Did a Texas local human rights commission need a local ordinance before filing an employment-discrimination lawsuit?

Texas AG Opinion JM-228: Local Human Rights Lawsuits

Plain-English summary

The Texas Commission on Human Rights asked whether a local human rights commission could file an employment-discrimination action under section 4.03(5) without a local ordinance authorizing suit. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

JM-228 concluded that "No local ordinance is necessary" once the political subdivision created the commission under section 4.02. The commission then had the civil-action authority directly granted by section 4.03(5). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

That authority was not unlimited. Section 4.03(5) applied when the federal government or state commission had "referred the complaint" or deferred jurisdiction over its subject matter to the local commission, and section 4.04(a) further controlled the action. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

The opinion distinguished the commission's statutory enforcement power from a local ordinance. A political subdivision still could adopt and enforce its own ordinance under section 4.01 and could delegate enforcement of that ordinance to the local commission. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

JM-228 described sections 4.01 and 4.02 as permissive. A political subdivision did not have to enact a discrimination ordinance or create a local commission, and state-level enforcement did not depend on either local action. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

Currency note

This opinion was issued in 1984. 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.

Common questions

Did the commission need a local ordinance before filing suit?

No. JM-228 said a local commission could file the specified civil actions "without separate authorization by local ordinance." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

Where did the commission's lawsuit authority come from?

The opinion said section 4.03(5) "directly granted" the authority to a commission created under section 4.02. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

Could the local commission file any discrimination case it chose?

No. The quoted statute limited the power to complaints referred by the federal government or state commission, or matters over which one of them had "deferred jurisdiction" to the local commission. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

Could a city or county still enact its own discrimination ordinance?

Yes. JM-228 said a political subdivision could "adopt and enforce a local ordinance pursuant to section 4.01." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

Could the local commission enforce that local ordinance too?

Yes if the political subdivision delegated that power. The opinion said nothing in article 5221k prohibited delegation of ordinance enforcement to the commission. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

Background and statutory framework

Section 4.01 allowed a political subdivision to adopt and enforce an ordinance against practices unlawful under the act or other federal or state law. Section 4.02 allowed one or more political subdivisions to create a local commission "to promote the purposes of this Act." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

Section 4.03(5) authorized a local commission to receive, investigate, seek to conciliate, and pass on complaints, and to "file civil actions to effectuate the purposes of this Act" under its referral and deferral conditions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

JM-228 also discussed standing. It said a political subdivision without a direct interest and standing in a claim likewise lacked standing "to act in the public interest," while the legislature could place public-enforcement authority where it chose constitutionally. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

Citations and references

• City of Jefferson v. Railroad Commission, 453 S.W.2d 906, 908 (Tex. Civ. App. - Austin 1970, writ ref'd n.r.e.), appeared in the standing discussion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf
• Hidalgo County Water Improvement District No. 2 v. Cameron County Water Control & Improvement District No. 5, 253 S.W.2d 294, 300 (Tex. Civ. App. - San Antonio 1952, writ ref'd n.r.e.), appeared as an example involving a political subdivision acting as a class representative in a suit related to its function. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf
• Fieldton Co-operative Gin v. Wright, 259 S.W.2d 603, 605 (Tex. Civ. App. - Amarillo 1953, no writ), supported the statement that who may maintain an action was "a matter of law." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf
• City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982), cert. denied, 459 U.S. 1087 (1982), appeared for acceptance of local regulation ancillary to and in harmony with state enactments. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0228
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0228.pdf

Original opinion text

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

The Attorney General of Texas

November 13, 1984

Mr. Bill Hale
Executive Director
Texas Commission on Human Rights
P. O. Box 13493, Capitol Station
Austin, Texas 78711

Opinion No. JM-228

Re: Authority of a local human relations commission to file suit under section 4.03(5) of article 5221k, V.T.C.S.

