There is an old saying, "Ask two lawyers a question, and you will get four answers." That saying seems to be the case in the recall petition, and with the vote to have a recall election.
On one side you have the City Attorney Page Mims and a high priced lawyer from Huston. According to them, if the petition has the required number of signatures, and is certified by the City Secretary, the Council must accept any recall petition. In Ms. Mims' opinion only the City Secretary or a District Court can decide if a recall petition is valid. The City Council does not have the authority to determine the sufficiency of a recall petition. So, if Ms. Mims is correct, a person could start a petition to recall the Mayor because he thinks the Mayor is a "jerk", and if the City Secretary validates it, the City Council has to call a recall election.
On the other side, we have lawyers who disagree with Ms. Mims' analysis. To understand the opposite side's views, we have to first go over the City Chater.
The City Chater says,
Sec. 6.01. - The scope of the recall.
Any elected city official, whether elected to office by the qualified voters of the city or appointed by the city council to fill a vacancy, shall be subject to recall and removal from office by the qualified voters of the city on grounds of incompetence, misconduct or malfeasance in office.
Sec. 6.06. - Public hearing to be held.
The officer whose removal is sought may, within five (5) days after such recall petition has been presented to the city council, requesting that a public hearing is held to permit him to present facts pertinent to the charges specified in the recall petition. In this event, the city council shall order such public hearing to be held, not less than five days and no more than fifteen days after receiving such request for a public hearing.
Sec. 6.07. - Election to be called.
If the officer whose removal is sought does not resign, then the city council shall order an election and set the date for holding such recall election. The date selected for the recall election shall be in accordance with the Texas Election Code. If, after the recall election date is established, the officer vacates his or her position, the recall election shall be canceled and the vacancy shall be filled in accordance with state law."
Now that we know what is in the charter, let's go through each section as it relates to this recall.
Section 6.01 clearly says the grounds for removal from office are incompetence, misconduct or malfeasance in office. Those three words have legal meanings. The definition of incompetence is, "The condition of lacking the power to act with legal effectiveness." The definition of misconduct is, "The unlawful conduct by an official in regard to his or her office." Lastly, the definition of malfeasance is, "The performance by a public official of an act that is legally unjustified, harmful, or contrary to law." Those on Tom's team state that posting something on a personal Facebook page, that is offensive to some people, does not rise to the legal standard of incompetence, misconduct, or malfeasance.
Another problem with the way the council handled the recall petition is when it took a vote on calling an election before Tom Harrison could have a hearing. In the law, there is a concept called Material Construction. This means that when rules are listed in a certain order they are to be followed in that order. By voting on the election before having a hearing, the council went out of order.
So, what happens now? A judge will decide which lawyer is right, and either the recall will go forward, be stopped, or delayed.