Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
July 28,2005
The Honorable Michael S. Wenk Opinion No. GA-0342
Hays County Criminal District Attorney
Hays County Justice Center Re: Whether a home-rule city may change the
110 East Martin Luther King city’s date for general elections through an
San Marcos, Texas 78666 amendment to the city’s charter (RQ-03 12-GA)
Dear Mr. Wenk:
In your recent letter you inquire:
If the date for a home rule city’s general elections is set in the city’s
charter, can the citizens of the city change the date for the city’s
general elections to another authorized uniform election date through
an amendment to the city’s charter, or does TEX. ELEC. CODE ANN.
0 41.0052(a) preempt such a change?’
By way of background, you inform us that San Marcos (“City”) is a home-rule municipality.2
See Request Letter, supra note 1, at 1; see also SAN MARCOS, TEX., CITY CHARTER $0 1.01
(incorporation), 2.01 (home-rule authority) (2004). You also inform us that the standing date for the
City’s general,elections is established by the City Charter as the “second uniform election date of
the calendar year as provided by state law.” Request Letter, supra note 1, at 1 (quoting City Charter,
‘Letter from Honorable Michael S. Wenk, Hays County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General (Jan. 2 1,2005) (on file with Opinion Committee, also available at http://www,oag.state.tx.us)
[hereinafter Request Letter].
‘A home-rule municipality is a municipality organized pursuant to the home-rule amendment (“home-rule
amendment”) to the Texas Constitution, which provides in pertinent part:
Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified
voters of said city, at an election held for that purpose, adopt or amend their charters. . . . The adoption
or amendment of charters is subject to such limitations as may be prescribed by the Legislature, and
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.
TEX. CONST.art. XI, 0 5. Through the home-rule amendment, “the Legislature conferred upon Home Rule cities the ‘full
power oflocal self-govemment.“‘Bennets v. Brown County WaterImprovemenlDist No. I, 272 S.W.2d 498,506 (Tex.
1954) (Wilson, J., dissenting) (citations omitted).
The Honorable Michael S. Wenk - Page 2 (GA-0342)
section 5.01). The current second uniform election date is the “first Saturday in May.” TEX. ELEC.
CODE ANN. $ 41.001(a)(2) (Vernon Supp. 2004-05). In December 2004, pursuant to section
41.0052(a) of the Election Code, the San Marcos City Council adopted an ordinance changing the
standing date for the City’s general elections to the first Tuesday after the first Monday in November.
See Request Letter, supra note 1, at 2; San Marcos, Tex., Ordinance 2004-93 (Dec. 13,2004); see
also TEX. ELEC. CODE ANN. $41.001(a)(4) (Vernon Supp. 2004-05). You state that in connection
with the City Council’s decision to change the date for the City’s general elections there was
discussion “over whether the change could later be reconsidered by the citizens of [the City] through
a proposed amendment to the Charter.” Request Letter, supra note 1, at 2. We assume this
discussion motivates your question.
I. Home-Rule Authoritv
Home-rule municipalities such as San Marcos have governmental authority to govern without
the legislature authorizing each governmental action, but remain subject to limitations enacted by
the legislature. See TEX. Lot. GOV’T CODEANN. 5 51.072 (Vernon 1999) (Home-Rule Act); TEX.
CONST. art. XI, 9 5 (“[N]o charter or any ordinance passed under said charter shall contain any
provision inconsistent with the Constitution of the State, or of the general laws . . . of this State.“);
see also In re Sanchez, 81 S. W.3d 794,796 (Tex. 2002). Though broad, a city’s discretionary power
is nevertheless limited to the extent that it is “inconsistent with the Constitution . . . or. . . general
laws” of the State. TEX. CONST. art. XI, 9 5. Our office has consistently construed this limitation
to mean that “‘[a] city is preempted from regulating in a field if the city’s regulation is expressly
prohibited, if the legislature intended state law to exclusively occupy that field, or if the city
regulation conflicts with the state law even if state law is not intended to occupy that field.“’ Tex.
