1917, writ refd) (upon acceptance of second, incompatible
office, first office is ipso facto vacated). In L-owe v. Sfufe, 201 S.W. 986 (Iex. Grim. App.
1918), the Texas Court of Criminal Appeals determined that article XVI, section 17 does
not apply to an officer who is ineligible under article XVI, section 12 of the Texas
Constitution to hold or exercise an office of profit or trust under this state because he or
she holds or exercises an office of profit or trust under the United States. Id. at 986; see
Attorney Genera1 Opinion WW-788 stated that another pnpc of the 1958 amendment to
mticle XVI. section 65 of the constitution was IO reduce lbe duration ofsppointotents. Atmmey General
Opinion Ww-788 (1960) at 3.
p. 2050
Attorney General Opinion DM-49 (1991); see also Attorney General Opinions TM-1 161
(1990) (article XVI, section 17 is inapplicable when senate has refused to approve
governors appointment to ofice), lM-423 (1986) (same), O-3343 (1941) (same), M-151
(1967) at 4 (judge who reaches page of 75, whose office . . shall become vacant
pursuant to article V, section l-a of Texas Constitution does not hold over under article
XVI, section 17).
Although the cases and prior opinions of this office suggest that article XVI.
section 17 generally does not apply to vacancies created by operation of the constitution,
we believe that article XVI, section 65 may be distinguished from the authorities cited.
Attorney General Opinion WW-1253, in reaching its conclusion that article XVI, section
17. applied to officers who automatically resigned, stated that an officer whose
resignation has been effected but whose successor has not been appointed retains the
position as a de jure officer. Attorney General Opinion WW-1253 (1962) at 3. This
conclusion was based on the following authorities: Jones v. Cig ofJe#erson, 1 S.W. 903
(Tcx. 1886), Plains Common Consolidat ed School Dist rict No. I v. Hayhurst , 122
S.W.Zd 322 (Tex. Civ. App:-Amarillo 1938, no writ), Keen v. Feat herst on, 69 S.W. 983
(kx. Civ. App. 1902, writ refd), and Attorney General Opiions V-760, O-855 (1939)
and O-761 (1939). Except for Attorney General Opinion V-766, which recites the
purposes of article XVI, section 17, these authorities state that an officer whose
resignation has been tendered to the proper authority and accepted continues in office until
his successor is appointed and qualifies. See Jones v. Cit y ofJefferson, 1 S.W. at 905;
Plai,rc Common Consol. Sch. Dist . No. 1 v. Hayhurst , 122 S.W.2d at 326. Anomey
General Opinion H-161, addressing the automatic resignation of a justice of the peace
under article XVI, section 65, states as follows in regard to article XVI, section 17:
The recognized purpose of this provision is to insure against
vacancies in office and a consequent cessation of the functions of
government. Section 17 provides for o!Scers to hold over in the
perfortnance of the duties of office, even after resignation until a
successor has been elected or appointed and has qualified. The
officer who has resigned retains his position, in spite of his
resignation, as a de jure officer.
Attorney General Opinion H-I 6 I (I 973) at 2,
Article XVI, section 65, pertains to the automatic resignation of officers, and
Attorney General Opinions WW-1253 and H-161 construe this provision consistently with
the well-established rule about resignations: that an officer holds over until his
replacement is appointed and qualifies, even atIer his resignation is tendered and accepted.
We believe the prior opinions of our office correctly relied on the express language of
article XVI, section 65, and correctly concluded that persons who automatically resign an
office pursuant to that provision still hold over in office until a successor is appointed and
qualifies.
p. 2051
Other constitutional provisions creating vacancies use different, and often stronger,
language than section 65. Article XVI, section 40, does not refer to a resignation, but
states that [n]o person shall hold or exercise at the same time, more than one civil office
of emolument, Article XVI, section 12, states that persons holding or exercising certain
federal offices shall not be eligible for offices of profit or tNSt under this state. Article
XVI, section 14 states that offtcers who do not reside with the appropriate jurisdiction
shall vacate the office so held. Article V, section l-a provides that when a judge reaches
the age of 75, his office . . shall become vacant. None of these constitutional provision
incorporate the concept of resignation or the body of law related to that term.
