Bruce R. Hotze v. Sylvester Turner, Mayor, and the City of Houston ( 2021 )

Affirmed and Majority and Dissenting Opinions filed October 12, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00959-CV
BRUCE R. HOTZE, Appellant
V.
SYLVESTER TURNER, MAYOR, AND THE CITY OF HOUSTON,
Appellees
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2014-19507
DISSENTING OPINION
Appellant’s lawsuit raises an important question regarding voter-initiated
amendments to a home-rule municipality’s charter. Under the Local Government
Code, a charter amendment approved by a majority of the municipality’s qualified
voters is “adopted,” and the amendment takes effect when declared adopted by the
municipality. When a voter-initiated charter amendment has been so approved and
so adopted—and declared as such—may a home-rule municipality nevertheless
deny effectiveness to that amendment if it did not meet an additional city-imposed
vote threshold not otherwise required by statute? Houston voters approved the
charter amendments at issue in 2004, and this dispute’s meandering but well-
documented path through the court system,1 having so far taken seventeen years,
has now yielded an appellate court answer. But I disagree with the answer.
A. Charter Amendment Process and the Provisions at Issue
The Texas Constitution authorizes cities of a certain population to adopt city
charters, subject to such limitations as the Legislature may prescribe. Tex. Const.
art. XI, § 5. One such prescription applicable to these “home-rule” cities, which
include the City of Houston, relates to amending an existing charter. Under the
Local Government Code, a home-rule city charter may be amended either on the
city’s motion or by citizen-voter initiative. See Tex. Loc. Gov’t Code § 9.004(a).
When citizens exercise their power to seek amendment, they do so by submitting a
petition signed by the requisite number of qualified municipal voters. See id.
When presented with a conforming petition, the city’s governing body “shall”
submit the proposed charter amendment to the voters for their approval at an
election. Id.; see Houston, Tex., City Charter art. VII-b (effective 1913) (amended
1991). The proposed charter amendment is “adopted” if it is approved by majority
vote. See Tex. Loc. Gov’t Code § 9.005(a). “This form of direct democracy
through ‘the power of initiative and referendum, as provided for in the city’s
charter, is the exercise by the people of a power reserved to them, and not the
1
I refer the reader to In re Robinson, 175 S.W.3d 824 (Tex. App.—Houston [1st Dist.]
2005, orig. proceeding [mand. granted]); White v. Robinson, 260 S.W.3d 463 (Tex. App.—
Houston [14th Dist.] 2008), vacated sub. nom. Robinson v. Parker, 353 S.W.3d 753 (Tex. 2011);
In re Hotze, No. 14-08-00421-CV, 2008 WL 4380228 (Tex. App.—Houston [14th Dist.] July 10,
2008, orig. proceeding) (mem. op.); Hotze v. White, No. 01-08-00016-CV, 2010 WL 1493115(Tex. App.—Houston [1st Dist.] Apr. 15, 2010, pet. denied) (mem. op.); and Turner v. Robinson,
534 S.W.3d 115 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
2
exercise of a right granted.’” Turner, 534 S.W.3d at 130 (Busby, J., concurring)
(quoting Taxpayers’ Ass’n of Harris Cty. v. City of Houston, 105 S.W.2d 655, 657
(Tex. 1937)).
Before us is the validity and effectiveness of a city charter amendment first
proposed by voter-initiated petition, placed on the ballot for approval in November
2004, and approved by a majority of those total voters who cast a vote either for or
against that particular amendment. Appellant Bruce R. Hotze, a Houston citizen,
participated in the effort to place the proposed charter amendment on the ballot.
Robinson, 353 S.W.3d at 754. He signed the petition and voted in favor of the
amendment. Id.
The proposed charter amendment was included in a 2004 City of Houston
election ordinance under the heading, “Proposition No. 2.” It related to “Limits on
All Combined City Revenues.” It is known by the litigants (and by our appellate
courts in Houston) simply as “Proposition 2.” Proposition 2 proposed a measure to
amend the city charter by adding “a new Section 7 to Article VI-a.” The ordinance
set forth the proposed amendment’s full text. A recitation of its complete language
is unnecessary, but the following summary was included on the ballot:
The City Charter of the City of Houston shall be amended to require
voter approval before the City may increase total revenues from all
sources by more than the combined rates of inflation and population,
without requiring any limit of any specific revenue source, including
water and sewer revenues, property taxes, sales taxes, fees paid by
utilities and developers, user fees, or any other sources of revenues.