Att’y Gen. Op. No. JM-737 (1987) at 2 (quoting Tex. Att’y Gen. Op. No. JM-619 (1987) at 1); see
also City ofLubbockv. South Plains Hardware Co., 111 S.W.2d 343,345 (Tex. Civ. App.-Amarillo
1937, no writ) (citing City ofBeaumont v. Fall, 291 S.W. 202 (Tex. 1927)) (“[Clitics [are] prohibited
from enacting local laws which are directly in conflict with statutory or constitutional provisions,
[and] from entering a field of legislation which has been occupied by general legislative
enactments.“); Tex. Att’y Gen. Op. No. JM-994 (1988) at 2; Tex. Att’y Gen. LO-92-030, at 3. Both
Texas courts and this office recognize that the “‘mere fact that the legislature has enacted a law
addressing a subject does not mean the complete subject matter is completely preempted. [A]
general law and a city ordinance will not be held repugnant to each other if any reasonable
construction leaving both in effect can be reached.“’ Dallas Merch ‘s & Concessionaire’s Ass ‘n. v.
City ofDallas, 852 S. W.2d 489,492 (Tex. 1993) (citations omitted); see, e.g., Tex. Att’y Gen. Op.
No. GA-01 10 (2003) at 1. Because of that recognition, before holding a statute and a charter
provision repugnant to each other a court must determine that the legislature, “with unmistakable
clarity,” withdrew the subject matter from a city’s domain. See City of Sweetwater v. Geron, 380
S.W.2d 550,552 (Tex. 1964); see also Tyra v. City ofHouston, 822 S.W.2d 626,628 (Tex. 1991);
City ofSantaFev. Young, 949 S.W.2d 559,560-61 (Tex. App.-Houston [14thDist.] 1997, no writ);
City ofEuless v. Dallas/Fort Worth Int ‘IAirport Bd., 936 S.W.2d 699,704 (Tex. App.-Dallas 1996,
writ denied).
As we turn to your question, we point out that our opinion addresses only whether section
41.0052(a) preempts San Marcos citizens from now amending the City Charter in light of the fact
The Honorable Michael S. Wenk - Page 3 (GA-0342)
that the City Council changed the election date pursuant to that provision.3 See Request Letter, supra
note 1, at l-2,6; see also SAN MARCOS, TEX., CITY CHARTER0 12.11 (2004) (providing for charter
amendment according to state law); TEX. Lot. GOV’T CODE ANN. $9.004(a) (Vernon 1999) (charter
amendments).
II. Texas Election Code, Section 41.0052(a)
A. Deadline
Pursuant to a 2003 amendment, Texas Election Code section 41.0052(a) currently
provides that “[tlhe governing body of a political subdivision other than a county may, not later than
December 31, 2004, change the date on which it holds its general election for officers to another
authorized uniform election date.‘” TEX. ELEC. CODE ANN. 5 41.0052(a) (Vernon Supp. 2004-05).
‘In December 2004, the City Council adopted an ordinance changing the City’s general election date to the
November uniform election date. See Request Letter, supru note 1, at 2; San Marcos, Tex., Ordinance 2004-93 (Dec.
13,2004). Texas law requires that “[alny ordinance or resolution adopted by a home-rule city must also be consistent
with the city charter.” Tex. Att’y Gen. Op. No. JC-0225 (2000) at 3 (citing Lower Cola. River Auth. v. City ofSun
Murcos, 523 S.W.2d 641,643-44 (Tex. 1975)). While this office will consider to what extent municipal ordinances and
charters conflict with state law, Tex. Att’y Gen. LO-93-042, at 1, it does not construe questions regarding possible
contlicts between a city charter and a city ordinance. See Tex. Att’y Gen. Op. No. GA-0082 (2003) at 3; Tex. Att’y Gen
LO-94-022, at 1. You state that “for a home rule city such as San Marcos in which the date for general elections is set
in the charter, [Election Code 41.0052(a)], by authorizing the governing body of a city to change the city’s regular
election date, preempts the usual requirement for voter approval of a charter amendment to change the election date.”
Request Letter, supra note 1, at 5. You assume that section 4 1.0052(a) preempts the requirement that city charters be
modified through charter amendment, see TEX.LOC. GOV’TCODEANN. $9 9.004, .005 (Vernon 1999), and do not ask
us to consider the question. Therefore, we do not address it.
4The Election Code contains two versions of section 41.0052(a). The text as amended in 2003 by House Bill
1777is:
(a) The governing body of a political subdivision other than a county may,
not later than December 31, 2003, change the date on which it holds its general
election for off%zersto another authorized uniform election date. An election on the
new date may not be held before the uniform election date in May 2004.
Act of May 28, 2003, 78th Leg., R.S., ch. 1074, 8 1, 2003 Tex. Gen. Laws 3099, 3099 (emphasis added). Section
4 1.0052(a) was also amended in 2003 by House Bill 1549, which states:
(a) The governing body of a political subdivision other than a county may, not later than December
31,2004, change the date on which it holds its general election for officers to another authorized
uniform election date.
Act of May 28,2003,78th Leg., R.S., ch. 1315, $ 15,2003 Tex. Gen. Laws 4819,4823 (emphasis added). This is the
version you cite in your request. See Request Letter, supra note 1, at 1. The term “political subdivision” includes a
municipality. See TEX. ELEC.CODEANN. 0 1.005( 13) (Vernon 2003).
Where two amendments to the “same statute are enacted at the same session . . . , one amendment without
reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each. If the
(continued...)
The Honorable Michael S. Wenk - Page 4 (GA-0342)
In construing a statute, we begin with the plain language. See Fitzgeraldv. AdvancedSpine Fixation
Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). In addition, regardless of whether the statute
is ambiguous, we may consider, among other things: the object sought to be attained; the
circumstances ofthe statute’s enactment; the legislative history; and the consequences of a particular
construction. See TEX. GOV’T CODE ANN. 5 311.023 (Vernon 2005); see also Tex. Att’y Gen. Op.
No. JM-906 (1988) at 10 (“The contemporary circumstances out of which legislation arose and the
legislative history may be consulted in interpreting a statute.“). By its current plain language, section
41.0052(a) imposes December 3 1,2004 as a deadline by which a political subdivision may change
its general election date. Section 41.0052(a) was added to the Election Code in 1993 as part of a
legislative effort to eliminate confusion over procedures in the Election Code that had “taken [a] toll
on candidates, election officials and voters across the state.” SENATE RESEARCH CENTER, BILL
ANALYSIS, Tex. H.B. 75,73d Leg., R.S. (1993). House Bill 75 established December 31, 1993 as
a deadline by which a political subdivision (other than a county) may change its general election
date.5 In 1997, that deadline was changed to December 31, 1997.6 The legislature changed the
deadline again in 1999 to December 3 1, I 999.7 In 2003 the deadline was extended from December
3 1,1999, to December 3 1, 2004.8 Recent legislation, which becomes effective on October 1,2005,
changes the date to December 3 1, 2005.9 Moreover, the prior versions of section 41.0052 prohibited
an election from being held on the new date in the same year the change was made.” Pursuant to
its plain language and when read in its original context of eliminating confusion, especially voter
confusion, and considering the restriction on using the new election date, we believe section
41.0052(a) is designed to impose a deadline after which changes to a political subdivision’s general
4(...continued)
amendments are irreconcilable, the latest in date of enactment prevails.” TEX.GOV’TCODEANN. 6 3 11.025(b) (Vernon
2005). The date of enactment “is the date on which the last legislative vote is taken on the bill enacting the statute.” Id.
