From the inbox, sent by Carroll Robinson.
During the past few days, there has been a great deal of speculation about the legal process for selecting someone to replace the late Commissioner El Franco Lee on the November 2016 General Election ballot. (Texas Election Code, Subchapter C. Sections 172.057, 172.058 and 172.054 (1).)
The Primary Ballot – No Options
Under the state election code, Commissioner Lee’s name cannot be removed from the March Democratic Party Primary Election ballot, and the deadline for extending the filing deadline to allow other people to add their name to the primary ballot has passed. (Texas Election Code, Subchapter C, Section 172.058(b) and Subchapter B, Sections 145.035 and 145.036.)
General Election Ballot
Under the Texas Election Code, once the March Primary Election and Run-Off has concluded, the Democratic Precinct Judges in Commissioners Court Precinct 1 will meet to select a replacement candidate to appear on the November ballot for a full four-year term.
Under the law, there is no option of a Special Election for selecting a replacement candidate for the November General Election ballot.
Sitting Elected Officials
Under the law, a person’s name cannot appear on the ballot for two positions. This means that currently elected officials up for re-election this year cannot be listed on the ballot for both Commissioner and re-election to their current office.
If A State Legislator Is Selected As The Replacement
In the event a state legislator is selected as the ballot replacement for the Precinct 1 position, his/her legislative office position on the November ballot would become available. To fill that position, a separate appointment process would occur, with the precinct judges of that specific jurisdiction selecting a replacement in the event no other candidate is on the primary ballot for that position. There is some confusion over the eligibility of current officeholders whose existing term would overlap in part or totally. Specifically, the eligibility of a municipal elected official to be appointed to a state legislative position. Under current law, any potential replacement would have to resign from office prior to selection to be considered because of the State holdover provision based on an existing Texas Supreme Court decision to possibly be eligible to succeed the legislator. (Wentworth v. Meyer, 839 S.W. 2nd 766 (Tex. 1992) and Texas Attorney General Letter Opinion No. 95-069 (November 7, 1995).)
The Court’s decision raises a number of questions and does not give full clarity on a state constitutional provision that had historically prohibited sitting elected officials from being elected to the legislature if their term of office would overlap with the term of office of the legislative seat they were planning to seek. (Texas Attorney General Letter Opinion No.95-069 (November 7, 1995).)
Questions Still To Be Answered
We are still researching answers to the following questions.
- How will the meeting of the Precinct Judges to select the replacement be conducted?
- Who will Chair the meeting and how will the Chair be selected?
- What will be the process for individuals to be considered to be the replacement?
- Can the Precinct Judges retain counsel to advise them on the questions involved in selecting the replacement?
1. Commissioner Lee’s name will be the only one on the Democratic Party Primary Ballot.
2. In June, the Democratic Party Precinct Judges, residing in Commissioner Precinct 1, elected in the March primary, will select a replacement candidate to appear on the November General Election ballot. The replacement candidate cannot be selected by Special Election.
We’ve covered some of this before, but it’s nice to have it in a concise summary like this. I would add the question of which precinct judges get to select a replacement if we wind up naming a sitting legislator to be the November nominee. My guess is that it would be simply the precinct judges from that legislative district, but it would be nice for that to be clarified. Note as well that there could be a third step involved if the legislator in question is 1) a Senator or Congressperson, and 2) the nominee chosen for that office is also a legislator, presumably a State Rep. I don’t want to go too far down the rabbit hole here, so let’s just say that this could get involved, and could wind up being a long meeting.
If the new nominee is someone who currently holds office but is not on the ballot this November – a Houston City Council member or HISD/HCC Trustee, for instance – that person would clearly have to resign once sworn in as Commissioner, but not necessarily before then, unless they held an office that required them to resign to run for something else. I would prefer such a person to resign anyway, as there would be enough time for a special election, to be held in November along with everything else, to fill that person’s unexpired term. Which leads to another question I can’t answer: How many full terms in office would a Council member who won a November 2016 special election get to serve? Under the old system, they’d still get three full two-year terms, as folks like Ed Gonzalez and Melissa Noriega did; Dave Martin will get the full two-year term he won in 2013 plus the two four-year terms (if he runs and wins again in 2019) that others elected in 2013 can get. My guess is such a person could run twice more, in 2019 and 2023, giving them up to 11 years in total. Maybe we ought to have the City Attorney standing by, just in case.
Anyway. This is the process, and these are the questions that occur to me. I’m sure there will be more. I plan to lay out my criteria for what I am looking for in a new Commissioner in a separate post, as this one is long enough. What questions do you have about the process that I haven’t addressed here?