When does a Texas home-rule city treat a council member as absent, and when must a member abstain from a vote?

Plain-English summary

A Texas House committee chair brought the AG a pair of questions about a single city council meeting in the City of Fulshear, a city that adopted a home-rule charter in 2016 while transitioning from its earlier status as a general-law city. At the meeting the council had six members. Four were present, one was absent, and one seat was vacant after a resignation. One of the four present members recused herself on a particular agenda item because she had filed a conflicts disclosure statement, and the item then passed three to zero. The chair asked whether that vote violated the charter and should count as valid, and separately whether a council member who had missed his third consecutive meeting should be treated as having vacated his seat.

The AG started by explaining what it could and could not do. Whether a specific law or charter provision is violated in specific circumstances turns on facts and requires construing a particular city charter, and the AG does not resolve fact questions or ordinarily construe city charter provisions in an opinion. So it could not say whether the vote was valid or whether the seat was vacant. What it could do was lay out the governing legal principles.

On the voting question, Fulshear's charter defines a majority as an integer greater than one-half of the full council (four, whether the council has six or seven members), but it excludes from that count any member "required by law to abstain from voting." The AG worked through what that phrase could reach. A conflicts disclosure statement under section 176.003 of the Local Government Code, which the recusing member had filed, does not require a member to abstain, so it did not make her "required by law to abstain." But the city also argued the member was an attorney bound by Rule 1.10(e)(1) of the Texas Disciplinary Rules of Professional Conduct, and the AG noted that rules promulgated by the Texas Supreme Court carry the same force as statutes. So if that rule (or another rule or statute) required her to abstain, she could be "required by law to abstain" under the charter. Whether the rule actually applied to her, and whether the charter language should be construed that way, were questions beyond the AG's purview.

On the absence question, the charter treats a seat as vacant after three consecutive absences from regular meetings, subject to excused-sickness and leave-of-absence exceptions, but it does not say at what point in a meeting a member is counted absent. The city pointed to two statutes, but neither fit: the videoconference provision in Government Code § 551.127(a-2) applies only to meetings held by videoconference call, and the general-law rule in Local Government Code § 22.041(c) (a member is absent if not present at adjournment) applies only to Type A general-law municipalities, not home-rule cities. With no statute or charter provision dictating the timing, the AG concluded it is within the council's discretion to decide when to declare a member absent, consistent with the broad powers Texas courts recognize in home-rule cities. So it could not determine as a matter of law whether the seat was vacant at the start of the meeting.

Currency note

This opinion was issued in 2019. 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.

What the opinion meant for those who asked

Home-rule cities and their councils: The AG concluded that when neither a state statute nor the city charter fixes the point at which a member is counted absent, the council has discretion to decide when to declare a member absent from its meetings. The general-law adjournment rule in § 22.041(c) does not bind home-rule cities.

Council members weighing whether to abstain: The opinion explained that a member is "required by law to abstain" under the Fulshear charter only if some law actually requires abstention. A conflicts disclosure statement under § 176.003 does not; a Texas Supreme Court disciplinary rule such as Rule 1.10(e)(1) could, because those rules carry the force of statutes. Whether a particular rule applies to a particular member is a fact question.

Anyone asking the AG to validate a specific vote or seat: The AG declined. Whether the vote violated the charter and whether the absent member's seat was vacant both required resolving facts and construing the charter, which the AG does not do in an opinion.

Common questions

Can a Texas home-rule city decide for itself when a council member counts as absent?
At the time of this opinion the AG concluded that yes, when no state statute or the city charter says otherwise, the council has discretion to determine when to declare a member absent from its meetings.

Does the rule that a member is absent if gone at adjournment apply to home-rule cities?
No. The AG explained that Local Government Code § 22.041(c) applies only to Type A general-law municipalities, not to home-rule cities.

Does filing a conflicts disclosure statement force a council member to abstain from voting?
No. The AG noted that section 176.003 of the Local Government Code requires the disclosure statement but does not require the officer to abstain from voting on the contract.

Could a lawyer-council member be "required by law to abstain"?
The AG explained that rules the Texas Supreme Court promulgates have the same force as statutes, so if Rule 1.10(e)(1) of the Texas Disciplinary Rules of Professional Conduct (or another rule or statute) required the member to abstain, the member could be "required by law to abstain" under the charter. Whether the rule actually bound the member was a fact question outside the opinion.

Did the AG say whether the three-to-zero vote was valid?
No. The AG declined to decide that, because it depended on facts and on construing the city charter, which the AG does not do in an opinion.

Background and statutory framework

The questions arose under the City of Fulshear's home-rule charter, art. III, §§ 3.03, 3.04, 3.09(c), 3.10(d), which sets the council's size, the mayor's tie-breaking vote, the majority needed for action, and the three-consecutive-absence vacancy rule. The AG construed the relevant statutes by their plain language, looking to legislative intent (Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 765 (Tex. 2014)).

On voting, the AG addressed two abstention sources. Local Government Code § 171.004 requires a local public official with a substantial interest in a business entity or real property in a matter before the body to file an affidavit and abstain in certain circumstances. Section 176.003 requires a local government officer to file a conflicts disclosure statement about a vendor in certain situations but does not require abstention (§ 176.003(a)(1), (2)). The AG also discussed Rule 1.10(e)(1) of the Texas Disciplinary Rules of Professional Conduct, which limits a lawyer serving as a public officer from participating in a matter involving a former private client; because Texas Supreme Court rules have "the same force and effect as statutes" (In re Silver, 540 S.W.3d 530, 534 (Tex. 2018)), such a rule could make a member "required by law to abstain." Whether the rule applied was a fact question the AG would not resolve (Tex. Att'y Gen. Op. No. GA-0651 (2008)).

On absence, the AG examined Government Code § 551.127(a-2), which counts a member participating by videoconference call as present but applies only to meetings held by videoconference, and Local Government Code § 22.041(c), which deems a member absent if not present at adjournment but applies only to Type A general-law municipalities (§ 22.001). Finding no statute or charter provision setting the timing, the AG concluded the council has discretion, citing the broad powers of home-rule cities subject only to legislative limits (Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)). Throughout, the AG reiterated that whether a specific charter provision was violated turns on facts and charter construction outside an attorney general opinion (Tex. Att'y Gen. Op. No. GA-0431 (2006)).

Citations

Statutory and rule provisions:

• Tex. Loc. Gov't Code § 171.004; § 176.003; § 176.003(a)(1), (2); § 22.041(c); § 22.001
• Tex. Gov't Code § 551.127(a-2)
• Tex. Disciplinary R. Prof'l Conduct R. 1.10(e)(1)

Cases and Attorney General opinions:

• Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 765 (Tex. 2014)
• In re Silver, 540 S.W.3d 530, 534 (Tex. 2018)
• Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998)
• Tex. Att'y Gen. Op. No. GA-0431 (2006)
• Tex. Att'y Gen. Op. No. GA-0651 (2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0231
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0231.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 7, 2019

The Honorable John Zerwas, M.D. Opinion No. KP-0231
Chair, Committee on Appropriations
Texas House of Representatives Re: Issues related to quorums and city council
Post Office Box 2910 member absences (RQ-0233-KP)
Austin, Texas 78768-2910

Dear Representative Zerwas:

    You seek our opinion on two questions regarding whether the City of Fulshear (the "City")

city council violated the city charter. [1] As an initial matter, we note that the question whether a
specific law or charter provision is violated in specific circumstances requires the determination
of facts and cannot be answered in an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-
0431 (2006) at 2 (declining to determine whether specific laws or charter provisions were
violated). Additionally, such a question requires the construction of the particular charter provision
with respect to the facts, and this office does not ordinarily construe city charter provisions in
attorney general opinions. See id. However, we can advise you generally on the legal principles
relevant to your questions.

   Your first question relates to the number of votes required to approve action by the council.

You cite a charter provision, which provides:

             Unless otherwise provided by this Charter or other law, each vote,
             order, decision, or other action taken by the City Council shall
             require the affirmative vote of a majority of the full City Council,
             provided that any abstention not required by law shall be counted as
             a vote against the matter under consideration .... For purposes of
             this subsection, a majority shall mean an integer greater than one-
             half of the full City Council, provided that any one or more Council
             Members required by law to abstain from voting on a particular
             matter shall be excluded for purposes of determining the majority.

     [1] See Letter from Honorable John Zerwas, M.D., Chair, House Comm. on Appropriations, to Honorable Ken

Paxton, Tex. Att'y Gen. at 1 (May 23, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-
rqs ("Request Letter").

Request Letter at 1-2 (citing FULSHEAR, TEX., CITY CHARTER, art. III, § 3.09(c) (2016)). [2] You tell
us the City adopted its home-rule charter in 2016 and is transitioning from its original incorporation
as a general-law city. Id. at 1. You inform us about a recent city council meeting, when the city
council comprised six members, at which four council members were present, one member was
absent, and one seat was vacant due to a resignation. [3] See id. Of the four present council members,
one recused herself on a particular agenda item due to a filed conflicts disclosure statement. See
id. The agenda item passed by a vote of three to zero. See id. You ask whether the vote violated
the City's charter and whether the vote should be considered valid. See id. at 2.

     The City defines a majority to mean "an integer greater than one-half of the full City

Council." FULSHEAR, TEX., CITY CHARTER, art. III, § 3.09(c) (2016). Whether the City's council
consists of six members or seven, the integer greater than one-half is four. Yet, a proviso in the
definition of majority excludes from a majority "any one or more Council Members required by
law to abstain from voting on a particular matter." Id. Thus, the question whether the vote of the
city council with less than four votes constitutes a majority vote depends on whether any council
member was "required by law to abstain from voting" on the matter. While the charter does not
define the phrase, its plain meaning could include the several provisions in state statutes requiring
a local government official to abstain from voting on particular matters. See, e.g., TEX. LOC. GOV'T
CODE § 171.004 (requiring a local public official with a substantial interest in a business entity or
real property in a matter before the governmental body involving the interest to file an affidavit
and abstain from voting in certain circumstances); see Greene v. Farmers Ins. Exch., 446 S.W.3d
761, 765 (Tex. 2014) ("We rely on the plain meaning of the text as expressing legislative intent
unless a different meaning is supplied by legislative definition or is apparent from the context[.]").

    The City informs us in its brief that a member of the city council filed a conflicts disclosure

statement under section 176.003 of the Local Government Code in the matter that was the subject
of the vote. See City Brief at 2. Section 176.003 requires a local government officer to file a
conflicts disclosure statement with respect to a vendor if the local government has entered into or
is considering entering into a contract with a vendor and the vendor has certain employment or
business relationships with the local governmental officer. See TEX. LOC. GOV'T CODE
§ 176.003(a)(1), (2). Section 176.003 does not require the government official to abstain from
voting on the contract. See id. Accordingly, section 176.003 does not apply.

    The City also asserts that the council member is an attorney bound by the Texas

Disciplinary Rules of Professional Conduct ("Rules"), which are promulgated by the Texas
Supreme Court. See City Brief at 2-3. It states that Rule 1.10(e)(1) required the council member
to abstain from the vote. Rule 1.10(e)(1) provides that

            [e]xcept as law may otherwise expressly permit, a lawyer serving as
            a public officer or employee shall not ... [p]articipate in a matter
            involving a private client when the lawyer had represented that
            client in the same manner while in private practice or
            nongovernmental employment ....

TEX. DISCIPLINARY R. PROF'L CONDUCT R. 1.10(e)(1), reprinted in TEX. GOV'T CODE, tit. 2, subtit.
G, app. A (Tex. State Bar R. art. X, § 9). Rules promulgated by the Texas Supreme Court have
"the same force and effect as statutes." In re Silver, 540 S.W.3d 530, 534 (Tex. 2018). Thus, if
the council member is required by Rule 1.10(e)(1) or other rule or statute to abstain from voting
on the matter at issue, the council member could be considered as being "required by law to abstain
from voting" under the charter. Whether in fact the charter language is so construed and whether
the council member is bound by Rule 1.10(e)(1) are questions beyond the purview of an attorney
general opinion. See Tex. Att'y Gen. Op. No. GA-0651 (2008) at 7-8 (stating that the question
whether particular conduct violates the rules of professional conduct is a question requiring the
resolution of fact questions and cannot be decided by this office). Thus, we cannot determine as a
matter of law whether the vote in question is valid. See Tex. Att'y Gen. Op. No. GA-0431 (2006)
at 2, 3 (declining to opine on violation of city charter).

    Your second question involves another charter provision, which provides:

           If the Mayor or a Council Member is absent for three (3) consecutive
           regular meetings, then the Mayor's or Council Member's office, as
           applicable, is considered vacant unless:

               (1) They are sick and the absence is excused afterward; or

               (2) They have first obtained a leave of absence at a regular
               meeting.

Request Letter at 2 (citing FULSHEAR, TEX., CITY CHARTER, art. III, § 3.10(d) (2016)). You tell us
the council member who was absent from the recent meeting had "previously notified the city that
he would be absent due to being out of state for work, and this was his third consecutive absence."
Id. You also explain that the city attorney ruled the council member absent at the conclusion of
the meeting instead of at the beginning. Id. You ask whether the seat should now be considered
vacant and whether his notification to the City prior to the meeting would require the council to
consider him absent at the beginning of the meeting. See id.

   The City refers us to statutory provisions supporting its position that the absence is properly

determined at the conclusion of a meeting. See City Brief at 4, and attached Memorandum dated
Apr. 20, 2018, at 3-4. The City cites section 551.127(a-2) of the Government Code, which
provides that when a meeting of a governmental body is held by videoconference call, a member
who participates in the meeting remotely by means of a videoconference call "shall be counted as
present at the meeting for all purposes." TEX. GOV'T CODE § 551.127(a-2). By its terms,
subsection 551.127(a-2) applies to only an open meeting during which some members participate
by videoconference call. See id. The City also cites subsection 22.041(c) of the Local Government
Code, which provides that "a member of a governing body is also considered absent ... if the
member is not present at the adjournment of a meeting." TEX. LOC. GOV'T CODE § 22.041(c).
Yet, subsection 22.041(c) does not apply to home-rule municipalities. See id. § 22.001 ("This
chapter applies only to a Type A general-law municipality.").

    Neither provision dictates when an absence at a meeting of a governmental body of a home-

rule city should be determined. And no other statutory provisions direct when an absence at a
meeting must be determined. Without any requirement from a statute or the City's charter, it is
within the discretion of the city council to determine when to declare a council person absent from
its meetings. See Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) (discussing "broad
powers" of home-rule cities that are subject only to limitations enacted by the Legislature).
Consequently, we cannot determine as a matter of law whether the seat was vacant at the beginning
of the meeting. See Tex. Att'y Gen. Op. No. GA-0431 (2006) at 2, 3.

    [2] See https://library.municode.com/tx/fulshear/codes/code_of_ordinances?nodeId=PTICH.

    [3] According to the City's charter, the council is made up of seven council members, and the Mayor votes only

in the event of a tie. See FULSHEAR, TEX., CITY CHARTER, art. III, §§ 3.03, 3.04, 3.09(c) (2016). We understand from
briefing submitted by the City that it is transitioning to a seven-member council. See Brief from Byron L. Brown,
Randle Law Office, Ltd., L.L.C., City Att'y, City of Fulshear at 2 n.7 (June 25, 2018) ("City Brief") (on file with the
Op. Comm.). Under the charter, the majority for a seven-member council is the same as for a six-member council.

                                  SUMMARY

                   To the extent a city council member is required by Rule
           1.10(e)(1) of the Texas Disciplinary Rules of Professional Conduct
           to abstain from voting on a matter, the council member could be
           "required by law to abstain from voting" under the City of
           Fulshear's charter. The questions whether the charter language is so
           construed and whether a council member is bound by Rule
           1.10(e)(1) are questions beyond the purview of an attorney general
           opinion.

                   Without any requirement from a state statute or a city
           charter, it is within the discretion of a home-rule city council to
           determine when to declare a council person absent from its
           meetings.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee