Did Houston need its own citywide vote to join the Harris County-Houston Sports Authority?

TX AG Opinion DM-0455: Could Houston join the Harris County-Houston Sports Authority without its own citywide vote?

Plain-English summary

House Bill 92, passed in 1997, let a county and a city team up to create a "sports and community venue district" under chapter 335 of the Local Government Code. The bill's transition clause, section 7, said no new election was needed to create such a district if the voters "of the county in which the municipality or district is primarily located" had already approved stadium or arena facilities at an election held before the Act took effect. Harris County voters had approved exactly that on November 5, 1996.

There was a wrinkle. Most of Houston sits in Harris County, but slivers of the city extend into Montgomery and Fort Bend Counties. The 1996 vote ran under a statute that applied only to counties, so Houston residents living in those two outlying counties did not get to vote. Representative Steven Wolens asked the Attorney General whether Houston could still join and help run the Harris County-Houston Sports Authority without holding a separate citywide referendum, either before or after House Bill 92 took effect.

The Attorney General concluded Houston could participate without a separate election. Section 7 keys off the county in which the city is "primarily located," and Houston is primarily in Harris County, whose voters approved the proposition. No municipal election was required by the statute. As for the Houston voters outside Harris County, the opinion said they were not unconstitutionally disenfranchised: as the office had already explained in DM-453, neither the state nor the federal constitution requires an election before imposing the House Bill 92 taxes, and the Legislature could reasonably treat a Harris County election as sufficient to bring the City of Houston into the authority.

Currency note

This opinion was issued in 1997. 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.

This opinion construed the 1997 text of House Bill 92, including its one-time section 7 transition clause, which addressed a question that no longer arises. Treat it as historical context.

Common questions

Did Houston have to hold its own citywide vote to join the authority?
No. The Attorney General concluded that because Houston is primarily located in Harris County, and Harris County voters had approved the stadium proposition in November 1996, section 7 of House Bill 92 required no separate municipal election for the city to participate.

Why didn't Houston voters in Montgomery and Fort Bend Counties get to vote?
The 1996 election was conducted under a statute that applied only to counties, so it covered Harris County voters but not the parts of Houston that extend into Montgomery and Fort Bend Counties.

Were those outlying Houston voters unconstitutionally shut out?
The opinion said no. It noted (consistent with DM-453) that no election is constitutionally required before imposing the House Bill 92 taxes, and that the Legislature could reasonably conclude a Harris County election was enough to authorize Houston's inclusion in the authority.

Background and statutory framework

Harris County and the City of Houston created the authority effective September 1, 1997, under chapter 335 of the Local Government Code, which provides for a venue district composed of a county and a municipality. (Two companion opinions issued the same day, DM-453 and DM-454, addressed the venue taxes and the Houston City Council's role.) Section 7 of House Bill 92 authorized creating the district without a new election if the voters of the county in which the municipality is primarily located had approved the relevant facilities before the Act's effective date. Applying that text, the Attorney General found Harris County's November 5, 1996 vote satisfied the requirement for Houston, and that the partial extension of the city into other counties did not call for a separate citywide referendum.

Citations

Statutes:

• Tex. Local Gov't Code chs. 334, 335
• House Bill 92, Act of May 22, 1997, 75th Leg., R.S., ch. 551 (including section 7)

Related opinions:

• Tex. Att'y Gen. Op. DM-453 (1997); DM-454 (1997)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0455
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0455.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General, State of Texas

DAN MORALES, ATTORNEY GENERAL

November 7, 1997

The Honorable Steven D. Wolens
Chair, State Affairs Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-455

Re: Whether the City of Houston may participate in the Harris County-Houston Sports Authority (RQ-1015)

Dear Representative Wolens:

You have requested our opinion as to whether the City of Houston may participate in the Harris County-Houston Sports Authority (the "authority") created pursuant to House Bill 92. See Act of May 22, 1997, 75th Leg., R.S., ch. 551, 1997 Tex. Sess. Law Serv. 1929. Harris County and the City of Houston established the authority as of September 1, 1997. See Attorney General Opinions DM-454 (1997), DM-453 (1997).

Section 7 of House Bill 92 provides, in relevant part:

Notwithstanding any other provision of Chapter 334 or 335, Local Government Code, as added by this Act, an election to approve a sports and community venue project, to approve a method of financing for the venue project, other than the imposition of a sales and use tax or a facility use tax, or to create a sports and community venue district in a specific county or municipality is not necessary if, at an election held before the effective date of this Act, the voters of that county, or of the county in which the municipality or district is primarily located, authorized the establishment and operation of new or renovated stadiums, arenas, or other facilities for professional sports teams.

Harris County held the election referenced by section 7 on November 5, 1996, and a majority of the voters approved the following ballot proposition:

Authorizing Harris County to establish and operate new or renovated stadiums, arenas, and other facilities for professional baseball and football teams, provided that no county real or personal property taxes are spent to acquire, construct, or equip these facilities.

Although the overwhelming majority of the geographical area of the City of Houston lies in Harris County, portions of the city extend into Montgomery and Fort Bend Counties. Because the 1996 election was conducted under the terms of a statute which applied only to counties, City of Houston voters in Montgomery and Fort Bend Counties did not participate. Consequently, you ask whether the City of Houston may participate in and operate the Harris County-Houston Sports Authority "without conducting a city-wide referendum" either "prior to" or "subsequent to the effective date of House Bill 92."

Harris County and the City of Houston established the authority under newly-enacted chapter 335, Local Government Code, which provides for the creation of a sports and community venue district composed of "a county and a municipality." Section 7 authorizes the creation of a venue district under chapter 335 provided "the voters . . . of the county in which the municipality or district is primarily located" gave their approval. No municipal election is required. The voters of Harris County, in which the City of Houston is primarily located, approved the ballot proposition. Thus, under the terms of section 7, the City of Houston may participate in the authority without conducting a separate election.

You also express concern that City of Houston voters outside of Harris County have been disenfranchised by the failure of section 7 to permit them to vote on the matter of the City of Houston's inclusion in the authority. As we noted in Opinion DM-453, neither the state nor federal constitutions require an election prior to the imposition of the taxes authorized by House Bill 92. In our opinion, the legislature might reasonably have concluded that an election limited to Harris County was sufficient to authorize the inclusion of the City of Houston in the authority.

SUMMARY

The City of Houston is authorized to participate in the Harris County-Houston Sports Authority (the "authority") created pursuant to House Bill 92, Act of May 22, 1997, 75th Leg., ch. 551, 1997 Tex. Sess. Law Serv. 1929.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General