Can a Texas home-rule city extend its council members' terms to four years without a charter amendment?

Plain-English summary

State Representative Joseph Pickett asked the Attorney General two questions about how home-rule cities, and the City of Socorro in particular, were handling changes to their officers' terms of office under Senate Bill 100. Senate Bill 100, adopted by the Eighty-second Legislature, implemented the Federal Military and Overseas Voter Empowerment Act in Texas and, among other things, moved political subdivisions away from holding elections in May of even-numbered years. One of its uncodified provisions, section 52, let a political subdivision whose governing-body members served odd-numbered-year terms adopt a resolution by December 1, 2012 changing the term length to an even number of years, with the transition beginning at the first regular election after January 1, 2013.

The first question was whether article XI, section 11(a) of the Texas Constitution requires a charter amendment when a home-rule city wants to lengthen its officers' terms to four years. That provision says a home-rule city "may provide by charter or charter amendment ... for a longer term of office than two (2) years for its officers ... but not to exceed four (4) years." Reading the plain text, the opinion concluded that a home-rule city wanting terms longer than two years must do so by charter amendment. Whether the city currently uses two-year or three-year terms, a four-year term is a "longer term of office than two (2) years" and falls within the provision. So a court would likely conclude that a home-rule city cannot extend its council terms from three years to four years without a charter amendment.

The second question concerned Socorro's specific schedule. The City had set elections for half its governing body in November 2013 and the other half in November 2014, which the request suggested produced terms of about four and a half years during the transition. Article XI, section 11(a) provides, expressly and without exception, that terms of office for officials of a home-rule city may not exceed four years. The opinion concluded that to the extent the City's council terms exceeded four years, they were contrary to article XI, section 11(a).

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Home-rule cities and their councils (as the opinion described it): The opinion described article XI, section 11(a) as requiring a charter amendment to set terms longer than two years, so a court would likely find that moving from three-year to four-year terms needs a charter amendment, and that no term may exceed four years.

The City of Socorro (as the opinion described it): The opinion concluded that to the extent the City's council terms exceeded four years during its transition schedule, those terms were contrary to article XI, section 11(a).

Election officials administering the SB 100 transition (as the opinion described it): The opinion described section 52 of Senate Bill 100 as allowing a resolution changing odd-numbered terms to even-numbered ones, but read the four-year constitutional ceiling and the charter-amendment requirement as independent limits on how a home-rule city may carry out that change.

Common questions

Can a Texas home-rule city move its council terms from three years to four years just by resolution?
The opinion concluded a court would likely say no. Article XI, section 11(a) requires a charter amendment to set terms of office longer than two years, and a four-year term qualifies.

Is there a maximum length for a home-rule city official's term?
Yes. The opinion noted that article XI, section 11(a) provides, without exception, that terms may not exceed four years.

What about the four-and-a-half year terms created by Socorro's transition schedule?
The opinion concluded that to the extent the City's terms exceeded four years, they were contrary to article XI, section 11(a).

Didn't Senate Bill 100 authorize cities to change term lengths?
The opinion described section 52 of Senate Bill 100 as letting a subdivision change odd-numbered-year terms to even-numbered ones by resolution, but treated the constitutional four-year cap and the charter-amendment requirement as separate constraints the city still had to satisfy.

Background and statutory framework

Senate Bill 100 (82d Legislature) implemented the Federal Military and Overseas Voter Empowerment Act and shifted political subdivisions away from May elections in even-numbered years. Most of its provisions were codified in the Election Code (for example, section 41.001(d), under which a county elections administrator need not contract to furnish election services for a May election in even-numbered years, and section 41.0052(a), addressing election-date changes and staggered-term home-rule council positions). The provision directly relevant here, section 52, was uncodified: it let a political subdivision with odd-numbered-year terms adopt a resolution by December 1, 2012 changing the term length to an even number of years, with the transition starting at the first regular election after January 1, 2013.

The constitutional limit came from article XI, section 11(a), which lets a home-rule city provide by charter or charter amendment for terms longer than two years but not exceeding four, and article XI, section 5, under which home-rule cities adopt or amend their charters by majority vote at an election. The opinion relied on the plain text of the constitutional provision, citing Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp. for giving effect to the literal text of a constitutional provision.

