Texplainer: When Legislators Die or Resign, What Happens to Their Seats?

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Hey, Texplainer: When state legislators die or resign, what happens to their seats for the rest of their terms?

When state Rep. Ken Legler, R-Pasadena, died this month, he was remembered as a dedicated public servant for the state and his House district. Legler, who was first elected in 2008, wasn't seeking re-election this year, so constituents knew they would have a new representative in House District 144. But now they have to decide who will fill his unexpired term.

The process of filling Legler's seat began with Gov. Rick Perry's proclamation of a special election to fill the position. Such a proclamation is required for any vacated seat in the Legislature. The special election must be held at least 36 days after the governor announces it, in accordance with the Texas Election Code. In Legler's case, Perry set the date for the same day as the general election, Nov. 6. 

Steffany Duke, a spokeswoman in the governor's office, said special elections cannot always be held on such a convenient date, because sometimes the timing is off or it's not an election year. If that's the case, the governor must set the voting date on a “uniform election day,” which the Texas Election Code defines as the first Saturday in May or the first Tuesday after the first Monday in November.

There are a couple of cases in which the special election could be held sooner. In the case of an emergency, the special election must be held between the 36th and 50th day after its announcement, on a Tuesday or a Saturday. The Election Code doesn't specify what an emergency is, so it is left up to the governor's discretion. If the Legislature is in session with more than 25 days left, or is set to convene within 60 days, the special election can be held between the 21st and 45th day after its announcement, on a Tuesday or Saturday.

Once the governor sets the date, the proclamation is posted to the official website of the governor's office, and it is sent to various news outlets so constituents can be informed of the special election.

“We send it to media markets across the state, and then it's up to the local media up to help get the word out,” Duke said.

The election could be canceled if there is only one person to file for candidacy, according to a law passed last year. The sole candidate would be declared the winner two days after the filing period has ended.

Once a new representative is elected, he or she serves for the rest of the unexpired term.

In HD-144, voters will decide on two representatives on Nov. 6. They'll vote for a representative to serve Legler's unexpired term (through December), and someone to take the seat for the 2013-14 term.

Those could be the same person — the candidates who were already vying for the 2013-14 term could also compete to serve the rest of the unexpired term — but they could also be different. Legler's widow, Barbara Legler, is running to serve out the rest of her late husband's term, but she did not file for candidacy for the 2013-14 term. It's possible that she could be elected and serve the remainder of his term, and then the winner of the general election takes over.

No one fills in between the start of the vacancy and the special election. The seat remains unoccupied, and the constituents are without an official representative, even if a legislative session is under way. The way legislators' offices deal with that situation varies.

State Rep. Veronica Gonzales, D-McAllen, will leave her seat June 30 when she officially resigns to take a position as the University of Texas-Pan American's vice president for university advancement. All of her staff members except one at the Capitol and one in her district office will be let go.

"Her last day is all the staff's last day as well," said Jennifer Saenz, who provides general counsel for Gonzales' office. "Then we're all unemployed."  

The two remaining staff members will report to the House Administration Committee. Their duties will mostly consist of taking calls from constituents. 

There are no official rules that outline how the office should be run between when the vacancy occurs and when the new representative is elected — that is at the discretion of the House Administration Committee — but Gonzales' situation is typical of how vacant offices are run, said Steven Adrian, executive director of House business operations.

Vacant state Senate offices are handled in much the same way, but there could be more than two staff members left to handle operations, said Patsy Spaw, the secretary of the Senate.

The bottom line: When a seat in the Legislature becomes vacant before a term is finished, the governor sets a special election to fill it. Usually this election is in May or November, but if the governor decides filling the seat is an emergency, the election could be held sooner. In the time between when the vacancy occurs and the special election, constituents have to make do with voicing their concerns to staff members, rather than a representative.