Also included in the 2004 election ordinance was a charter amendment
proposed on the City’s motion. The City’s proposed amendment related to “Limits
on Annual Increases in City Property Taxes and Utility Rates.” The amendment’s
full text was included in the election ordinance under the heading, “Proposition
3
No. 1.” If adopted, the City’s proposed amendment would amend the city charter
by “amending the first paragraph of Section 1 of Article III and adding a new
Section 20 to Article IX.” The City’s proposed amendment would have granted
the City “full authority to assess and collect any and all revenues of the city
without limitation, except as to ad valorem taxes and water and sewer rates.” The
City included the following summary of its proposed charter amendment on the
ballot:
The Charter of the City of Houston shall be amended to require voter
approval before property tax revenues may be increased in any future
fiscal year above a limit measured by the lesser of 4.5% or the
cumulative combined rates of inflation and population growth. Water
and sewer rates would not increase more than the cumulative
combined rates of inflation and population growth without prior voter
approval. The Charter Amendment also requires minimum annual
increases of 10% in the senior and disabled homestead property tax
exemptions through the 2008 tax year.
The election ordinance also contained what this court has referred to as a
“poison pill” provision, which the City contends is part of Proposition 1’s text. See
Turner, 534 S.W.3d at 119. The poison pill provision stated:
If another proposition for a Charter amendment relating to limitations
on increases in City revenues is approved at the same election at
which this proposition [Proposition 1] is also approved, and if this
proposition [Proposition 1] receives the higher number of favorable
votes, then this proposition [Proposition 1] shall prevail and the other
shall not become effective.
Given its language, the poison pill provision appears designed to allow the
City to enforce only its proposed charter amendment contained in Proposition 1 so
long as Proposition 1 received more votes than Proposition 2, even if the
4
amendments contained in both Proposition 1 and Proposition 2 were adopted by
majority vote.2
Viewing the election ordinance as a whole, I construe “Proposition 1” as
consisting of two discrete parts: (1) the City’s proposed charter amendments to
Articles III and IX; and (2) the poison pill provision. I construe “Proposition 2” as
consisting solely of the voter-initiated charter amendment to Article VI-a.
Proposition 1 and Proposition 2 passed with a majority of votes cast on each
proposition. The charter amendments contained in each proposition, therefore,
were “adopted” on November 2, 2004. See Tex. Loc. Gov’t Code § 9.004(a); In re
Robinson, 175 S.W.3d at 829.
Although both Proposition 1 and Proposition 2 passed, Proposition 1
received more favorable votes than Proposition 2. This fact brings us to the
disagreement at hand. After the election, the City determined that Proposition 2 is
not valid and therefore not enforceable. See Robinson, 353 S.W.3d at 754; Turner,
534 S.W.3d at 127. The City based its position on the poison pill provision and on
a separate section of the city charter applicable to “inconsistent” charter
amendments.3 According to the City, the respective charter amendments in
Proposition 1 and Proposition 2 are “alternatives” to limiting city revenues. The
November 2004 ballot, the City urges, presented to voters the opportunity to
choose between the City’s “single unified plan” on the one hand, and the voter-
initiated “single unified plan” on the other.4 The City insists that the charter
2
I will presume the poison pill provision was included in the election ordinance as part of
Proposition 1. Interestingly, no similar poison pill provision appeared at the end of Proposition
2’s text in the election ordinance.
3
See City Charter, art. IX, § 19. I comment on this part of the City’s argument below.
4
The public was made aware of its opportunity to consider each “plan” as alternatives,
the City asserts, by being so informed through the election ordinance and other means.
5
amendments in both propositions are incapable of simultaneous administration and
are irreconcilably inconsistent. The City has, however, enacted an ordinance
declaring that the charter amendments reflected in both propositions “are adopted”
