Does the Texas Constitution's separation of powers apply to a city government and how it handles employee grievances?

Plain-English summary

This opinion grew out of a turf dispute inside a small Texas city. Glen Rose is a Type A general-law municipality, and it had adopted a personnel policy by ordinance that let employees appeal management's responses to grievances and disciplinary actions to the city council. The mayor worried that council involvement in those appeals undercut the chain of command, since employees could go to sympathetic council members before management, acting under the mayor's executive authority, had a chance to handle the matter. Through the Somervell County Attorney, the mayor asked the Attorney General three questions: whether the constitutional separation of powers applies to city government, whether the law confines personnel management to the executive branch of a Type A city, and whether a city council may adopt ordinances giving itself a role in day-to-day personnel matters like grievance and discipline appeals.

The AG answered the first question cleanly. Article II, section 1 of the Texas Constitution divides the powers of state government into legislative, executive, and judicial departments, and the Texas Supreme Court in City of Fort Worth v. Zimlich held that this provision "only guarantees the separation of the state legislative, executive, and judicial branches of government." So the separation of powers doctrine does not apply to municipal government, a conclusion the AG backed with two courts of appeals decisions, City of El Paso v. Arditti and A.H.D. Houston, Inc. v. City of Houston, both holding that city ordinances did not raise a state separation of powers problem.

On the remaining two questions about personnel management, the AG laid out the statutory background but declined to resolve them. A Type A general-law city can use either an aldermanic form or a city manager form of government under chapters 22 and 25 of the Local Government Code. The mayor is the chief executive officer who ensures the laws and ordinances are carried out, but the governing body can appoint other officers and prescribe their duties, and neither chapter 22 nor chapter 25 addresses employee management generally or grievance and discipline appeals specifically. A Type A city may regulate its affairs by adopting ordinances consistent with state law. The AG then stopped: the office does not advise municipal officials about how to comply with their own ordinances, citing its earlier Opinion KP-0026. So it did not decide how Glen Rose's personnel ordinance had to allocate authority, beyond reiterating that the constitutional separation of powers did not control that allocation.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The cited constitutional provisions, the Local Government Code chapters on general-law municipalities, and the city's own ordinances can change, so verify current law before relying on any specific rule mentioned here.

What the opinion meant for those who asked

The opinion gave the mayor, the county attorney, and the city council a clear answer on one question and a deliberate non-answer on the others. For the city, the constitutional point was settled: article II, section 1's separation of powers is a state-government doctrine and could not be invoked to challenge the council's role in personnel appeals. For the mayor and council debating who controls employee discipline and grievances, the opinion's message was that the Local Government Code does not assign that authority to one side or speak to grievance appeals, and that the allocation lives in the city's own ordinances. On that ordinance-interpretation question, the AG expressly declined to advise, so the opinion did not tell Glen Rose's officials whether the council's grievance-appeal role was proper. It left that to the city, subject to the requirement that its ordinances be consistent with state law.

Common questions

Q: Does separation of powers apply to Texas city governments?
A: No. The AG concluded that article II, section 1 of the Texas Constitution applies only to state government, relying on the Texas Supreme Court's holding in City of Fort Worth v. Zimlich that it guarantees separation of the state's legislative, executive, and judicial branches.

Q: Can a city council give itself a role in employee grievance and discipline appeals?
A: The AG did not decide that. It explained that the Local Government Code does not address employee management or grievance appeals for a Type A city, that such matters are handled through ordinances consistent with state law, and that the office does not advise municipal officials on how to comply with their own ordinances.

Q: Who is in charge of personnel in a Type A general-law city?
A: The mayor is the chief executive officer responsible for seeing that laws and ordinances are carried out, but the governing body may appoint other officers and prescribe their duties. Chapters 22 and 25 do not address employee management generally, so the AG did not pin personnel authority to one branch.

Q: Why didn't the AG answer the personnel questions fully?
A: Because resolving them would require interpreting the city's own ordinances, and the AG's office does not advise municipal officials about how to comply with their own ordinances.