As commentators have noted, the policy served by the resign to run provision, to
limit the time during which a county officer may campaign for other office, does not apply
to all officeholders in the state. If it is thought generally that officeholders should forfeit
their positions when they amtounce for other officers, the provision should apply to
members of the legislature and statewide elected officials as well as those named in this
section. GEORGE D. BRADEN, THE CONSTI TUTI ON OF TI E STATE OF TEXAS: AN
ANNOTATED AND COMP ARATI VE h WLYSI s 813 (1977); ,see gen er a & element s v.
Fashing, 457.U.S. 957, 970 (1982). The limited application of the automatic resignation
requirement suggests that it may be less weighty than other, more generally applicable,
constitutional provisions. Moreover, the policy underlying section 65 will still be
effectuated when the officers replacement is appointed and qualities. Under the
circumstances, we believe we should give great weight to the public policy encompassed
in article XVI, section 17-the preservation of the orderly processes of government. See
Ex parre Sanders, 215 S.W.Zd 325 (Tex. 1948). Accordingly, an officer who
automatically resigns an office pursuant to article XVI, section 65 will hold over in office
pursuant to article XVI, section 17 until a successor is appointed and qualifies. We aflirm
the conclusions of Attorney General Opinions WW-1253, C-43, H-161, and opinions
relying on them.
Your third question asks whether the commissioners court may appoint the judge
who has resigned pursuant to article XVI, section 65 of the constitution to the now-vacant
office of county court at law judge--the same post from which the judge has resigned.
This office concluded in Attorney General Opinion WW-788 that an officer who
automatically resigns his offtce pursuant to article XVI, section 65 of the Texas
Constitution is ineligible for appointment to fill the vacancy created in his office. At t orney
General Opinion WW-788 (1960) a t 8 (summary); see ulso Attorney General Opinion
WW-1253 (1962) at 3-4. We believe this conclusion is sound, and we a&n it here.
We need not answer your fourth and fifth questions, which assume that the officer
d oes not hold over after his automatic resignation. See generuh) Attorney General
Opinion H- 16 1. Your sixth and seventh questions focus on the procedure the county must
use to fill the vacancy created by the judges candidacy. Article XVI, section 65 of the
Texas Constitution states, [T]he vacancy. shall be filled pursuant to law in the same
manner as other vacancies for such offtce are tilled. Section 25.0009(a) of the
p . 2052
Government Code requires the county commissioners court to appoint an individual to fill
a vacancy in the offtce of judge of a statutory county court. The appointee holds offtce
until the next general election and until the successor is elected and has qualified. Govt
Code 0 25.0009(b).
Nothing in section 25.0009, nor in any other statute of which we are aware,
specifies a particular time period within which the commissioners court must appoint a
new judge. Moreover, we are unaware of any statute specifically prescribing procedures a
wmmissioners court must use to appoint an individual to the office of county wurt at law
judge. Under the Gpen Meetings Act, Govt Code ch. 55 1, the commissioners court may
deliberate the appointment in a closed meeting, although the commissioners must vote on
the appointment in a meeting open to the public. See Govt Code 55 551.074(a)(l), .102.
SUMMARY
Under the facts presented, the county court at law judge of
Hopkins County has announced his candidacy or has in fact become
a candidate as a matter of law for purposes of article XVI, section
65 of the Texas Constitution. Thus, pursuant to article XVI, section
65, the county judge has automatically resigned his office. However,
he continues to hold over in his office under XVI, section 17 of the
Texas Constitution, until his successor is appointed and qualifies for
office. Attorney General Opinions WW-1253 (1962), C-43 (1963),
and H-I 61 ( 1973) are affirmed on this issue.
Attorney General Opinion WW-788 (1960). which concluded
that an officer who automatically resigns his office pursuant to article
XVI, section 65 of the Texas Constitution is ineligible for
appointment to till the vacancy created in his office, is affirmed.
