OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

March $2001 The Honorable Chad Cowan Jones County Attorney Third Floor Courthouse P.O. Box 68 Anson, Texas 79501 Opinion No. JC-035 1 Re: Whether the City of Anson is ahome-rule municipality (RQ-0295-JC)
Dear Mr. Cowan:

‘you have requested our opinion astowhether the City ofAnson isahome-rule municipality. For the reasons set forth below, we conclude that itis. We begin with asummary ofthe information you have provided us.’ On April 6,1920, voters inthe City ofAnson approved the adoption of ahome-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 ofApril, A.D. 1920, by the following vote, towit: For the Adoption of the Charter-l 19 votes. Against the Adoption of the Charter-50 votes. Memorandum, note 1(Exhibit A). On July 29,192 1,the Secretary of State certified the filing ofthe charter, noting the following:

Itwill bepresumed that acity council, orgoverning body ofany 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).

‘SeeMemorandum from Honorable Chad Cowan, Jones County Attorney, toHonorable John Comyn, Attorney General of Texas (Oct. 13,200O) (on file with Opinion Committee) [hereinafter Memorandum].The Honorable Chad Cowan - Page 2 (JC-035 1)

Cities having apopulation 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’TCODE 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 apopulation of 5000 in 1920, and has never, in fact, had apopulation ofmore than 5000. The 1990 decennial census shows the population ofAnson to be 2644. See 1 BUREAU OFTHE CENSUS,

U.S. DEP’TOFCOMMERCE, 1990 CENSUS

OFPOPULA~ON: General Population Characteristics: Texas 4 (1992) (Population of City of Anson: 2644). Your question iswhether the city is atthe present time ahome-rule municipality under article XI, section 5,or ageneral-law municipality. A 1965 decision ofthe Texas Supreme Court provides the answer to your question. In State ex rel.Rose v. City ofLa Porte, 386 S.W.2d 782 (Tex. 1965), the state brought aquo warrant0 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 apopulation of more than 5000. Both the appellate court and the Texas Supreme Court overturned that decision, finding that La Porte was ahome-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,ofthe 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. “Itwould be wholly unrealistic,” the court found, “tohold that the electorate atthe time ofthe adoption ofthe amendment intended that the census rule should control the determination ofpopulation.” Id. at 786. Thus, the court concluded that:

the matter ofpopulation determination isplaced directly inthe hands of the City’s governing body, . . .and. . .when the governing body once ascertained the fact that La Porte had apopulation ofmore 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 ofState noted in certifying the municipal charter, itmust bepresumed that, when a city’s governing body orders a charter election that is available only to acity of moreThe Honorable Chad Cowan - Page 3 (JC-0351)

than 5000 inhabitants, such governing body has first ascertained that its population exceeds that figure. See id. (Exhibit B at2). The Texas Supreme Court’s decision in City ofLa 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 ofthe 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.The Honorable Chad Cowan - Page 4 (JC-0351)

SUMMARY
The City of Anson is ahome-rule municipality, and has been so since April 6,192O.

Attorney General of Texas
ANDY TAYLOR First Assistant Attorney General CLARK KENT ERWIN Deputy Attorney General -General Counsel SUSAN D. GUSKY Chair, Opinion Committee Rick Gilpin Assistant Attorney General - Opinion Committee