Can a Texas Type A general-law city disqualify an elected official from office over unpaid utilities or county debts?

Plain-English summary

The Hopkins County Attorney asked the Attorney General about an ordinance the City of Cumby adopted (Ordinance No. 2021-03) setting conditions under which an elected official could be disqualified from serving. Cumby is a Type A general-law municipality, which means it operates under a mayor-and-alderman form of government and has only the powers the State expressly grants it. The questions all turned on Local Government Code section 22.008(a), which prohibits "[a]n officer who is entrusted with the collection or custody of funds belonging to the municipality and who is in default to the municipality" from holding any municipal office until the amount of the default, plus 10 percent interest, is paid.

The city's ordinance, by contrast, applied to "any official," not just an officer who collects or holds municipal funds. The first question was whether the city was reading section 22.008(a) correctly when it treated its elected officials as officers "entrusted with the collection or custody" of municipal funds. The AG noted his office does not generally construe city ordinances, but it can address whether state law lets a city take a particular action. The AG explained that under chapter 22 the only officer with the express statutory duty to collect and keep custody of municipal funds is the treasurer. So on its face, section 22.008(a) applies only to the treasurer. While a city can assign additional duties to its officers, the AG pointed to the Texas Supreme Court's decision in Beard v. City of Decatur for the rule that a city's authority to impose duties does not let it transfer one officer's statutory powers and duties to another. A court would therefore likely conclude the city cannot reassign the treasurer's collection-and-custody duty to other officers in order to make section 22.008(a) apply to them.

The AG next addressed the city's definition of "default," which the ordinance tied to unpaid taxes or liabilities owed to the city or to Hopkins County, and to unpaid water, sewer, garbage, or other utilities in the candidate's name or associated with the candidate's residence. The statute does not define "default," and the AG accepted that unpaid taxes or utilities can amount to a default. But the AG identified two limits in section 22.008(a): it applies only to an officer in default to the municipality, not to the county or another subdivision; and it applies only to the officer entrusted with municipal funds, not to other people living at the officer's address whose name is on a utility account. The AG concluded a court would likely find that applying the bar to an officer in default to the county, or to an officer who merely lives with someone whose utility account is in default, goes beyond what the statute allows.

Finally, on the remaining questions about candidate qualifications and disqualification, the AG explained that the Texas Constitution and statutes set the qualifications for candidates, and unlike a home-rule city (which the Legislature empowered to prescribe office qualifications), a Type A general-law city has no such express authority. The Legislature set the eligibility requirements for mayor and alderman in section 22.032 and the disqualifying circumstances in section 22.008(b) and section 22.041. Because the Legislature already fixed both the qualifications and the disqualifications, the AG concluded a court would likely find the city cannot add to them, and that the general ordinance authority in section 51.012 does not authorize an ordinance disqualifying an officer over a default to the county or otherwise adding new disqualifications, since such an ordinance would be "inconsistent with state law."

What this means for you

This section describes what the opinion holds for each group. It is the AG's 2021 reading of the statute, persuasive but not binding.

City councils and general-law municipalities

The opinion treats section 22.008(a) as reaching only the treasurer (the officer with the statutory duty to collect and keep custody of municipal funds), and reads a Type A general-law city as lacking authority to add candidate qualifications or officeholder disqualifications beyond what the Legislature set. An ordinance that broadens the default bar to "any official," to county debts, or to a housemate's utility account is, in the AG's view, likely beyond the city's power.

Municipal attorneys

The opinion walks through the chain: § 22.075(b) makes the treasurer the funds-custodian; Beard v. City of Decatur blocks reassigning that duty to others; section 22.032 sets mayor/alderman eligibility; and section 51.012's general ordinance power cannot be used to add disqualifications "inconsistent with state law." That framework is the AG's answer to whether a disqualification ordinance can stand.

Candidates and sitting officials

The opinion's position is that a general-law city cannot disqualify a candidate or remove a sitting officer for unpaid utilities or county debts under section 22.008(a). The statutory bar is narrow: the officer must be one entrusted with municipal funds and in default to the municipality itself.

Common questions

Q: Who does section 22.008(a)'s default bar actually apply to?
A: The AG read it to apply only to an officer "entrusted with the collection or custody" of municipal funds. In a Type A general-law city, that is the treasurer, the only officer the statute gives that duty.

Q: Can a city make the bar apply to the mayor or aldermen by assigning them funds duties?
A: The AG said a court would likely say no. The opinion explains, citing Beard v. City of Decatur, that a city's power to assign duties does not let it transfer one officer's statutory duties to another.

