Can a city's term limits count service from before the term-limit rule was adopted?

TX AG Opinion GA-0356: Can a city apply term limits retroactively to past service?

Plain-English summary

A citizen of Alvin asked how the city's term limits applied to the sitting mayor. The question worked its way to the Alvin City Attorney, who in turn asked the Brazoria County criminal district attorney to request an Attorney General opinion. Three questions were put to the Attorney General: whether the term limits combine a person's time as a council member and as mayor, whether council district seats and at-large seats count as separate offices, and how the 8-year term limit adopted in May 2002 applies to service performed before then.

The Attorney General split the request in two. The first two questions, and most of the third, are really about what Alvin's charter means. The office has a long-standing practice of not construing city charters, leaving that to municipal officials, unless a charter provision raises a question of state or federal law. So the Attorney General declined to interpret Alvin's term-limit provisions and did not decide whether council and mayoral service combine or whether district and at-large seats are separate offices.

One piece of the third question, though, raised a genuine state-law issue the office could answer: may a term limit be applied to service that occurred before the limit was adopted, or would that be an unconstitutional "retroactive law"? Article I, section 16 of the Texas Constitution bans retroactive laws, and that ban applies to city charters and ordinances, but it only forbids laws that destroy or impair rights that have already vested. The settled rule in Texas is that a public officer has no vested right in the office he holds; a term can be shortened or an office abolished, as long as the constitution does not fix the term. Applying that rule, the Attorney General concluded that if a city charter term limit counts service performed as a city officer before the limit's adoption, it does not impair a vested right, and so it is not a "retroactive law" prohibited by article I, section 16.

Currency note

This opinion was issued in 2005. 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 2005)

Cities adopting or amending term limits: The opinion held that counting an officer's pre-adoption service toward a charter term limit does not impair a vested right and is therefore not an unconstitutional retroactive law under article I, section 16.

Mayors, council members, and other local officeholders: It explained that a public officer has no vested right in the office, so a term may be shortened (including by counting prior service) unless the constitution itself fixes the term.

City attorneys and the citizen who asked: It declined to interpret Alvin's specific charter provisions (whether council and mayoral service combine, and whether district and at-large seats are separate offices), leaving those charter-construction questions to local officials.

Anyone seeking AG opinions about city charters: It restated the practice that the office construes a city charter only when a charter provision raises a question of state or federal law.

Common questions

Can a city term limit count service from before the rule was adopted?
According to this opinion, yes. Because officials have no vested right in their office, counting earlier service toward a term limit does not impair a vested right and is not a "retroactive law" forbidden by article I, section 16 of the Texas Constitution.

Did the Attorney General decide whether Alvin's term limits combine council and mayoral service?
No. The opinion declined to answer the questions that require interpreting the Alvin city charter, including whether council and mayoral service combine and whether district and at-large seats are separate offices, because the office does not construe city charters unless a state- or federal-law question is involved.

Why won't the Attorney General interpret a city charter?
As a matter of practice, the office defers to municipal officials on the meaning of their own charters and ordinances, and steps in only when a charter provision raises a question of state or federal law.

Do officials have a vested right to finish their term?
No. The opinion explained that a public officer has no vested right in the office, and a term may be shortened or the office abolished, as long as the constitution does not fix the term.

What makes a law "retroactive" and unconstitutional in Texas?
Article I, section 16 bars retroactive laws only when they destroy or impair rights that have already vested. The opinion noted a law is not invalid merely because it operates on past events, unless it takes away a vested right.

Background and statutory framework

The Attorney General's office does not construe city charters unless a charter provision raises a question of federal or state law, deferring otherwise to municipal officials, and its opinion-request procedures limit questions about cities to subject matter within the requestor's jurisdiction (Tex. Att'y Gen. Op. Nos. GA-0226 (2004), GA-0130 (2003), GA-0110 (2003), GA-0068 (2003), JC-0143 (1999), JM-805 (1987), H-1014 (1977)). On that basis the opinion declined the charter-interpretation questions and addressed only the retroactivity question.

Article I, section 16 of the Texas Constitution forbids any bill of attainder, ex post facto law, retroactive law, or law impairing contracts, and it applies to city charters and ordinances. But it prohibits retroactive laws only to the extent they destroy or impair rights that have become vested; a law is not invalid merely because it operates retroactively (Tex. Const. art. I, § 16; Coffee v. Castleberry, 258 S.W. 889, 892 (Tex. Civ. App.-Amarillo 1924), judgm't reformed on other grounds and aff'd, 272 S.W. 767 (Tex. Comm'n App. 1925); Subaru of Am. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002); Corpus Christi People's Baptist Church, Inc. v. Nueces County Appraisal Dist., 904 S.W.2d 621, 626 (Tex. 1995); Merchant's Fast Motor Lines, Inc. v. R.R. Comm'n, 573 S.W.2d 502, 504 (Tex. 1978); Deacon v. City of Euless, 405 S.W.2d 59, 62 (Tex. 1966); McCain v. Yost, 284 S.W.2d 898, 900 (Tex. 1955)).

