AG Opinions and Requests

February 05, 2021

Legislative News

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TAC has highlighted recent Attorney General Opinions and Requests for Opinions of interest to counties.
 
Attorney General Opinions
 
KP-0347: Public access to the Texas Capitol and whether members of the Legislature may vote on legislation from a location other than their respective chambers (RQ-0389-KP). Article III, section 16 of the Texas Constitution requires that sessions of each House be open, except when the Senate is in executive session. Thus, when the Legislature meets for session in the Capitol, it must be open and accessible to the public. The First Amendment of the U.S. Constitution prohibits laws that abridge the freedom of speech or the right of the people to petition the government for a redress of grievances. However, to the extent that the Capitol is a limited public forum, the Legislature may impose reasonable content-neutral conditions for the time, place and manner of access. Article III, section 10 establishes a quorum of two-thirds of each House to do business, and it ties quorum to “attendance.” A court could construe this term and others in the Texas Constitution to require physical presence in the chamber in order to attend and be counted for purposes of a quorum. Article III, section 11 of the Texas Constitution provides that each “House may determine the rules of its own proceedings.” However, the House and Senate must determine procedures, consistent with the Texas and U.S. Constitutions, for providing public access, conducting public testimony, debate and voting on legislation during the legislative session. The rules set by the House and Senate have historically conformed to constitutional restraints requiring voting and debate to occur in person.
 
KP-0349: Information a local jurisdiction must provide if denying or conditionally approving a plat under chapters 212 and 232 of the Local Government Code and the authority of local governments to establish prerequisites to the submission of a plat application (RQ-0367-KP). Sections 212.0091 and 232.0026 of the Local Government Code require local jurisdictions to provide specific reasons and legal citations for denying or conditionally approving a plan or plat.
 
KP-0350: Whether hotel occupancy tax revenue may be used to fund a public space at an apartment complex under section 351.101 of the Tax Code (RQ-0368-KP). Chapter 351 of the Tax Code authorizes an expenditure of hotel occupancy tax revenue in the direct promotion of tourism and the convention and hotel industry, provided the expenditure is for one of the specified uses listed in the statute. To the extent a particular agreement expressly provides that the public space is intended to benefit the residents of the apartment complex and does not promote tourism and the convention and hotel industry, it does not satisfy section 351.101. While it is ultimately a fact question, a court is unlikely to determine that such an expenditure is authorized.
 
KP-0351: Whether yard signs and a social media post qualify as an “announcement” for candidacy for another office, thus triggering the automatic resignation provision of article XI, section 11 of the Texas Constitution (RQ-0369-KP).  Article XVI, section 65 of the Texas Constitution provides that certain district or county officers automatically resign from office upon announcing their candidacy for any other office of profit or trust under the laws of this State or the United States. Article XI, section 11 applies this provision to officers of a home-rule city that hold a term longer than two years. To qualify as an announcement under these provisions, the person’s statement must be made in a public setting and be clear and unequivocal. Whether any given statement satisfies these requirements will involve questions of fact, but to the extent a person posts campaign signs on public property, visible to the general public, urging his or her election, a court would likely conclude that such acts constitute an announcement for purposes of article XVI, section 65. Article XI, section 11 of the Texas Constitution requires that any vacancy in a home-rule municipal office with a term exceeding two years be filled by majority vote of the qualified voters at a special election. If a city councilmember automatically resigned within 120 days of the general election in November, the special election to fill the vacancy should be held on the same day as the general election. Article XVI, section 17 of the Texas Constitution provides that all officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified. Pursuant to this provision, office holders subject to the automatic resignation provision hold over in office until a successor is duly qualified. A city councilmember may not rescind an announcement for candidacy to avoid application of the automatic resignation provision.
 
Request for Attorney General Opinion
 
RQ-0396-KP: Mr. Rusty Friedrichs, Goliad County Auditor. Residency requirement to become a candidate for county attorney.