Article XIV. GENERAL PROVISIONS  


Section 1. Publicity of Records. All records and accounts of every office, department or agency of the City shall be open to inspection by any citizen, any representative of a citizen's organization, or any representative of the press at all reasonable time, excepting only that records or documents the disclosure of that would tend to defeat the lawful purpose which they are intended to accomplish may be closed to inspection in accordance with State law.

(Ord. No. 96-59, § 17, 6-16-96; Ord. No. 04-028, § 2, 2-26-04)

State Law reference— Public records act, Vernon's Ann. Civ. St. art. 6752-17a.

Section 2. Personal Interest in City Contracts. (a) No member of the Council, and no Officer or Employee of the City who is concerned with the procurement of land, materials, supplies, or services for the use of the City, shall have a personal financial interest in any Contract with the City or in the Sale to the City of any land, material, supplies or services. The foregoing shall not apply where such financial interest is only through the ownership of stock in a corporation provided the holder of the stock is not active in the management of the corporation and discloses the person's interest as a stockholder before any action is taken.

(b) No member of City Council whose employer has a contract with the City shall participate in discussions or vote on any other Councilmember's employer's contract with the City. No member of City Council who is related to a person who has a contract with the City shall participate in discussions or vote on any contract in which that contract involves a person related to any other Councilmember. As used in the preceding sentence, the term "related" means a person related to a Councilmember in the second degree if related by marriage and in the third degree if related by blood.

(Ord. No. 91-95, § 4(19), 11-14-91; Ord. No. 96-59, § 17, 6-16-96; Ord. No. 12-009, § 2, 2-23-12)

Section 3. Interest in Franchises. No member of the Council or elected or appointed officer or employee of the City shall be directly or indirectly in the employ of any person, firm or corporation holding or seeking to hold any franchise from the City, or shall receive or accept from such person, firm or corporation any compensation, commission, fee or gift.

(Ord. No. 96-59, § 17, 6-16-96)

Section 4. Malfeasance in Office. Any member of the Council or elected or appointed officer or employee of the City who shall willfully violate any provision of this Charter shall be guilty of misconduct in office and shall be subject to review by the Ethics Commission. The Mayor or any member of the City Council who shall have been convicted of any felony shall immediately forfeit his or her office.

(Ord. No. 91-95, § 4(20), 11-14-91; Ord. No. 96-59, § 17, 6-16-96; Ord. No. 98-33, § 27, 6-3-98; Ord. No. 98-66, § 9, 7-30-98)

Section 5. Oath of Office. Every person elected or appointed to any office in the City shall, before entering upon the duties of the office, take and subscribe to the oath of office prescribed by the constitution or laws of the State of Texas.

(Ord. No. 91-95, § 4(21), 11-14-91; Ord. No. 96-59, § 17, 6-16-96)

State Constitution reference— Oaths, Cons. Art. 16, § 1.

State Law reference— Taking of oath required Vernon's Ann. Civ. St. art. 993.

Section 6. Nepotism. No person who is related by affinity or consanguinity (marriage or blood) as defined by State law, to a member of the Council or other elected official, or to a department head, or to the City Manager, shall be appointed to any office, clerkship or other paid position with the City, but this prohibition shall not apply to officers or employees who have been employed by the City continuously for more than two years prior to the elections of such member of council or other elected official. No department head, or other City employee who is related by affinity or consanguinity (marriage or blood) as defined by State law, to a City employee, shall supervise that employee. "Defined by State law" shall mean the degree of affinity or consanguinity prohibited by State law for State officials.

(Ord. No. 96-59, § 17, 6-16-96; Ord. No. 98-33, § 28, 6-3-98; Ord. No. 98-66, § 10, 7-30-98)

Section 7. Notice of Claims. The City of Galveston shall never be liable for damages for the death or personal injuries of any person or for the damages or destruction of property of any kind, which does not constitute a taking or damaging of property under Article I, Section 17, Constitution of Texas, unless the person injured, if living, or the person's representatives, if deceased, or the owner, the person's attorney, or the person's agent of the property damaged or destroyed, shall give the City Council a notice in writing, duly verified by affidavit, of such death, injury, damage or destruction, within one hundred eighty (180) days after the same has been sustained, unless a longer notice period is otherwise provided by applicable state or federal law. The written notice shall specifically state when, where, and how the death, injury, damage or destruction occurred, the apparent extent of any such injury, the amount of damages sustained, the actual residence of the claimant by street and number at the date the claim is presented, the actual residence of such claimant for six months immediately preceding the occurrence of such death, injury, damage or destruction, and the names and addresses of all witnesses upon whom the claimant relies to establish the claim for damages. Failure to notify the city council within the time and manner specified herein shall exonerate, excuse and exempt the City of Galveston from any liability whatsoever. This provision shall not shorten the notice period provided in Section 101.101 of the Texas Civil Practice and Remedies Code, as amended, or in a successor statute, nor shall this provision govern notice of any claim brought under federal statute or require the giving of notice by a person incapable of managing his or her own affairs by reason of minority or physical or mental incapacity.