(the “Adoption Ordinance.”) See Tex. Local Gov’t Code § 9.005(b) (“A charter or
an amendment does not take effect until the governing body of the municipality
enters an order in the records of the municipality declaring that the charter or
amendment is adopted.”).5 After the City’s passage of the Adoption Ordinance,
each charter amendment “became part of the Houston City Charter.” Robinson,
353 S.W.3d at 755; Turner, 534 S.W.3d at 121; Tex. Loc. Gov’t Code § 9.005(b).
In fact, today, the City’s amendments to Articles III and IX proposed in
Proposition 1, and the voter-initiated amendments to Article VI-a proposed in
Proposition 2, are included in the city charter.6
B. The Arguments
Hotze is one of three plaintiffs who sued the City requesting declaratory and
injunctive relief regarding the validity of, and the City’s prospective compliance
with, the charter amendments included in both propositions. Among other
contentions, Hotze claimed that the charter amendment in Proposition 2 is valid
notwithstanding the poison pill provision because the poison pill provision is itself
invalid. Hotze’s argument rests largely, though not exclusively, on article XI,
section 5 of the Texas Constitution and Local Government Code section 9.005(a),
both applicable to home-rule cities. As our state constitution makes clear, the
Presumably, part of that educational effort included the language of the poison pill provision
itself.
5
The City and its Mayor resisted even this ministerial act until compelled by mandamus.
See In re Robinson, 175 S.W.3d at 830, 832.
6
The City invites us to take judicial notice of the city charter, and I accept that invitation.
See City Charter, available at https://library.municode.com/tx/houston/codes/code_of_
ordinances?nodeId=CH.
6
amendment of home-rule city charters is subject to such limitations the Legislature
prescribes, and “no . . . ordinance passed under said charter shall contain any
provision inconsistent with the Constitution of the State, or of the general laws
enacted by the Legislature of this State.” Tex. Const. art. XI, § 5.
Local Government Code section 9.005 provides that a proposed amendment
to a municipality’s charter is adopted if it is approved by a majority vote. See Tex.
Loc. Gov’t Code § 9.005(a). Hotze contends that the poison pill provision is
constitutionally infirm because it conflicts with section 9.005(a). See Tex. Const.
art. XI, § 5. For that reason, Hotze argues that the City may not rely on the poison
pill provision to deny Proposition 2 the force of law to which it is entitled by virtue
of its adoption.
For its part, the City has maintained that only the charter amendments in
Proposition 1 shall be effective and that those in Proposition 2 are invalid.7 Ruling
on competing summary judgment motions, the trial court agreed with the City and
declared the charter amendments in Proposition 2 ineffective because of the poison
pill provision. Principally, it is this ruling that concerns us today and on which I
part ways with the majority.
C. Discussion
In part of his third issue, Hotze challenges the trial court’s ruling that the
charter amendment in Proposition 2 is ineffective because of the poison pill
provision. The question is whether the poison pill provision is inconsistent with
section 9.005(a). I would hold that it is. My colleagues in the majority conclude
7
Contrary to the majority’s assertion, the “Adoption Ordinance” does not state that
“Proposition 1 was legally binding and that Proposition 2 would not be enforced.” Maj. Op. at 3.
That is a fair summary of the City’s practical position; but the Adoption Ordinance itself declares
adoption of the charter amendments proposed in both propositions without reference to whether
the City intended to treat those in Proposition 2 as a dead letter.
7
otherwise, stating, “because the primacy clause did not prevent adoption of
Proposition 2 as part of the city charter, the primacy clause does not violate section
9.005(a).” In my view, the majority misconstrues or misapprehends section
9.005(a)’s directives by overlooking the legal force attaching to a validly adopted
charter amendment. As a result, the majority erroneously permits the City to
impose requirements in addition to those in the Local Government Code before a
voter-initiated charter amendment can become law.8
The City of Houston is a home-rule city, deriving its power from article XI,
section 5 of the Texas Constitution. Tex. Const. art. XI, § 5; S. Crushed Concrete,
LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013). Home-rule cities
possess the full power of self-government and look to the Legislature not for grants
of power, but only for limitations on their powers. Lower Colo. River Auth. v. City
of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975) (citing Forwood v. City of
Taylor, 214 S.W.2d 282 (Tex. 1948)). The present dispute turns on one such
limitation: a home-rule city cannot enact an ordinance containing a provision
inconsistent with Texas’s constitution or general laws. See Tex. Const. art. XI,
§ 5(a); see also BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex.
2016). A home-rule city ordinance is thus unenforceable to the extent that it
irreconcilably conflicts with a state statute. See BCCA Appeal Grp., 496 S.W.3d at
7; Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489,
491 (Tex. 1993). A general law and a city ordinance, however, “will not be held
repugnant to each other if any other reasonable construction leaving both in effect
can be reached.” City of Beaumont v. Fall, 291 S.W. 202, 206 (Tex. 1927).
8
I pause briefly to comment on a waiver argument the City advances. The City says
Hotze abandoned his constitutional challenge to the poison pill provision in the trial court. By
not explicitly addressing the argument, I presume the majority has rejected it. I agree, as Hotze
raised the issue in, among other places, his motion for summary judgment.
8
Though article XI, section 5 is plain enough, other constitutional provisions
similarly circumscribe the “power of suspending laws in this State” to the
Legislature alone. Tex. Const. art. I, § 28; City of Baytown v. Angel, 469 S.W.2d
923, 925 (Tex. App.—Houston [14th Dist.] 1971, writ ref’d n.r.e.). As this court
observed in City of Baytown, the supreme court has interpreted article I, section 28
as “applicable to municipal ordinances conflicting with state statutes.” Angel, 469
S.W.2d at 925 (citing Brown Cracker & Candy Co. v. City of Dallas, 137 S.W.
342, 343 (Tex. 1911)).
Local Government Code section 9.005 states:
(a) A proposed charter for a municipality or a proposed amendment
to a municipality’s charter is adopted if it is approved by a majority of
the qualified voters of the municipality who vote at an election held
for that purpose.
Tex. Loc. Gov’t Code § 9.005(a). The parties do not appear to contest this
section’s meaning. Whether a charter amendment has been “adopted” is
determined by examining the votes cast for or against it, irrespective of the total
number of votes that may have been cast in the election. In re Robinson, 175
S.W.3d at 827 n.1; Ladd v. Yett, 273 S.W. 1006, 1011 (Tex. App.—Austin 1925,
writ dism’d w.o.j.).
The respective charter amendments proposed in Proposition 1 and
Proposition 2 were adopted on November 2, 2004, and became “effective” May 4,
2005, when the City declared by ordinance both propositions adopted. See Tex.
Loc. Gov’t Code § 9.005(a), (b). Consequently, both charter amendments became
part of the city charter and thus carry the force of law. See Tex. Elec. Code
§ 1.005(10) (“‘Law’ means a constitution, statute, city charter, or city ordinance.”)
(emphasis added); In re Petricek, ---S.W.3d---, 2021 WL 3909908, at *3 (Tex.
Sept. 1, 2021) (orig. proceeding). Any part of any municipal ordinance purporting
9
to deny effectiveness to a charter amendment that has been approved by a majority
of the municipality’s qualified voters, and hence adopted, is unenforceable. Tex.
Const. art. XI, § 5; see Minella v. City of San Antonio, 437 F.3d 438, 440 (5th Cir.
2005) (citing Dallas Merchant’s, 852 S.W.2d at 491).
The poison pill provision is contained in a municipal ordinance. It purports
to deny effectiveness to charter amendments reflected in Proposition 2, adopted by
a majority of qualified Houston voters, and now effective as part of the city
charter. If the poison pill provision were allowed to stand, the result would make
ineffective that which the Legislature has declared effective by operation of Local
Government Code section 9.005(a). Because the poison pill provision denies
effectiveness to a home-rule city charter amendment that has been adopted and has
become “law,” it cannot be read in harmony with section 9.005(a). Thus, the
poison pill provision is unenforceable and must yield. See Tex. Const. art. XI, § 5
(“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 by
the Legislature of this State”); City of Wink v. Griffith Amusement Co., 100 S.W.2d
695, 698 (Tex. 1936) (“The rule is definitely established . . . that ordinances in
conflict with the general or state law are void.”); City of Cleveland v. Keep
Cleveland Safe, 500 S.W.3d 438, 448 (Tex. App.—Beaumont 2016, no pet.) (city
charter “cannot be inconsistent with the Constitution of the State and general laws
of the State”); City of Anahuac v. Morris, 484 S.W.3d 176, 181 (Tex. App.—
Houston [14th Dist.] 2015, pet. denied); City of Wichita Falls v. Abell, 566 S.W.3d
336, 339 (Tex. App.—Fort Worth 1978, writ ref’d n.r.e.); see also Tex. Att’y Gen.
Op. GA-0433 (2006) (“[m]unicipal laws inconsistent with state law are void ab
initio”). I would hold that the poison pill provision contained in the election
10
ordinance conflicts irreconcilably with section 9.005 and therefore is
unconstitutional and void.
I reach this conclusion properly viewing Local Government Code chapter 9
as a limiting statute. Home-rule cities possess the full power of self-government
and look to the Legislature only for limitations on their powers. Lower Colo. River
Auth., 523 S.W.2d at 643. Chapter 9 applies to the “amendment of a municipal
charter by a municipality authorized to do so by Article XI, Section 5, of the Texas
Constitution.” Tex. Loc. Gov’t Code § 9.001. In the home-rule context, the power
of qualified voters to seek a charter amendment independent from the city’s
governing body enjoys express approbation. Id. § 9.004(a) (“The governing body
shall submit a proposed charter amendment to the voters for their approval at an
election if the submission is supported by a petition signed by a number of
qualified voters of the municipality . . . .”) (emphasis added). As the Legislature’s
use of the word “shall” denotes a “duty,”9 section 9.004(a) clearly limits a
municipality’s power to interfere with voter-initiated charter amendments.
According to the City, the poison pill provision precludes enforcement of the
voter-adopted amendments to Article VI-a. Its understanding of the provision,
however, is inconsistent with the Local Government Code.
The inconsistency between the poison pill provision and section 9.005(a) is
even more apparent considering the Legislature’s presumptive intent behind the
Local Government Code. Tex. Gov’t Code §§ 311.001, 311.021 (Code
Construction Act). We presume, for example, a statute is effective in its entirety.
Id. § 311.021(2). The poison pill provision, the City says, forecloses enforcement
of the voter-initiated charter amendments in Proposition 2, despite their approval,
adoption, and effectiveness under Local Government Code section 9.005(a) and
9
Tex. Gov’t Code § 311.016(2).
11
the Adoption Ordinance. As the City would have it, the voters’ adoption of the
charter amendments contained in Proposition 2 under section 9.005(a) is
meaningless. Thus, the poison pill provision, if applied, would deny completely
section 9.005(a)’s intended effect and object. See id. § 311.023(1), (5).
Together with a presumption of effectiveness, we presume the Legislature’s
intended result is just, reasonable, and feasible of execution. Id. § 311.021(3), (4).
The City’s position, and the majority’s holding, frustrate these goals. Section
9.004(a) reflects a special emphasis on voter-initiated charter amendments.
Whether such a proposed amendment (or any proposed amendment) becomes law
turns on—and only on—whether it receives a majority vote by those qualified
municipal voters who vote either for or against the amendment. See Tex. Loc.
Gov’t Code § 9.005(a); Ladd, 273 S.W. at 1011.10 A municipality’s unilateral
requirement that the proposed amendment, even if approved by majority vote, must
also garner more votes than a “competing” or “alternative” charter amendment
preferred by the city’s governing body imposes an additional “approval” threshold
extrinsic to, and inconsistent with, the Legislature’s design. Suppose the proposed
charter amendments in Proposition 1 and Proposition 2 passed with 90% approval,
but Proposition 1 received 1,000,001 votes and Proposition 2 received only
1,000,000. According to the City’s argument, the voter-initiated amendments in
Proposition 2 would never become law despite the Legislature’s contrary intent as
exemplified in section 9.005 and despite overwhelming voter approval. The power
of home-rule city voters to amend their charters is supposed to be feasible of
execution; but, under the City’s blueprint, a home-rule city’s governing body could
10
While an adopted charter amendment does not “take effect” until the city passes an
ordinance declaring the amendment is adopted, see Tex. Loc. Gov’t Code § 9.005(b), that
action—which occurred here—is ministerial and may be compelled by mandamus. In re
Robinson, 175 S.W.3d at 828.
12
attempt to substantially diminish that power, and ultimately defeat it through
effective veto, by attaching “poison pills,” “primacy clauses,” or like provisions to
its “alternative” proposed amendments, including ones that, like these, are not
“irreconcilably or substantively inconsistent” with voter-proposed amendments.11
See Minella, 437 F.3d at 441 (applying similar rationale to section 9.005(b)).
When a city inserts such provisions into an election ordinance, the voter-initiated
charter amendment election process potentially becomes a “vain proceeding”
because any voter-proposed amendment approved by majority vote and adopted by
the City would, contrary to section 9.005, never become law if it did not also
receive more votes than some other measure proposed by the City and approved.
See In re Robinson, 175 S.W.3d at 828 (citing City of Dallas v. Dallas Consol.
