San Antonio Court of Appeals holds home-rule City can change elections from November to May

City of Floresville, et al v. Nick Nissen, et al., 04-21-00042-CV (Tex. App. – San Antonio, June 29, 2022)

In this case the Fourth Court of Appeals held that a home-rule city could change its official election date to either of the two uniform election days in Texas.

The City of Floresville’s home-rule charter states elections for positions would be held in each spring election under the Texas Election Code. In 2011, the City changed it elections to November pursuant to section 41.0052(c) of the Texas Election Code.  This statute allowed the change and expressly allowed the superseding of the charter provisions. On July 17, 2019, the city council passed Resolution No. 2019-014, which repealed the change, and transferred the elections back to the May election. Citizens sued the City, the council members, and the City’s secretary in their official capacities (collectively “the City”), seeking a declaratory judgment the 2019 change violated the Election Code. This case already went up and down to the court of appeals regarding the trial court’s injunction orders. After remand, the trial court granted the citizen’s summary judgment motion, in part, and declared the 2019 resolution changing the dates back to May void as a matter of law. The City appealed.

Since the City is home-rule, it does not need authority from the Legislature to act, and must only look for restrictions. The Texas Supreme Court has explained that in limiting the power of home-rule cities, the Legislature’s intent must “appear with unmistakable clarity.” Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 645 (Tex. 1975).   While the statute does limit the City’s ability to change the date from May to November if done after December 31, 2016, it does not restrict the City’s ability to change it from November to May.

If you would like to read this opinion click here. Panel consists of Chief Justice Martinez, and Justices Alvarez and Rodriguez. Opinion by Justice Rodriguez.

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