On April 15, the Good Law Firm submitted a letter to the San Marcos City Council expressing legal concerns regarding the proposed Cite and Release Ordinance under consideration and councilmember Marquez’s vote on that ordinance due to her resignation and residing out of state.
Corridor News has reached out to Mayor Hughson and the City of San Marcos by email on Monday, April 13, 2020, regarding the legality of Dr. Jocabed Marquez’s position on the council while residing out of state.
Despite the council members’ letter of resignation, reports of her having moved out of state to accept a position with NASA and stating on the dais that she would only be able to attend meetings by video conference until the special election to replace her is held in November.
The following is the response that Corridor News received from City Attorney Michael Cosentino from our inquiry;
Public health and safety considerations during the current COVID-19 pandemic will obviously play a major part in the decision-making process.
We recommend that you direct any questions about Dr. Marquez’s place of residence to her.
Dr. Marquez’s resignation created a vacancy in City Council Place 5. However, under the Texas Constitution, she continues to exercise the duties of her office until her successor is elected and qualifies.”
The letter below from Ken W. Good, of The Good Law Firm, outlines the qualifications for City Council members in the charter and the proposed city ordinance that is currently under consideration.
I am writing to you regarding the proposed city ordinance that is currently under consideration. As you are aware, the city ordinance seeks to give a mandatory obligation onto the city police to issue “cite and release” tickets inside the city limits of San Marcos.
I am writing to raise several issues with you on this matter. Several issues are procedural, and others are substantive.
At the outset, I am requesting additional information about the current status of Joca Marquez as a member of the San Marcos city council. According to news reports, Ms. Marquez resigned her seat on the council on March 9th. Her letter of resignation is quoted as saying, “I am resigning at this time because my employment plans will require me to move my residence to a location outside the city of San Marcos.” Further, it is my understanding that Ms. Marquez is no longer a resident of San Marcos, but has relocated to Florida.
Since Ms. Marquez has resigned, she is no longer eligible to vote as a city council member on matters appearing before the board.
The qualification for each member of the city council is set out in Article III of the San Marcos City Charter. Section 3.02 of the charter states that in addition to other qualification prescribed by law, each member of the city council has additional qualifications of the following:
(1) Shall be a qualified voter of the city;
(2) Shall have had his or her principal physical residence for at least one year preceding the election within the corporate limits of San Marcos and shall maintain his or her principal physical residence within the corporate limits of San Marcos throughout his or her term of office; for purposes of this subsection, a person must meet all of the following to meet the requirement for a “principal physical residence” in the city:
(A) The person must use the residence address for voter registration, current driver’s license or Texas identification card;
(B) The person must use the residence address as the person’s home address on documents such as employment records, resumes, business cards, government forms, and loan applications;
(C) The person must not claim a homestead exemption on any property other than the residence;
(3) Shall not hold any other office or employment under the city government while a member of the council, except a member of the city council, may be appointed by the city council to represent the council on any board, commission, committee, organization or entity in the council’s sole discretion so long as that person’s service does not extend beyond the person’s council term;
(4) Shall not be an officer or director of any public service company within the city, or outside the city but serving inhabitants of the city, nor be the owner or proprietor of any public service company in the city. “Public service company” is defined as any company, individual, partnership, corporation or other entity recognized by law that uses any of the city’s streets, alleys, highways or other public property to carry out its principal purposes, including but not limited to water, wastewater, gas, electricity and, telecommunications utilities, commercial railway or street railway services, public transit services, solid waste collection, and vehicles for hire.
(5) Shall not have a financial interest in the sale to the city of any land, materials, supplies or service, outside of the person’s position with the city.
(6) Shall remain current on all financial obligations to the city relating to the duties of the council member.
I question whether Ms. Marquez continues to meet the requirements of the city charter to continue to be able to attend meetings and vote on matters as a member of the city council. As further support for this position, the city council has declared a vacancy and scheduled an election.
However, because of the current pandemic, the date of the election has been put off. Section 3.06 of the city charter states that a special election to fill a vacancy shall be called in accordance with state law and the city charter.
Since the council has previously scheduled a special election, this is a recognition of the fact that the seat for Ms. Marquez has been vacated. Setting aside the date of the election because of a pandemic does not revive Ms. Marquez’s status as a member of the council.
Pursuant to section 3.02 (b) of the city charter, the city council shall determine that the qualifications of its own members are continually met. If the council determines that any member of the council has ceased to possess any of these qualifications, the member shall immediately forfeit office.
The council has no discretion in this matter.
If Ms. Marquez no longer meets the requirements to sit a member of the city council, she cannot do so even during a pandemic. If Ms. Marquez continues to sit on the council, and she is not eligible to do so, then the actions taken by the council may well be VOID.
Substantively, I do not believe that the city council has the authority to change state law by enacting a city ordinance.
This is an issue that has been litigated multiple times in the past. For example, a state board may decide that it would like to change a licensing requirement set out by statute.
However, the case law in this area of the law is very consistent that a board does not have the authority to change state law. In the present matter, the Texas Legislature has enacted a statute that allows an arresting officer to issue a ticket and release a defendant in seven different categories.
This statute is referred to as “cite and release” generally. The statute leaves the determination to the arresting officer over whether to arrest a defendant or to issue a citation. Therefore, the statute has delegated to the officers discretion by statute to make the determination.
The policy reason behind this is that certain situations may require a level of diffusion by taking a defendant into custody.
Further, if the statute were to take away all discretion, then the matter could create situations where the matter escalates because the defendant knows he cannot be taken into custody.
The proposed city ordinance seeks to change state law by taking an existing statute and changing it so that the officer has no discretion and must cite and release the defendant, even though state law says the opposite.
I do not believe that such action on the part of the city council would be proper. The city ordinance would be subject to being set aside just as other administrative groups have enacted rules seeking to change existing law have been set aside by courts.
Further, from a policy perspective, I question whether this proposed change has been sufficiently debated.
There is a reason that “cite and release” is not used more in other counties in Texas because it has at least a 40 percent failure to appear rate.
This means that at least 40 percent of the people given citations will not appear. For this group of people, the Municipal Court must decide whether to issue a warrant for the failure to appear.
This would cause additional costs and expenses for the defendants who fail to appear.
Therefore, other jurisdictions have not begun to use this approach because it is unreasonable to use something that sets up at least 40 percent of those cited for failure and additional costs.
The people who would be asked to defend the actions of the board are the same people who are currently telling you that you should not go down this road.
Therefore, it appears that the calculation may be that no one will question the action of the city council.
However, that is not true. I believe that the council’s actions would be clearly improper and would be subject to being set aside by a court of law.
By way of summary, I believe that the board’s actions would be void because an illegal member of the council voted in the meeting. Further, I believe that the council does not have the authority to alter Texas law.
In fact, I have not checked, but I believe that there is a provision in your city ordinances, which states that if an ordinance conflicts with state law, state law governs.
You are taking improper actions. Please reconsider what you are doing.
If you have any questions, please do not hesitate to contact me.
THE GOOD LAW FIRM
Ken W. Good
RELATED STORIES & ITEMS
- April 15, 2020 — Letter from The Good Law Firm
- Apr 10, 2020 — SMTX One Step Closer To Becoming First Texas City To Pass Cite & Release As Law
- Apr 10, 2020 — Six Reasons Why A Cite & Release Resolution Is More Appropriate
- Apr 7, 2020 — San Marcos Police Association Expresses Concerns Regarding Cite & Release Ordinance
- Mar 11, 2020 — San Marcos City Council Member Resigns
- Mar 5, 2020 — City Council Moves Forward With Cite & Release Program
- Mar 3, 2020 — Cite & Release Returns To SM City Council For Discussion
- January 3, 2020 — San Marcos Ethics Commission Delivers Decision On Complaint Against City Council Member
- December 12, 2018 — San Marcos Voters Elect Rockeymoore, Marquez To City Council