(Ord. No. 89-17, § 3(22), 1-26-89; Ord. No. 91-95, § 4(22), 11-14-91; Ord. No. 96-59, § 17, 6-16-96)

Editor's note— Section 7 of Article XIV of the charter was originally amended by the approval of Proposition No. 6 at a city charter amendment election held April 8, 1969. The results of the election were confirmed by Ord. No. 69-35, enacted April 17, 1969. The amendment changed the time for filing claims from 90 days to 45 days; deleted notice to the city manager; deleted provisions relating to actual notice by the city council or city manager and the waiver of notice by the city council.

Section 8. Limitation of City's Liability. The City of Galveston shall not be liable for damages to anyone, on account of any defect in, obstruction on, or anything else in connection with any sidewalk in the City.

(Ord. No. 96-59, § 17, 6-16-96)

Section 9. Security or Bond Not Required. It shall not be necessary in any action, suit, or proceeding in which the City is a party for any bond, undertaking or security to be demanded or executed by or on behalf of the City. The City shall have all remedies of appeal provided by law to all courts in this state without bond or security of any kind, but shall be liable in the same manner and to the same extent as if such bond, undertaking, or security had actually been executed or given.

(Ord. No. 96-59, § 17, 6-16-96)

Section 10. Assignment, Execution, and Garnishment. The property, real and personal, belonging to the City shall not be liable for sale or appropriation under any writ of execution. The funds belonging to the City, in the hands of any person, firm, or corporation, shall not be liable to garnishment, attachment, or sequestration; nor shall the City be liable to garnishment on account of any debt it may owe or funds or property it may have on hand or owing to any person. Neither the City nor any of its officers or agents shall be required to answer any such writ of garnishment on any account whatever. The City shall not be obligated to recognize any assignment of wages or funds by its employees, agents or contractors.

(Ord. No. 96-59, § 17, 6-16-96)

Section 11. Boards, Commissions, Committees, Corporations, and Political Subdivisions Created by the City. Excepting where otherwise required by this Charter, laws of the State of Texas, or Articles of Incorporation or By-laws, all boards, commissions, committees, corporations, and political subdivisions created by the City ("boards") shall have the powers and duties prescribed for them by the Council, and the members of such boards shall be appointed by the Council; No citizen shall be appointed to serve as a member of any board if that person has not been a resident of and domiciled in the City for at least one (1) year immediately preceding the appointment; The residency and domicile requirements for City Council set forth in this Charter shall be applicable to board domicile requirements for City Council set forth in this Charter shall be applicable to board members; No person shall serve as a member of any advisory board who holds an elective public office unless the person is a member ex officio of such board; No person shall be reappointed to the same board if that person has served six (6) consecutive years, unless such person has been off the board for the length of the term of appointment; No member of any board, committee, or commission shall, during the time for which the member is appointed or for two (2) years thereafter, be employed by the entity on which the member serves; All meetings of boards shall be open to the public excepting only for executive sessions held to discuss personnel appointments or to discuss matters of competitive concern to the City wherein no formal action is taken; No member of any City Board, including the Park Board of Trustees, The Board of Trustees of the Galveston Wharves, and the Galveston Housing Authority, who has a contract with the member's board shall participate in discussions or vote on any other member's contract with the same board; No member of any City Board, including the Park Board of Trustees, The Board of Trustees of the Galveston Wharves, and the Galveston Housing Authority, whose employer has a contract with the member's board shall participate in discussions or vote on any other member's contract with the same board; No member of any City Board, including the Park Board of Trustees, The Board of Trustees of the Galveston Wharves, and the Galveston Housing Authority, who is related to a person who has a contract with the member's board shall participate in discussions or vote on any other member's contract with the same board. As used in the preceding sentence "related to a person" means a person related to a member in the second degree if related by marriage and in the third degree if related by blood.

