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Felony indictment could lead to the automatic removal of any mayor, city councilmember in Edinburg under plan to be considered Tuesday - Titans of the Texas Legislature

Featured, from left: City Councilmember Johnny García; City Councilmember Jorge Salinas; Mayor Richard Molina; City Councilmember David White, and Mayor Pro Tem Gilbert Enríquez. This image was taken on Monday, September 28, 2020, during the ribbon-cutting for the $6 million Edinburg Transit Terminal.

Photograph Courtesy CITY OF EDINBURG FACEBOOK

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Felony indictment could lead to the automatic removal of any mayor, city councilmember in Edinburg under the plan to be considered Tuesday

By DAVID A. DÍAZ
[email protected]

A proposed amendment to the City of Edinburg Charter providing for the removal or suspension of any mayor or city councilmember upon felony indictment is scheduled for review and possible action during the Tuesday, October 20, 2020, regular meeting of the Edinburg City Council.

If the proposed amendment is approved by the mayor and city council, during the same meeting, they could vote on setting the date for a special election, which could be held as early as next spring or next fall, on changing the city charter.

Edinburg residents must approve Charter amendments in a special election before they can become effective.

Texas law provides that charter amendment elections may take place at either a uniform election date or the municipal general election date. 

The next uniform election date is Saturday, May 1, 2021. 

The next general municipal election date is Tuesday, November 2, 2021.

According to the Law Offices of Seth Kretzer of Houston/New York City:

In Texas, an indictment means you’re formally charged with a felony. This is different from an Information or a Complaint, both of which refer to ways to inform you of misdemeanor charges. When you get a Texas indictment, you know you’re being accused of a felony, and you’ll quickly find out what specific crime you’ve been accused of when you’re indicted.

To be indicted, the prosecutor must take evidence to the grand jury, and the grand jurors then must vote to indict you. They might first talk to witnesses or request more evidence. Then the grand jury votes, at which point nine of the 12 grand jurors must agree there is a probable cause of your guilt before they can indict you and take the case to trial.

Thus, indictments are issued in Texas by the grand jury, but only if enough jurors agree on the case. If not, no charges are filed, though the prosecutor can present the case to them again.

The Tuesday, October 20, 2020, regular meeting, which begins at 6 p.m. will be conducted through Zoom video conferencing because there will be no in-person gathering at Edinburg City Hall in order to eliminate the risk of spreading COVID-19 during the event.

However, the session will be accessible live to Spectrum Cable Channel 1300 subscribers in Edinburg, and well as on the city’s website at:

https://cityofedinburg.com/departments/public_information/live_ecn-12_television_stream.php

As part of its dedication to public participation in their meetings, the mayor and city council, in their agendas that any individual may provide comments – limited to three minutes in length –during the session on any item being discussed.

That public participation is the result of House Bill 2840, authored by Rep. Terry Canales, D-Edinburg, which became state law on Sunday, September 1, 2019. It requires certain governmental bodies to allow any member of the public who wished to address the body regarding an item on the agenda for an open meeting to do so at the meeting before or during the body’s consideration of that item.

The author is the legislator who files a bill and guides it through the legislative process (also called the primary author).

Sen. Bryan Hughes, R-Mineola, carried House Bill 2840 through the Senate as its primary sponsor.  

The sponsor is the legislator who guides a bill through the legislative process after the bill has passed the originating chamber. The sponsor is a member of the opposite chamber of the one in which the bill was filed.

Sen. Juan “Chuy” Hinojosa, D-McAllen, served as a cosponsor of House Bill 2840.

A cosponsor is a legislator who joins with the primary sponsor to guide a bill or resolution through the legislative process in the opposite chamber. A cosponsor must be a member of the opposite chamber from the one in which the measure was filed.

According to the city council agenda, “Requests shall be submitted beginning at 9:00 a.m. the day of the meeting by (a) sending an email to [email protected] cityofedinburg.com or (b) calling the City Secretary Department at 956-388-8204. All requests must be received prior to the start of the City Council meeting. Your request should include your name, address, and telephone number. We ask for everyone’s cooperation in following this procedure.”

The unedited videotape of the Tuesday, October 20, 2020 meeting will be available at:

https://cityofedinburg.com/government/agendas_and_minutes/city_council_videos.php

The agenda packet is available for download at:

http://www.agendapanel.com/meetingList.php?clientId=10000127&action=showMeetingList&clientAuthKey=9E3D2BE469B5FAE74C1E877F7689A

The agenda does not identify who made the decision to place the proposed amendment, as well as a related proposal to set the date for the required election.

However, Omar Ochoa, Edinburg City Attorney, provided key background and details in his remarks published in the agenda packet.

Highlights of his perspectives follow:

Article 2, Section 3 of the City Charter currently provides that if the mayor or any council member ‘is convicted of a felony while in office’ that elected official must ‘forfeit and vacate his/her office.’ There is no provision for forfeiture, removal, or suspension upon the indictment of a felony. To add that type of provision, the City Charter must be amended.

The City Council has the authority to propose an amendment to the City Charter. But to become effective, Edinburg residents must approve the Charter amendment through an election. The City Council may call a special election or wait until a general election for residents to consider Charter amendments.