Dear Mr. Hale:

You request clarification of the source of a local human rights commission's authority to file employment discrimination actions. Specifically, you ask whether a local commission may file civil actions pursuant to section 4.03(5) of the Texas Commission on Human Rights Act, V.T.C.S. art. 5221k, without a local ordinance authorizing such action. We conclude that once a local commission is created pursuant to section 4.02 of the act, the local commission is authorized by section 4.03(5) of the act to file civil actions as specified in section 4.03(5), which is controlled by section 4.04(a). No local ordinance is necessary. This does not, however, prevent a political subdivision from either adopting and enforcing an ordinance pursuant to section 4.01 or delegating to its local commission the power to enforce its ordinance.

As a preliminary matter, when a political subdivision has no direct interest in a particular claim and, consequently, no standing, it also lacks standing to act in the public interest. City of Jefferson v. Railroad Commission, 453 S.W.2d 906, 908 (Tex. Civ. App. - Austin 1970, writ ref'd n.r.e.); Hidalgo County Water Improvement District No. 2 v. Cameron County Water Control & Improvement District No. 5, 253 S.W.2d 294, 300 (Tex. Civ. App. - San Antonio 1952, writ ref'd n.r.e.) (political subdivision may be class representative in suit relating to the function of the political subdivision). The legislature may place the authority to represent the public by filing suit where it chooses, so long as it does so constitutionally. The question of who may maintain an action is a matter of law and is not subject to the control of the parties. Fieldton Co-operative Gin v. Wright, 259 S.W.2d 603, 605 (Tex. Civ. App. - Amarillo 1953, no writ). Thus, a political subdivision may confer upon itself or upon its delegatee the authority to assert another individual's or entity's cause of action only as specified by law.

In addition to the jurisdiction of the state commission, article 5221k provides for two local methods of effecting its purposes: one by the political subdivision itself and the other through a local commission. Section 4.01 indicates that

[a] political subdivision may adopt and enforce an ordinance that prohibits practices designated as unlawful under this Act, or otherwise declared unlawful under federal or state law. (Emphasis added).

Section 4.02 provides for local commissions in part as follows:

A political subdivision or two or more political subdivisions acting jointly may create a local commission to promote the purposes of this Act. . . . (Emphasis added).

Both of these provisions are permissive; thus, a political subdivision need not enact and enforce employment discrimination ordinances and need not create a local human rights commission which would promote the purposes of article 5221k on the local level. No local action is necessary for enforcement of article 5221k on the local level by the state commission absent these actions. A political subdivision may delegate the authority to enforce its own section 4.01 ordinance; however, once a political subdivision creates a local human rights commission pursuant to this statute, which specifically authorizes certain powers, the local commission has at least the powers authorized by the statute. See Attorney General Opinion H-753 (1975); see also Attorney General Opinions H-1092 (1977); H-619 (1975).

Section 4.01 is a provision which emphasizes that a political subdivision is not preempted from preventing employment discrimination and which grants authority to prevent local discrimination by enforcement of a local ordinance which may or may not duplicate article 5221k. Generally, local regulation that is ancillary to and in harmony with the general scope and purpose of state enactments is acceptable. City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982), cert. denied, 459 U.S. 1087 (1982). Article 5221k specifically authorizes local ordinances; nothing in article 5221k prohibits a political subdivision from delegating the power to enforce its ordinances to its local commission.

Section 4.02 is an independent provision, with regulation by local commissions guided by the provisions of article 5221k rather than by the provisions of a local ordinance. Therefore, a local commission created pursuant to section 4.02 has the authority to file certain civil actions to enforce article 5221k, as directly granted by section 4.03(5) of the act. Section 4.03(5) grants local commissions the power

to receive, investigate, seek to conciliate, and pass on complaints alleging violations of this Act, and file civil actions to effectuate the purposes of this Act if the federal government or state commission has referred the complaint to the commission or has deferred jurisdiction over the subject matter of the complaint to the commission. . . . (Emphasis added).

A local human rights commission may file civil actions in these instances, as further controlled by section 4.04(a), without separate authorization by local ordinance.

SUMMARY

The authority of a local human rights commission, created pursuant to section 4.02 of article 5221k, to file civil actions pursuant to section 4.03(5) is not contingent upon enactment of a local ordinance. Nevertheless, a political subdivision may adopt and enforce a local ordinance pursuant to section 4.01, and nothing in article 5221k prohibits a political subdivision from delegating to its local commission the power to enforce the ordinance.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton