DAN MORALES 

.4TTOR\EI GEXEML 

Office of tip 8ttornep @eneral 

smite of asas 

June 17, 1992 

Honorable George Pierce 

Chairman 

Urban Affairs Committee 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78768-2910 

Opinion No. DM-130 

Re: Whether a home rule city council 

member is barred by state law from 

voting on zoning matters affecting 

territory which includes that member’s 

residence (RQ-346) 

Dear Representative Pierce: 

You ask whether a home rule city council member is barred from voting on a 

zoning matter affecting territory in which the member owns a residence. 

Section 171.004 of the Local Government Code provides in pertinent part: 

(a) If a local public official has a substantial interest in 

. . . real property, the official shall file, before a vote or 

decision on any matter involving. . . the real property, an 

affidavit stating the nature and extent of the interest and 

shall abstain from further participation in the matter if: 

. . . . 

(2) in the case of a substantial interest in real property, 

it is reasonably foreseeable that an action on the matter 

will have a special economic effect on the value of the 

property, distinguishable from its effect on the public. 

(b) The affidavit must be filed with the official record 

keeper of the governmental entity. 

p. 672 
Honorable George Pierce - Page 2 (DM-130) 

(c) If a local public official is required to file and does file 

an affidavit under Subsection (a), the official is not required 

to abstain from further participation in the matter requiring 

the affidavit if a majority of the members of the 

governmental entity of which the official is a member is 

composed of persons who are likewise required to tile and 

who do file affidavits of similar interests on the same official 

action. 

We think it is clear that the provisions of section 171.004 would, in certain 

circumstances, bar a city council member’s voting on a zoning matter affecting territory in which the member’s residence is located. A home rule city council member 

is clearly a “local public offtcial” within the meaning of section 171.004. See Local 

Gov’t Code 0 171.001( 1) (defining “local public official,” for purposes of chapter 171, 

to include “a member of the governing body . . . of any . . :municipality”). A zoning 

matter affecting territory in which the member’s residence was located would, we 

think, clearly “involve” such “real property,” within the meaning of section 171.004. 

A council member’s interest in his residence would be a “substantial interest” in 

“real property” within the meaning of section 171.004 if his real property interest in 

the residence amounted to “equitable or legal ownership with a fair market value of 

$2,500 or more.” Id 9 171.002(b) (defining “substantial interest in real property” for 

purposes of the chapter). 

In view of the provisions of subsection (a)(2) of section 171.004, even where 

a council member had a “substantial interest” in his residence, he would be required 

to abstain from voting in the case of a zoning matter affecting territory in which the 

residence was located only if it was “reasonably foreseeable that an action on the 

matter will have a special economic effect on the value of the property, 

distinguishable from its effect on the public.” And, even. in such a case, the 

abstention requirement would not apply it, under subsection (c), the member had 

filed the affidavit required by the section and a majority of the council also had 

similar interests in the matter and’had filed the appropriate affidavits. Whether it 

would be “reasonably foreseeable,” under subsection (a)(2), that an action on a 

voting matter will have a “special economic effect” on the value of the member’s 

residence “distinguishable from its effect on the public,” so as to trigger the affidavit 

and abstention requirements of the section, would, of course, depend on the facts of 

the particular case. 

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Honorable George Pierce - Page 3 (DM-130) 

You also ask whether it is “permissible or proper” for a council member to 

abstain from voting on a zoning matter affecting territory in which his residence is 

located. We find nothing in state law which would restrict a council member’s 

abstaining under such circumstances. Particularly given the penal provisions, in 

section 171.003, for “knowingly” violating section 171.004, it might, indeed, be 

advisable for a member to comply with the affidavit and abstention requirements of 

the latter section if he is in doubt as to whether his failure to do so will place him in 

violation of the section. 

We caution, finally, that we limit our discussion here to state law. Notably 

subsection (a) of section 171.007 provides that the provisions of chapter 171, which 

we have discussed above with regard to your questions, “preempt[] the common law 

of conflict of interests as applied to local public officials.” However, subsection (b) 

of that section provides that the chapter “is cumulative of municipal charter 

provisions and municipal ordinances defining and prohibiting conflicts of interest.” 

Therefore, the charter provisions and ordinances of particular cities should be 

consulted in order to determine if they place additional restrictions, to those 

effected by state law, on council members’ participation in the matters you ask. 

SUMMARY 

Under certain circumstances, the provisions of chapter 171 

of the Local Government Code would require a home rule city 

council member to abstain from voting on a zoning matter 

affecting territory in which the member’s residence is located. 

DAN MORALES 

Attorney General of Texas 

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Honorable George Pierce - Page 4 (DM-13 0 1 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 675