Untitled Texas Attorney General Opinion ( 2013 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 29, 2013
The Honorable Joseph C. Pickett Opinion No. GA-0985
Chair, House Committee on Defense
and Veterans' Affairs Re: Whether a home-rule city may change the
Texas House of Representatives terms of its officers from three to four years
Post Office Box 2910 without first adopting a charter amendment
Austin, Texas 78768 (RQ-1077-GA)
Dear Representative Pickett:
You present two questions about the propriety of actions taken by a home-rule city in general,
and by the City of Socorro (the "City") specifically, under the authority of Senate Bill 100. 1 Adopted
by the Eighty-second Legislature, Senate Bill 100 implements in Texas the Federal Military and
Overseas Voter Empowerment Act. See Act of May 29,2011, 82d Leg., R.S., ch. 1318,2011 Tex.
Gen. Laws 3804, 3804 (preamble). Most of its election related provisions are now codified in the
Election Code. See id. §§ 1-45, at 3804-16 (containing provisions amending the Election Code).
For example, subsection 41.001(d) of the Election Code provides that a county elections
administrator is not required to enter into contracts to furnish election services for an election held
in May in even-numbered years. See TEX. ELEC. CODE ANN.§ 41.001(d) (West Supp. 2012). Other
codified provisions govern changes to a political subdivision's election date and the elimination of
staggered-year elections for home-rule municipality council positions. See id. § 41.0052(a).
The uncodified provision in Senate Bill 100 that pertains to your question is section 52.
Section 52 is another provision to aid in the transition away from May elections in even-numbered
years and provides that:
(a) This section applies only to a political subdivision that elects the
members of its governing body to a term that consists of an odd
number of years.
(b) Not later than December 1, 2012, the governing body of the
political subdivision may adopt a resolution changing the length of
1
See Letter from Honorable Joseph C. Pickett, Chair, Defense & Veterans' Affairs Comm., to Honorable Greg
Abbott, Tex. Att'y Gen. at 1 (Aug. 2, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").
The Honorable Joseph C. Pickett - Page 2 (GA-0985)
the terms of its members to an even number of years. The resolution
must specify the manner in which the transition from the length of the
former term to the modified term is made. The transition must begin
with the first regular election for members of the governing body that
occurs after January 1, 2013, and a member who serves on that date
shall serve the remainder of that term.
See Act of May 29,2011, 82d Leg., R.S., ch. 1318, §52, 2011 Tex. Gen. Laws 3804,3817.
You first ask whether article XI, section 11 (a) of the Texas Constitution requires a charter
amendment if a home-rule municipality seeks to lengthen the terms of office to four years. See
Request Letter at 2. Article XI, section 11(a) provides that "[a] home-rule city may provide by
charter or charter amendment, ... for a longer term of office than two (2) years for its officers, either
elective or appointive, or both, but not to exceed four (4) years." TEX. CONST. art. XI,§ 11(a). By
its plain language, article XI, section 11(a) requires that a home-rule municipality that wishes to
establish terms of office longer than two years must do so by charter amendment. See TEX. CONST.
art. XI,§ 11(a), Harris Cnty. Hasp. Dist. v. Tomball Reg'l Hasp., 283 S.W.3d 838, 842 (Tex. 2009)
(relying heavily on the literal text of a constitutional provision to give effect to its plain language);
see also id. art. XI, § 5 (providing that home-rule municipalities "may, by a majority vote of the
qualified voters of said city, at an election held for that purpose, adopt or amend their charters").
Whether a municipality currently employs two-year or three-year terms, a term of four years is itself
"a longer term of office then two (2) years" and thus falls squarely within the scope of article XI,
section 11(a). Accordingly, a court would likely conclude that a home-rule municipality may not
extend its council terms from three years to four years without a charter amendment.
Your second question concerns the specific election schedule selected by the City. You
indicate that the City has provided for an election for half of the members of its governing body in
Novemberof2013 and the other half in November of2014. See Request Letter at 1-2. You suggest
the City should have scheduled its elections for November of 2012 and 2013, and you ask whether
article XI, section 11 (a) prohibits four-and-a-half year terms during the period of transition to another
election date. See id. at 2. Article XI, section 11 (a) of the Texas Constitution expressly, and without
exception, provides that the terms of office for city officials in a home-rule municipality may not
exceed four years. TEX. CONST. art. XI,§ 11(a). To the extent the City's council terms exceed four
years, they are contrary to article XI, section 11(a).
The Honorable Joseph C. Pickett - Page 3 (GA-0985)
SUMMARY
Under article XI, section ll(a) of the Texas Constitution, a
court would likely conclude that a home-rule municipality may not
change its city council terms from three years to four years without a
charter amendment.
To the extent the City of Socorro's city council terms exceed
four years, they are contrary to article XI, section ll(a) of the Texas
Constitution.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chairman, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee