Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from November 11, 2021 through December 13, 2021.

KP-0393 (Local Disaster Powers): Pursuant to section 418.108 of the Government Code, a county judge may declare a local state of disaster. Local disaster powers of a county are limited by any existing state law, including any executive orders or proclamations issued by the Governor. The county judge may terminate a local disaster declaration at any time, and the commissioners court may prevent the extension of the declaration beyond seven days or revoke consent for its continuation thereafter.

A county judge lacks authority to declare a new disaster for the same underlying circumstances without the consent of the commissioners court following the first seven-day period. A surge of individuals crossing the border into the county could and has created circumstances warranting emergency action and a local disaster declaration.

A county judge lacks authority to pay bills incurred by the county out of the contingent and uncommitted fund without the commissioners court’s approval.

KP-0394 (Municipal Debt): Local Government Code subsection 22.008(a) prohibits an officer of a Type A general-law municipality entrusted with the collection or custody of municipal funds from holding office while in default to the municipality until the amount, plus interest, is paid. A court would likely conclude that applying subsection 22.008(a) to an officer in default to the county, or to an officer residing with another person in whose name a utilities account in default is held, goes beyond the authority the statute provides.

Because the Legislature has determined the qualifications for a Type A general-law municipality’s governing body, a court would likely conclude that the City has no authority to add to those qualifications.

A court would likely find that the general ordinance authority found in section 51.012 of the Local Government Code does not authorize an ordinance disqualifying an officer on the basis of default to the county. And since the Legislature has already determined what disqualifies an elected officer from continuing to hold office, a court would likely find that an ordinance adding to those disqualifications is “inconsistent with state law” such that section 51.012 does not permit it.