Untitled Texas Attorney General Opinion ( 1977 )

TIXEATIWRNEYGENERAL
OFTEXAS
~IXSTIN. ~-II 76711
April 1, 1977
The Bonorabie W. E. Snelson Opinion XC. H- 969
Chairman
Senate Committee on Intergovern- Re: Whether a city or
mental Relations county can require dis-
State Capitol ~closure of public officials
Austin, Texas assets and income.
Dear Chairman Snelson:
You have requested our opinion regarding whether
municipalities and counties may require their public'officials
to file financial disclosure statements as a conditron of
holding office. Although you have not provided us ,#ith the
details of the content of any such proposed financial
statements, we assume for purposes of discussion that they
would contain information similar to that required of certain
state officials by article 6252-9b. V.T.C.S. .~
It is well established that a home .rule city may exer-
cise any power not inconsistent with the Texas Constitution
or with general law. Tex. Const. art. 11, §5; V.T.C.S. art.
1165: City of Sweetwater v. Geron, 380 S.W.Zd 550, 552 (Tex.
1964); Wagstaff v. City OFGroves, 419 S.W.2d 441, 443 (Tex.
Civ. App. -- Beaumont 19-,-wxref'd n.r.e.1. As'we noted
fin Attorney General Opinion H-15 (19731, the public has "a
legitimate interest in the current financial condition and
recent financial history~of those of its servants who are in
positions of authority." Id. at 2. On that basis, we have
upheld the constitutional validity of article.6252-9b. Attor-
ney General Opinion H-190 (1973).
There appears to be no constitutional or statutory pro-
vision which would per se prohibit a home rule city from re-
quiring that its officials file financial disclosure statements
as a condition of holding office. The Texas Election Code im-
poses certain eligibility requirements upon persons who hold
elective office, and specifically permits a home rule city to
prescribe "different age and residence requirements from those
prescribed" by statute. Election Code, art. 1.05 (Subdiv. 3.).
In addition, a number of other statutes prescribe further eli-
gibility requirements for certain offices. See e.g.
- -- V.T.C.S.
P- 4035
The Honorable W. E. Snelson - page 2 (R-969)
arts. 987, 1003, 1004. Even assuming that requiring the filing
of these financial statements would constitute a "qualification"
for office, the statutory qualifications have not been deemed
exclusive and since neither the Constitution nor any statute
per se prohibits the imposition of additional requirements,
we believe that a home rule city is authorized to prescribe
them.
We are supported in this conclusion by a number of decisions
from other jurisdictions. The general rule is that a city
may establish conditions for holding a municipal office
in addition to those imposed by state law, so long as such
conditions are not inconsistent therewith. See *
Do le v. City of Dearborn, 121 N.W.Zd 473, 4576 (Mich.
&;Ttate errel. Isham v. w of Spokane, 98 P.2d
306, 3Oms.K m0); Lindzy v. D?%iin uez 20 P.2d 327,
328 (Cal. 1933). Of course, no-+ condzt on of holding office
may be prescribed in contravention of the due process and
equal protection guarantees of the State and Federal Constltu-
tion. Thompson v. Gallagher, 489 F.2d 443, 449 (5th Cir. 1973).
Furthermore, if se requirement of financial disclosure is
imposed by ordinance, the municipality must first determine
that such ordinance is not in violation of any provision of
its charter. city --of Fort Worth 5 Lillard, 272 S.W. 577, 580
(Tex. Civ. APP. -- Ft. Worth 1925). aff'd 294 S.W. 831 (Tex.
1927). In general, however, it is-our opinion that a home
rule city is authorized to require its public officials to file
financial disclosure statements as a condition of holding office.
As to general law cities, their powers are'derived from
article 11, section 4 of the Texas Constitution. While home
rule cities are authorized to amend their charters and adopt
ordinances, subject only to the limitation that neither
charter nor ordinance may be inconsistent with the Constitution
or with general law, no such power is granted to general law
cities. It is generally held that non-home rule municipalities
have only those powers which are specifically granted them
by the Legislature. Ex parte Farley, 144 S.W. 530 (Tex.
Crim. App. 1912); StaG ex rel. Rea v. Etheridge, 32 S.W.2d
828, 830 (Tex. Comm'n. Ai%.T30).i%iint adopted, 36 S.W.2d
983'(Tex..l937); Lindslek-v. Dallas-C&solid&ed Street
Railway z, 200 S.W. 207,ilm. Civ. App. -- Dallas
1917, no writ).
Counties, too, have only those powers which are clearly
set forth in the Constitution and statutes. Harrison County
v- City -
of Marshall, 253 S.W.2d 67, 69 (Tex. Civ. App. --
P. 4036
The Honorable W. E. Snelson - page 3 (~-969)
Ft. Worth 1952, writ ref'd); Wichita County v. Vance, 217
S.W.2d 702. 703 (Tex. Civ. App. -- Ft. Worth 19nrit ref'd
n.r.e.1. It is thus our view that neither a non-home rule
city nor county may require its officials to file financial
disclosure statements without express authorization from
the Legislature.
SUMMARY
Home rule cities may require their
public officials to file financial
disclosure statements as a condition of
holding office, but general law cities
and counties may not do so without express
authorization from the Legislature.
Very truly yours,
APPROVED:
Opinion Committee
km1
p. 4037