Citations

Cases:

• Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009)

Constitution and statutes:

• Tex. Const. art. XI, § 11(a); art. XI, § 5
• Tex. Elec. Code Ann. § 41.001(d) (West Supp. 2012); § 41.0052(a)
• Act of May 29, 2011, 82d Leg., R.S., ch. 1318 (Senate Bill 100), 2011 Tex. Gen. Laws 3804; § 52 (uncodified)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0985
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0985.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

January 29, 2013

The Honorable Joseph C. Pickett Opinion No. GA-0985
Chair, House Committee on Defense
and Veterans' Affairs Re: Whether a home-rule city may change the
Texas House of Representatives terms of its officers from three to four years
Post Office Box 2910 without first adopting a charter amendment
Austin, Texas 78768 (RQ-1077-GA)

Dear Representative Pickett:

You present two questions about the propriety of actions taken by a home-rule city in general, and by the City of Socorro (the "City") specifically, under the authority of Senate Bill 100.[1] Adopted by the Eighty-second Legislature, Senate Bill 100 implements in Texas the Federal Military and Overseas Voter Empowerment Act. See Act of May 29, 2011, 82d Leg., R.S., ch. 1318, 2011 Tex. Gen. Laws 3804, 3804 (preamble). Most of its election related provisions are now codified in the Election Code. See id. §§ 1-45, at 3804-16 (containing provisions amending the Election Code). For example, subsection 41.001(d) of the Election Code provides that a county elections administrator is not required to enter into contracts to furnish election services for an election held in May in even-numbered years. See TEX. ELEC. CODE ANN. § 41.001(d) (West Supp. 2012). Other codified provisions govern changes to a political subdivision's election date and the elimination of staggered-year elections for home-rule municipality council positions. See id. § 41.0052(a).

The uncodified provision in Senate Bill 100 that pertains to your question is section 52. Section 52 is another provision to aid in the transition away from May elections in even-numbered years and provides that:

(a) This section applies only to a political subdivision that elects the members of its governing body to a term that consists of an odd number of years.

(b) Not later than December 1, 2012, the governing body of the political subdivision may adopt a resolution changing the length of the terms of its members to an even number of years. The resolution must specify the manner in which the transition from the length of the former term to the modified term is made. The transition must begin with the first regular election for members of the governing body that occurs after January 1, 2013, and a member who serves on that date shall serve the remainder of that term.

See Act of May 29, 2011, 82d Leg., R.S., ch. 1318, § 52, 2011 Tex. Gen. Laws 3804, 3817.

You first ask whether article XI, section 11(a) of the Texas Constitution requires a charter amendment if a home-rule municipality seeks to lengthen the terms of office to four years. See Request Letter at 2. Article XI, section 11(a) provides that "[a] home-rule city may provide by charter or charter amendment, ... for a longer term of office than two (2) years for its officers, either elective or appointive, or both, but not to exceed four (4) years." TEX. CONST. art. XI, § 11(a). By its plain language, article XI, section 11(a) requires that a home-rule municipality that wishes to establish terms of office longer than two years must do so by charter amendment. See TEX. CONST. art. XI, § 11(a); Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009) (relying heavily on the literal text of a constitutional provision to give effect to its plain language); see also id. art. XI, § 5 (providing that home-rule municipalities "may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters"). Whether a municipality currently employs two-year or three-year terms, a term of four years is itself "a longer term of office than two (2) years" and thus falls squarely within the scope of article XI, section 11(a). Accordingly, a court would likely conclude that a home-rule municipality may not extend its council terms from three years to four years without a charter amendment.

Your second question concerns the specific election schedule selected by the City. You indicate that the City has provided for an election for half of the members of its governing body in November of 2013 and the other half in November of 2014. See Request Letter at 1-2. You suggest the City should have scheduled its elections for November of 2012 and 2013, and you ask whether article XI, section 11(a) prohibits four-and-a-half year terms during the period of transition to another election date. See id. at 2. Article XI, section 11(a) of the Texas Constitution expressly, and without exception, provides that the terms of office for city officials in a home-rule municipality may not exceed four years. TEX. CONST. art. XI, § 11(a). To the extent the City's council terms exceed four years, they are contrary to article XI, section 11(a).

SUMMARY

Under article XI, section 11(a) of the Texas Constitution, a court would likely conclude that a home-rule municipality may not change its city council terms from three years to four years without a charter amendment.

To the extent the City of Socorro's city council terms exceed four years, they are contrary to article XI, section 11(a) of the Texas Constitution.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Joseph C. Pickett, Chair, Defense & Veterans' Affairs Comm., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Aug. 2, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").