(Ord. No. 91-95, § 4(23), 11-14-91; Ord. No. 96-59, § 17, 6-16-96; Ord. No. 98-33, § 29, 6-3-98; Ord. No. 98-66, § 11, 7-30-98; Ord. No. 02-033, § 8, 5-4-02; Ord. No. 12-009, § 2, 2-23-12)

Editor's note— Ord. No. 12-009, § 2, adopted February 23, 2012, changed the title of section 11 from "Administrative and Advisory Boards" to "Boards, Commissions, Committees, Corporations, and Political Subdivisions Created by the City." The historical notation has been preserved for reference purposes.

State Law reference— Open meeting act. Vernon's Ann. Civ. Stat. art. 6252-17.

Section 12. Publications. The Council shall have power to designate by ordinance a newspaper of general circulation in the City as the official newspaper. The City shall cause to be published all ordinances, notices and other matters which are required by this Charter, the ordinance of the City, or the constitution or laws of the State of Texas, to be officially published in the manner prescribed by law.

(Ord. No. 96-59, § 17, 6-16-96; Ord. No. 16-035, § 8, 5-17-16 )

Editor's note— Ord. No. 16-035, § 8, adopted May 17 , 2016 , amended § 12, to read as set out herein. Previously § 12 was titled " Official Newspaper."

Section 13. Storm Protection. For the protection of persons and property against high winds and water the Council shall be empowered to enact ordinances:

(1) Determining the elevations and grades for properties in the different areas of the City, and requiring the establishment and maintenance thereof;

(2) Prohibiting the erection or removal of structures outside of the seawall without a special permit first obtained from the City;

(3) Regulating the construction of buildings and all other types of improvements.

(Ord. No. 96-59, § 17, 6-16-96)

Section 14. Limitation on Charges for Use of the Sewer System. The Council shall be empowered to fix and collect reasonable charges for the use of the public sewer system of the City and to use or pledge the revenue therefrom for the operation, maintenance and improvement of the sewer system, including the payment of the principal and interest of bonds issued for the purpose of providing facilities for the collection and disposal of sewage, but no charges for use of the public sewer system shall be made or collected for any other purpose.

(Ord. No. 96-59, § 17, 6-16-96)

Section 15. Official Bonds. The Tax Collector, the Director of Finance, and such other officers or employees as the Council may by general ordinance require so to do, shall give bond in such amount and with such surety as may be approved by the Council. The premiums on such bonds shall be paid by the City.

(Ord. No. 96-59, § 17, 6-16-96)

Section 16. Sale of Property. No City property shall be sold or otherwise disposed of without the prior approval of the Council. The Council may by ordinance give authority to the City Manager for the routine sale or other disposition of personal property without further action by the Council where the value of the property does not exceed One Thousand Dollars ($1,000.00) and provided that the sale or disposition is reported to the next meeting of the Council.

(Ord. No. 89-17, § 3(23), 1-26-89; Ord. No. 96-59, § 17, 6-16-96)

Section 17. Judicial Notice. This Charter shall be deemed a public act, and shall have the force and effect of a general law, may be read in evidence without pleading or proof, and judicial notice thereof shall be taken in all Courts and places without further proof.

(Ord. No. 96-59, § 17, 6-16-96)

Section 18. Rearrangement and Renumbering of Charter Provisions. To preserve the unity and arrangement of this Charter the Council shall have the power, by Ordinance, to rearrange and renumber all Articles, Sections, and Subparagraphs of this Charter and any Amendments thereto, as may be appropriate; upon the passage of any such Ordinance a copy thereof Certified by the City Secretary shall be forwarded to the Secretary of State for filing.

(Ord. No. 96-59, § 17, 6-16-96)

Section 19. Separability Clause. If any Section or part of a Section of this Charter is held to be invalid or unconstitutional by a Court of competent jurisdiction, the same shall not invalidate or impair the validity, force, or effect of any other Section or part of a Section of this Charter.

(Ord. No. 96-59, § 17, 6-16-96)

Section 20. Neutral Gender References. All references to persons in this Charter shall be neutral as to gender. Prior to the next printing of this Charter after January 21, 1989, the City Attorney shall change to a neutral form all gender references not previously changed. All future amendments referring to persons shall be made neutral at the time of enactment.

(Ord. No. 89-17, § 3(24), 1-26-89; Ord. No. 96-59, § 17, 6-16-96)

Section 21. Ethics Commission. Recognizing that public office is a public trust and that all public officials, city employees, and members of committees, commissions or boards should act in a manner that does not conflict with proper public interest, City Council shall adopt a "Code of Ethics" and appoint an Ethics Commission. The Ethics Commission shall be comprised of seven residents, appointed by City Council in accordance with the "Code of Ethics." The Ethics Commission shall monitor and enforce the "Code of Ethics," which shall apply to all elected and appointed officials, members of committees, commissions, or boards, whether such officials or members are paid or unpaid, and to all city employees. The Ethics Commission shall investigate any alleged violation of The City Charter.

(Ord. No. 96-59, § 17, 6-16-96; Ord. No. 98-33, § 30, 6-3-98)

Section 22. Transfers from Enterprise Fund to General Fund. Any transfer, loan, advance or other allocation of enterprise fund revenue or fund balance to the general fund during the fiscal year in excess of seven (7) per-cent of the actual fiscal year revenue of such enterprise fund shall operate to require a corresponding reduction in the ad valorem tax rate in an amount necessary to offset the transfer, loan, advance or other allocation credited to the general fund when such ad valorem rate is adopted for the next fiscal year.

(Ord. No. 04-028, § 2, 2-26-04)

Section 23. Transfers from Enterprise Fund to Enterprise Fund. The portion of any transfer, loan, advance or other allocation of the revenue or fund balance of one or more enterprise funds (including to, from or within any combined enterprise funds) made to another enterprise fund (hereinafter termed the borrowing enterprise fund) that remains on the accounts of the City for a period in excess of twelve (12) months, shall be deemed and become an obligation of the general fund, and shall be offset by a corresponding reduction in the ad valorem tax rate in an amount necessary to offset the transfer, loan, advance or other allocation credited to the borrowing enterprise fund, when such rate is adopted for the next fiscal year commencing after the expiration of the twelve month period, unless during the next fiscal year commencing after the expiration of the twelve month period, the general fund makes a transfer to clear such account.

(Ord. No. 04-028, § 2, 2-26-04)

January 28, 1960.

To the Mayor-President and Board of Commissioners,
City of Galveston, Texas.

Sirs:

In the election held on the 12th day of May, 1959, the voters of the City of Galveston voted affirmatively on the question "Shall a Commission be Chosen to Frame a New Charter." Members of the Charter Commission elected at that time, and who thereafter qualified by taking the oath of office, were:

Edward Schreiber, Theodore B. Stubbs, H. E. Kleinecke, Jr., Mrs. Harris L. Kempner, Mrs. A. R. Schwartz, Leroy E. Brown, Jean Edmond Hosey, Dr. Edgar F. Jones, Jr., Dr. Sidney R. Kay, Maco Stewart, Richard Thornton, Mrs. Lewis Harris, Dr. Oscar T. Kirksey, Edward W. Watson, Robert Rourke, Al West, Robert H. Albright, Irving David Clark, Raymond G. Reesby, and A. W. McDonald.

After organizing, this Charter Commission adopted by-laws and elected the following permanent officers:

Chairman: Edward Schreiber.
Vice Chairman: Theodore B. Stubbs.
Secretary: Mrs. Lewis Harris.

Meeting[s] were thereafter held from time to time, all meeting[s] being open to the public. After full consideration of the many problems and of the ends sought to be accomplished, the Charter Commission has prepared and given its final approval to a new Charter, a copy of which is hereto attached, for submission to the qualified voters of this City in an election to be held for that purpose.

Pursuant to the obligations imposed on this Charter Commission by law it has determined, and hereby certifies:

1. That the annexed Charter is a true and correct copy of the Charter prepared by this Charter Commission.

2. That in the submission of this Charter to the voters it would be impracticable to segregate each subject for a separate vote thereon, for the reason that the Charter is so constructed that in order to enable it to work and function it is necessary that it should be adopted in its entirety. Therefore, it is to be submitted so as to be voted on as a whole.

3. That the election for this purpose is to be held in the City of Galveston on the 19th day of April, 1960.

4. That the Charter Commission completed its work on the 25th day of January, 1960, which is within 90 days of the date set for such election.

The members of the Charter Commission have also voted to express their appreciation for the cooperation which was given them at all times by officials of the City in the accomplishment of their work.

Respectfully submitted,

(s) Edward Schreiber.

Edward Schreiber,
Chairman,
Charter Commission of the
City of Galveston.

Attested:

(s) Mrs. Lewis Harris,

Mrs. Lewis Harris,
Secretary.

Appendix A

On May 2, 1998, the voters of the City of Galveston, Texas, approved Proposition No. 10, Proposition No. 11, and Proposition No. 12. The ballot language for Proposition 10 read as follows:

"Shall the voting districts of the City Council be changed from six to four, and shall one member of Council be elected from each of the four districts, and shall the Mayor and two members of Council be elected at large, and shall qualified voters be entitled to vote for one candidate who runs in the district in which the voter lives, and for one candidate who runs in the at-large position A, and for one candidate who runs in the at-large position B, and for one candidate for Mayor? (Art. III, sec. 2)."

