Can a Texas home-rule city change its charter without a public vote?

TX AG Opinion GA-0433: Can a home-rule city amend its charter by ordinance?

Plain-English summary

A home-rule city's charter is its basic governing document, something like a local constitution. The City of Dumas had a charter provision, approved by its own voters in a 1993 charter election, that listed several ways to amend the charter, including "by ordinance of the city commission." A state representative asked whether that provision was legal. The answer in 2006 was no.

The Texas Constitution, article XI, section 5, lets home-rule cities adopt or amend their charters, but only "by a majority vote of the qualified voters of said city, at an election held for that purpose." The Local Government Code carries that out by requiring charter amendments to go to the city's voters. A charter provision that lets the city commission change the charter by ordinance, without a vote of the people, contradicts that plain constitutional language. So the Attorney General concluded the by-ordinance amendment provision was invalid.

The representative also asked what happens to a change the City had already made under that invalid provision. In 1995 Dumas used the by-ordinance route to switch to staggered three-year terms for its commissioners. Because a municipal action inconsistent with state law is void from the beginning ("void ab initio"), the opinion concluded the City never had authority to make that 1995 change by ordinance. The charter was therefore not actually amended in 1995, and the term rules that existed before that attempt continued to apply. The opinion added that no validating legislation could fix the problem, because validation statutes cannot cure a constitutional defect.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Article XI, section 5 of the Texas Constitution and the Local Government Code charter-amendment provisions can be amended over time, and the specific situation in Dumas may since have been resolved by a proper voter-approved amendment. Anyone dealing with a home-rule charter amendment today should check the current constitution and statutes and the city's current charter, not rely on this 2006 opinion's account of the Dumas charter.

Who this opinion affected (as of 2006)

Home-rule cities and city commissions: The opinion told home-rule cities they could not write a shortcut into the charter letting the commission amend it by ordinance; every amendment had to go to the voters under article XI, section 5.

The City of Dumas: The opinion meant Dumas's by-ordinance amendment provision was void, and its 1995 by-ordinance change to staggered three-year commissioner terms had never taken legal effect, leaving the prior term rules in place.

City voters: The opinion reaffirmed that, for a home-rule city, the power to change the charter rested with a majority of the city's qualified voters at an election, not with the governing body alone.

Common questions

Could the city commission change the charter on its own by ordinance?
No. According to the opinion, article XI, section 5 of the Texas Constitution requires a majority vote of the city's qualified voters at an election, so a charter provision allowing amendment by ordinance was invalid.

What happened to the 1995 staggered-terms amendment Dumas adopted by ordinance?
The opinion concluded it was void from the start because the City had no authority to amend by ordinance, so the charter was never amended in 1995 and the earlier term rules continued to govern.

Could the Legislature pass a law to validate the 1995 change?
No. The opinion stated that validation statutes may not cure constitutional defects, so no validating legislation could rescue the by-ordinance amendment.

Does the Attorney General usually interpret city charters?
The opinion noted that the office generally refrains from construing municipal charters and ordinances, but will do so when the question is whether a charter provision conflicts with state or federal law, as it did here.

Background and statutory framework

The City of Dumas is a home-rule municipality, and a home-rule city "is empowered to adopt or amend its charter in any manner in which it may desire, consistent and in accordance with the state constitution and the general laws of this State" (Burch v. City of San Antonio, 518 S.W.2d 540, 543 (Tex. 1975); Tex. Const. art. XI, § 5). Article XI, section 5 authorizes home-rule municipalities, "by a majority vote of the qualified voters of said city, at an election held for that purpose, [to] adopt or amend their charters." The Local Government Code implements that requirement by directing that charter amendments be submitted to the city's voters (Tex. Loc. Gov't Code Ann. §§ 9.004, 9.005 (Vernon 1999)). Dumas's charter, as amended by its voters in 1993, purported to allow amendment "by ordinance of the city commission." Because that route bypasses the constitutional requirement of voter approval, the opinion concluded the provision was invalid as inconsistent with article XI, section 5.

On the follow-up question, the opinion explained that municipal laws inconsistent with state law are void ab initio (City of Wink v. Griffith Amusement Co., 100 S.W.2d 695, 698 (Tex. 1936)), so the City had no authority in 1995 to amend the commissioners' term provisions by ordinance. The charter was therefore not amended in 1995 and continued to mandate the term limits in effect before the invalid amendment. No validating legislation could change that result, because validation statutes may not cure constitutional defects (Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 296 (Tex. App.-Dallas 1989, writ denied)). The office noted it generally declines to construe municipal charters but does so when the question is a conflict with state or federal law (Tex. Att'y Gen. Op. No. GA-0217 (2004)).

