Harte v. City of Lone Star, Texas, et al.—A Case Concerning Due Process, Representative Government, and Local Government Code § 22.008(b)
I recently had the privilege of representing City Council Member Ryan Harte in his battle against the Lone Star City Council and the City of Lone Star, Texas, to retain his seat as an elected councilmember. The City Council had declared Mr. Harte automatically disqualified from holding the position of Alderman pursuant to a newly enacted local government code provision, which provided that a member of a local governing body “is automatically disqualified from holding the member’s office and the office is considered vacant” if the member changes his or her place of residence outside of the municipality. Tex. Loc. Gov’t Code § 22.008(b).
At the heart of the controversy lay questions concerning process due under the newly enacted local government code provision and the effect of this new provision on democratic processes. These questions remain open. Harte’s matter was resolved by an agreed judgment permanently enjoining the City of Lone Star, Texas, from enforcing the City Council’s declaration that he was automatically disqualified from holding his office. A close look at Local Government Code § 22.008(b) in the context of Harte’s case reveals uncertainty regarding future application of the automatic disqualification provision as it pertains to office holders' due process rights and preservation of representative government.
“Harte Removed From Council Due To Residency Issues”
On September 21, 2017, the Lone Star City Council voted Ryan Harte off the City Council, asserting as its ground Local Government Code Section 22.008(b). The Mayor met with Harte the week prior to the vote to inform Harte that he was automatically disqualified from serving as a city councilmember because, according to the Mayor, Harte did not own property in the county.
During the September 21 hearing concerning Harte’s residency, the Mayor provided the following testimony:
I wanted to add something to what Ryan said, a little clarification. When I became aware that this law, this ruling, had become law, I looked at public records and trying to determine where one lives or resides…property ownership is but one aspect. Your place of residence is where you lay your head, where your furniture is, where your clothing is, where your wife and child or husband reside. That’s part of the equation. Via public record, Mr. Harte owns no property in Lone Star, that’s true, via public record. Mike and Ryan Harte purchased property in [*****], Texas October 16, 2016. Ryan then had the property transferred to his name on June 7, 2017. . . That’s what some of the conclusions were based on. I’m advised that that’s where his vehicles are. That’s where he returns to when he comes home from work. That’s where his utilities are.
Some members of the public had an opportunity to weigh in on the disqualification hearing. Kenny Simpson, a local citizen and voter, testified as follows:
My name is Kenny Simpson. Mayor and city council, I’d like you to know. I don’t think we get a great turnout in elections around here but, I can say this much…I’m not going to speak and address the Local Government Code. I don’t have as much intelligence as this gentleman must have on what the laws are pertaining to the government code. But I do know that Ryan Harte came to me; expressed his willingness to serve on the city council; explained to me his goals and opinions on what he was going to do on the council. I took the time to come up here and vote. My wife took the time to come up here and vote and we would hate to see that vote totally wasted. Uh, I’m just asking you to consider that aspect of why he’s here. He’s here to represent us.
Remaining City Council members asked Harte questions pertaining to his residency during the disqualification hearing. At all times, Harte maintained that he resided in Lone Star, Texas. At the end of the hearing, the remaining City Council members declared Harte automatically disqualified from holding the position of Alderman due to residence requirements, and that his seat was vacated. A few days later, the Daingerfield Bee published an article, with a headline that read, “Harte removed from council due to residency issues.”
Harte v. City of Lone Star, Texas, et al.
Harte filed suit in Morris County, Texas, and sought a declaration that the city officials exceeded the scope of their lawful authority and a permanent injunction, enjoining the City and individual officials from enforcing the City Council’s declaration. Harte took the position that Local Government Code Section 22.008(b) could not be applied retroactively. Section 22.008(b) became effective on September 1, 2017. The residency issues of which the remaining City Council members complained arose sometime around April of 2017. The automatic disqualification provision, according to Harte, could only apply prospectively to persons who move their place of residency after September 1, 2017. Harte also complained that Section 22.008(b) could not be applied to an official elected before the code’s effective date because such an application would unconstitutionally divest him of his right and duty to represent his constituents and his constituents’ rights to be represented in the city council by a representative of their choosing.
Additionally, Harte took the position that the City Council’s action violated his due process rights. The City alleged that Section 22.008(b) was self-executing, in that Harte was automatically disqualified the moment he designated a homestead outside of the City of Lone Star, Texas (it is not clear how this could be possible since the homestead designation took place before the effective date of Section 22.008(b)). According to the City, the September 21, 2017 council meeting was not even necessary to declare Harte automatically disqualified. Harte maintained that the statute was not self-executing and that he was entitled to a full adversarial proceeding in a court.
Harte also maintained that the September 21, 2017 city council meeting was not an impartial adjudication of his right to retain his seat. The Mayor presiding over the meeting, acting as judge, also provided testimony against Harte in the proceeding. Harte complained that the hearing violated his due process rights by creating a constitutionally intolerable appearance of partiality.
The trial court granted Harte a temporary injunction against the City, allowing him to continue serving his constituents and the City of Lone Star during pendency of the suit. The court also denied the City’s plea to the jurisdiction. After the City filed a notice of appeal on the court’s plea to the jurisdiction denial, the parties entered into an agreed judgment, permanently enjoining the City and its officials from enforcing the September 21, 2017 declaration against Ryan Harte.
Future Applications of Section 22.008(b)—Preserving Due Process Rights and Representative Government
Section 22.008(b) undoubtedly serves to preserve representative government. The provision ensures that local elected officials live under the same laws as their constituents; that is, that local officials share in the burdens and benefits they grant or impose on everyone living within the municipality. Sharing in the same burdens and benefits guarantees a confluence of interests and goals between citizen and representative.
But Section 22.008(b) lacks an enforcement provision, the lack of which threatens to undermine representative government. Harte’s case provides a prime example. At his temporary injunction hearing, Harte testified that he more often than not acted as a contrarian or dissenting voice in the City Council. Harte believed that his vocal dissent motivated the Mayor and other City Council members to find a way to get rid of him. Taking his testimony as true, if the City Council rather than a court could enforce Section 22.008(b), then elected officials could use the provision as a means to oust political rivals or enemies, depriving constituents of a dissenting voice or “voice of reason.”
This threat manifested itself in Harte’s case. The City relied heavily, if not solely, on Harte’s homestead designation as dispositive on the residency issue. However, Texas Courts have consistently held that a homestead designation is not conclusive on the question of one’s intended residency. See e.g., In re Peacock, 421 S.W.3d 913, 918 (Tex. App.—Tyler 2014, no pet.); McDuffee v. Miller, 327 S.W.3d 808, 821-22 (Tex. App.—Beaumont 2010, no pet.) (holding a designated homestead outside of the relevant district is not conclusive); see also State v. Wilson, 490 S.W.3d 610, 621-22 (Tex. App.—Houston 2016, (holding legally insufficient tax records relied on by the State to prove the defendant’s residency). The Texas Supreme Court has held, in fact, that “residence” is an elastic term that is “extremely difficult to define.” See Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964).
The risk of political reprisal is great when considering a local city council could latch onto a single criteria as the baseline to determine residency, placing the cost of a full adversarial hearing solely on the ousted official, who would have to seek vindication in a court proceeding, in which he or she would also carry the burden of proof. Since many local government positions are unpaid, like Alderpersons, local officials may feel emboldened to oust political enemies on very little residency evidence or information, knowing that the ousted official has minimal to zero financial incentive to incur the cost of challenging the ouster.
So, what process is due under Section 22.008(b)? This question is up for grabs moving forward. A full adversarial hearing seems necessary. Section 22.008(b) should at most fall under the enforcement provision of Texas Civil Practice & Remedies Code § 66.01-002, the quo warranto action provision, but must at least require a judicial proceeding. A local government entity should initiate a judicial action pursuant to these provisions to ensure the full breadth of procedural rights to the targeted official and to promote the purpose of Section 22.008(b)—to preserve representative government.