Elec. St. Ry. Co., 148 S.W. 292, 294 (Tex. 1912)). A home-rule city’s governing
body is not required to like every voter-initiated charter amendment, but it is
required to present any such proposed amendment to the voters, and to implement
the measure in accordance with valid election results, consistent with due process
and state law. I would not interpret section 9.005(a) as affording the Houston City
Council the opportunity to frustrate the voters’ will by imposing other
requirements designed to control whether a charter amendment that has been
adopted by majority vote is denied the force of law. See In re Robinson, 175
S.W.3d at 831 (applying similar reasoning to section 9.005(b)). The majority errs
by interpreting section 9.005(a) otherwise.
To be clear, my view of the poison pill provision’s inconsistency with
section 9.005(a) would be the same even if the voter-initiated amendments in
Proposition 2 received more votes than the City amendments in Proposition 1, so
11
I agree with the trial court that the proposed amendments in Proposition 1 and
Proposition 2 are not inconsistent, and thus Article IX, Section 19, of the city charter is not
invoked. For that reason, I would not address the City’s issue raised in its cross-appeal.
13
long as both propositions passed by majority vote. By its terms, the poison pill
provision does not apply unless both proposed charter amendments receive a
majority of votes at the election.
I conclude with a final observation. The poison pill provision, though
included in the election ordinance and approved by a majority of the voters, was
not itself part of the City’s proposed “charter amendment” and was, the City
concedes, “never intended to be included in the Charter permanently.” Unlike the
charter amendments approved as proposed in Proposition 1 and Proposition 2, the
poison pill provision does not appear in the city charter. As the poison pill
provision was never a “proposed amendment” to the charter, sections 9.004 and
9.005 do not apply to that provision as they apply to the charter amendments. This
is true even if the poison pill provision was assumed by voters to have been
submitted to them as part of the proposed “charter amendment.” See Zane-Cetti v.
City of Fort Worth, 269 S.W. 130, 133 (Tex. App.—Austin 1924), aff’d, 278 S.W.
183 (Tex. Comm’n App. 1925) (stating tax increase proposition was not “charter
amendment” as contemplated by article XI, section 5, even though presented to
voters as such).
The charter amendment contained in Proposition 2 either is effective or it is
not. Applying the Local Government Code, it must be effective as law because it
was adopted by majority vote and declared adopted by the City.12 There can be no
12
My colleagues in the majority construe my opinion as presuming that the charter
amendments “must be given effectiveness” upon “adoption”, and they commit extended
discussion to that point. Maj. Op. at 14-15. A plain reading of my opinion reveals I engage no
such presumption. To the extent my position was not clear, I direct the reader to the preceding
paragraphs, supra, where I stated, “[t]he respective charter amendments proposed in Proposition
1 and Proposition 2 were adopted on November 2, 2004, and became ‘effective’ May 4, 2005,
when the City declared by ordinance both propositions adopted”, and where I stated that the
charter amendment in Proposition 2 “must be effective as law because it was adopted by
majority vote and declared adopted by the City.” I recognize the statutory distinction between
when a charter amendment is adopted (section 9.005(a)) and when it takes “effect” (section
14
other legal conclusion without violating state law. Once adopted, a charter
amendment, having force of law under the Local Government Code, cannot be
denied effectiveness by the type of municipal action attempted here. As the poison
pill provision supporting the municipal act in question conflicts with state law, it
cannot stand. I would therefore hold the poison pill provision violates section
9.005(a) because it purports to deny effectiveness to a charter amendment that was
approved by a majority of voters and was adopted as law. For that reason, the
poison pill provision runs afoul of article XI, section 5 of the Texas Constitution.
As it is unnecessary to do so in the context of this dissent, I express no
opinion at this time on Hotze’s arguments in his fourth issue that the City’s budget
ordinances for fiscal years 2011 through 2019 violate as a matter of law Article VI-
a, Section 7 of the city charter.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Zimmerer, and Hassan. (Hassan, J., majority)
9.005(b)). That distinction, however, has little bearing on this particular case because all agree
that the charter amendments in both propositions were adopted and were declared adopted by the
City. The City has thus attempted to deny effectiveness to a charter amendment that was
adopted consistent with section 9.005(a) and declared adopted consistent with section 9.005(b).
The charter amendment is therefore law, and the City may not rely on the poison pill provision to
deny effectiveness to such an amendment.
15