Untitled Texas Attorney General Opinion ( 2006 )

ATTORNEY GENERALOF TEXAS
GREG ABBOTT
May l&2006
The Honorable David Swinford Opinion No. GA-0433
Chair, Committee on State Affairs
Texas House of Representatives Re: Validity of a charter provision that permits
Post Office Box 2910 a home-rule city to amend its charter by
Austin, Texas 78768-2910 ordinance (RQ-0416-GA)
Dear Representative Swinford:
You ask about the validity of a charter provision that permits a home-rule city to amend its
charter by ordinance.’ Though this office generally refrains from construing municipal charters and
ordinances, we do so when, like here, the question is whether a charter provision or ordinance is in
conflict with state or federal law. Tex. Att’y Gen. Op. No. GA-0217 (2004) at 4-5.
Your question concerns the charter for the City of Dumas (the “City”). A letter to you from
the Dumas city manager states that in 1993 the City’s voters, “in a duly called city charter
amendment election, approved an amendment to the home rule charter which purports to give the
city commission the authority to amend the charter by ordinance:“* As a result, the City’s charter
now reads in relevant part:
Amendments to the charter may be framed and proposed as (a) in the
manner provided by law, or (b) ~byordinance ofthe city commission
containing the fulltext of the proposed amendment and effective
upon adoption, or(c) by recommendation of a charter commission by
ordinance, or (d) by petition of 25 percent or more of the registered
voters of the city.
City of Dumas Letter, supra note 2, at 1. The City has used this provision to amend the charter by
ordinance on one occasion, in 1995, “to establish the current system of staggered, three-year terms
for city eommissioners.” Id. at l-2. Thus, the City asks the following two questions:
‘Letter from Honorable David Swinford, Chair, Committee on State Affairs, Texas House of Representatives,
to Honorable Greg Abbott, Attorney General of Texas (Oct. 27, 2005) (on tile with the Opinion Committee, aI&
available af hitp:Nwww.oag.state.tx.us) [hereinafter Request Letter].
ZLetter i?om Vince DiPiazza, City Manager, City of Dumas, to Honorable David Swinford, Chair, Committee
on State Affairs, Texas House of Representatives, at 1 (Sept. 30,2005) (attached to the Request Letter) [hereinafter City
of Dumas Letter].
The Honorable David Swinford - Page 2 (GA-0433)
1) 1s the provision in the city charter granting authority to the city
commission to amend the charter by ordinance legal?
2) If the referenced provision is illegal, what does that do to the
subsequently enacted charter provision establishing terms of offtce
for the city commission?
Id. at 2.
The City is a home-rule municipality, see id. at 1 (questioning the validity of an amendment
to its home-rule charter), and as such it “is empowered to adopt or amend its charter in any manner
in which it may desire, consistent and in accordance with the state constitution and the general laws
ofthis State.” Burch v. City ofSanAntonio, 518 S.W.2d 540,543 (Tex. 1975); see TEX.CONST.art.
XI, $5 (authorizing and governing the creation of home-rule municipalities). Article XI, section 5
of the Texas Constitution authorizes home-rule municipalities, “by a majority vote of the qualzj?ed
voters of said city, at an election held for that purpose, [to] adopt or amend their charters.” TEX.
CONST.art. XI, § 5 (emphasis added). That is, this provision’s language requires that each
amendment to a city charter be submitted to city voters at an election called for that purpose. See
TEX. Lot. GOV'T CODE ANN. $5 9.004, ,005 (Vernon 1999) (implementing article XI, section 5
requiring charter amendments to be submitted to city voters). Here, the charter was amended to
permitthe Cityto amendits charterwithout submitting proposed amendments to the qualifiedvoters,
which amendment contradicts the plain language of the constitution. Thus, in answer to your first
question, the City charter provision granting authority to amend the charter by ordinance is invalid
because it is inconsistent with the constitutional requirement that all charter amendments be adopted
by a majority of a city’s qualified voters.
The City also asks about the effect on the charter amendment adopted by ordinance providing
for staggered terms for its commissioners-if the amendment by ordinance provision is invalid.
See City of Dumas Letter, supra note 2, at 2. Municipal laws inconsistent with state law are void
ab initio. City of Wink v. GrzyJth Amusement Co., 100 S.W.2d 695, 698 (Tex. 1936). The City
therefore had no authority in 1995 to amend by ordinance the commissioners’ term limits. See id.
at 698. Consequently, the City’s charter was not amended in 1995; rather, the charter continues to
mandate commissioners’ term limits as it did prior to the invalid 1995 amendment. No validating
legislation changes this result. See Majhew v. Town of Sunnyvale, 774 S.W.2d 284, 296 (Tex.
App.-Dallas 1989, writ denied) (validation statutes may not cure constitutional defects).
The Honorable David Swinford - Page 3 (GA-0433)
SUMMARY
An amendment to a home-rule city charter that purports to grant
authority to the city to amend its charter by ordinance is void because
it is inconsistent with article XI, section 5 of the Texas Constitution,
which requires all charter amendments to be approved by a majority of
qualified voters in the city. Thus, a charter amendment adopted by
ordinance is invalid.
BARRY R. MCBEE
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee