Untitled Texas Attorney General Opinion ( 2004 )

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ATTORNEYGENERALOP TEXAS
GREG ABBOTT
November 4,2004
The Honorable Stephen E. Ogden Opinion No. GA-0269
Chair, Senate Finance Committee
Texas State Senate Re: Whether home-rule city charter provisions
Post Office Box 12068 governing the frequency of elections apply to
Austin, Texas 78711 elections implementing a tax freeze under article
VI@ 5 l-b(h) ofthe TexasConstitution (RQO242-GA)
Dear Senator Ogden:
You ask whether home-rule city charter provisions goveming the frequency of elections
apply to elections implementing a tax freeze under article VIII, section l-b(h) of the Texas
Constitution.’ See TEX. CONST.art. VIII, 5 l-b(h).
Article WI, section 1-b(h) (the “amendment”), adopted in 2003, authorizes “a county, a city
or town, or a junior college district,” to limit increases of the total amount of ad valorem taxes
imposed on the homesteads ofpersons with disabilities or persons sixty-five years of age or older.
Id. Such action is commonly referred to as a tax freeze. The enumerated entities may adopt a tax
I?eeze either by official action of its governing body or by an election called by the governing body
upon receipt ofaproper voter-petition. Id.; seegenerally Tex. Att’y Gen. Op. No. GA-0222 (2004)?
The City of Georgetown (the “City”) is incorporated as a home-rule municipality.
GEORGETOWN,?EX., CODEOFORDINANCES,HOMERULE CHARTER,art. I, $3 l.Ol-.02 (2004): See
Request Letter, sapra note 1 (attachment). Its charter recites that the “people of the City reserve the
power of direct legislation by initiative, and in the exercise of such power may propose any
ordinance not in conflict with this Charter, the State Constitution, or the State laws.”
‘LetterfromHonorableStephenE.Ogden,Chair,SenateFinanceCommittee,TexasStateSenate,to Honorable
Greg Abbott, Texas Attorney General (May 17, 2004) (on tile with opinion Committee,also available at
www.oag.+te.tx.us)@~einafierRequestLetter].
2InAttomeyGeneralOpinionGA-O222,thisofficeaddressedotherissuesconcemingarticleVIII, sectionl-b(h)
of the TexasConstitution,concludingthat (1) the provisionauthorizesa gowning body of a home-rulemunicipality
to call an electionto adopta tax freezewithouta voter’spetition;(2)onceadoptedby a home-rulemunicipality,the tax
freezemaynot berepealedby an electioncalledpursuantto a petitionof the city’svoters;and (3)implementationof the
constitutionalprovisiondoesnot permituseof a yearprior to implementationas the basetax year. Tex.Att’yGen.op.
No. GA-0222(2004)at 5.
3Available at http://www.georgetow.org/citygovemment/.
The Honorable Stephen E. Ogden - Page 2 (GA-0269)
GEORGETOWN, TEX., CODEOFORDINANCES, HOMERULECHARTER,art. IV, $4.01(2004). Under
the charter, when the city council receives a petition for an ordinance signed by the requisite number
of voters and certified by the city secretary, the council must either (1) pass the voter-initiated
ordinance without amendment within thirty days after receipt, or (2) submit the “initiated ordinance
without amendments to a vote of the qualified voters of the City at a regular or special election to
be held on the next uniform election date in order to comply with State election laws.” Id. art. IV,
§ 4.05. Article IV, section 4.05 of the charter states that special elections to consider voter-initiated
ordinances “shall not be held more frequently than once each six (6) months.” Id. Additionally, the
section provides that “no ordinance on the same subject as an initiated ordinance which has been
defeated . . . may be initiated by the voters within two (2) years from the date of such election.”
Id.
You wish to know whether article IV, section 4.05 of the City’s charter, which limits the
frequency of elections on voter-initiated ordinances, applies to elections pursuant to voter petitions
under article VIII, section 1-b(h) of the Texas Constitution. Request Letter, supra note 1, at 1. For
example, if the City holds an election on a voter petition to adopt the tax freeze, but the measure is
defeated, you ask whether the City must refuse to call an election on subsequent voter petitions for
a tax freeze for two years. Id. You also ask if the city charter provision that special elections on
voter-initiated ordinances may not be held more frequently than once every six months applies to
voter petitions for the adoption of the tax freeze under the amendment. Id.
Subsequent to your request, the City held an election on whether to adopt the tax tieeze and,
according to unofficial election results, the proposal passed.4 The tax limitation adopted under the
amendment cannot be repealed by the goveming body or by another petitibn election. See TEX.