Citations

Statutes:

• Tex. Const. art. XI, § 5
• Tex. Loc. Gov't Code Ann. §§ 9.004, 9.005 (Vernon 1999)

Cases:

• Burch v. City of San Antonio, 518 S.W.2d 540, 543 (Tex. 1975)
• City of Wink v. Griffith Amusement Co., 100 S.W.2d 695, 698 (Tex. 1936)
• Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 296 (Tex. App.-Dallas 1989, writ denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0433
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0433.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 18, 2006

The Honorable David Swinford
Chair, Committee on State Affairs
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0433

Re: Validity of a charter provision that permits a home-rule city to amend its charter by ordinance (RQ-0416-GA)

Dear Representative Swinford:

You ask about the validity of a charter provision that permits a home-rule city to amend its charter by ordinance.[1] Though this office generally refrains from construing municipal charters and ordinances, we do so when, like here, the question is whether a charter provision or ordinance is in conflict with state or federal law. Tex. Att'y Gen. Op. No. GA-0217 (2004) at 4-5.

Your question concerns the charter for the City of Dumas (the "City"). A letter to you from the Dumas city manager states that in 1993 the City's voters, "in a duly called city charter amendment election, approved an amendment to the home rule charter which purports to give the city commission the authority to amend the charter by ordinance."[2] As a result, the City's charter now reads in relevant part:

Amendments to the charter may be framed and proposed as (a) in the manner provided by law, or (b) by ordinance of the city commission containing the full text of the proposed amendment and effective upon adoption, or (c) by recommendation of a charter commission by ordinance, or (d) by petition of 25 percent or more of the registered voters of the city.

City of Dumas Letter, supra note 2, at 1. The City has used this provision to amend the charter by ordinance on one occasion, in 1995, "to establish the current system of staggered, three-year terms for city commissioners." Id. at 1-2. Thus, the City asks the following two questions:

1) Is the provision in the city charter granting authority to the city commission to amend the charter by ordinance legal?

2) If the referenced provision is illegal, what does that do to the subsequently enacted charter provision establishing terms of office for the city commission?

Id. at 2.

The City is a home-rule municipality, see id. at 1 (questioning the validity of an amendment to its home-rule charter), and as such it "is empowered to adopt or amend its charter in any manner in which it may desire, consistent and in accordance with the state constitution and the general laws of this State." Burch v. City of San Antonio, 518 S.W.2d 540, 543 (Tex. 1975); see TEX. CONST. art. XI, § 5 (authorizing and governing the creation of home-rule municipalities). Article XI, section 5 of the Texas Constitution authorizes home-rule municipalities, "by a majority vote of the qualified voters of said city, at an election held for that purpose, [to] adopt or amend their charters." TEX. CONST. art. XI, § 5 (emphasis added). That is, this provision's language requires that each amendment to a city charter be submitted to city voters at an election called for that purpose. See TEX. LOC. GOV'T CODE ANN. §§ 9.004, .005 (Vernon 1999) (implementing article XI, section 5 requiring charter amendments to be submitted to city voters). Here, the charter was amended to permit the City to amend its charter without submitting proposed amendments to the qualified voters, which amendment contradicts the plain language of the constitution. Thus, in answer to your first question, the City charter provision granting authority to amend the charter by ordinance is invalid because it is inconsistent with the constitutional requirement that all charter amendments be adopted by a majority of a city's qualified voters.

The City also asks about the effect on the charter amendment adopted by ordinance providing for staggered terms for its commissioners if the amendment by ordinance provision is invalid. See City of Dumas Letter, supra note 2, at 2. Municipal laws inconsistent with state law are void ab initio. City of Wink v. Griffith Amusement Co., 100 S.W.2d 695, 698 (Tex. 1936). The City therefore had no authority in 1995 to amend by ordinance the commissioners' term limits. See id. at 698. Consequently, the City's charter was not amended in 1995; rather, the charter continues to mandate commissioners' term limits as it did prior to the invalid 1995 amendment. No validating legislation changes this result. See Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 296 (Tex. App.-Dallas 1989, writ denied) (validation statutes may not cure constitutional defects).

SUMMARY

An amendment to a home-rule city charter that purports to grant authority to the city to amend its charter by ordinance is void because it is inconsistent with article XI, section 5 of the Texas Constitution, which requires all charter amendments to be approved by a majority of qualified voters in the city. Thus, a charter amendment adopted by ordinance is invalid.

BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from Honorable David Swinford, Chair, Committee on State Affairs, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas (Oct. 27, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. Letter from Vince DiPiazza, City Manager, City of Dumas, to Honorable David Swinford, Chair, Committee on State Affairs, Texas House of Representatives, at 1 (Sept. 30, 2005) (attached to the Request Letter) [hereinafter City of Dumas Letter].