Can a Texas home-rule city's charter limit how often residents can petition for an election to adopt a property tax freeze for seniors or disabled homeowners?

TX AG Opinion GA-0269: Tax Freeze Election Limits

Plain-English summary

A state senator asked whether a home-rule city's own charter rules about how often it can hold elections on voter-initiated ordinances also apply to a different kind of election: one adopting a property tax freeze for homeowners who are disabled or 65 and older under article VIII, section 1-b(h) of the Texas Constitution. The City of Georgetown's charter limited special elections on voter-initiated ordinances to once every six months and barred a new election on the same subject for two years after a similar measure was defeated. The senator wanted to know whether those charter limits would also govern a voter-petitioned election on the tax freeze, especially if a first attempt failed.

The opinion concluded the charter limits could apply. Neither the constitutional tax-freeze provision nor the Tax Code sections implementing it say anything about how often such elections can be held, and the Texas Election Code is likewise silent on the frequency of voter-initiative elections generally. Because the legislature had not expressly preempted the subject, and a home-rule charter is presumed valid unless a provision is unreasonable or arbitrary, the opinion found that charter provisions like Georgetown's, aimed at limiting voter fatigue and election costs, would likely be found reasonable and applicable to tax-freeze petition elections.

Currency note

This opinion was issued in 2004. 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.

Who this opinion affected (as of 2004)

Home-rule cities with charter limits on election frequency: The opinion found no state law that would conflict with a charter provision restricting special elections on voter-initiated ordinances to once every six months, or barring an election on a defeated measure for two years, and concluded such provisions could extend to tax-freeze petition elections under article VIII, section 1-b(h).

Residents petitioning for a senior or disabled homeowner tax freeze: The opinion meant that if a city's charter already limited how often voter-initiated elections could be called, a resident whose tax-freeze petition election failed could be subject to that same charter-based waiting period before trying again, absent a state law to the contrary.

The City of Georgetown specifically: The opinion noted that Georgetown voters had already approved a tax freeze by the time the opinion issued, making the question largely moot for that city, though the office still answered it because other home-rule cities might have similar charter provisions.

Common questions

Does Texas law set a limit on how often a city must let residents petition for a senior tax freeze election?
No. This 2004 opinion found that neither article VIII, section 1-b(h) of the Texas Constitution nor the Tax Code sections implementing it address the timing or frequency of tax-freeze petition elections.

If my city's charter limits special elections to once every six months, does that limit apply to a tax-freeze petition?
Based on this opinion, yes, it likely can. The opinion concluded that a home-rule charter's general limits on voter-initiated election frequency are not preempted by state law and can extend to elections adopting the constitutional tax freeze.

Can a home-rule city bar a repeat vote on a tax freeze for two years after voters reject it?
The opinion found nothing in state law that would prevent a charter provision like Georgetown's, which barred a new election on the same subject for two years after a similar measure was defeated, from applying to a defeated tax-freeze petition.

Background and statutory framework

Article VIII, section 1-b(h) of the Texas Constitution, adopted in 2003, lets a county, city or town, or junior college district limit increases in the total ad valorem taxes imposed on the homestead of a person who is disabled or 65 or older. The governing body can adopt the freeze on its own, or must call an election if it receives a petition signed by five percent of registered voters. The City of Georgetown, a home-rule municipality, has a charter reserving to its people "the power of direct legislation by initiative." Under that charter, once the city council receives a certified voter petition for an ordinance, it must either pass the ordinance as submitted within thirty days or put it to a vote at the next uniform election date. The charter separately provides that special elections on voter-initiated ordinances "shall not be held more frequently than once each six (6) months," and that no ordinance on the same subject as a defeated initiated ordinance may be initiated again for two years.

The opinion worked through the Texas Constitution's home-rule provisions, article XI, section 5, which lets home-rule charters and ordinances stand except where they conflict with the state constitution or general law, citing Wilson v. Andrews for the general home-rule framework and In re Sanchez for the presumption that a charter provision is valid unless "unreasonable or arbitrary, amounting to a clear abuse of municipal discretion." It reviewed Tax Code section 11.261 (implementing the tax freeze) and the Election Code's uniform election date provisions, including section 41.0041(a), which requires an election to be held on the next corresponding uniform election date even where a charter-based waiting period would otherwise push it later, and found none of them addressed the specific frequency question. Citing Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, the opinion applied the rule that the legislature must preempt a home-rule subject "with unmistakable clarity," and concluded it had not done so here. It also cited Quick v. City of Austin and Glass v. Smith for the principle that a home-rule charter may expressly or implicitly limit the voters' initiative power. On that basis, the opinion concluded that charter provisions like Georgetown's, designed to mitigate voter fatigue and election expense, would likely be upheld as reasonable and applicable to tax-freeze petition elections.