The ballot language for Proposition 11 read as follows: "Shall the voting district lines be drawn north to south and shall the population of each district be as equal as possible? (Art. III, sec. 2(a))."

The ballot language for Proposition 12 read as follows: "Shall the candidate for Mayor and the candidates for each Council position who receive fifty percent of the votes plus one vote be declared elected? (Art. III, sec. 2(c))"

Upon the voters approving Proposition Numbers 10, 11, and 12, the City Council of the City of Galveston, Texas, adopted Ordinance No. 98-33 on May 14, 1998, and Ordinance No. 98-66 on July 23, 1998, amending The City Charter to reflect the voters approval of the Propositions. Pursuant to the voter's adoption of Proposition Numbers 10, 11, and 12, Article III, section 2, "Election of Mayor and Councilmembers" was amended to read and provide as follows:

"Section 2. Election of Mayor and Councilmembers. The City shall be divided into four (4) districts. The Mayor shall be elected at large. One member of Council shall be elected from each of the four (4) districts. Two (2) members of Council shall be elected at-large from two (2) at-large positions, position "A" and position "B." The mayor and all members of Council shall be elected at a regular City election, to be held for such purpose on the first Saturday in May in every even-numbered year.

(a) It shall be the duty of the City Council to establish the boundaries of districts covering the entire City for the purpose of electing District Councilmembers. Such boundaries shall be established by Ordinance, which shall be final for the purposes of this Charter. The boundary lines of each district shall be drawn from North to South, and shall follow an existing City street even if the street does not run the entire width of the City from North to South, and the population of each district shall be as equal as possible with only minor variations depending upon the streets selected for district boundaries. Any subsequent establishment shall be made when required by this Charter. Except as changed hereby, all other provisions of the City Charter relating to elections of the members of the City Council shall remain unchanged.

(b) Promptly following the addition of territory to the City by a boundary change, the City Council shall, by Ordinance, add such territory to an adjacent district or districts. The Mayor shall be elected at large and four (4) Councilmembers shall be elected from districts, and two (2) councilmembers shall be elected from two at-large positions. The districts from which Councilmembers shall be elected shall be designated by City Council as Districts 1, 2, 3, and 4, according to the boundaries of these districts, as established by Ordinance, in accordance with this Section. The at-large Council positions shall be designated by City Council as Position A and Position B. At each election, candidates shall be voted upon and be elected separately from each Councilmember district, and from the two at-large positions.

(c) Any qualified person who desires to become a candidate for the office of Mayor or Councilmember shall file with the City Secretary, no earlier than seventy-five (75) days nor less than forty-five (45) days prior to the election, a signed application for the candidate's name to appear on the ballot, specifying the office and position for which the candidate is filing. The order of the ballot of the names of the candidates for each office shall be determined by lot in a drawing to be held under the supervision of the City Secretary. Every qualified voter shall be entitled to vote for Mayor and for one (1) candidate for Councilmember who runs for the district in which the voter lives, and for one candidate who runs for at-large position "A," and for one candidate who runs for at-large position "B." The City Council shall be the judge of the election and qualifications of Councilmembers, subject to review by the courts in case of contest. Each district Councilmember shall be elected by the qualified voters of each respective district. Each at-large Councilmember shall be elected by the qualified voters of the City. The candidate for Mayor and the candidate for each Councilmember district and for each Councilmember at-large who shall receive fifty (50) percent of the votes plus one (1) vote shall be declared elected. A candidate for Mayor shall not be a candidate for Councilmember at the same election and a person may not be a candidate for more than one (1) Councilmember position or district at the same election.

(d) All candidates elected at the regular City election shall, upon being sworn, take office on the first Thursday following the election."

Although the election changes complied with State law, on December 14, 1998, the United States Department of Justice issued an "Objection Letter" stating that it objected to Proposition Numbers 10, 11, and 12. As a matter of Federal law, the language existing prior to the election held on May 2, 1998, remains in effect until the Department of Justice withdraws its objections or the United States District Court for the District of Columbia issues a declaratory judgment that the changes neither have the purpose not will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. Because of the upcoming year 2000 censuses, the City Council of the City of Galveston, Texas, deems it not to be in the public interest to challenge the "Objection Letter" at this time. Therefore, the City of Galveston, Texas, cannot implement the election changes and the language amending The City Charter to reflect those election changes is legally unenforceable. Consequently, the language amending The City Charter to reflect those election changes must be removed and replaced with the language existing prior to the May 2, 1998 election. A copy of the December 14, 1998, "Objection Letter" submitted by the Department of Justice is included in, and is to be considered part of, this Appendix A."

Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20035

December 14, 1998

Barbara E. Roberts, Esq.
City Attorney
P.O. Box 779
Galveston, Texas 77553-0779

Dear Ms. Roberts:

This refers to amendments to the city charter that provide for a change in the method of election for the city council from six single-member districts to four single-member districts and two at large with numbered posts, a change from a plurality to a majority vote requirement, redistricting criteria and revised recall procedures for the City of Galveston in Galveston County, Texas, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your response to our August 17, 1998, request for additional information on October 15, 1998.

The Attorney General does not interpose any objection to the specified recall procedures. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41).

With regard to the remaining specified changes, we cannot come to the same conclusion. We have carefully considered the information you provided, as well as Census data, and information in our files and from other interested parties. According to 1990 Census data, the city's total population is 28 percent black and 21 percent Hispanic. Under the existing system, six councilmembers are elected from single-member districts and the mayor is elected at large. Two of the single-member districts have black population majorities and have elected black representatives to the city council. This method of election and districting plan were adopted in settlement of a vote dilution lawsuit filed by minority residents against the city in Arceneaux v. City of Galveston , No. G-90-221 (S.D. Tex.), and received preclearance under Section 5 for use on an interim basis on April 29, 1993, and for use on a permanent basis on January 27, 1994.

Prior to the adoption of a single-member district method of election, the city sought preclearance for a method of election similar to the plan currently under review. It provided for the election of four councilmembers from single-member districts, two councilmembers elected at large by numbered position and the mayor elected at large with a plurality vote requirement. This 4-2-1 method of election was proposed as a replacement for the at-large method of election that was the subject of the vote dilution lawsuit. On December 14, 1992, the Attorney General precleared the use of a plurality vote requirement, but interposed an objection under Section 5 to the proposed 4-2-1 method of election and to the use of numbered posts for the at-large seats because the city had not met its burden under Section 5 of demonstrating the absence of a discriminatory purpose and effect. Our conclusion in this regard was premised upon a number of factors.

First, our analysis of the at-large system indicated that voting in municipal elections was racially polarized and that minority-supported candidates had very limited success under the at-large system. Second, the districting plan that accompanied the 4-2-1 method of election did not include a single district in which black or Hispanic voters constituted a majority of the population; instead, the plan included two districts in which black and Hispanic voters combined constituted a majority. The city failed, however, to provide evidence of cohesion between black and Hispanic voters in municipal elections, rendering it doubtful that either minority group under this plan would elect a candidate of choice to a council seat. Third, the city maintained its preference for the 4-2-1 plan over the opposition of the minority community and the Arceneaux plaintiffs, who favored the adoption of a six single-member district plan with two districts in which black voters would constitute a majority of the population. Fourth, the city chose to maintain two at-large positions on the city council, in addition to the mayoral seat, and to add numbered posts. Given the existence of racially polarized voting in municipal elections, we concluded that these features of the proposed electoral system would limit the ability of minority voters to elect their candidates of choice to the city council. Finally, given all of the circumstances described above, we determined that the city had not provided legitimate, nonracial justifications for its choices regarding the 4-2-1 method of election and its adoption of numbered posts. It is against this backdrop that we must view the city's current request for preclearance of the 4-2-1 plan, with numbered posts, as well as the proposed return to the use of a majority vote requirement.

In light of the Attorney General's prior objection to virtually identical voting changes, and the requirement of Section 5 that the submitting authority carries the burden of demonstrating that proposed voting changes are free of discriminatory purpose and effect—see 28 C.F.R. 51.52(a)—we have examined the information provided to determine whether new factual or legal circumstances exist which would lead to the conclusion that voting changes that did not satisfy the nondiscrimination requirement of section 5 in 1992 will satisfy the same requirement under Section 5 today. Central to our consideration of this issue is the presence today in the City of Galveston of a method of election which fairly reflects minority voting strength, a circumstance which did not exist when the 1992 objection was interposed.

Our examination of city election returns since 1991 indicates that racial bloc voting continues to play a significant role in city elections. This year's mayoral election in which the Hispanic candidate was successful appears to have been an instance where Hispanic and black voters did vote together, along with a number of Anglo crossover voters. However, this cohesion between minority voters appears to have been a departure from the norm, as evidenced by the results in other recent elections. Of particular note is the fact that the proposed majority vote requirement, had it been in effect in this year's election, could well have changed the outcome of the mayoral race since the majority of the votes cast were for candidates favored by the Anglo voting majority. We find it significant that the city has provided no information or analysis in support of the proposed changes regarding racial bloc voting or cohesiveness between black or Hispanic voters, factors which were critical in our 1992 examination of the 4-2-1 method of election and which are no less important today.

While the city council has not yet adopted a redistricting plan for the proposed method of election, we understand that three alternative plans were developed by an appointed redistricting committee and they are currently before the council. We understand that all three plans are based on 1990 Census data and that this data continues to be the most accurate available information on the city's demographics. As was the case in 1992, we are informed that none of these plans provide for a single-member district in which Hispanic persons constitute a majority of the population or more than one district in which black persons constitute a majority. If this information is correct, it would appear to confirm that the proposed method of election, under current circumstances, cannot produce an electoral system that recognizes minority voting strength as fairly as does the current system. Therefore, the proposed 4-2-1 method of election with numbered posts for the two at-large seats and a majority vote requirement would lead to a retrogression in minority voting strength prohibited by Section 5. See Beer v. United States, 425 U.S. 130, 141 (1976) ("the purpose of § 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise"); 28 C.F.R. 51.54.

We have considered the impact of the proposed redistricting criteria on the city's ability in the future to draw districts that fairly recognize minority voting strength. Our analysis has been hampered by the lack of information from the city regarding these criteria and how they are to be interpreted and applied. For reasons that the city does not explain, these criteria place what appear to be significant restrictions on the ability of the city to draw racially fair redistricting plans. The criteria specify that city districts be drawn from north to south and that districts "be as equal as possible with only minor variations depending upon the streets selected for district boundaries." The latter criterion appears to be significantly more exacting than the plus or minus 10 percent deviation standard approved by the federal courts for local jurisdictions to satisfy the one person, one vote requirement of the Constitution. If we understand these criteria correctly, had they been in effect in 1993 they would not have permitted the existing districts to be drawn, and their future application could hamper the ability of the city to draw nonretrogressive redistricting plans in compliance with Section 5.

Although city officials and members of the charter review committee established in 1997 presumably were aware of the prior history of litigation under the Voting Rights Act and the Attorney General's 1992 objection, the information provided by the city in support of its application for preclearance of the instant changes contains remarkably little acknowledgement of these past events or their relevance to our review under Section 5 of the city's preclearance request. For example, the city council, which appointed the charter review committee, apparently provided little direction to the committee regarding factors that should be considered in proposing changes that would affect voting, such as whether its proposals complied with Section 2 of the Voting Rights Act, 42 U.S.C. 1973, and satisfied the nonretrogression standard of Section 5. In response to a specific inquiry on this subject, you informed us simply that "the Charter Review Committee did not discuss in depth the Attorney General's 1992 objection." These facts, viewed in light of the position adopted by the council before the committee began its work that it would put before the voters any proposed charter change approved by a majority of the committee, support an inference that the council gave very little independent consideration to the serious voting rights issues implicated by the charter committee's work and the potential impact of its efforts on the political participation opportunities of minority voters.

Under Section 5 of the Voting Rights Act, the submitting authority has the burden of showing that a submitted change has neither a discriminatory purpose nor a discriminatory effect. Georgia v. United States , 411 U.S. 526 (1973); see also 28 C.F.R. 51.52. In light of the considerations discussed above, I cannot conclude that your burden has been sustained in this instance. Therefore, on behalf of the Attorney General, I must object to the change in the method of election to four single-member districts and two at-large seats, the adoption of numbered posts for the at-large seats, the adoption of a majority vote requirement for the election of city officers, and the proposed redistricting criteria.

We note that under Section 5 you have the right to seek a declaratory judgment from the United States District Court for the District of Columbia that the proposed changes neither have the purpose nor will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. See 28 C.F.R. 51.44. In addition, you may request that the Attorney General reconsider the objection. See 28 C.F.R. 51.45. However, until the objection is withdrawn or a judgement from the District of Columbia Court is obtained, the objected-to changes continue to be legally unenforceable. Clark v. Roemer , 500 U.S. 646 (1991); 28 C.F.R. 51.10.

To enable us to meet our responsibility to enforce the Voting Rights Act, please inform us of the action the City of Galveston plans to take concerning this matter. If you have any questions, you should call George Schneider (202-307-3153), an attorney in the Voting Section.