Q: Does a debt owed to the county count?
A: No, in the AG's view. Section 22.008(a) reaches default "to the municipality," not to the county. An officer's standing with the county is separate from standing with the city.

Q: What about a utility account in a roommate's or relative's name at the official's address?
A: The AG concluded the bar does not reach that. It applies to the officer's own default as the funds-custodian, not to other people at the residence whose name is on a utility account.

Q: Can a general-law city add its own candidate qualifications by ordinance?
A: The AG said no. The Legislature set the qualifications for a Type A general-law city's governing body, and a city has no authority to add to them; section 51.012's general ordinance power does not allow disqualifications "inconsistent with state law."

Background and statutory framework

Chapter 22 of the Local Government Code (sections 22.01 through 22.077) governs Type A general-law municipalities under a mayor-and-alderman form. Section 22.008(a) bars a funds-custodian officer in default to the municipality from holding office until the default plus 10 percent interest is paid; section 22.008(b) automatically disqualifies a member who moves outside the municipal limits. The treasurer, under § 22.075(b), is the officer responsible to "receive and securely keep all money belonging to the municipality." Sections 22.071 and 22.072 govern the city's authority to assign officer duties, and section 22.032 sets the eligibility requirements for mayor and alderman. The AG contrasted home-rule cities, which section 26.041(3) empowers to prescribe office qualifications, with general-law cities, which have only the general ordinance authority of section 51.012. The Election Code's section 141.001(a) sets baseline candidate eligibility (citizenship, age, residence) and disqualifications (mental incapacity, felony conviction).

The AG relied on Beard v. City of Decatur (Texas Supreme Court, 1885) for the limit on reassigning statutory officer duties, on Tex. Dep't of Transp. v. City of Sunset Valley (Texas Supreme Court, 2004) for the principle that general-law cities have only expressly conferred powers, and on Brown v. Meeks (a 1936 Texas appellate decision) for the rule that a political subdivision cannot add to qualifications the Legislature set. It also cited its own earlier opinions GA-1078 (2014), JC-0544 (2002), and KP-0196 (2018).

Citations and references

Statutes:

• Tex. Loc. Gov't Code § 22.008 (default to municipality; disqualification)
• Tex. Loc. Gov't Code § 51.012 (general ordinance authority)
• Tex. Elec. Code § 141.001 (general candidate eligibility)

Key cases:

• Beard v. City of Decatur, 64 Tex. 7 (Tex. 1885) (city cannot transfer one officer's statutory duties to another)
• Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637 (Tex. 2004) (general-law cities possess only expressly conferred powers)
• Brown v. Meeks, 96 S.W.2d 839 (Tex. App.—San Antonio 1936, writ dism'd) (a subdivision cannot add to legislatively set qualifications)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0394
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0394.pdf

Original opinion text

December 13, 2021

The Honorable Dustanna Rabe
Hopkins County Attorney
128 Jefferson Street, Suite B
Sulphur Springs, Texas 75482

Opinion No. KP-0394

Re: Eligibility to hold municipal office under section 22.008 of the Local Government Code and related questions (RQ-0412-KP)

Dear Ms. Rabe:

You ask several questions about the application of subsection 22.008(a) of the Local Government Code to a recently enacted ordinance of the City of Cumby (the "City").¹

Background

Chapter 22 of the Local Government Code governs Type A general-law municipalities operating under a mayor and alderman form of government.² See generally TEX. LOC. GOV'T CODE §§ 22.01–.077. Subsection 22.008(a) of that chapter prohibits "[a]n officer who is entrusted with the collection or custody of funds belonging to the municipality and who is in default to the municipality" from "hold[ing] any municipal office until the amount of the default, plus 10 percent interest, is paid to the municipality." Id. § 22.008(a). You tell us the City recently enacted an ordinance "establishing the conditions in which an elected official may be disqualified from serving" and attach a copy of the ordinance at issue. Request Letter at 1; see also Attachment at 1 (Ordinance No. 2021-03). One of the ordinance provisions prohibits "any official" from holding office if a default is owed, and not just an officer who collects or holds custody of funds as set out in subsection 22.008(a). Attachment at 1.

You first ask whether the City is "interpreting [subsection] 22.008(a) correctly when it states in Ordinance No. 2021-03 that [its] 'elected officials are officers who are entrusted with the collection or custody of funds belonging to the municipality.'" Request Letter at 1. This office generally does not construe municipal ordinances; however, we can address the legal question of whether state law permits a municipality to take a specific action. Tex. Att'y Gen. Op. No. GA-1078 (2014) at 1. Here we address whether the City may apply subsection 22.008(a) to any of its elected officials.

¹ See Letter and Attachment from Honorable Dustanna Rabe, Hopkins Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1–2 (June 14, 2021) ("Request Letter" and "Attachment," respectively).

² You tell us the City is a Type A general-law municipality. Request Letter at 1.

Assignment of Duties to Collect or Keep Custody of Funds

Chapter 22 of the Local Government Code sets forth the officers of a Type A general-law municipality by providing that the governing body consists of an elected mayor and a certain number of elected aldermen. See TEX. LOC. GOV'T CODE § 22.031(a)–(b). Chapter 22 also lists the other officers of the municipality, including a treasurer. See id. § 22.071(a). These additional officers are either elected or appointed, as provided by "the governing body by ordinance." Id. § 22.071(b). According to the City's Ordinance No. 72-7, all offices, except those comprising the governing body, are "filled by appointment."³ Thus, the elected officers of the City are the mayor and the aldermen.

By statute, the only officer of a Type A general-law municipality with the express duty to collect and keep custody of municipal funds is the treasurer. See id. § 22.075(b) ("The treasurer shall receive and securely keep all money belonging to the municipality."). Thus, on its face, subsection 22.008(a) applies only to the treasurer.

We consider whether other officers might also acquire the duty of collection and custody of municipal funds alongside the treasurer. Type A general-law municipalities possess authority to prescribe the powers and duties of any of its officers, including additional duties for those whose duties are set by statute, or to "confer on other municipal officers the powers and duties of an officer provided for by . . . section [22.071]," which in theory could include the treasurer. See id. §§ 22.071(c), .072(a), (b). But the Texas Supreme Court long ago recognized that the authority to impose duties "does not empower [a city council] to confer upon one officer the powers, duties, or rights expressly conferred by law upon another." Beard v. City of Decatur, 64 Tex. 7, 10 (Tex. 1885) (concluding that the predecessor to section 22.072 does not permit a general-law municipality to assign the treasurer's collection and disbursement duties to the mayor); see also Tex. Att'y Gen. Op. No. JC-0544 (2002) at 2, 6 (concluding that section 22.072 does not permit a general-law municipality to delegate one officer's statutorily designated powers and duties to another). Thus, a court would likely conclude the City may not assign the treasurer's statutory duty to collect or keep custody of funds to other officers in order to make subsection 22.008(a) applicable to them.

City's Definition of "Default"

You next ask whether the City may define default as either (a) unpaid "[t]axes or other liability due to the City of Cumby or Hopkins County"; or (b) unpaid "[w]ater, sewer, garbage, or any other utility in the candidate's name or associated with the address upon which the candidate establishes residency in the City of Cumby." Request Letter at 1. The Local Government Code does not define "default" for purposes of subsection 22.008(a). See TEX. LOC. GOV'T CODE § 22.008(a). The term "default" is commonly defined to mean "failure to fulfill an obligation, esp. to repay a loan." NEW OXFORD AMERICAN DICTIONARY 453 (3d ed. 2010); see also BLACK'S LAW DICTIONARY 507 (10th ed. 2014) (defining "default" as the "omission or failure to perform a legal or contractual duty; esp. the failure to pay a debt when due"). Thus, unpaid taxes or utilities can be associated with default. But section 22.008 limits (i) the scope of persons to whom it applies, and (ii) the type of political subdivisions to which it applies.

First, subsection 22.008(a) applies only to an applicable officer "in default to the municipality," not the county (or another political subdivision). TEX. LOC. GOV'T CODE § 22.008(a) (emphasis added). Second, subsection 22.008(a) expressly applies to the officer "entrusted with the collection or custody of funds belonging to the municipality," not to others residing at the address used to establish residency and in whose name a utilities account is established. Id. § 22.008(a). "General-law municipalities . . . are political subdivisions created by the State and, as such, possess those powers and privileges that the State expressly confers upon them." Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004).

An officer's financial standing with a county is separate from his or her financial standing with the municipality. Similarly, a default on the part of someone (whether such person is an officer, or living with another officer), other than the officer who collects or has custody of municipal funds is unrelated to the officer's qualification for office. Thus, a court would likely find that applying the prohibition and fee of subsection 22.008(a) to (i) an applicable officer in default to the county, or (ii) an applicable officer residing with another person in whose name a utilities account in default is held, goes beyond the authority the statute provides in both instances.

Disqualification of Candidates and Elected Officers Under Certain Circumstances

Your remaining questions concern qualification for and disqualification from elected office. You ask whether the City may disallow candidates for elected office from having been "in arrears to the city or county for utilities three or more times in the twelve-month period preceding the filing of the application for a place on the ballot" or from "enter[ing] into default to the city or county" during their candidacy in order to qualify for office. Request Letter at 2.

"The Constitution and statutes of this state . . . prescribe the qualifications of candidates." Brown v. Meeks, 96 S.W.2d 839, 841–42 (Tex. App.—San Antonio 1936, writ dism'd). Unlike a home-rule municipality, which the Legislature empowered to "prescribe the qualifications . . . of office" for its officers, a Type A general-law municipality possesses no express authority to do the same. TEX. LOC. GOV'T CODE § 26.041(3). Instead, with regard to a Type A general-law municipality, the Legislature provided that "[t]o be eligible for the office of mayor . . . a person must be a registered voter and must have resided within the municipal limits for at least the 12 months preceding the election day" and that "[t]o be eligible for the office of alderman . . . a person must be a registered voter and must reside on election day in the ward from which the person may be elected."⁴ Id. § 22.032(a)–(b).

When the Legislature establishes the qualifications for public office, a political subdivision may not prescribe its own. See Brown, 96 S.W.2d at 842 (concluding that a commissioners court may not add to or take from the qualifications for constable set by the Legislature even though it may create new justice precincts from which a constable shall be elected); Tex. Att'y Gen. Op. No. KP-0196 (2018) at 2 (explaining that, despite a school board's broad authority to manage a school district, "the authority to regulate who may run for and hold the office of trustee belongs to the Legislature"). Because the Legislature has determined the qualifications for a Type A general-law municipality's governing body, a court would likely conclude that the City has no authority to add to those qualifications in the manner you describe.

Finally, you ask whether the City may "disqualify any elected official holding office that enters into default to the city or county during their term of office." Request Letter at 2. The Legislature articulated the circumstances that disqualify a member of a Type A general-law municipality's governing body from continuing to hold office. See TEX. LOC. GOV'T CODE § 22.008(b) (providing that a member "is automatically disqualified" from holding office if the member moves his or her residence to a location outside the municipality's corporate boundaries); see also id. § 22.041(a)-(b) (creating a vacancy in office "[i]f an alderman moves from the ward from which the alderman is elected" or if a member of the governing body "is absent for three regular consecutive meetings" unless specified circumstances exist). A Type A general-law municipality has no express authority to disqualify current officers from continuing to hold office. Instead, it has only general authority to "adopt an ordinance, act, law, or regulation, not inconsistent with state law, that is necessary for the government, interest, welfare, or good order of the municipality as a body politic." Id. § 51.012.

As previously stated, an officer's financial standing with a county is separate from his or her financial standing with the municipality. Thus, a court would likely find that section 51.012 does not authorize an ordinance disqualifying an officer on the basis of default to the county. And since the Legislature has already determined what disqualifies an elected officer from continuing to hold office, a court would likely find that an ordinance adding to those disqualifications is "inconsistent with state law" such that section 51.012 does not permit it.

³ CITY OF CUMBY, TEX., ORDINANCE NO. 72-7 (Dec. 6, 1972).

⁴ Section 141.001 of the Election Code establishes the general eligibility requirements to be a candidate for public office in Texas, such as citizenship, age, and residence. TEX. ELEC. CODE § 141.001(a)(1), (2), (5). The Election Code also includes disqualifications such as mental incapacity or conviction of a felony. Id. § 141.001(a)(3), (4).

S U M M A R Y

Local Government Code subsection 22.008(a) prohibits an officer of a Type A general-law municipality entrusted with the collection or custody of municipal funds from holding office while in default to the municipality until the amount, plus interest, is paid.

A court would likely conclude that applying subsection 22.008(a) to an officer in default to the county, or to an officer residing with another person in whose name a utilities account in default is held, goes beyond the authority the statute provides.

Because the Legislature has determined the qualifications for a Type A general-law municipality's governing body, a court would likely conclude that the City has no authority to add to those qualifications.

A court would likely find that the general ordinance authority found in section 51.012 of the Local Government Code does not authorize an ordinance disqualifying an officer on the basis of default to the county. And since the Legislature has already determined what disqualifies an elected officer from continuing to hold office, a court would likely find that an ordinance adding to those disqualifications is "inconsistent with state law" such that section 51.012 does not permit it.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee