Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from May 11 through June 10, 2019.

KP-0254 (Open Meetings): If a quorum of a governmental body deliberates about public business within the jurisdiction of the body outside of a meeting authorized by the Texas Open Meetings Act (Act), through multiple communications each involving fewer than a quorum, the governmental body violates the Act.

Action taken by a governmental body in violation of the Act is voidable. In addition, any interested person may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Act by members of a governmental body.

If the Texas Education Agency conducts an investigation as authorized by Section 39.057 of the Education Code and concludes that members of a school district board of trustees violated their duty to comply with the Act, it could take appropriate civil action authorized by Subsection 39.057(d) of the Education Code.

KP-0252 (Firearms): Subsection 229.001(a)(1) of the Local Government Code prohibits a city from regulating the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, knives, ammunition, or firearm or air gun supplies. Subsection 229.001(b)(3) excepts from this prohibition a city’s regulation on the use of property or businesses and the location of businesses as long as the regulation does not circumvent the intent of Subsection (a)(1). A regulation that expressly prohibits gun stores from operating in a specific area relates to the transfer of firearms and is prohibited by Subsection 229.001(a)(1). Similarly, an ordinance singling out firearm and ammunition sales relates to the transfer of firearms and is therefore prohibited.

A court would likely conclude Subsection 229.00I(a)(1)’s prohibition encompasses any one or more of the listed items. To the extent a city regulates firearm transfers but not also licensing, registration, or transportation of firearms, it acts contrary to Subsection 229.001(a)(1).

A violation of Section 229.001 may be enforced by the attorney general. Any plaintiff with standing under the Texas Constitution or the U.S. Constitution could bring an action seeking declaratory or injunctive relief against enforcement of an unconstitutional ordinance. Individual city council members who voted on a zoning provision that is ultimately found to violate Section 229.001 or the Texas or the U.S. Constitution would likely be immune from personal liability.

KP-0251 (Candidate Eligibility): Subsection 141.00I(a)(4) of the Election Code provides that to be eligible as a candidate for public office a person must “have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities.”

The restoration of a convicted felon’s qualification to vote under Election Code Subsection 11.002(a)(4)(A) after fully discharging a sentence does not restore his or her eligibility to hold public office under Election Code Subsection 141.001(a)(4).

KP-0249 (Peace Officers): While Texas Code of Criminal Procedure Article 2.13 imposes a duty on peace officers to prevent and suppress crime, policies that encourage officers to seek alternative methods of pursuit in an attempt to ensure the safety of both the public and law enforcement officers generally do not conflict with this duty.

An officer observing a governmental employer’s no-chase policy is unlikely to incur personal liability for harm caused by a fleeing offender. In instances when an officer exercises discretion under a no-chase policy, the officer will likely qualify for official immunity. In circumstances where official immunity does not apply, an officer will have other defenses, as courts have generally held that an officer has no legal duty to arrest a suspect to prevent third-party injury. Further, Subsection 101.106(f) of the Texas Tort Claims Act entitles a governmental employee to dismissal if a suit is based on conduct within the scope of their employment and could have been brought under the Act against the governmental unit.