Background and statutory framework

The opinion separates a constitutional question from a local-ordinance question. The constitutional question is governed by article II, section 1, which the Texas Supreme Court in City of Fort Worth v. Zimlich limited to state government; courts of appeals in City of El Paso v. Arditti and A.H.D. Houston, Inc. v. City of Houston applied that limit to reject separation of powers challenges to city ordinances. The governance question runs through the Local Government Code, which divides general-law municipalities into Types A, B, and C (sections 5.001 through 5.003). A Type A city uses an aldermanic form (chapter 22) or, by election, a city manager form (chapter 25). The mayor is the chief executive officer under section 22.042, but the governing body may appoint officers and prescribe their duties under sections 22.071(a), 22.072(b), and 25.051(b), and a city manager administers municipal business under section 25.029. A city's general ordinance authority comes from sections 51.001 and 51.012, which allow ordinances for the good government of the municipality that are consistent with state law. Because the personnel-appeal arrangement lived in a city ordinance, the AG invoked the limit recognized in its Opinion KP-0026 (2015) that the office does not advise municipal officials on compliance with their own ordinances.

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. II, § 1 (separation of powers); art. XI, §§ 4, 5 (municipalities)
• Tex. Loc. Gov't Code ch. 22, ch. 25, ch. 51 (Type A municipal government; ordinance authority)

Cases:

• City of Fort Worth v. Zimlich, 29 S.W.3d 62 (Tex. 2000)
• City of El Paso v. Arditti, 378 S.W.3d 661 (Tex. App.-El Paso 2012, no pet.)
• A.H.D. Houston, Inc. v. City of Houston, 316 S.W.3d 212 (Tex. App.-Houston [14th Dist.] 2010, no pet.)

Related opinion:

• Tex. Att'y Gen. Op. No. KP-0026 (2015) (the office does not advise municipal officials about how to comply with their own ordinances)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0334
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0334.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

September 28, 2020

The Honorable Andrew Lucas
Somervell County Attorney
Post Office Box 1335
Glen Rose, Texas 76043

Opinion No. KP-0334

Re: Whether article II, section 1 of the Texas Constitution, relating to the separation of powers, applies to municipal government and the management of personnel (RQ-0343-KP)

Dear Mr. Lucas:

You ask on behalf of the mayor of the City of Glen Rose (the "City") whether article II, section 1 of the Texas Constitution, relating to the separation of powers, applies to municipal government and the management of personnel.¹ You tell us the City is a Type A general-law municipality. See Request Letter at 1. You further inform us that the City adopted a personnel policy by ordinance, which authorizes appeal to the city council from management's response to workplace grievances and disciplinary actions. Id. You explain the concern that

Council involvement in employee appeal and grievance proceedings tends to subvert the chain of command, as employees are inclined to approach sympathetic Council members about personnel matters before management, operating under the Mayor's executive authority, has had an opportunity to address said matters through the methods prescribed in the Personnel Policy . . . .

Id. at 1-2. In light of these concerns, you first ask whether the separation of powers provisions of article II, section 1 of the Texas Constitution apply to municipal government. Id. at 1. You also ask whether the law confines management of municipal personnel to the executive branch of municipal government of a Type A general-law municipality. Id. Finally, you ask whether a city council of a Type A general-law municipality may adopt ordinances or policies assigning itself a role in "day-to-day personnel matters such as hearing appeals of disciplinary action and hearing workplace grievances." Id.

Article II, section 1 of the Texas Constitution provides:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

TEX. CONST. art. II, § 1. A Texas Supreme Court opinion directly answers your first question, holding that the separation of powers doctrine in article II, section 1 of the Constitution "only guarantees the separation of the state legislative, executive, and judicial branches of government." City of Fort Worth v. Zimlich, 29 S.W.3d 62, 72 (Tex. 2000) (emphasis added). Thus, the separation of powers provisions of article II, section 1 of the Texas Constitution do not apply to municipal government. See City of El Paso v. Arditti, 378 S.W.3d 661, 666-67 (Tex. App.-El Paso 2012, no pet.) (holding city ordinance merging city clerk and municipal court clerk positions did not violate state constitutional separation of powers provision); A.H.D. Houston, Inc. v. City of Houston, 316 S.W.3d 212, 222 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (holding municipal ordinance did not present a separation of powers issue).

