ATTORNEY GENERALOF TEXAS 

GREG ABBOTT 

May l&2006 

The Honorable David Swinford 

Chair, Committee on State Affairs 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 78768-2910 

Opinion No. GA-0433 

Re: Validity of a charter provision that permits 

a home-rule city to amend its charter by 

ordinance (RQ-0416-GA) 

Dear Representative Swinford: 

You ask about the validity of a charter provision that permits a home-rule city to amend its 

charter by ordinance.’ Though this office generally refrains from construing municipal charters and 

ordinances, we do so when, like here, the question is whether a charter provision or ordinance is in 

conflict with state or federal law. Tex. Att’y Gen. Op. No. GA-0217 (2004) at 4-5. 

Your question concerns the charter for the City of Dumas (the “City”). A letter to you from 

the Dumas city manager states that in 1993 the City’s voters, “in a duly called city charter 

amendment election, approved an amendment to the home rule charter which purports to give the 

city commission the authority to amend the charter by ordinance:“* As a result, the City’s charter 

now reads in relevant part: 

Amendments to the charter may be framed and proposed as (a) in the 

manner provided by law, or (b) ~by ordinance ofthe city commission 

containing the full text of the proposed amendment and effective 

upon adoption, or(c) by recommendation of a charter commission by 

ordinance, or (d) by petition of 25 percent or more of the registered 

voters of the city. 

City of Dumas Letter, supra note 2, at 1. The City has used this provision to amend the charter by 

ordinance on one occasion, in 1995, “to establish the current system of staggered, three-year terms 

for city eommissioners.” Id. at l-2. Thus, the City asks the following two questions: 

‘Letter from Honorable David Swinford, Chair, Committee on State Affairs, Texas House of Representatives, 

to Honorable Greg Abbott, Attorney General of Texas (Oct. 27, 2005) (on tile with the Opinion Committee, aI& 

available af hitp:Nwww.oag.state.tx.us) [hereinafter Request Letter]. 

ZLetter i?om Vince DiPiazza, City Manager, City of Dumas, to Honorable David Swinford, Chair, Committee 

on State Affairs, Texas House of Representatives, at 1 (Sept. 30,2005) (attached to the Request Letter) [hereinafter City 

of Dumas Letter]. 
The Honorable David Swinford - Page 2 (GA-0433) 

1) 1s the provision in the city charter granting authority to the city 

commission to amend the charter by ordinance legal? 

2) If the referenced provision is illegal, what does that do to the 

subsequently enacted charter provision establishing terms of offtce 

for the city commission? 

Id. at 2. 

The City is a home-rule municipality, see id. at 1 (questioning the validity of an amendment 

to its home-rule charter), and as such it “is empowered to adopt or amend its charter in any manner 

in which it may desire, consistent and in accordance with the state constitution and the general laws 

ofthis State.” Burch v. City ofSanAntonio, 518 S.W.2d 540,543 (Tex. 1975); see TEX. CONST. art. 

XI, $5 (authorizing and governing the creation of home-rule municipalities). Article XI, section 5 

of the Texas Constitution authorizes home-rule municipalities, “by a majority vote of the qualzj?ed 

voters of said city, at an election held for that purpose, [to] adopt or amend their charters.” TEX. 

CONST. art. XI, § 5 (emphasis added). That is, this provision’s language requires that each 

amendment to a city charter be submitted to city voters at an election called for that purpose. See 

TEX. Lot. GOV'T CODE ANN. $5 9.004, ,005 (Vernon 1999) (implementing article XI, section 5 

requiring charter amendments to be submitted to city voters). Here, the charter was amended to 

permitthe Cityto amendits charterwithout submitting proposed amendments to the qualifiedvoters, 

which amendment contradicts the plain language of the constitution. Thus, in answer to your first 

question, the City charter provision granting authority to amend the charter by ordinance is invalid 

because it is inconsistent with the constitutional requirement that all charter amendments be adopted 

by a majority of a city’s qualified voters. 

The City also asks about the effect on the charter amendment adopted by ordinance providing 

for staggered terms for its commissioners-if the amendment by ordinance provision is invalid. 

See City of Dumas Letter, supra note 2, at 2. Municipal laws inconsistent with state law are void 

ab initio. City of Wink v. GrzyJth Amusement Co., 100 S.W.2d 695, 698 (Tex. 1936). The City 

therefore had no authority in 1995 to amend by ordinance the commissioners’ term limits. See id. 

at 698. Consequently, the City’s charter was not amended in 1995; rather, the charter continues to 

mandate commissioners’ term limits as it did prior to the invalid 1995 amendment. No validating 

legislation changes this result. See Majhew v. Town of Sunnyvale, 774 S.W.2d 284, 296 (Tex. 

App.-Dallas 1989, writ denied) (validation statutes may not cure constitutional defects). 
The Honorable David Swinford - Page 3 (GA-0433) 

SUMMARY 

An amendment to a home-rule city charter that purports to grant 

authority to the city to amend its charter by ordinance is void because 

it is inconsistent with article XI, section 5 of the Texas Constitution, 

which requires all charter amendments to be approved by a majority of 

qualified voters in the city. Thus, a charter amendment adopted by 

ordinance is invalid. 

BARRY R. MCBEE 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Daniel C. Bradford 

Assistant Attorney General, Opinion Committee