$3 11.025(d). When the “journals or other legislative records fail to disclose which. . . is the latest in date of enactment,
the date of enactment . . . is considered to be, in order of priority: (1) the date on which the last presiding officer signed
the bill; or (2) the date on which the governor signed the bill, . . . .” Id. 0 3 11.025(e). We believe the different deadlines
in the two bills make them incompatible. The date of enactment for both House Bill 1777 and House Bill 1549 is May
28,2003. See H.J. OFTEX., 78th Leg., R.S., 4622 (House Bill 1777), 4518 (House Bill 1549) (2003). Similarly, both
bills were signed by the last presiding officer on the same date, May 3 1, 2003. See id. at 4362. The Governor signed
House Bill 1777 on June 20,2003, see id. at 6672, and House Bill 1549 on June 22,2003, see id. at 6673. Therefore,
House Bill 1549 is the later-enacted bill and prevails.
5See Act of May 28,1993,73d Leg., R.S., ch. 728, $11,1993 Tex. Gen. Laws 2845,2847 (effective Sept. 1,
1993).
%ee Act of May 31, 1997,75th Leg., R.S., ch. 1219,§ 4, 1997 Tex. Gen. Laws 4681,4682 (effective June 20,
1997).
‘See Act of May 26, 1999,76th Leg., R.S., ch. 1068, Q 1, 1999 Tex. Gen. Laws 3920,392O (effective Sept. 1,
1999).
*See Act ofMay 28,2003,78th Leg., R.S., ch. 1315,s 15,2003 Tex. Gen. Laws 4819,4823 (effective Jan. 1,
2004); see also supru note 4.
‘See Act ofMay 24,2005,79th Leg., R.S., H.B. 57,s 3 (to be codified at TEX.ELEC.CODEANN.4 41.0052(a)).
“See supru notes 5-7
The Honorable Michael S. Wenk - Page 5 (GA-0342)
election datemaynot be made in order to allow candidates, election officers, and the votingpopulace
time to adjust to a new election date and all the concomitant election schedule changes.
Perhaps in anticipation of this determination, you point out that section 4 1.0052(a) limits only
the governing body ‘.sauthority to change the election date. See Request Letter, supra note 1, at 5-6.
Thus, you argue that section 41.0052(a) does not limit the power of the citizens to amend the charter.
See id. Your argument is predicated on a construction of “governing body” that is limited to the city
council. However, in this instance, we are not convinced that such a limited construction is
appropriate.
B. Municipal Legislative Authority
The self-rule authority is exercised by the city council through the adoption of
ordinances. See Tex. Att’y Gen. Op. Nos. JC-0218 (2000) at 2 (“[t]he powers of a home rule city
include the police power to regulate . . . by ordinance”); JM-994 (1988) at 3 (a city asserts its police
power by local ordinance); JM-279 (1984) at l-2; H-969 (1977) at 2. However, a home-rule
municipality’s citizenry also exercises its self-rule authority through adoption and amendment of a
charter. See TEX. Lot. GOV’T CODE ANN. 5 9.004(a) (Vernon 1997); see also Tex. Att’y Gen. Op.
Nos. JM-279 (1984) at 2 (“No home rule charter or ordinance passed under the home rule statutes
may contain any provision inconsistent with the general laws of the state.“); H-969 (1977) at 2
(stating that “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”). Additionally, the San Marcos City Charter expressly provides for direct
legislation by voter initiative. See SAN MARCO& TEX., CITY CHARTER$6.01 (2004) (“The people
of the city reserve the power of direct legislation by initiative . . . .“). Seeing no real distinction
between home-rule authority as exercised by the governing body and home-rule authority exercised
by the voters in a taxation context, our office recently said:
[w]hen the people exercise their rights and powers under the initiative
provisions of a city charter they are acting as and become in fact
the legislative branch df the municipal government. Thus, if the
governing body of a home-rule municipality does not have the
authority to adopt an ordinance, the voters of the municipality may
not do so through the initiative process.
Tex. Att’y Gen. Op. No. GA-0222 (2004) at 3 (citing City of Hitchcock v. Longmire, 572 S.W.2d
122, 127 (Tex. Civ. App.-Houston [lst Dist.] 1978, writ ref d n.r.e.)); see also Glass v. Smith, 244
S.W;2d 645,651 (Tex. 1951) (“There can be no right or power existing in the people of [the city]
to adopt an ordinance through the initiative process if the power to adopt it is not lodged in the City
Council in the first instance.“). Consequently, various aspects of the City’s legislative authority are
vested in both the city council and the citizenry. See Blum v. Lanier, 997 S.W.2d 259, 262 (Tex.
1999) (“Citizens who exercise their rights under initiative provisions act as and ‘become in fact the
legislative branch of the municipal government.“‘) (quoting Glass, 244 S.W.2d at 649).
Section 41.0052(a) is contained within the Election Code which governs all elections in
Texas. See TEX. ELEC. CODE ANN. 3 1.002 (Vernon 2003). Because it applies to all political
The Honorable Michael S. Wenk - Page 6 (GA-0342)
subdivisions and directs the conduct of elections for each respective political subdivision, see id.,
it is drafted with a broad scope. We understand the “governing body of a political subdivision other
than a county” to include general-law cities, home-rule cities, water districts, school districts, and
all other special districts in Texas that hold elections. See id. 99 41.0052(a) (Vernon Supp. 2004-
05), 1.005( 13) (Vernon 2003) (defining political subdivision). With the exception of home-rule
cities, all of these political subdivisions exercise legislative authority through one vehicle - an
elected board or council composed of a limited number of persons. By contrast, a home-rule city
exercises its legislative authority through an elected body, and to the extent given in the charter,
through its citizenry. See Blum, 997 S.W.2d at 262.
As we consider whether section 41.0052(a) precludes the citizens from exercising their
legislative authority as permitted by the charter, we are cautioned to construe harmoniously if “any
reasonable construction leaving both in effect can be reached.” DaZZas Merch ‘s & Concessionaire ‘s
Ass ‘n., 852 S.W.2d at 491. In context, section 41.0052(a) reveals an intent to establish a broadly
applicable deadline for political subdivisions to change their respective election dates, not to override
a political subdivision’s established process for making such a change. Nor do we discern an intent
to make home-rule municipalities the sole political subdivisions that are not subject to the deadline,
and then only if the deadline is changed pursuant to a voter-initiated election. Rather, we believe
a harmonious and reasonable result is reached if the term “governing body,” as used in section
41.0052(a) is construed to mean legislative authority which, as it pertains to home-rule cities,
includes both the city council and the citizenry. Whether exercised by its citizens or its city council,
a municipality’s self governance is nevertheless limited by conflicting provisions of the state’s
constitution and statutes. See TEX. CONST. art. XI, 9 5. Thus, we conclude that the current statutory
deadline in section 4 1.0052(a) also precludes the citizens of the City from now amending the City
Charter to alter the standing date of its general elections.
We believe a contrary conclusion that the citizens could amend a city charter on a date
subsequent to the statutory deadline in section 4 1.0052(a) would undermine its effectiveness. We
cannot presume the legislature intended a meaningless act. See Exparte Tucker, 977 S.W.2d 713,
716-17 (Tex. App.-Fort Worth 1998),pet. dism ‘d, improvidentlygranted, 3 S.W.3d 576 (Tex. Crim.
App. 1999) (“We will not presume that the Legislature did a useless or vain thing by enacting
language that was mere surplusage or that was not intended to be effective.“); see also Tex. Att’y
Gen. Op. Nos. GA-0105 (2003) at 4, K-0300 (2000) at 6. If the deadline bound only the city
council, citizens could amend the charter after the deadline and disrupt the orderly conduct of
elections mid-cycle. The confusion to voters, candidates, and election officials resulting from such
a change is precisely the confusion we believe section 41.0052(a) seeks to prevent. See SENATE
RESEARCHCENTER,BILL ANALYSIS, Tex. H.B. 75,73d Leg., R.S. (1993); see also supra pp. 4-5.
We believe section 41.0052(a), as part of the Texas Election Code that prevails over conflicting law,
is a general legislative enactment intended to occupy the field with respect to when a political
subdivision may change its election date. See South Plains Hardware Co., 111 S.W.2d at 345
(prohibiting cities from entering a field of legislation which has been occupied by general legislative
enactment); TEX. ELEC. CODE ANN. 9 1.002(b) (Vernon 2003) (“This code supersedes a conflicting
statute outside this code unless this code or the outside statute expressly provides otherwise.“); see
also VeZa v. State, 572 S.W.2d 128, 130 (Tex. Civ. App.-Corpus Christi 1978, no writ) (stating
legislature enacted “election code which controls the manner in which municipal . . . elections are
The Honorable Michael S. Wenk - Page 7 (GA-0342)
conducted”); State ex rel. Edwards v. Reyna, 333 S.W.2d 832, 833 (Tex. 1960) (“[Clonduct of
elections is primarily a matter for legislative regulation and control.“); see also Tex. Att’y Gen. Op.
No. GA-0025 (2003) at 3 (citing Secretary of State’s conclusion based in part of section 1.002(b),
Election Code, that the Election Code “preempts with ‘unmistakable clarity’ contrary home-rule
municipality charter provisions and ordinances”).
Since adding section 41.0052 to the Election Code and imposing a deadline by which any
changes to general election dates must be made, the legislature has regularly extended the deadline.
See supra p. 4. With the passage of House Bill 57,” this pattern continues. Until House Bill 57
becomes effective on October 1, 2005, the current deadline in section 41.0052(a) terminates any
continuing right of a municipality to change the general election date.
III. Conclusion
As section 41.0052(a) currently provides, a municipality had until the December 3 1,2004
deadline to change its general election date. See TEX. ELEC. CODE ANN. $41.0052(a) (Vernon Supp.
2004-05). Subsequent changes to the deadline in section 41.0052(a), either in this or subsequent
legislative sessions, would extend that deadline and give municipalities additional time to alter their
general election date. Until such a change is made to section 41.0052(a), however, we conclude that
after December 3 1,2004, a municipality either through its city council or citizenry may not change
the date on which it holds its general elections. Now that the Iegislature has again extended the
deadline, the City will be free to change its general election date by council or citizen action as
otherwise authorized by law.
“The new deadline in section 41.0052(a) contained in House Bill 57 is December 3 1,2005. See Act of May
24,2005, 79th Leg., RX, H.B. 57, !j 3 (to be codified at TEX. ELK. CODEANN. 6 41.0052(a)). House Bill 57 also
entirely eliminates the February and September uniform election dates. See id. 4 1 (to be codified at TEX. ELK. CODE
ANN.9 41.001(a)). We note here that once the amended section41.0052(a) becomes effective on October 1,2005, the
second uniform election date contemplated by the City Charter, see SAN MARCOS, TEX., CITY CHARTER5 5.01 (2004),
would be the November date.
The Honorable Michael S. Wenk - Page 8 (GA-0342)
SUMMARY
Section 41.0052(a) of the Texas Election Code clearly
establishes a deadline after which a home-rule municipality may
not change the standing date for its general elections. As currently
written, section 41.0052(a) imposes a December 3 1,2004 deadline,
and a charter amendment changing the date of the election enacted
after that statutory deadline conflicts with state law and is, therefore,
preempted by the statute. Because we construe the term “governing
body,” as used in section 41.0052(a) and as it pertains to home-rule
cities, to include the legislative authority of the citizenry as provided
for by the city charter, this deadline also precludes the citizens of the
City from changing the date through a charter amendment. As it has
done in the past, the Seventy-ninth Legislature extended the section
41.0052(a) deadline. When House Bill 57 becomes effective on
October 1, 2005, a municipality is again free to change its general
election date by council or citizen action as authorized by law.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee