Is the City of Anson, Texas, a home-rule municipality?

Plain-English summary

The Jones County Attorney asked the Attorney General whether the City of Anson is a home-rule municipality. The records he supplied showed that Anson's voters approved a home-rule charter on April 6, 1920, by a vote of 119 to 50, that the mayor filed the charter with the Secretary of State the next day, and that the Secretary of State certified the filing in 1921, noting the presumption that a city ordering a charter election first ascertained it had the required population. The catch was population: under article XI, section 5 of the Texas Constitution (adopted in 1912), only a city of more than 5,000 people may adopt a home-rule charter, and Anson appears never to have had that many (the 1990 census put it at 2,644).

The opinion concluded that Anson is, and has been since April 6, 1920, a home-rule municipality. The answer turned on a 1965 Texas Supreme Court decision, State ex rel. Rose v. City of La Porte, which addressed exactly this kind of challenge. There, the state argued La Porte's home-rule charter was void because the city lacked the population, but the Supreme Court held that the question of population eligibility is committed to the city's governing body, not to the census, and that once the governing body ascertained the city had more than 5,000 people at the time it adopted home rule, that determination is presumed valid in the absence of allegations and proof of fraud, bad faith, or abuse of discretion. Applying that rule, the opinion reasoned that Anson's governing body must be presumed to have found the required population when it ordered the 1920 charter election, and that determination is beyond dispute absent proof of fraud, bad faith, or abuse of discretion. So the voter approval of the 1920 charter made Anson a home-rule city.

Currency note

This opinion was issued in 2001 and turns on events from 1920. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. A city's status can change through later charter actions, and the law of municipal classification can change, so verify the current situation before relying on anything specific here.

What the opinion meant for those who asked

The City of Anson and Jones County (what the opinion held for them): The opinion held that Anson has been a home-rule municipality under article XI, section 5 since April 6, 1920, despite a population that appears never to have reached 5,000.

Other small cities with old home-rule charters (what the opinion held for them): The opinion applied the City of La Porte rule that a city's governing body decides population eligibility, and that its determination at the time of adoption is presumed valid absent fraud, bad faith, or abuse of discretion.

Common questions

Can a Texas city be home-rule even if it has fewer than 5,000 people now?
Under this opinion, yes, if it validly adopted a home-rule charter when its governing body found it had the required population. The opinion concluded Anson is home-rule even though its population appears never to have exceeded 5,000.

Who decides whether a city had enough people to adopt home rule?
The opinion relied on the Texas Supreme Court's holding that the city's own governing body makes that determination, and the census does not control it.

Could that determination be challenged?
The opinion explained it is presumed valid unless there is proof of fraud, bad faith, or abuse of discretion.

Background and statutory framework

Under article XI, section 4 of the Texas Constitution, cities of 5,000 or fewer may be chartered only by general law (see Local Government Code chapters 6 and 7), while article XI, section 5 (adopted in 1912) lets a municipality of more than 5,000 hold an election to adopt a home-rule charter. The controlling authority is State ex rel. Rose v. City of La Porte, 386 S.W.2d 782 (Tex. 1965), in which the Texas Supreme Court held that population determination for home-rule eligibility is placed in the hands of the city's governing body and, once made at the time of charter adoption, is presumed validly exercised absent allegations and proof of fraud, bad faith, or abuse of discretion. The opinion combined that holding with the Secretary of State's certification presumption that a city ordering a charter election available only to cities over 5,000 first ascertained its population.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XI, §§ 4, 5
• Tex. Loc. Gov't Code Ann. chs. 6, 7 (Vernon 1999 & Supp. 2001)

Cases:

• State ex rel. Rose v. City of La Porte, 386 S.W.2d 782 (Tex. 1965)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0351
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0351.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

March 5, 2001

The Honorable Chad Cowan
Jones County Attorney
Third Floor Courthouse
P.O. Box 68
Anson, Texas 79501

Opinion No. JC-0351

Re: Whether the City of Anson is a home-rule municipality (RQ-0295-JC)

Dear Mr. Cowan:

You have requested our opinion as to whether the City of Anson is a home-rule municipality. For the reasons set forth below, we conclude that it is. We begin with a summary of the information you have provided us.