We turn to your remaining two questions concerning management of municipal personnel in a Type A general-law municipality. The Constitution authorizes the Legislature to provide general law for governing municipalities, although home-rule municipalities may enact their own charters. See TEX. CONST. art. XI, §§ 4 (providing "Cities and towns having a population of five thousand or less may be chartered alone by general law."), 5 (authorizing home-rule municipalities to adopt charters and ordinances consistent with the "general laws enacted by the Legislature of this State"). The Local Government Code establishes three categories of general-law municipalities—Type A, Type B, or Type C. TEX. LOC. GOV'T CODE §§ 5.001-.003. A Type A municipality operates with either a regular aldermanic form of government or a city manager form of government.² Id. §§ 22.001-.077, 25.001-.072.

In an aldermanic form of government, the governing body consists of a mayor and a certain number of aldermen depending on whether the city is divided into wards. Id. § 22.031. The mayor presides at meetings of the municipal governing body and generally may vote only in instances of a tie. Id. § 22.037(a). Section 22.042 designates the mayor as "the chief executive officer of the municipality" who must "actively ensure that the laws and ordinances of the municipality are properly carried out." Id. § 22.042(a). That section provides for the mayor to "inspect the conduct of each subordinate municipal officer," but chapter 22 does not specifically address the management of municipal employees. Id. § 22.042(b) (emphasis added). Section 22.042 also requires the mayor to "perform the duties and exercise the powers prescribed by the governing body of the municipality," consistent with the statutes. Id. § 22.042(a). Further, the governing body may appoint other officers and prescribe their powers and duties, which therefore could include certain managerial responsibility. See id. §§ 22.071(a) (providing that municipal officers include "any other officers or agents authorized by the governing body"), 22.072(b) (providing that the "governing body may prescribe the powers and duties of a municipal officer appointed or elected to an office under this code whose duties are not specified by this code"), 25.051(b) (recognizing "the authority of the governing body of a general-law municipality to appoint and prescribe the powers and duties of a municipal officer or employee").

A Type A municipality may also adopt the city manager form of government under chapter 25 by an election held for that purpose. See id. §§ 25.001-.072. Under the city manager form of government, the city manager possesses the authority to "administer the municipal business" as well as "any additional powers or duties the governing body considers proper for the efficient administration of municipal affairs." Id. §§ 25.029(a)-(b). You do not tell us the City's form of government. But neither chapter 22 nor 25 addresses the management of municipal employees generally or appeals from employee discipline or grievances decisions specifically.

Regardless of its form of government, a Type A municipality generally may regulate its affairs by adopting ordinances that are consistent with state law. See id. § 51.012 (authorizing municipality to "adopt an ordinance, act, law, or regulation [that is] not inconsistent with state law"). A governing body of a municipality may adopt an ordinance that "(1) is for the good government, peace, or order of the municipality or for the trade and commerce of the municipality; and (2) is necessary or proper for carrying out a power granted by law to the municipality or to an office or department of the municipality." Id. § 51.001. You have a code of ordinances, and you inform us that the city council adopted a personnel policy by ordinance.³ However, this office does not advise municipal officials about how to comply with their own ordinances. See Tex. Att'y Gen. Op. No. KP-0026 (2015) at 1. Thus, we do not address your remaining questions except to reiterate that article II, section 1 of the Texas Constitution does not control how the City's ordinances allocate management authority.

¹ See Letter from Honorable Andrew Lucas, Somervell Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 1, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0343KP.pdf.

² An aldermanic form of government contrasts with the commission form of government, applicable only to a Type C general-law municipality. Compare TEX. LOC. GOV'T CODE §§ 22.001-.077 ("Aldermanic Form of Government in Type A General-Law Municipality"), with id. §§ 24.001-.071 ("Commission Form of Government in General-Law Municipality").

³ See Request Letter at 1; City of Glen Rose Code of Ordinances, available at https://z2codes.franklinlegal.net/franklin/Z2Browser2.html?showset=glenroseset.

S U M M A R Y

The separation of powers provisions of article II, section 1 of the Texas Constitution do not apply to municipal government.

Chapters 22 and 25 of the Local Government Code, which provide for possible forms of government of a Type A general-law municipality, do not address the appeal of municipal employee discipline or grievance decisions or employee management generally.

A Type A municipality generally may regulate its affairs by adopting ordinances that are consistent with state law. This office does not advise municipal officials about how to comply with their own ordinances.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee