Does a Texas city need a voter petition before it can hold an election to leave a regional transit authority?

TX AG Opinion GA-0763: Does a city need a petition to vote on leaving a regional transit authority?

Plain-English summary

A state senator asked the Attorney General whether a Texas city must receive a voter petition, signed by 20 percent of its qualified voters, before it can call an election to withdraw from a regional transportation authority. The question came up because the City of Richland Hills had held a 2004 election about leaving the Fort Worth Transportation Authority (voters chose to stay) and the city council was considering another withdrawal election. The issue was whether the council could call that election on its own or only after a petition.

The answer was no, a petition is not required. Transportation Code section 452.651 lays out two separate routes to a withdrawal election. Subsection (a) says the governing body of a unit of election "may" order a withdrawal election; "may" creates discretionary authority, so this route lets the council act on its own. Subsection (b) says that when the governing body determines a withdrawal petition is valid, it "shall" order an election; "shall" imposes a duty, so a valid petition compels the council to call a vote.

The key to the opinion is that the two subsections are not joined by an "and." Because they stand independently, neither is a precondition for the other; they are two different means of calling the same kind of election. The council must call a withdrawal election when it receives a valid petition, and it is also free to call one without any petition. So the opinion answered the senator's question directly: a municipality is not required to receive a 20 percent petition before calling an election to withdraw from a regional transportation authority.

Currency note

This opinion was issued in 2010. 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.

The Transportation Code provisions on regional transportation authorities and withdrawal elections may have been amended since 2010. Confirm the current statutory text before relying on anything below.

Who this opinion affected (as of 2010)

City councils in regional transit authorities: The opinion told them that subsection 452.651(a)'s "may" let a governing body order a withdrawal election on its own initiative, without first receiving a voter petition.

Voters and petition organizers: The opinion described the petition route of subsection (b): a valid withdrawal petition (which section 452.652(c) requires be signed by at least 20 percent of registered voters of the unit of election) compels the council to order an election, but is not the only way to get one.

Transit authorities like the Fort Worth Transportation Authority: The opinion noted a separate timing limit (section 452.651(c)) barring a withdrawal election more than once in a 12-month period tied to the anniversary of the election confirming the authority, which did not block a new election given the 2004 date.

Common questions

Can a city call a transit-withdrawal election without a petition?
Yes. The opinion concluded subsection 452.651(a)'s "may" gives the governing body discretionary authority to order the election on its own.

Does a valid petition force the city to hold an election?
Yes. The opinion read subsection 452.651(b)'s "shall" to require the governing body to order an election once it determines a withdrawal petition is valid.

How many signatures does a withdrawal petition need?
The opinion noted that section 452.652(c) requires a withdrawal petition to be signed by at least 20 percent of the registered voters of the unit of election.

Why aren't the two subsections read as one requirement?
Because they are not joined by "and." The opinion treated them as independent, so neither subsection is a precondition for the other.

Background and statutory framework

Transportation Code section 452.651 authorizes withdrawal elections from a regional transportation authority. Subsection (a) provides that the governing body of a unit of election "may order an election to withdraw the unit from an authority," and subsection (b) provides that upon determining a withdrawal petition is valid, the governing body "shall order an election" (Tex. Transp. Code Ann. § 452.651(a)-(b) (Vernon 2007)). Under the governing statutory definitions, "may" creates discretionary authority and "shall" imposes a duty (Tex. Gov't Code Ann. §§ 311.016(1), 311.016(2) (Vernon 2005)), and statutory words are read in context and according to common usage (id. § 311.011(a) (Vernon 2005); City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006); Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex. 2000)).

Because subsections (a) and (b) are not joined by "and," the opinion concluded they are independent means of calling a withdrawal election, so a petition is not a precondition. A withdrawal petition must be signed by at least 20 percent of registered voters of the unit of election (Tex. Transp. Code Ann. § 452.652(c) (Vernon 2007)). A subregional-board exception applies only where the principal municipality exceeds 800,000 in population, which did not fit Fort Worth's 2000 population (Tex. Transp. Code Ann. § 452.571 (Vernon 2007)).

Citations

Statutes:

• Tex. Transp. Code Ann. §§ 452.651(a)-(b), 452.652(c), 452.571 (Vernon 2007)
• Tex. Gov't Code Ann. §§ 311.011(a), 311.016(1), 311.016(2) (Vernon 2005)

Cases:

• City of Marshall v. City of Uncertain, 206 S.W.3d 97 (Tex. 2006)
• Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0763
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0763.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

March 22, 2010

The Honorable Jane Nelson
Chair, Health and Human Services Committee
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0763

Re: Whether a municipality is required to receive a petition signed by twenty percent of its qualified voters before calling an election to withdraw from a regional transportation authority (RQ-0824-GA)

Dear Senator Nelson:

You ask whether a municipality is required to receive a petition signed by twenty percent of its qualified voters before calling an election to withdraw from a regional transportation authority.[1] You indicate that, in 2004, the City of Richland Hills held an election to withdraw its membership in the Fort Worth Transportation Authority. Request Letter at 1. You tell us that the voters elected to remain within the Authority. You tell us further that the City Council of Richland Hills is at present considering another withdrawal election. Id. You inquire about the process for calling such an election, specifically whether the municipality's authority to call the election is conditioned upon the receipt by the city council of a voter petition.

Section 452.651 of the Transportation Code provides, in relevant part:

(a) The governing body of a unit of election may order an election to withdraw the unit from an authority. An election ordered under this subsection for a unit of election located in an authority consisting of one subregion governed by a subregional board created under Subchapter D may not be held if the governing body rescinds the order and notice of the election before the 45th day before election day.[2]

(b) On the determination by a governing body of a unit of election that a petition for withdrawal under this chapter is valid, the governing body shall order an election to withdraw the unit of election from the authority.

TEX. TRANSP. CODE ANN. § 452.651(a)-(b) (Vernon 2007).

In construing a statute, we begin with the proposition that "our primary objective is to ascertain and give effect to the Legislature's intent." City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006). We attempt to discern such intent from the actual language used by the Legislature. See Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex. 2000). Statutory words and phrases must "be read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 2005).

Subsection (a) declares that "[t]he governing body of a unit of election may order an election to withdraw the unit from an authority." TEX. TRANSP. CODE ANN. § 452.651(a) (Vernon 2007) (emphasis added). The word "'may' creates discretionary authority or grants permission or a power." TEX. GOV'T CODE ANN. § 311.016(1) (Vernon 2005). Subsection (a) authorizes but does not require a municipality to order an election. Subsection (b), on the other hand, provides that "[o]n the determination by a governing body of a unit of election that a petition for withdrawal under this chapter is valid, the governing body shall order an election to withdraw the unit of election from the authority." TEX. TRANSP. CODE ANN. § 452.651(b) (Vernon 2007) (emphasis added).[3] The word "'shall' imposes a duty." TEX. GOV'T CODE ANN. § 311.016(2) (Vernon 2005). As a result, this provision requires a municipality to order an election if a valid petition is submitted in accordance with statute. Moreover, because subsections (a) and (b) are not joined by an "and," it is evident that neither subsection is dependent upon the other. Rather, the two subsections provide two different means of calling a withdrawal election. Thus, while the city council is required to call a withdrawal election upon receipt of a valid petition, it is authorized to do so in the absence of a petition.[4]

Accordingly, in answer to your question, a municipality is not required to receive a petition signed by twenty percent of its qualified voters before calling an election to withdraw from a regional transportation authority.

SUMMARY

A municipality is not required to receive a petition signed by twenty percent of its qualified voters before calling an election to withdraw from a regional transportation authority.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 2 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: Subchapter D is applicable only to "the board of a subregion that has a principal municipality with a population of more than 800,000." TEX. TRANSP. CODE ANN. § 452.571 (Vernon 2007). The population of the City of Fort Worth in 2000 was 534,694. See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 2000 CENSUS OF POPULATION: State and County QuickFacts, available at http://quickfacts.census.gov/qfd/states/48/4827000.html (last visited Jan. 21, 2010). As a result, subchapter D does not apply to the facts you present.]

[Footnote 3: A withdrawal petition must be signed by not less than twenty percent of the number of registered voters of the unit of election. TEX. TRANSP. CODE ANN. § 452.652(c) (Vernon 2007).]

[Footnote 4: "An election to withdraw may not be ordered, and a petition for an election to withdraw may not be accepted for filing, more frequently than once during each period of 12 months preceding the anniversary of the date of the election confirming the authority." Id. § 452.651(c). Because you indicate that the last withdrawal election was held in 2004, this provision does not at present prohibit the calling of a new election.]