The legislature may shorten an incumbent officer's term and apply it to persons in office, as long as the constitution does not fix the term (some terms, such as the governor's and those of justices of the peace and constables, are constitutionally set) (Popham v. Patterson, 51 S.W.2d 680, 683 (Tex. 1932); Tex. Const. art. IV, § 4; id. art. V, § 18). A public officer has no vested right in the office he holds, and his term may be reduced or the office abolished; a prior opinion had applied a term-limit statute to service performed before its effective date without treating it as retroactive (Tarrant County v. Ashmore, 635 S.W.2d 417, 422 (Tex. 1982); Tex. Att'y Gen. Op. Nos. JM-1233 (1990), JM-235 (1984), H-955 (1977), DM-493 (1998)). It follows that a city charter term limit applying to service as a city officer before its adoption does not impair a vested right and is not a "retroactive law" prohibited by article I, section 16.

Citations

Constitutional provisions:

• Tex. Const. art. I, § 16
• Tex. Const. art. IV, § 4
• Tex. Const. art. V, § 18

Cases:

• Coffee v. Castleberry, 258 S.W. 889, 892 (Tex. Civ. App.-Amarillo 1924), judgm't reformed on other grounds and aff'd, 272 S.W. 767 (Tex. Comm'n App. 1925)
• Subaru of Am. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002)
• Corpus Christi People's Baptist Church, Inc. v. Nueces County Appraisal Dist., 904 S.W.2d 621, 626 (Tex. 1995)
• Merchant's Fast Motor Lines, Inc. v. R.R. Comm'n, 573 S.W.2d 502, 504 (Tex. 1978)
• Deacon v. City of Euless, 405 S.W.2d 59, 62 (Tex. 1966)
• McCain v. Yost, 284 S.W.2d 898, 900 (Tex. 1955)
• Popham v. Patterson, 51 S.W.2d 680, 683 (Tex. 1932)
• Tarrant County v. Ashmore, 635 S.W.2d 417, 422 (Tex. 1982)

Other authorities:

• Tex. Att'y Gen. Op. Nos. GA-0226 (2004), GA-0149 (2004), GA-0130 (2003), GA-0110 (2003), GA-0068 (2003), DM-493 (1998), JC-0143 (1999), JM-1233 (1990), JM-805 (1987), JM-235 (1984), H-1014 (1977), H-955 (1977)
• Attorney General of Texas, Opinion Request Procedures: How to Request an Opinion

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0356
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0356.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

September 12, 2005

The Honorable Jeri Yenne
Brazoria County Criminal District Attorney
111 East Locust Street
Angleton, Texas 77515

Opinion No. GA-0356

Re: Retroactive application of municipal term limit provisions (RQ-0327-GA)

Dear Ms. Yenne:

On behalf of the Alvin City Attorney, you ask whether the term limit provisions of the Alvin City Charter apply to combined service as city council member and mayor.[1] You have submitted the Alvin City Attorney's letter on this matter.[2]

You received a letter from a citizen of Alvin asking about the application of the term limit provisions to the current mayor and forwarded it to the City Attorney for Alvin. See Request Letter, supra note 1, at 1. The Alvin City Attorney subsequently reviewed records of past city charter revisions and interviewed members of the 2001 Charter Review Commission and other city officials who attended Commission meetings. See id. at 2. She concluded that the city council "intended that the term limit of an individual running for the elected office of Mayor was separate and exclusive of any time served on the Council." Katz Letter, supra note 2, at 2.

The Alvin City Attorney has forwarded the following questions to you, asking that you request an attorney general opinion addressing them:

1. Do term limits apply to combined terms of councilmember and mayoral service?

2. Are council District and At-Large positions considered separate offices for term limit considerations?

3. What is the retroactive application of the term limit provision? Does the 8 year term limit that became effective May 2002 upon adoption of the charter revisions apply to future service only?

Request Letter, supra note 1, at 2 (emphasis omitted). See also Katz Letter, supra note 2, at 1. Your letter provides your analysis of and conclusions to these questions. See Request Letter, supra note 1, at 3-6.

This office does not construe city charters unless the charter provision raises a question of federal or state law. See Tex. Att'y Gen. Op. Nos. GA-0226 (2004) at 3, GA-0130 (2003) at 3, GA-0068 (2003) at 2 n.2, JC-0143 (1999) at 3, JM-805 (1987) at 1 n.1 (this office does not ordinarily construe city charters, in deference to municipal officials), H-1014 (1977) (applicability of city charter provisions to contract with county is to be determined by contracting parties). See also Tex. Att'y Gen. Op. Nos. GA-0110 (2003) (considering whether home-rule ordinance is consistent with state statute); GA-0068 (2003) (considering whether ethics ordinance proposed for adoption by home-rule city is consistent with federal and state law). This office has issued opinion request procedures stating that "[q]uestions involving cities, independent school districts, or others not specified in Sections 402.041-402.045 of the Government Code should be submitted by a statutorily authorized requestor only if they concern subject matter covered by the jurisdiction and duties of the office submitting the request." ATTORNEY GENERAL OF TEXAS, OPINION REQUEST PROCEDURES: HOW TO REQUEST AN OPINION.[3]

Thus, we decline to answer the questions asking for an interpretation of city charter provisions. However, in connection with question three you raise a question of state law: whether term limits may be applied retroactively. Request Letter, supra note 1, at 4. We will address this question.

Article I, section 16 of the Texas Constitution provides that "[n]o bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made." See TEX. CONST. art. I, § 16. This provision applies to charter provisions and ordinances adopted by cities. See Coffee v. Castleberry, 258 S.W. 889, 892 (Tex. Civ. App.-Amarillo 1924), judgm't reformed on other grounds and aff'd, 272 S.W. 767 (Tex. Comm'n App. 1925). It prohibits retroactive laws only to the extent they "destroy or impair rights which had become vested." See Subaru of Am. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002); Corpus Christi People's Baptist Church, Inc. v. Nueces County Appraisal Dist., 904 S.W.2d 621, 626 (Tex. 1995); Merchant's Fast Motor Lines, Inc. v. R.R. Comm'n, 573 S.W.2d 502, 504 (Tex. 1978); Deacon v. City of Euless, 405 S.W.2d 59, 62 (Tex. 1966); McCain v. Yost, 284 S.W.2d 898, 900 (Tex. 1955). Thus a law is not invalid even though retroactive in operation unless vested rights are destroyed or impaired. Corpus Christi People's Baptist Church, 904 S.W.2d at 626; Tex. Att'y Gen. Op. No. GA-0149 (2004) at 5-6.

The legislature may enact a statute shortening an incumbent officer's term and apply it to persons in office when the act becomes effective, as long as the Texas Constitution does not fix the term of office. See Popham v. Patterson, 51 S.W.2d 680, 683 (Tex. 1932). See also TEX. CONST. art. IV, § 4 (establishing four-year term of office for governor); id. art. V, § 18 (establishing four-year term for justices of the peace and constable; providing that each justice and constable in office when precinct boundaries are changed shall serve out term). The Alvin City Charter sets the terms of office for the mayor and city council members. See ALVIN, TEX., CITY CHARTER art. II, § 1 (2002) (attachment to Request Letter, Exhibit C).

A public officer has no vested right in the office he holds,[4] and the legislature may reduce his term of service or abolish the office entirely. See Tarrant County v. Ashmore, 635 S.W.2d 417, 422 (Tex. 1982) (public officer's qualified interest in office is neither property nor a vested right); Tex. Att'y Gen. Op. Nos. JM-1233 (1990) at 3 (member of State Board of Pharmacy has no vested right to his position); JM-235 (1984) at 3 (school board may establish single-member trustee districts pursuant to statute, even though terms of some incumbent trustees will be shortened); H-955 (1977) at 4 (absent legislative direction, state agency board that established chair's term of office by resolution may reduce term and apply change to present chair).

In Attorney General Opinion JM-1233, this office construed a term limit provision applicable to members of the Texas State Board of Pharmacy, determining that the term limit provision applied to service performed before the statute's effective date. See Tex. Att'y Gen. Op. No. JM-1233 (1990) at 2-3. It found that the statute was not retroactive, noting that "the legislature could have even reduced . . . [the board member's] present term of service or abolished the office entirely." Id. at 3 (citing Attorney General Opinions JM-235 (1984) and H-955 (1977)). See also Tex. Att'y Gen. Op. No. DM-493 (1998) at 3-4 (statute shortening term of incumbent does not violate constitutional provision against retroactive laws). If a city charter term limit provision applies to service as a city officer prior to its adoption, it does not impair a vested right and therefore is not a "retroactive law" prohibited by article I, section 16.

SUMMARY

An opinion of the Attorney General will not construe city charters unless the charter provision raises a question of state or federal law. If a city charter term limit provision applies to service as a city officer prior to its adoption, it does not impair a vested right and therefore is not a "retroactive law" prohibited by article I, section 16 of the Texas Constitution.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. McBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Jeri Yenne, Brazoria County Criminal District Attorney, to Honorable Greg Abbott, Texas Attorney General (Mar. 15, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Letter from Bobbi J. Katz, Alvin City Attorney, to Mr. Jim Wiginton, Chief-Civil Division, Brazoria County Attorney's Office (Feb. 21, 2005) (attachment to Request Letter, Exhibit A) [hereinafter Katz Letter].

[3] Available at http://www.oag.state.tx.us/opinopen/opin-request_proc.shtml.

[4] A public officer may have a financial or property interest in his office that a court will protect against private interference, for example in an election contest. See Tarrant County v. Ashmore, 635 S.W.2d 417, 422 (Tex. 1982).