Sectjon 25.0009(a) of the Government Code rquires the county
commissioners wmt to appoint an individual to fill a vacancy in the
offtce of judge of a statutory county wurt. Nothing in section
25.0009, nor in any other statute of which we are aware, specifies a
particular time period within which the wmmissioners court must
appoint a new judge; nor does any statute specifically prescribe the
procedure a commissioners court must use to appoint an individual
p. 2053
to the office of county court at law judge. The commissioners court
must, of course, comply with the Open Meetings Act, Govt Code
ch. 55 1, in appointing the new county court at law judge.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 2054
DAN MORALES
ATTORNEY GENERAL
QBffice of tfy !Zlttornep
.&ate of Qexafi
February 26,1996
Qknerat
The Honorable Toby Goodman
Chair
Committee on Juvenile Justice
and Family Issues
Texas House of Representative-s
P.O. Box 2910
Austin, Texas 78768-2910
Letta Opinion No. 96014
Re: Status of the mayor and a council
member of the City of Fort Worth who
have resigned to run for another
office (ION 38543)
Dear Representative Goodman:
You have requested our opinion regarding the status of the mayor and a council
member of the City of Fort Worth, each of whom has resigned to run for another office.
You indicate that in December, 1995, Mayor Kay Granger and council member
Ken n et h Barr both announced that they were candidates for other offices. Under the
terms of the Charter of the City of Fort Worth, each of them were then deemed to have
immediately vacated his or her fkst office:
If a member of the council shall become a candidate for nomination
or election to any public office, other than that of counci@erson,
he/she shall immediately forfeit his place in the council; and any
appointive officer or employee of the city who shall become a
candidate for nomination or election to any public office shall
immediately forfbit the office or employment held under the city.
FORT WORTH, T?zx., CHARS ch. III, $8, reprined in CODE OF THJZ Cm OF FORT
WORTH (Municipal Code Corporation 1986) (footnote added).
On the other hand, article XVI, section 17, Texas Constitution, provides that [a]U
officers within this State shall continue to perform the duties of their offices until their
successors have qualified. We have very recently said that this holdover requirement
prevails over another con st i t u t i om l provision, article XVI, section 65, that deems an
Bnnouncement of ones candidacy for another office under certain circumstances to effect
an automatic vacation of the first office. Attorney General Opinion DM-377 (1996) at 5.
It is obvious that the holdover provision of article XVI, se&ion 17, overrides any
IWe pesmc for purpmes of this opinion that, under the chxutcr, the mayor is a member of tbt
colud.
Exhibit 8
The Honorable Toby Goodman - Page2 (LO%-Ol4)
charter presumption of automatic vacation. With this background in mind, we now
consider the specific situations you present.
In the case. of a council member, chapter III, section 4 of the charter prescribes
that a vacancy shah be filled by special election. In that instance, the council member
must be deemed to continue to hold his or her office until such special election has
occurred and a replacement has been elected and qua&d. In the case of the mayor,
however, chapter III, section 4 declares that [slhould a vacancy occur in the 05ce of
mayor, the mayor pro tem shag serve until a special election shah be caged under the rules
perGning to filling vacancies among the other councihnembers. Thus, under the terms
of the charter, there is no vacancy in the 05ce of mayor: the mayor pro tent instantly
assumes the 05ce of mayor. As a result, the mayor will hold over by virtue of article
XVI, section 17, only until the mayor pro tern qualifies for the 050s of mayor,
presumably, that is, immediately.
SUMMARY
Under the terms of the charter, a council member of the city of
Fort Worth immediately vacates his 05ce as soon as he or she
becomes a candidate for another 05ce, but article XVI, section 17,
Texas Constitution, deems the council member to hold over until
his or her successor shall be duly qualiied, that is, subsequent to a
special election as provided in the charter. The charter also provides
that, pending a special election, a vacancy in the 05ce of mayor shah
be immediately tilled by the mayor pro tent. Thus, the mayor holds
over only until the mayor pro tent has qualified for the office of
mayor.
Yours very truly,
RickGilpin -
Deputy Chief
Opinion Committee

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