Sincerely,

Bill Lann Lee
Acting Assistant
 Attorney General
Civil Rights Division

U.S. Department of Justice
Civil Rights Division

Office of the Assistant Attorney General
Washington, D.C. 10035

C. Robert Heath, Esq.
Bickerstaff, Heath, Smiley, Pollan, Kever &
  McDaniel
816 Congress Avenue, Suite 1700
Austin, Texas 78701-2443

Dear Mr. Heath:

This refers to your request that the Attorney General reconsider and withdraw the December 14, 1998, objection interposed under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, to charter amendments that provide for a change in the method of election for the city council from six single-member districts to four single-member districts and two elected at large with numbered posts, a change from a plurality to a majority vote requirement, and redistricting criteria for the City of Galveston in Galveston County, Texas. We received your request on December 5, 2001.

Your letter also requests that if the Attorney General withdraws the objection to the above charter changes, the Attorney General should then proceed with his analysis of the city's proposed 2001 redistricting plan (identified in your letter as Plan Z) which the city proposes to use in connection with the four single-member, two at large framework.

Your letter acknowledges that if the Attorney General declines to withdraw the December 14, 1998, objection, Redistricting Plan Z will be moot. Accordingly, the city has also presented for Section 5 review a 2001 redistricting plan (Plan C) for use under the six single-member district method of election.

We have reconsidered our earlier determination in this matter based on the information and arguments you have advanced in support of your request, along with the other information in our files and comments received from other interested persons. Based on this review we have concluded that the charter amendment requiring a majority vote for the election of the mayor and city council would not have a retrogressive effect on the ability of minority voters to elect candidates of their choice.

Accordingly, pursuant to Section 51.48(b) of the Procedures for the Administration of Section 5, the objection interposed to the majority vote requirement for the election of the mayor and members of the city council is hereby withdrawn. However, we note that failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See 28 C.F.R. 51.41.

We cannot reach a similar conclusion with regard to your request for reconsideration of the remaining changes.

The city's prior history with regard to the enforcement of the Voting Rights Act is generally set out in our December 14, 1998, objection letter and need not be repeated in depth here. The record shows that it was not until the replacement in 1993 of the at-large election system by the court ordered single-member district system that African-American voters achieved a significant level of representation on the city council reflective of their voting strength in the city which continues to this day.

While our procedural guideline states that a submitting authority may request reconsideration of an objection "at any time," it recommends that such requests "should contain relevant information or legal argument." Procedures for the Administration of Section 5 (28 C.F.R. 51.45).

In support of your request for reconsideration, your letter notes the following changed circumstances since the 1998 objection, which you request that the Attorney General consider: (1) the availability of more current demographic data as a result of the release of the 2001 Census; and (2) the occurrence of a city election in which the incumbent Hispanic mayor was reelected.

We certainly agree that the most recent census data is critically important in evaluating the current impact of proposed voting changes, and of redistricting plans in particular. Our review of the census data has confirmed the accuracy of your statistics for the existing plan and the alternative plans you have presented. We also note your statement that the 2001 Census revealed that in the ten years since the 1990 Census, Hispanics supplanted African-Americans as the predominant minority group in the city. However, your letter does not explain the significance of this demographic shift with regard to the essential question in the Section 5 analysis: Do the proposed changes reflect a purpose to retrogress minority voting strength, and do they result in retrogression?

Similarly, the results of the 2000 city election, while certainly relevant to our analysis, would be significant if they indicated that racial bloc voting was no longer an operative factor in city elections. However, Mayor Quiroga's reelection, when considered together with our previous analyses of racial bloc voting in the city (referred to in our December 14, 1998, objection letter) fails to persuade us that voting in the City of Galveston is no longer racially polarized.

In light of these considerations, I remain unable to conclude that the City of Galveston has carried its burden of showing that the submitted changes have neither a discriminatory purpose nor a discriminatory effect. See Georgia v. United States , 411 U.S. 526 (1973); see also 28 C.F.R. 51.52.

Therefore, on behalf of the Attorney General, I must decline to withdraw the objection to the charter amendments that provide for a change in the method of election for the city council from six single-member districts to four single-member districts and two elected at large with numbered posts and the redistricting criteria.

As we previously advised, you may seek a declaratory judgment from the United States District Court for the District of Columbia that the proposed changes have neither the purpose nor will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. We remind you that until such a judgment is rendered by that court, the objection by the Attorney General remains in effect and the proposed changes continue to be legally unenforceable. See Clark v. Roemer , 500 U.S. 646 (1991); 28 C.F.R. 51.10.

Your request that the Attorney General review for preclearance the city's proposed six single-member districting plan if he declines to withdraw the objection to the charter changes will be addressed in a separate letter.

Sincerely,

/s/   Ralph F. Boyd, Jr.   

Assistant Attorney General
Civil Rights Division