Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from October 11 through November 10, 2019.

KP-0277 (Payday Lenders): Chapter 393 of the Finance Code does not restrict credit services organizations, other than when operating as credit access businesses, from obtaining for a consumer or assisting in obtaining an extension of consumer credit in a form other than a deferred presentment transaction or motor vehicle title loan.

A determination about whether any specific extension of credit complies with the requirements of Chapter 393 will involve a factual inquiry into the precise offering, and such questions are beyond the scope of an attorney general opinion.

KP-0276 (Annexation): Section 43.106 of the Local Government Code requires a city that annexed any portion of a county road or an area abutting a county road by granting a petition under former Section 43.028 to also annex the full width of the road and adjacent right-of-way.

Depending on the relief sought, a county could challenge a city’s annexation under Section 43.106 of the Local Government Code in an action in quo warranto, declaratory judgment, or both.

KP-0275 (Public Information): Article 15.26 of the Code of Criminal Procedure makes probable cause affidavits public information, but a court could conclude that Subarticle 57.02(h) prohibits the disclosure of identifying information regarding a child sex offense victim from the affidavits in this case by a justice of the peace without a court order. Whether a justice of the peace could issue such an order depends on the nature of the underlying offense. A court could conclude that the two statutes may be reconciled through redaction of the identifying information.

KP-0274 (Dangerous Dogs): Subchapter D, Chapter 822 of the Health and Safety Code governs dangerous dogs and incorporates local regulation. Under the home-rule amendment of the Texas Constitution, however, a municipality cannot adopt an ordinance that conflicts with or is inconsistent with state law.

Section 822.042 allows thirty days for an owner to comply with the applicable requirements for owning a dangerous dog. A municipal ordinance imposing a shorter compliance deadline cannot be harmonized with the statute and therefore the municipal ordinance provision would fall.

Subsection 822.0423(c-1) provides for an appeal bond in an amount established by the court. A municipal ordinance seeking to change the amount of an appeal bond is unenforceable. The section does not, however, purport to limit other fees or costs that a municipality may impose on an owner.

Though a municipal ordinance providing for the destruction of a dog running at large could be a valid exercise of a municipality’s police power, the government’s impoundment or destruction of personal property invokes the constitutional protection of due process of law. A municipal ordinance affording an owner no process to redeem the dog or to appeal certain determinations whatsoever would likely fail a procedural due process challenge. Moreover, Section 822.0424 provides a right to appeal certain determinations made with respect to a dangerous dog and its owner. And Subsection 822.042(e) expressly protects a dangerous dog from destruction during the pendency of such an appeal. A municipal ordinance providing for the destruction of a dangerous dog during the appeal is contrary to the statute and is unenforceable.

A municipality may exercise its powers only within its corporate limits unless its power is extended by law to apply to areas outside those limits. Nothing in Subchapter D authorizes a city to extend its dangerous dog ordinance outside of its city limits.