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1971 04 14 CC Minutes, Special78 4993 MINUTES OF A SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS April 14, 1971 The City Council of the City of Baytown, Texas, convened in a special session on the 14th day of April, 1971 at 6:40 p.m., in the Council Room of the Baytown City Hall with the following members in attendance: David Evans Councilman Leonard Stasney Councilman Allen Cannon Councilman Lamar Kelley Councilman Don Hullum Councilman * C. Glen Walker Mayor ** D. R. Voelkel City Manager W. R. Laughlin City Attorney Howard Northcutt Administrative Assn't Absent: Edna Oliver City Clerk Ted Kloesel Councilman Canvass of Election - Three Council Members and Mayor The Mayor called the meeting to order and the first item of bus- iness to be considered was the canvassing of the April 6, Municipal Election in which the citizens voted for positions of three council members and the Mayor. The canvass proved all tabulation to be in order except for a discrepancy of one vote in Precinct No. 248; therefore, the Council decided to go to the next item of business inorder that Mr. Woodrow Lewis the Precinct Judge could be located to correct the discrepancy. Public Hearing - Annexation Chambers County ^7 The hearing was opened and the Mayor asked if anyone wished to speak. County Judge Oscar Nelson, representing delegates from Chambers County, rose to speak. Judge Nelson stated that the people of Chambers County did not feel that Baytown could offer them anything. The Judge con- tinued by saying if the first reading passed, the Chambers County Commis- sioners Court would withdraw any commitments for purchase of right- of-way in this area and would turn all municipal 'services over to Baytown. At this point the Mayor inquired as to what services were offered. Judge Nelson said that Chambers County relocates pipelines, builds bridges, mows right -of -ways, buys right -of -ways, builds roads, helps to relocate bridges and canals, subsidizes fire protection and provides police protection for this area. Also, it was mentioned that the County had planned to spend approximately $750,000 in the planned annexed area and if Chambers County withdraws funds, it will affect right- of-way for State Spur 55. Next the Mayor of Beach City stated the City of Baytown in Chambers County is "un- warranted, unwanted, uninvited, repulsive and aggravating." The Mayor stated that many of the people in the area had moved from Baytown because of high taxes; thereby not wishing to fall under the same tax burden. Mr. John Sandhop, representing the Nelson Estate, contended that additional taxes would make it impossible to continue the farming of rice lands. For clari- at the beginning of the hearing Mr. Laughlin, City Attorney, described the property to be annexed. The property lies south of Farm Road 565, north of Houston Light & Power discharge canal, and is bounded on the west by Cedar Bayou and the present City limits, bounded on the east by west railway line of FM 2354, making a total of 3,500 acres to be annexed; however, the Council )j is at liberty to annex only a portion of this area. Councilman Kelley moved to close the hearing and the motion was seconded by Councilman Evans. The vote follows: Ayes: Councilmen Evans, Stasney, Hullum, Cannon, and Kelley ` Mayor Walker Nays: None Minutes, April 14, 1971 iJ 4994 The Mayor asked Mr. Laughlin to give a time schedule concerning these annexation proceedings for the interest parties present. The first reading will be held 10 -20 days from April 14 and will be published; the second reading may then be held in 30 days; therefore, there will be a time sequence of approxi- mately 45 -50 days. Canvass of Election - Three Council Members and Mayor The canvass was continued and since Mr. Lewis could not be contacted at this time, Mr. Laughlin stated that it would not be unlawful to continue using the tabulation sheet Mrs. Oliver had verified against Mr. Lewis' the night the election votes were first read. There was a difference of one vote- - Mr. Hullum lost one vote. Mr. Laughlin reads Resolution No. 320 caption. Councilman Kelley moved to adopt Resolution No. 320. Councilman Stasney seconded the motion. The vote follows: Ayes: Councilmen Evans, Stasney, Hullum, Cannon, and Kelley Mayor Walker Nays: None The Resolution follows: RESOLUTION NO. 320 A RESOLUTION CANVASSING THE RETURNS OF THE REGULAR MUNICIPAL ELECTION HELD WITHIN THE CITY OF BAYTOWN ON THE 6TH DAY OF APRIL, 1971, FOR THE PURPOSE OF ELECTING A MAYOR FROM THE CITY AT LARGE AND THREE (3) COUNCILMEN FROM THE RESPECTIVE DISTRICTS NOS. TWO (2), THREE (3) AND SIX (6) TO SERVE REGULAR TWO YEAR TERMS; DECLARING THE RESULTS OF SAID ELECTION; FINDING THAT NOTICE OF SAID ELECTION WAS DULY AND PROPERLY GIVEN AND THAT SAID ELECTION WAS PROPERLY HELD AND THE RETURNS THEREOF MADE BY THE PROPER OFFICIALS IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. WHEREAS, pursuant to Article IX, Section 96 of the Charter of the City of Baytown, the City Council of said City, at a special meeting held on this 14th day of April, 1971, proceeded, as required by law, to canvass the returns of the Regular Municipal Election held in the City of Baytown on the 6th day of April, 1971, for the purpose of electing a Mayor from the City at large and three (3) councilmen from the respective Districts Nos. Two (2), Three (3) and Six (6); said election having been held under and pursuant to the provisions of the Charter of said City and an ordinance duly passed on the 28th day of January, 1971, calling said Election; and WHEREAS, said Election having been duly and regularly had and held as called in said ordinance and according to law, and the returns thereof having been duly made and the Election Judges having certified the results of said Election, as hereinafter set out, and the City Council having duly and regularly canvassed the returns of said Election and finding that the total votes cast at said Election were as follows, to -wit: 80 Minutes, April 14, 1971 4995 FOR MAYOR (FROM CITY AT LARGE) Thomas C. Gentry 1,150 votes C. Glen Walker H. M. Campbell Don M. Hullum 2,248 votes 691 votes 880 votes Tony Campos 304 votes FOR COUNCILMAN DISTRICT NO. 2 Charley 0. Walker 1,486 votes David Evans 1,476 votes Jack Bray 1,077 votes Mrs. Ruby Callaway 497 votes Doug Tromblee 532 votes FOR COUNCILMAN DISTRICT NO. 3 A. M. Simon 1,679 votes Alvie C. Carlton 994 votes Jody Lander 2,273 votes FOR COUNCILMAN DISTRICT NO. 6 E. Q. Camp 1,499 votes Charles E. Gates 418 votes Jim McWilliams 1,417 votes B. B. Williams 1,049 votes Dan Savell 679 votes Carl E. Connetton, Jr. 103 votes AND WHEREAS, the City Council of the City of Baytown finds the Election returns as set out above to be accurate and correct and no Election returns as set out above to be accurate and correct and no Election protest or contest having been filed with said Council or instituted in connection with said Election returns; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: * An apparent discrepancy in the returns of Precinct No. 248 concerning the votes for Mayor candidate Don M. Hullum was resolved by the Precinct Judge before the canvass was completed. i il Minutes, April 14, 1971 , 4996 Section 1: That as shown above, no candidate received a majority of the votes cast at said Election for the office of Mayor from the City at large, and accordingly, it is necessary that a Run -Off Election be held to elect a Mayor; it is, therefore, ORDERED that a Special Run -Off Election be held be- tween the two eligible candidates receiving the highest number of votes at said Election for the purpose of electing one of such candidates to said office. Section 2: That no candidate received a majority of the votes cast at said Election for the office of Councilman from District No. 2 and, ac- cordingly, it is necessary that a Run -Off Election be held to elect a Council- man; it is, therefore ORDERED that a Special Run -Off Election be held between the two eligible candidates receiving the highest number of votes at said Election for the purpose of electing one of such candidates to said office. Section 3: That no candidate received a majority of the votes cast at said Election for the office of Councilman from District No. 3 and, ac- cordingly, it is necessary that a Run -Off Election be held to elect a council- man; it is therefore ORDERED that a Special Run -Off Election be held between the two eligible candidates receiving the highest number of votes at said Election for the purpose of electing one of such candidates to said office. Section 4: That no candidate received a majority of the votes cast at said Election for the office of Councilman from District No. 6 and, accordingly, it is necessary that a Run -Off Election be held to elect a councilman; it is, therefore ORDERED that a Special Run -Off Election be held between the two eligible candidates receiving the highest number of votes at said Election for the purpose of electing one of such candidates to said office. Section 5: That the City Council of the City of Baytown further funds that the notice of said Election was duly and properly given as required by law and as provided in the Ordinance calling said Election and that said Election was duly and regularly held and the returns thereof duly and regu- larly made by the proper officials of said Election, and in all things ac- cording to law. 82 Minutes, April 14, 1971 4997 INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown, Texas, on this 14th day of April, 1971. C. Glen Walker, Mayor ATTEST: � a-4 4, 0 Edna Oliver, City Clerk APPROVED: William R. Laughlin, City Attorney Ordinance No.1091 - Calling for Special Election Mr. Laughlin, the City Attorney, stated since no candidate had received a majority of the votes, the City Charter requires that a Special Run -Off Election be held. The Council is obligated to decide the qualified can- didates whose names may appear on the ballot, thus the question of the eligibility of Mayor candidate, Tom Gentry. Mr. Laughlin stated in order to determine a candidates eligibility there are three sources of law one must consult: 1- The City Charter - Section 13 of the Charter states that to qualify for Mayor and Council members one being a candidate must be a qualified voter of the State of Texas. 2- State Constitution - Person shall have resided in the State for one year next preceding an election. 3- Article 1.05 -State Election Code provides additional eligibility re- quirements for candidates over those required by the City Charter. Mr. Laughlin stated that it was not the responsibility of City officials to decide the eligibility of a candidate at the time of filing, but the can- didates responsibility. In Mr. Gentry's case, he had not resided in the state for a period of 12 months as of the filing dead line and will not be a quali- fied voter until July 30 which his voter registration indicates. These facts were not known until after absentee voting had begun; therefore, Mr. Gentry's name was left on the ballot and a statement was released concerning his eli- bibility due to no other recourse. The City Council is responsible for certifying who is eligible or ineligible to be a candidate. In Mr. Gentry's case there are two questions to resolve is he a qualified voter and the 12- month residency in the State. Since public records show disqualification, the Council is obligated to refuse to certify Mr. Gentry's name for the _ run -off election, unless provision is held to be unconstitutional. At this point Mr. Gentry's lawyers were asked to make their presentation. Point one being that -Mr. Gentry is in fact a qualified voter of the State in compliance with the City Charter because it had been held,by Federal Courts that voter qualification laws similar to our Texas law where unconstitutional in requiring additional six months residency in the State in excess of six months residency requirement in the City. Five recent federal cases were sited in support of the contention that Texas voter requirement laws are un- constitutional. They further argued that the qualification for a candidate. Minutes, April 14, 1971 4998 should be the same as qualification for a voter and, therefore, urged that Texas Election Code requirement of 12 -month residency in the State was also unconstitutional. Mr. Laughlin, the City Attorney, stated that the cases sited by Mr. Gentry's attorney's were presently pending before the United States Supreme Court and that the federal decisions were not the law of the land and were not binding on the City Council. He further pointed out that the "compelling interest test" had not been followed in candidate quali- fication cases, as had been followed in voter qualification cases. He further pointed out that the 12 -month residency requirement for a candidate under State Election Code had never been attacked in any other cases sited by Mr. Gentry's attorney's. Moreover, the City Attorney posed the question of rather a finding that the Texas Election Code 12 -month residency requirement for can- didates might not revive the City Charter's 2 -year residency requirement. The City Attorney also argued that the State Constitution, Election Code and City Charter must be followed unless there is a case directly in point directing City Council to do otherwise. In the absence of such a case, it is the City Attorney's opinion that the Council is obligated to uphold requirements of Texas law. After the attorney's presented their cases, Mr. Gentry was heard. Mr. Gentry stated that the clearest mandate was the votes casted and the only question up to this point had been rather or not he was a qualified voter which his attorney's had shown anything above the six month residency requirement to be unconstitutional; therefore, the Council owed it to the citizens to place his name on the ballot. When Councilman Kelley asked what Mr. Gentry intended to do if his name was not placed on the ballot, Mr. Gentry stated he did not have any idea since he was waiting to see what the Council wauld decide. * Mayor stated that the Charter provides should the Mayor be absent or step down that the presiding office should be the Mayor Pro Tem; however, the Charter does not stipulate who should replace both, therefore, the Mayor will keep his position but will abstain to vote concerning rather or not Mr. Gentry's name should be placed on the ballot. Councilman Hullum moved to insert May 4 as the date of the special run -off election. Councilman Evans seconded the motion. The vote follows: Ayes: Councilmen Evans, Stasney, Hullum, Cannon, and Kelley Mayor Walker Nays: None Mr. Laughlin instructed the Council that if they accepted the or- dinance as submitted Mr. Gentry would not be eligible. Councilman Cannon moved to adopt Ordinance No. 1091. Councilman Stasney seconded the motion. The vote follows: Ayes: Councilmen Evans, Stasney, Cannon and Kelley Nays: None * Abstained: Councilman Hullum and Mayor Walker The caption of the ordinance follows: ORDINANCE NO. 1091 AN ORDINANCE ORDERING A SPECIAL ELECTION TO BE HELD ON THE 4TH DAY OF MAY, 1971, FOR THE PURPOSE OF ELECTING A MAYOR FROM THE CITY AT LARGE; AND THREE COUNCILMEN FROM THE RESPECTIVE DIS- TRICTS NOS. TWO (2) , THREE (3) AND SIX (6) ; PROVIDING FOR ELECTION OFFICERS, DESIGNATING THE PLACES AND MANNER OF HOLDING SAID ELECTION; PRESCRIBING THE HOURS AND PROVIDING FOR THE POSTING AND PUBLICATION OF NOTICE. ** At this time Mr. Voelkel stated that Mrs. Lewis had called to say that the tabulation as canvassed was correct. 84 Minutes, April 14, 1971 4999 Adjourn There being no further business to come before the Council the motion was made and seconded to adjourn the meeting. The vote follows: Ayes: Councilmen Evans, Stasney, Hullum, Cannon and Kelley Mayor Walker Nays: None C. Glen Walker,.Mayor ATTEST: Eileen P. Hall, Secretary - City Clerk APPROVED: William R. Laughlin, City Attorney �' rr