Citations

Statutes:

• TEX. CONST. art. VIII, § 1-b(h)
• TEX. CONST. art. XI, § 5
• TEX. TAX CODE ANN. § 11.261 (Vernon Supp. 2004-05)
• TEX. TAX CODE ANN. § 6.26(e) (Vernon 2003)
• TEX. TAX CODE ANN. § 26.08(b)
• TEX. TAX CODE ANN. § 26.085(d)
• TEX. ELEC. CODE ANN. § 41.001 (Vernon Supp. 2004-05)
• TEX. ELEC. CODE ANN. § 41.0041(a) (Vernon 2003)
• TEX. ELEC. CODE ANN. § 3.005 (Vernon Supp. 2004-05)

Cases:

• Wilson v. Andrews, 10 S.W.3d 663, 666 (Tex. 1999)
• Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998)
• Glass v. Smith, 244 S.W.2d 645, 648 (Tex. 1951)
• In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002)
• Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0269
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0269.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 4, 2004

The Honorable Stephen E. Ogden
Chair, Senate Finance Committee
Texas State Senate
Post Office Box 12068
Austin, Texas 78711

Opinion No. GA-0269

Re: Whether home-rule city charter provisions governing the frequency of elections apply to elections implementing a tax freeze under article VIII, section 1-b(h) of the Texas Constitution (RQ-0242-GA)

Dear Senator Ogden:

You ask whether home-rule city charter provisions governing the frequency of elections apply to elections implementing a tax freeze under article VIII, section 1-b(h) of the Texas Constitution.[1] See TEX. CONST. art. VIII, § 1-b(h).

Article VIII, section 1-b(h) (the "amendment"), adopted in 2003, authorizes "a county, a city or town, or a junior college district," to limit increases of the total amount of ad valorem taxes imposed on the homesteads of persons with disabilities or persons sixty-five years of age or older. Id. Such action is commonly referred to as a tax freeze. The enumerated entities may adopt a tax freeze either by official action of its governing body or by an election called by the governing body upon receipt of a proper voter petition. Id.; see generally Tex. Att'y Gen. Op. No. GA-0222 (2004).[2]

The City of Georgetown (the "City") is incorporated as a home-rule municipality. GEORGETOWN, TEX., CODE OF ORDINANCES, HOME RULE CHARTER, art. I, § 1.01-.02 (2004); see Request Letter, supra note 1 (attachment).[3] Its charter recites that the "people of the City reserve the power of direct legislation by initiative, and in the exercise of such power may propose any ordinance not in conflict with this Charter, the State Constitution, or the State laws."

GEORGETOWN, TEX., CODE OF ORDINANCES, HOME RULE CHARTER, art. IV, § 4.01 (2004). Under the charter, when the city council receives a petition for an ordinance signed by the requisite number of voters and certified by the city secretary, the council must either (1) pass the voter-initiated ordinance without amendment within thirty days after receipt, or (2) submit the "initiated ordinance without amendments to a vote of the qualified voters of the City at a regular or special election to be held on the next uniform election date in order to comply with State election laws." Id. art. IV, § 4.05. Article IV, section 4.05 of the charter states that special elections to consider voter-initiated ordinances "shall not be held more frequently than once each six (6) months." Id. Additionally, the section provides that "no ordinance on the same subject as an initiated ordinance which has been defeated . . . may be initiated by the voters within two (2) years from the date of such election." Id.

You wish to know whether article IV, section 4.05 of the City's charter, which limits the frequency of elections on voter-initiated ordinances, applies to elections pursuant to voter petitions under article VIII, section 1-b(h) of the Texas Constitution. Request Letter, supra note 1, at 1. For example, if the City holds an election on a voter petition to adopt the tax freeze, but the measure is defeated, you ask whether the City must refuse to call an election on subsequent voter petitions for a tax freeze for two years. Id. You also ask if the city charter provision that special elections on voter-initiated ordinances may not be held more frequently than once every six months applies to voter petitions for the adoption of the tax freeze under the amendment. Id.

Subsequent to your request, the City held an election on whether to adopt the tax freeze and, according to unofficial election results, the proposal passed.[4] The tax limitation adopted under the amendment cannot be repealed by the governing body or by another petition election. See TEX. CONST. art. VIII, § 1-b(h); Tex. Att'y Gen. Op. No. GA-0222 (2004) at 3. Consequently, it appears that the City will not have occasion to consider new voter petitions for a tax freeze, and for the City the issue is largely moot. Nevertheless, we will address your questions, bearing in mind that there may be other home-rule municipalities with similar ordinances.

The Texas Constitution authorizes a home-rule city to be governed generally by ordinances adopted pursuant to its municipal charter. TEX. CONST. art. XI, § 5; Wilson v. Andrews, 10 S.W.3d 663, 666 (Tex. 1999). A home-rule city's charter may expressly or implicitly limit the voters' initiative power. See Quick v. City of Austin, 7 S.W.3d 109, 124 (Tex. 1998). See also Tex. Att'y Gen. Op. No. GA-0222 (2004) at 3 (citing Glass v. Smith, 244 S.W.2d 645, 648 (Tex. 1951)). Moreover, a home-rule city's charter is presumed to be valid, and courts will not interfere unless such a provision "is unreasonable or arbitrary, amounting to a clear abuse of municipal discretion." In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002) (concerning election application deadline established by municipal ordinance).

Under the Texas Constitution, "no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." TEX. CONST. art. XI, § 5. A home-rule city charter provision "is unenforceable to the extent it conflicts with [a] state statute." See Sanchez, 81 S.W.3d at 796. However, "courts will not hold a state law and a city charter provision repugnant to each other if they can reach a reasonable construction leaving both in effect."[5] Id. Consequently, we consider pertinent provisions of the constitution and the statutes for potential sources of conflict with the City's charter.

Article VIII, section 1-b(h) provides that upon receipt of a proper voter petition, the governing body of a municipality shall order an election concerning adoption of the tax freeze. TEX. CONST. art. VIII, § 1-b(h).[6] The provision does not address the timing of such elections, and is also silent about calling an election on a tax freeze proposition that has previously been submitted for an election and defeated. Id. Section 11.261 of the Tax Code provides generally for implementing a tax limitation that has been adopted under the amendment. TEX. TAX CODE ANN. § 11.261 (Vernon Supp. 2004-05). It is likewise silent about the timing for calling an election. Compare with id. §§ 6.26(e) (Vernon 2003) (providing for an election on whether to consolidate tax assessing and collecting functions within certain period following a voter petition); 26.08(b) (providing for a rollback election on tax rates within certain period following a voter petition); 26.085(d) (providing for an election on dedication of funds to a college district within a certain period following a voter petition).

Concerning the timing of elections, the Election Code specifies four dates in the year as uniform election dates for general and special elections. TEX. ELEC. CODE ANN. § 41.001 (Vernon Supp. 2004-05). Section 41.0041(a) provides that when a "law outside this code other than the constitution prohibits another election from being held on the same or a similar measure for a specified number of years after an election on a measure," the election must be held on the corresponding uniform election date even if it "falls a number of days short of the requisite period." Id. § 41.0041(a) (Vernon 2003). That section anticipates the existence of limitations such as the City charter's two-year limitation on voter initiative elections, although the statute may shorten the required period. Id. Under particular circumstances, other provisions in the Election Code may limit application of a particular city charter's election provisions to the extent of any conflict. See, e.g., id. § 3.005 (Vernon Supp. 2004-05) (providing that elections ordered by political subdivisions "shall be ordered not later than the 62nd day before election day"). But concerning the frequency of voter initiative elections, the Election Code is silent.

In sum, we have located no state law that would expressly conflict with charter provisions such as the City's that limit special elections to once in six months, or limit calling an election on a measure for two years after a similar measure has been defeated. The legislature has not preempted the subject matter, because, "if the Legislature chooses to preempt a subject matter usually encompassed by the broad powers of a home-rule city, it must do so with unmistakable clarity." Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993). Provisions limiting special elections on initiated ordinances to once every six months, and prohibiting elections on defeated measures for two years, aimed at mitigating voter fatigue and the expense of calling additional elections, would likely be determined to be reasonable. We believe a court would likely conclude that charter provisions similar to the City's are not unreasonable or arbitrary, and applicable to petitions to adopt the tax limitation under the amendment.

SUMMARY

Home-rule municipality charter provisions limiting special elections on voter-initiated ordinances to once every six months and prohibiting an election on an initiated ordinance for two years after an ordinance on the same subject has been defeated may apply to an election called pursuant to a voter petition under article VIII, section 1-b(h) of the Texas Constitution.

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Stephen E. Ogden, Chair, Senate Finance Committee, Texas State Senate, to Honorable Greg Abbott, Texas Attorney General (May 17, 2004) (on file with Opinion Committee, also available at www.oag.state.tx.us) [hereinafter Request Letter].

[2] In Attorney General Opinion GA-0222, this office addressed other issues concerning article VIII, section 1-b(h) of the Texas Constitution, concluding that (1) the provision authorizes a governing body of a home-rule municipality to call an election to adopt a tax freeze without a voter's petition; (2) once adopted by a home-rule municipality, the tax freeze may not be repealed by an election called pursuant to a petition of the city's voters; and (3) implementation of the constitutional provision does not permit use of a year prior to implementation as the base tax year. Tex. Att'y Gen. Op. No. GA-0222 (2004) at 5.

[3] Available at http://www.georgetown.org/citygovernment/.

[4] See GEORGETOWN, TEX., ELECTIONS OVERVIEW, at http://www.georgetown.org/citygovernment/elections/ (reporting the unofficial vote as 4,747 (76.7%) for, and 1,442 (23.3%) against) (last visited Sept. 24, 2004); see also Jennifer Barrios, Tax Cap, Liquor Changes Approved; Packed Polls in Sun City Seen as Crucial to Results, AUSTIN AMERICAN-STATESMAN, Sept. 12, 2004, at A1.

[5] Compare Tex. Att'y Gen. Op. No. GA-0025 (2003) (determining that statutory runoff requirements and a municipal instant-runoff provision irreconcilably conflict), with Op. Tex. Sec'y State No. JH-1 (1991) at 2 (home-rule city may require, by charter or ordinance pursuant to charter, that write-in candidates file a declaration of write-in candidacy, because "[h]ome rule cities are given broad authority under article XI, section 5, of the Texas Constitution to adopt a charter and enact ordinances pursuant to that charter. The only limitation under the constitution is that the charter or ordinances be consistent with the constitution or the general laws of the state.").

[6] Article VIII, section 1-b(h) provides:

The governing body of a county, a city or town, or a junior college district by official action may provide that if a person who is disabled or is sixty-five (65) years of age or older receives a residence homestead exemption prescribed or authorized by this section, the total amount of ad valorem taxes imposed on that homestead by the county, the city or town, or the junior college district may not be increased while it remains the residence homestead of that person or that person's spouse who is disabled or sixty-five (65) years of age or older and receives a residence homestead exemption on the homestead. As an alternative, on receipt of a petition signed by five percent (5%) of the registered voters of the county, the city or town, or the junior college district, the governing body of the county, the city or town, or the junior college district shall call an election to determine by majority vote whether to establish a tax limitation provided by this subsection. If a county, a city or town, or a junior college district establishes a tax limitation provided by this subsection and a disabled person or a person sixty-five (65) years of age or older dies in a year in which the person received a residence homestead exemption, the total amount of ad valorem taxes imposed on the homestead by the county, the city or town, or the junior college district may not be increased while it remains the residence homestead of that person's surviving spouse if the spouse is fifty-five (55) years of age or older at the time of the person's death, subject to any exceptions provided by general law. The legislature, by general law, may provide for the transfer of all or a proportionate amount of a tax limitation provided by this subsection for a person who qualifies for the limitation and establishes a different residence homestead within the same county, within the same city or town, or within the same junior college district. A county, a city or town, or a junior college district that establishes a tax limitation under this subsection must comply with a law providing for the transfer of the limitation, even if the legislature enacts the law subsequent to the county's, the city's or town's, or the junior college district's establishment of the limitation. Taxes otherwise limited by a county, a city or town, or a junior college district under this subsection may be increased to the extent the value of the homestead is increased by improvements other than repairs and other than improvements made to comply with governmental requirements and except as may be consistent with the transfer of a tax limitation under a law authorized by this subsection. The governing body of a county, a city or town, or a junior college district may not repeal or rescind a tax limitation established under this subsection.

TEX. CONST. art. VIII, § 1-b(h).