By Joshua Winata
The Cove Herald
City Council members struggled to choose the lesser of two evils in calling a special election to fill the vacant mayoral seat.
The city learned only last week that the seat forfeited by the former mayor Roger O’Dwyer must be filled by special election within 120 days, or by July 25, according to one interpretation of the Texas Constitution. Based on the requirements of the state election code, it is legally impossible to fulfill the constitutional directive by the allotted deadline.
Council members were left to decide on Tuesday whether to call an election and risk possibly violating the state constitution or hold an election early and intentionally violate election code. In a 4-2 vote, the council passed a resolution to order a special election for Nov. 4, the next uniform election date.
Council members Larry Sheppard and Willie Goode opposed the decision, with Sheppard requesting that either the election be held immediately or that the March 25 vote to remove O’Dwyer from office be reversed. The legal ramifications of reinstating O’Dwyer have not been explored.
Sheppard went so far as to make a motion to consider the option of putting O’Dwyer back into office, calling for an emergency meeting within the next 72-hours to discuss the option. He was overruled by Mayor Pro Tem Robert Reeves because such an action was not listed on the posted agenda.
“I...am not willing to violate that Constitution,” Sheppard said. “We’re going to be in violation twice according to the legal opinion I’ve found if we wait until November. I, for one, am not interested in going that route.”
City officials, however, are arguing that the city will not violate the state law since it has called the election prior to July 25. The wording of Article 11, Section 11 of the Texas Constitution is vague as to whether the special election must be held or simply called within the 120-day window, and City Attorney James Thompson said he favored the latter interpretation, which keeps the city within the confines of the law.
“We looked at the definitions, and there’s distinguishing between holding an election and calling an election,” Thompson asserted. “The Constitution calls for calling an election.”
Informal opinions given by the Texas Secretary of State’s and Attorney General’s offices gave contrary interpretations, stating that the provision refers to actually conducting the election, but they ultimately deferred judgment to the city attorney. City Manager Andrea Gardner said they city would adhere to Thompson’s interpretation until overruled in a court of law.
The attorney general’s office has no jurisdiction within the city and does not suggest or issue penalties for Constitutional violations, according to an e-mail from City Secretary Jane Lees summarizing a conversation with the an assistant attorney general. Any action taken against the city must come from private or citizen action, the e-mail states.
An opinion from the attorney general in 2000 states that a writ of mandamus can be issued to compel a city to perform its duty to hold the special election.
However, the Texas Secretary of State, referring to the attorney general’s opinion, has also advised the city should hold the election in November in accordance with election laws since the 120 days has already passed.
“The opinion determines that the city is not released from the requirement to hold a special election once the 120 day-period has passed. It also concludes that the exemption from the uniform election date does not apply outside the 120-day period,” said Paul Miles, staff attorney in the Texas Secretary of State elections division. “Therefore, if the 120-day requirement is not met, the city must order the election to be held on the next uniform election date.”
Reeves said that he would rather risk a citizen lawsuit than violate election code and possibly be prosecuted by the state.
“I think we can certainly take the course of waiting and seeing what the public does if they want to file a court case,” Reeves said.
The attorney general’s office also said that the city’s quick response upon finding out about the impending violation “should take care of the situation before anyone takes steps to enforce the issue,” according to Lees.
The city learned about the constitutional requirement from the Copperas Cove Leader-Press, which was in contact with the Texas Secretary of State’s office. Prior to learning about the exception on filling a vacancy, the city was operating under opinions from an external contracted law firm and the Texas Municipal League, which both failed to mention the Constitutional provision.