## The Attorney General of Texas

JIM MATTOX Attorney General April 4, 1986

Supreme Court Building P. 0. Box 12548 Austin, TX. 78711.2543 5121475-2501 Telex 9101674.1387 Telecopier 512I475-0266 Honorable Clint ~a&my ChailtlUll Committee

on Elect:&w TexasHouse of Representatives P. 0. Box 2910 Austin,

Texas 78769 Opinion No. JM-466 Re: Whethera home rule city may amend its~charter within less than two fears of a previous charteramendment
714 Jackson, Suite 700 Dallas, TX. 75202.4506 2141742-8944

4824 Alberta Ave., Suite 160 El Paso, TX. 799052793 91515334464

1001 Texas, Suite 700 Houston, TX. 77002-3111 7132235886

608 Broadway, Suite 312 Lubbock, TX. 79401-3479 8OW747.5238

4309 N. Tenth. Suite B McAllen. TX. 78501-1685 512/682-4547

200 Main Plaza. Suite 400 San Antonio, TX. 782052797 512l225-4191

An Equal OppOrtUnitYI Affirmative Action Employer Dear Representative! Hackney: You ask the following questionabout the frequency with which a home rule citymay amend its charter:

May a home rule city seek to amend its charter on April 5, 1986 whan in fact it had sought to amend and did amend is charter by an election held on Ihpril

7. 1984? Article

XI, swtion 5 of the Texas &stitution, which authorizes home rule for citiesof more than 5,000 inhabitants, providesin part: Citiell having more than five thousand (5000) inhabitants may, by a majority vote of the qualified

votirs of said city, at ao election held for that 'purpose,

adopt or amend their charters, subject ':osuch limitations as may be prescribed by the Legislature
. . . and provided further, that no c!ity

charter shall be altered.amendedor repcam-bftener than every two years. (Emphasis added). Tex. Const. art. XI. 55. Article 1165, V.T.C.S., reiterates the constitutional

reqrd.rements

quotedabove. Section 312.011 of the GovernmentCode, which defines various cormon words used in.

the civil statutes, provides

as follows: The Eollowing definitions apply unless a different.

meaning is apparentfrom the contextof the statutein which the word appears:

. . . . (18) 'Year'

means a calendar

year.

p. 2134Honorable ClintHackney - I'age 2 (JM-466)

Under this statute and judicial constructions, "one year" maam "a calendar

year." Seibertv. Sally, 238 S.W.Zd 266 (Tsx. Civ. App. - Galveston 1951, no A calendar year is 365 days or 366 in a leap year. Douglas v. Acacia Mutual Life InsuranceCo., 118 S.W.Zd 643 (Tex. Civ. App. - Waco-1938. writ ref'd). Thus, a suit to cancel a life insurance

policy filed 011

February 29, 1936,was filed within one year of the policy's issuanceon March 1, 1935. Id. See also McGaughy v. City of Richardson.599 S.W.Zd 113 (Tex.Tv. App. - Dallas 1980, writ ref'd n-x ("[a] calendarmonth rum from the glveu day in one month to the day of the corresponding number in the next mouth"). Attorney General Opinion O-7211 (1946) determinedthe earliest date that a home rule city Icharter electioncould be held following a charter amendmentelectionheld on October 16, 1945. It concluded that another charter amendmentelection could not be held prior to October 16. 1947. In the case you inquire about , ths home rule city may not hold an electionto amend its charter before April 7, 1986. An election held prior to that date will be invalid. See Cartledge

v. Wortham, 153 S.W. 297 (Tex. 1913); Clark v. Stubbs, 131 S.W.2d 663 (Tex. Civ.~ App. - Austin 1939,no writ);, V. Ingleside Independent

SchoolDistrict, 220 S.W. 350 (Tax.C1v.G: - Fort Worth 1920, writ dism'd);

Attorney Gen&al Opinions

MW-380 (1981);

V-1109 (1950). It is suggested

that article 1165,V.T.C.S.,is in conflict with the statutedesignating the dates that elections may be held and that theseprovisions

should be harmonized. Section41.001of the Election Code provides

as follows: (a) Except as otherwise provided

by this subchapter,each generalor specialelectionin this state shallbe held on one of the following dates: (1) the third Saturdayin January; (2) the first Saturdayin April; (3) the secondSaturdayin August;or (4) the firstTuesdayafter the first Monday In November. ElectionCode 341.001 (art. 2.01 of the formar Election Code). The exceptions

do not encompass'home rule charter

amendment

elections. Article 1165,V.T.C.S.,and section 41.001 of the ElectionCode are not in conflict. A city can comply with both provisionsby holding the electionon tht! first authorized

date after the lapse of

p. 2135Honorable ClintAackney - :?age 3 (JM-466)

two years. Article 1165:, V.T.C.S., does not provide that charter amendment elections be h'cld precisely two years apart. Moreover, article XI. section 5 of ,the Texas Constitution, which Imposes the tvo-yearrequirement, cauus't be amended

by the enactsmut

of a statute. See Tex. Const. art. XVII, $1; Mears v. State, 520 S.W.Zd 380 (Tex. %. .App. 1975);

AttorneyGeneralOpinion M-874 (1971). ArticleXI. section 5 of the Texas Constitution and article 1165, V.T.C.S..bar the hone rule city in ques~tion from holding an electionto amend its charter

prior to April 7. 1986. SUMMARY Article

XI, section5 of the Texas Constitution and article 116!i,,

V.T.C.S..

bar a hone rule city from holding aa election to alter, amend, or repeal its city charter oftener than every two calendar

years. A calendar year equals 365 days or 366 days in leap year. gzti

HATTOX Attorney

Generalof Texas JACK BIGETOWRR **First** Assistant

Attorney

General MARYKELLER Executive

Assistant

Attorney

General ROBERTGRAY Special

Assistant

Attorney

General RICX GIIPIN Chairmen,

OpinionCosmitttre Prepared

by SusanL. Garr:lson Assistant

Attorney

General

p. 2136