(Footnote: See Memorandum from Honorable Chad Cowan, Jones County Attorney, to Honorable John Cornyn, Attorney General of Texas (Oct. 13, 2000) (on file with Opinion Committee) [hereinafter Memorandum].)

On April 6, 1920, voters in the City of Anson approved the adoption of a home-rule charter. By letter dated the following day, the Mayor, George H. Brockett, filed with the Secretary of State:

a true and correct copy of the "New Charter of the City of Anson, Jones County, Texas," which was voted upon and by me declared elected, in a regularly ordered election held in said City of Anson, Texas, on the 6th, day of April, A.D. 1920, by the following vote, to-wit: For the Adoption of the Charter-119 votes. Against the Adoption of the Charter-50 votes.

Memorandum, note 1 (Exhibit A). On July 29, 1921, the Secretary of State certified the filing of the charter, noting the following:

It will be presumed that a city council, or governing body of any city, on ordering a charter election for a city of more than 5,000 inhabitants, first ascertained its population and its findings in this respect [are] conclusive.

Id. (Exhibit B at 2).

Cities having a population of 5000 or fewer, under the terms of article XI, section 4 of the Texas Constitution, may be chartered only by general law. See TEX. LOC. GOV'T CODE ANN. chs. 6, 7 (Vernon 1999 & Supp. 2001). By contrast, article XI, section 5, adopted in 1912, permits a municipality of more than 5000 persons to hold an election to adopt a charter. You indicate your belief that the City of Anson did not have a population of 5000 in 1920, and has never, in fact, had a population of more than 5000. The 1990 decennial census shows the population of Anson to be 2644. See 1 BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 1990 CENSUS OF POPULATION: General Population Characteristics: Texas 4 (1992) (Population of City of Anson: 2644). Your question is whether the city is at the present time a home-rule municipality under article XI, section 5, or a general-law municipality. A 1965 decision of the Texas Supreme Court provides the answer to your question.

In State ex rel. Rose v. City of La Porte, 386 S.W.2d 782 (Tex. 1965), the state brought a quo warranto action on behalf of three individuals challenging the home-rule charter of the City of La Porte. The trial court held that the charter was void, apparently because it found that La Porte did not have a population of more than 5000. Both the appellate court and the Texas Supreme Court overturned that decision, finding that La Porte was a home-rule city. The supreme court opted to "squarely meet" the "question of whether the governing body of a city is properly empowered to determine whether or not, population wise, its city is eligible to adopt the powers and privileges granted by Article XI, Section 5, of the Texas Constitution[,]" because "[a]n answer to this question is important not only to La Porte, but to all cities in Texas which are similarly situated." Id. at 784.

The Texas Supreme Court reasoned that, "in adopting the Home-Rule Amendment to the Constitution, the voters had no intention of leaving the matter of population determination open indefinitely and subject to question until finally settled by judgment in a quo warranto judicial proceeding." Id. "It would be wholly unrealistic," the court found, "to hold that the electorate at the time of the adoption of the amendment intended that the census rule should control the determination of population." Id. at 786. Thus, the court concluded that:

the matter of population determination is placed directly in the hands of the City's governing body, . . . and . . . when the governing body once ascertained the fact that La Porte had a population of more than 5000 at the time of the adoption of its Home-Rule Charter, such ascertainment is presumed to have been validly exercised in the absence of allegations and of proof of fraud, bad faith or abuse of discretion.

Id. at 785.

The letter from the Mayor of Anson to the Secretary of State indicated that the charter election held on April 6, 1920, was a "regularly ordered election." Memorandum, supra note 1 (Exhibit A). As the Secretary of State noted in certifying the municipal charter, it must be presumed that, when a city's governing body orders a charter election that is available only to a city of more than 5000 inhabitants, such governing body has first ascertained that its population exceeds that figure. See id. (Exhibit B at 2). The Texas Supreme Court's decision in City of La Porte then places that determination beyond dispute, except where there is proof of fraud, bad faith, or abuse of discretion. In the absence of such proof, voter approval of the 1920 charter means that the City of Anson is, and has been since April 6, 1920, a home-rule municipality operating under article XI, section 5 of the Texas Constitution.

SUMMARY

The City of Anson is a home-rule municipality, and has been so since April 6, 1920.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee