Selecting a successor for El Franco Lee: Process and questions

From the inbox, sent by Carroll Robinson.

El Franco Lee

The Issue

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?

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14 Responses to Selecting a successor for El Franco Lee: Process and questions

  1. Vik Verma says:

    the precinct chairs in the commissioner district vote on the replacement candidate. We did this in Gregg County a few years ago for a vacated constable position

  2. I’m tired of hearing about this.

    Even with a republican majority the county commissioners court couldn’t pass basic ordinances like paid sick leave, ban the box, etc that cities and and counties have done decades ago.

  3. Ross says:

    @Joe, can Texas counties even make those sorts of laws? County powers are pretty limited, far more than cities.

  4. voter_worker says:

    Harris County has paid sick leave, medical insurance and FMLA for permanent employees, and has for decades.

  5. voter_worker says:

    Joe, I may have misunderstood your point. At any rate, I think Ross is correct that counties in Texas have very limited powers.

  6. Many counties have passed these ordinances for private sector.

  7. Ross says:

    Joe, what counties in Texas have passed such ordinances, and what is the statutory authority to do so?

  8. Pingback: Selecting a successor for El Franco Lee: What I’m looking for – Off the Kuff

  9. Ross,

    Travis County and the City of Austin have passed Ban the Box ordinances.

    During my city council campaign I compared Houston to other cities and counties.

    Harris County and the City of Houston are dragging their feet, literally and figuratively.

  10. Ross says:

    Joe, as far as I can tell, they passed no such ordinances, but applied the concepts to hiring for the City of Austin and Travis County. Austin is working on an ordinance to apply ban the box to private employers, but I can find nothing that indicates it’s been passed. I doubt counties have the statutory authority to pass such an ordinance that applies to private companies. Counties in Texas have far fewer powers than cities.

  11. novacamp says:

    The Commissioners Precinct 1 Executive Committee operates as all Democratic Executive Committees, such as the CEC and SDEC, using Roberts Rules of Order. The Precinct CHAIRS (there is no such thing as a Precinct Judge) elect their Chair at the first meeting, per TEC 10.B.171.D Sec. 171.071-072.

  12. Ross,

    Ban the Box been has been passed by numerous states and counties/cities across the nation, for both public and private sectors.

    Texas counties could pass it.
    Whether county courts and city council’s drag their feet is a another issue in itself.
    This really isn’t rocket science.

    The commissioners court has enough to deal with aside from idiots like Paul Bettencourt claiming county taxes are too high.
    When in reality that just isn’t true. It’s actually the complete opposite.

    Still waiting to see if we can use the $4 million to create a “Franco Lee County Public Bank”

  13. Ross says:

    No, Joe, Texas counties cannot pass ban the box ordinances that apply to private parties, unless I am reading state law incorrectly. Texas counties can only pass ordinances covered by grants of power under State law. Those powers are very limited. It doesn’t matter what counties in other states have done, Texas counties do not have those powers. If you can specify the statutory authority that allows Texas counties to regulate the employment practices of private employers, I’ll listen.

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