Attorney General Opinion JM-0466

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 Texas House of Representatives P. 0. Box 2910 Austin, Texas 78769 Opinion No. JM-466 Re: Whether a home rule city may amend its ~charter within less than two fears of a pre- vious charter amendment 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 question about the frequency with which a home rule city may 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 cities of more than 5,000 inhabitants, provides in 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 ':o such limitations as may be prescribed by the Legislature . . . and provided further, that no c!ity charter shall be altered. amended or repcam-bftener than every two years. (Emphasis added). Tex. Const. art. XI. 55. Article 1165, V.T.C.S., reiterates the constitutional reqrd.rements quoted above. Section 312.011 of the Government Code, which defines various cormon words used in. the civil statutes, provides as follows: The Eollowing definitions apply unless a different. meaning is apparent from the context of the statute in which the word appears: . . . . (18) 'Year' means a calendar year. p. 2134 Honorable Clint Hackney - I'age 2 (JM-466) Under this statute and judicial constructions, "one year" maam "a calendar year." Seibert v. 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 Insurance Co., 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 issuance on 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] calendar month 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) determined the earliest date that a home rule city Icharter election could be held following a charter amendment election held on October 16, 1945. It concluded that another charter amendment election could not be held prior to October 16. 1947. In the case you inquire about , ths home rule city may not hold an election to 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 School District, 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 statute designating the dates that elections may be held and that these provisions should be harmonized. Section 41.001 of the Election Code provides as follows: (a) Except as otherwise provided by this sub- chapter, each general or special election in this state shall be held on one of the following dates: (1) the third Saturday in January; (2) the first Saturday in April; (3) the second Saturday in August; or (4) the first Tuesday after the first Monday In November. Election Code 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 Election Code are not in conflict. A city can comply with both provisions by holding the election on tht! first authorized date after the lapse of p. 2135 Honorable Clint Aackney - :?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-year requirement, 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); Attorney General Opinion M-874 (1971). Article XI. section 5 of the Texas Constitution and article 1165, V.T.C.S.. bar the hone rule city in ques~tion from holding an election to amend its charter prior to April 7. 1986. SUMMARY Article XI, section 5 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 General of Texas JACK BIGETOWRR First Assistant Attorney General MARYKELLER Executive Assistant Attorney General ROBERT GRAY Special Assistant Attorney General RICX GIIPIN Chairmen, Opinion Cosmitttre Prepared by Susan L. Garr:lson Assistant Attorney General p. 2136