Texas law does not provide a process for suspending or removing elected officials indicted for a felony. However, other states and cities in the U.S. provide a variety of processes. Considerations include whether an official is suspended or removed upon felony indictment, whether suspension or removal is automatic or requires further action, whether the City Council or some other authority may review the proposed suspension or removal, and whether the felony must relate to the duties of the officeholder.

The options drafted for consideration of action taken upon felony indictment are as follow:

(1) Automatic forfeiture of office.
(2) Removal from office by the City Council.
(3) Automatic suspension from office and appointment of an interim officeholder.
(4) Suspension from office by the City Council and appointment of an interim officeholder.

The City Council must order an election for Edinburg residents to approve Charter amendments before they may be effective.

The cost to hold an election is not available at this time. 

Ochoa provides four examples of how the new charter language would read for consideration by the mayor and four city council members:

Draft 1: Automatic Removal

Art. III, Sec. 3. – Qualifications of Mayor and Council Members.

The mayor and the several council members shall be qualified voters of the City of Edinburg; shall have attained the age of eighteen (18) years, and shall have resided for at least twelve (12) months next preceding his/her election within the corporate limits of the City of Edinburg; provided that if any territory shall have been legally annexed to and incorporated within the boundaries of the City of Edinburg, after the going into effect of this charter, any person who shall have resided in such annexed territory for twelve (12) months next preceding such election and who possesses all other qualifications for a council member or mayor herein provided, shall be eligible to be elected mayor or council member. Any mayor or council member ceasing to possess any of the qualifications specified in this section, or who is indicted for or convicted of a felony while in office, shall ipso facto forfeit and vacate his/her office as mayor or council member, as the case may be.

Draft 2: Removal by the City Council.

Art. XVII, Section 14. – Removal from Office.

1. Any elected official of the City may, by a majority vote of the members of City Council not including the elected official who is the subject of the removal, be removed from office upon that elected official being indicted for a felony while serving as an elected official of the City.

2. The elected official against whom removal is sought shall be entitled to reasonable notice that the issue of his or her removal shall be heard by City Council and shall be permitted to testify on his or her own behalf and present such other relevant evidence as determined by the majority of the other members of Council at such Council meeting.

3. Council shall be the sole judge of the grounds constituting removal from office. The council shall initiate the process to establish grounds for removal from office by motion.

4. Upon a vote by a majority of the members of Council, other than the elected official who is the subject of the removal, that grounds exist which subject such elected official to removal from office, Council shall instruct the City Secretary notify the elected official in writing of such removal. Thereafter, the position of the elected official shall be filled in the manner set forth in this Charter and by law for the filling of vacancies in office.

Draft 3: Automatic suspension and appointment of the interim officeholder.

Art. XVII, Section 14. – Suspension from office.

1. An elected official of the City who is indicted for a felony while serving as an elected official of the City shall be suspended from office. Such suspension shall automatically and without further act of the City or any of its officials, commence upon the filing of the indictment and shall terminate upon (a) the dismissal of the indictment; (b) a conviction for a crime other than a felony; or (c) upon a conviction for a felony.

2. The office of such suspended official may be filled on an interim basis by an interim appointee in the manner provided in this Charter for the filling of vacant offices except that such interim appointment shall terminate immediately upon the occurrence of any of the following: (a) the dismissal of the indictment against the suspended official; (b) the suspended official’s conviction for a crime other than a felony; (c) upon the suspended official’s conviction for a felony; or (d) upon the end of the term of office from which such official was suspended.

3. Upon the suspended official’s conviction for a felony, the convicted official’s office shall be filled in the manner set forth in the manner provided in this Charter and by law for the filling of vacant offices.

Draft 4: Suspension by the City Council and appointment of interim office holder

Art. XVII, Section 14. – Suspension from office.

1. Any elected official of the City may, by a majority vote of the members of City Council not including the elected official who is the subject of the removal, be suspended from office upon that elected official being indicted for a felony while serving as an elected official of the City.

2. The elected official against whom removal is sought shall be entitled to reasonable notice that the issue of his or her suspension shall be heard by City Council and shall be permitted to testify in his or her own behalf and present such other relevant evidence as determined by the majority of the other members of Council at such Council meeting.

3. Council shall be the sole judge of the grounds constituting suspension from office. The council shall initiate the process to establish grounds for suspension from office by motion.

4. Upon a vote by a majority of the members of Council, other than the elected official who is the subject of the suspension, that grounds exist which subject such elected official to suspension from office, Council shall instruct the City Secretary to notify the elected official in writing of such suspension.

5. Such suspension shall terminate upon (a) the dismissal of the indictment; (b) a conviction for a crime other than a felony; or (c) a conviction for a felony.

6. The office of such suspended official may be filled on an interim basis by an interim appointee in the manner provided in this Charter for the filling of vacant offices except that such interim appointment shall terminate immediately upon the occurrence of any of the following: (a) the dismissal of the indictment against the suspended official; (b) the suspended official’s conviction for a crime other than a felony; (c) the suspended official’s conviction for a felony; or (d) the end of the term of office from which such official was suspended.

7. Upon the suspended official’s conviction for a felony, the convicted official’s office shall be filled in the manner set forth in the manner provided in this Charter and by law for the filling of vacant offices.

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For more on this and other Texas legislative news stories that affect the Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature (TitansoftheTexasLegislature.com).

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