Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from January 11, 2021 through February 10, 2021.

KP-0352 (Dual Office Holding): A deputy sheriff does not hold a public office because a deputy sheriff does not exercise a sovereign function largely independent of the control of others. Thus, neither the separation of powers provision of article II, section 1 of the Constitution, nor the dual-office holding prohibition in article XVI, section 40, nor the common-law incompatibility doctrine preclude a deputy sheriff from simultaneously serving as a city councilmember.

KP-0351 (Automatic Resignation): Article XVI, section 65 of the Texas Constitution provides that certain district or county officers automatically resign from office upon announcing their candidacy for any other office of profit or trust under the laws of this State or the United States. Article XI, section 11 applies this provision to officers of a home-rule city that hold a term longer than two years. To qualify as an announcement under these provisions, the person’s statement must be made in a public setting and be clear and unequivocal. Whether any given statement satisfies these requirements will involve questions of fact, but to the extent a person posts campaign signs on public property, visible to the general public, urging his or her election, a court would likely conclude that such acts constitute an announcement for purposes of article XVI, section 65.

Article XI, section 11 of the Texas Constitution requires that any vacancy in a home-rule municipal office with a term exceeding two years be filled by majority vote of the qualified voters at a special election. If a city councilmember automatically resigned within 120 days of the general election in November, the special election to fill the vacancy should be held on the same day as the general election.

Article XVI, section 17 of the Texas Constitution provides that all officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified. Pursuant to this provision, office holders subject to the automatic resignation provision hold over in office until a successor is duly qualified.

A city councilmember may not rescind an announcement for candidacy to avoid application of the automatic resignation provision.

KP-0350 (Hotel Occupancy Tax): Chapter 351 of the Tax Code authorizes an expenditure of hotel occupancy tax revenue in the direct promotion of tourism and the convention and hotel industry, provided the expenditure is for one of the specified uses listed in the statute. To the extent that the agreement in question, which calls for the payment of hotel occupancy tax revenue upon completion of a public space and clubhouse at an apartment complex expressly provides that the public space is intended to benefit the residents of the apartment complex and does not promote tourism and the convention and hotel industry, it does not satisfy section 351.101. While it is ultimately a fact question, a court is unlikely to determine that the expenditure as described is an authorized expenditure of hotel occupancy tax revenue.

KP-0349 (Plats): Sections 212.0091 and 232.0026 of the Local Government Code prohibit local jurisdictions from denying or conditionally approving a plan or plat with generic statements, instead requiring specific reasons with accompanying citations to law for anything other than full approval of a plan or plat. A municipal or county authority that does not provide such specificity violates chapter 212 or 232, respectively. If a local jurisdiction fails to adequately explain the reason for the denial or conditional approval as required in section 212.0091 or 232.0026, the plan or plat is approved, and a local authority’s decision to deny approval of a plan or plat is subject to judicial review.

Subsections 212.009(a) and 232.0025(d) require the local authority responsible for approving plats to approve, approve with conditions, or disapprove a plan or plat within 30 days after the date the plan or plat is filed. A court is unlikely to construe the language of those provisions to prohibit local authorities from requiring reports or studies to be completed prior to the submission of a plan or plat.