CONST.art. VIII, 5 l-b(h); Tex. Att’y Gen. Op. No. GA-0222 (2004) at 3. Consequently, it appears
that the City will not have occasicm to consider new voter petitions for a tax freeze, and for the City
the issue is largely moot. Nevertheless, we will address your questions, bearing in mind that there
may be other home-rule municipalities with similar ordinances.
The Texas Constitution authorizes a home-rule city to be governed generally by ordinances
adopted pursuant to its municipal charter. TEX.CONST.art. XI, 3 5; Wilson v. Andrews, 10 S.W.3d
663, 666 (Tex. 1999). A home-rule city’s charter may expressly or implicitly limit the voters’
initiative power. See Quick v. City ofAustin, 7 S.W.3d 109,124 (Tex. 1998). See also Tex. Att’y
Gen. Op. No. GA-0222 (2004) at 3 (citing Glass v. Smith, 244 S.W.2d 645, 648 (Tex. 1951)).
Moreover, a home-rule city’s charter is presumed to be valid, and courts will not interfere unless
such a provision “is unreasonable or arbitrary, amounting to a clear abuse of municipal discretion.”
In resanchez, 81 S.W.3d 794,796 (Tex. 2002) (concerning election application deadline established
by municipal ordinance).
Under the Texas Constitution, “no charter or any ordinance passed under said charter shall
contain any provision inconsistent with the Constitution of the State, or of the general laws enacted
‘See GEORGETOWN, TEX.,ELECTIONS OVERVIEW, af hnp://www.georgetown.org/citygovemment/electio~/
(reportingthe unofficialvote as 4,747(76.7%)for, and 1,442(23.3%)against)(lastvisitedSept.24, 2004);see also
JenniferBarrios,Tax Cap, Liquor Changes Approved; Packed Polls in Sun City Seen as Crucial to Results, AUSTIN
AMERICAN-STATESMAN, Sept.12,2004,at Al.
The Honorable Stephen E. Ogden - Page 3 (GA-0269)
by the Legislature of this State.” TEX. CONST.art. XI, $ 5. A home-rule city charter provision “is
unenforceable to the extent it conflicts with [a] state statute.” See Sanchez, 81 S.W.3d at 796.
However, “courts will not hold a state law and a city charter provision repugnant to each other if they
can reach a reasonable construction leaving both in effect.“s Id. Consequently, we consider
pertinent provisions of the constitution and the statutes for potential soumes of conflict with the
City’s charter.
Article VIII, section l-b(h) provides that upon receipt of a proper voter petition, the
governing body of a municipality shall order an election concerning adoption ofthe tax freeze. TEX.
CONST.art. VIII, $ l-b(h).6 The provision does not address the timing of such elections, and is also
silent about calling an election on a tax freeze proposition that has previously been submitted for an
election and defeated. Id. Section 11.261 of the Tax Code provides generally for implementing a
5Compnre Tex. Att’y Gen. op. No. GA-0025(2003)(detemining that stahmry runoffrequirementsand a
municipalinstant-runoffprovisionirreconcilablyconflict),with Op. Tex. Sec’y StateNo. JH-I (1991)at 2 (home-rule
city may require,by charteror ordinancepursuantto charter,that write-incandidatesfile a declarationof write-in
candidacy,because“[h]omerule citiesare givenbroadauthorityunderarticleXI, section5, of the TexasConstitution
to adopta charterand enactordinancespursuantto that charter. The only limitationunderthe constitutionis that the
charteror ordinancesbe consistentwiththe constitutionor the generallawsof the state.“).
6ArticleVIII, sectionl-b(h) provides:
The governingbodyof a county,a city or town,or ajuniorcollegedistrictby officialaction
may providethat if a personwho is disabledor is sixty-five(65) years of age or older receivesa
residencehomesteadexemptionprescribedm authorizedby this section, the total amountof ad
valoremtaxesimposedon thathomesteadby thecounty,thecityOItom, or thejunior collegedistrict
maynot be increasedwhileit remainsthe residencehomesteadof thatpersonor thatperson’sspouse
whois disabledor sixty-five(65)yearsof ageor olderandreceivesa residencehomesteadexemption
on the homestead. As an alternative,cmreceiptof a petitionsignedby five percent(5%) of the
registeredvotersof the county,the city or town,or thejunior collegedistrict,the governingbody of
the county,the cityortom, or thejunior collegedistrictshallcallanelectionto determineby majority
vote whetherto establisha tax limitationprovidedby this subsection.If a county,a city or town,or
a junior collegedistrictestablishesa tax limitationprovidedby this subsectionand a disabledperscm
or a personsixty-five(65)yearsof age01olderdiesin a yearin whichthe personreceiveda residence
homesteadexemption,the totalamountof ad valoremtaxesimposedon the homesteadby the county,
the city or town, or the junior collegedistrictmaynot be increasedwhile it remainsthe residence
homesteadof thatperson’ssurvivingspcmseif the spouseis fifty-five(55)yearsof age or olderat the
time of the person’sdeath,subjectto any exceptionsprovidedby generallaw. The legislature,by
generallaw,mayprovidefor thetransferof all 01a proportionateamountof a tax limitationprovided
by this subsectionfor a personwho qualitiesfor the limitationand establishesa differentresidence
homesteadwithinthe samecounty,within the samecity or town,or withinthe samejunior college
district. A county,a cityor town,or ajunior collegedistrictthatestablishesa tax limitationunderthis
subsectionmustcomplywitha lawprovidingfor the transferof the limitation,evenif the legislature
enacts the law subsequentto the county’s,the city’s or town’s,or the junior college district’s
establishmentof thelimitation.Taxesotherwiselimitedbya county,a cityor town,or a juniorcollege
districtunderthis subsectionmaybe increasedto the extentthe valueof the homesteadis increased
by improvementsotherthanrepairsandotherthanimprovements madeto complywithgovernmental
requirementsand except as may be consistentwith the transfer of a tax limitationunder a law
authorizedby this subsection.The governingbody of a county,a city or town,or a junior college
districtmaynot repealor rescinda tax limitationestablishedunderthis subsection.
TEX.CONST.art. VIII, 5 l-b(h).
The Honorable Stephen E. Ogden - Page 4 (GA-0269)
tax limitation that has been adopted under the amendment. TEX.TAXCODEANN. 4 11.261 (Vernon
Supp. 2004-05). It is likewise silent about the timing for calling an election. Compare with id.
$5 6.26(e) (Vernon 2003) (providing for an election on whether to consolidate tax assessing and
collecting functions within certain period following a voter petition); 26.08(b) (providing for a
rollback election on tax rates within certain period following a voter petition); 26.085(d) (providing
for an election on dedication of funds to a college district within a certain period following a voter
petition).
Concerning the timing of elections, the Election Code specifies four dates in the year as
uniform election dates for general and special elections. TEX.ELEC.CODEANN. 5 41 .OOl(Vernon
Supp. 2004-05). Section 41.0041(a) provides that when a “law outside this code other than the
constitution prohibits another election from being held on the same or a similar measure for a
specified number of years after an election on a measure,” the election must be held on the
corresponding uniform election date even if it “falls a number of days short of the requisite period.”
Id. 8 4 1.0041(a) (Vernon 2003). That section anticipates the existence of limitations such as the City
charter’s two-year limitation on voter initiative elections, although the statute may shorten the
required period. Id. Under particular circumstances, other provisions in the Election Code may limit
application of a particular city charter’s election provisions to the extent of any conflict. See, e.g.,
id. 9 3.005 (Vernon Supp. 2004-05) (providing that elections ordered bypolitical subdivisions “shall
be ordered not later than the 62nd day before election day”). But concerning the frequency of voter
initiative elections, the Election Code is silent.
In sum, we have located no state law that would expressly conflict with charter provisions
such as the City’s that limit special elections to once in six months, or limit calling an election on
a measure for two years after a similar measure has been defeated. The legislature has not preempted
the subject matter, because, “if the Legislature chooses to preempt a subject matter usually
encompassed by the broad powers of a home-rule city, it must do so with umnistakable clarity.”
Dallas Merchant’s & Concessionaire’s Ass% v. City ofDallas, 852 S.W.2d 489,491 (Tex. 1993).
Provisions limiting special elections on initiated ordinances to once every six months, and
prohibiting elections on defeated measures for two years, aimed at mitigating voter fatigue and the
expense of calling additional elections, would likely be determined to be reasonable. We beheve a
court would likely conclude that charter provisions similar to the City’s are not unreasonable or
arbitraty, and applicable to petitions to adopt the tax limitation under the amendment.
The Honorable Stephen E. Ogden - Page 5 (GA-0269)
SUMMARY
Home-rule municipality charter provisions limiting special
elections on voter-initiated ordinances to once every six months and
prohibiting an election on an initiated ordinance for two years after an
ordinance on the same subject has been defeated may apply to an
election called pursuant to a voter petition under article VIII, section
l-b(h) of the Texas Constitution.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee