Article XI, Section 5 of the Texas Constitution

From Texas Legal Guide
Jump to navigation Jump to search

As amended November 8, 2011:

(a) Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters. If the number of inhabitants of cities that have adopted or amended their charters under this section is reduced to five thousand (5000) or fewer, the cities still may amend their charters by a majority vote of the qualified voters of said city at an election held for that purpose. The adoption or amendment of charters is subject to such limitations as may be prescribed by the Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State. Said cities may levy, assess and collect such taxes as may be authorized by law or by their charters; but no tax for any purpose shall ever be lawful for any one year, which shall exceed two and one-half per cent. of the taxable property of such city, and no debt shall ever be created by any city, unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and creating a sinking fund of at least two per cent. thereon, except as provided by Subsection (b). Furthermore, no city charter shall be altered, amended or repealed oftener than every two years.

(b) To increase efficiency and effectiveness to the greatest extent possible, the legislature may by general law authorize cities to enter into interlocal contracts with other cities or counties without meeting the assessment and sinking fund requirements under Subsection (a).

Editor Comments

As adopted in 1876, this section read: "Cities having more than ten thousand inhabitants may have their charters granted or amended by special act of the Legislature, and may levy, assess and collect such taxes as may be authorized by law, but no tax for any purpose shall ever be lawful for any one year, which shall exceed two and one-half per cent. of the taxable property of such city, and no debt shall ever be created by any city, unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and create a sinking fund of at least two per cent. thereon."

In 1909, the section was amended by decreasing the population threshold to five thousand.

In 1912, the section was amended to authorize charter adoption and amendment by local vote.

Since that time, the section has been commonly referred to as the "home-rule amendment."

In 1934, an amendment was defeated that permitted charter amendment every twelve months.

In 1991, the section was amended to address cities that no longer have five thousand people.

In 2011, the section was amended by adding Subsection (b) governing "interlocal" contracts.

Steve Smith

Recent Decisions

  • City of Laredo v. Laredo Merch. Ass'n, 550 S.W.3d 586, 589-90 (Tex. 2018) (footnotes omitted) ("The Texas Constitution states that city ordinances cannot conflict with state law. The Texas Solid Waste Disposal Act ('the Act') provides that '[a] local government . . . . Both sides of the debate and the many amici curiae who have weighed in assert public-policy arguments raising economic, environmental, and uniformity concerns. But those arguments are not ours to resolve. 'The wisdom or expediency of the law is the Legislature’s prerogative, not ours.' We must take statutes as they are written, and the one before us is written quite clearly. Its limitation on local control encompasses the ordinance.")
  • S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013) ("TEX. CONST. art. XI, § 5. Home-rule cities have the full power of self-government and look to the Legislature, not for grants of power, but only for limitations on their powers. Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex.1975) (citing Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282 (1948)). '[I]f the Legislature decides to preempt a subject matter normally within a home-rule city's broad powers, it must do so with 'unmistakable clarity.'' In re Sanchez, 81 S.W.3d 794, 796 (Tex.2002) (quoting Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex.1993)).")
  • City of Houston v. Williams, 353 S.W.3d 128, 139-40 (Tex. 2011) ("Our Constitution ordains that 'no debt shall ever be created by any city, unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and create a sinking fund . . . . [W]e long ago noted that this prohibition does not extend to 'that class of pecuniary obligations in good faith intended to be, and lawfully, payable out of either the current revenues for the year of the contract or any other fund within the immediate control' of the municipality. McNeill v. City of Waco, 89 Tex. 83, 33 S.W. 322, 323-24 (1895). In practice, municipal contract expenses can be covered with current revenues.")
  • Proctor v. Andrews, 972 S.W.2d 729, 733-34 (Tex. 1998) ("The City argues that section 143.057(d) violates the constitutional authority granted to home rule cities under Article XI, Section 5 of the Texas Constitution by infringing on the City's governmental . . . . 'Municipal corporations [including home rule cities] are created for the exercise of certain functions of government. . . . [I]n so far as their character is governmental, they are agencies of the state, and subject to state control.' Yett v. Cook, 115 Tex. 205, 281 S.W. 837, 842 (1926). We therefore hold that section 143.057 of the Civil Service Act does not unconstitutionally infringe on the City's home rule authority to discipline its police officers.")

Historic Decisions

  • City of Richardson v. Responsible Dog Owners of Texas, 794 S.W.2d 17, 19 (Tex. 1990) ("Under article XI, section 5 of the Texas Constitution, home-rule cities have broad discretionary powers provided that no ordinance 'shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State . . . .' Thus, the mere fact that the legislature has enacted a law addressing a subject does not mean that the subject matter is completely preempted. When there is no conflict between a state law and a city ordinance, the ordinance is not void. . . . There is no repugnancy between the City's comprehensive animal control ordinance and section 42.12.")
  • Burch v. City of San Antonio, 518 S.W.2d 540, 543 (Tex. 1975) ("[T]he citizens of San Antonio have elected to govern themselves under the provisions of the Home Rule Amendment to the Texas Constitution . . . . The pertinent inquiry therefore is whether the City of San Antonio, having all powers not denied to it by the Texas Constitution and the general laws of this State, has the power to delegate its constitutional grant of the power of eminent domain to the Water Works Board of Trustees. Determinative of this question will be an examination of several general laws enacted by the legislature directed towards implementation of the power of eminent domain by cities and towns within Texas.")
  • State ex rel. Rose v. City of La Porte, 386 S.W.2d 782, 786 (Tex. 1965) ("The decisions of this Court in both Castleman and Magnolia Park are consistent with and carry into effect the intention of the people when the Home-Rule Amendment was adopted. It would be wholly unrealistic to hold that the electorate at the time of the adoption of the amendment intended that the census rule should control the determination of population. We are of the opinion, and so hold, that the population determination should be lodged with the governing body of the city, where the constitutional and the statutory enactments, as here involved, fail to specifically prescribe a method for determining the population.")
  • Glass v. Smith, 244 S.W.2d 645, 649 (Tex. 1951) ("When the people exercise their rights and powers under the initiative provisions of a city charter they are acting as and become in fact the legislative branch of the municipal government. Accordingly, city charters frequently expressly limit the right of initiative to legislative matters. But even though a charter contains no such express limitation—and there is none in the Charter of the City of Austin—the limitation is usually read into the charter by the courts. . . . It follows that the Legislature may by general law withdraw a particular subject from the field in which the initiatory process is operative. Again, the field may be limited by the city charter itself.")
  • Wheeler v. City of Brownsville, 220 S.W.2d 457, 464 (Tex. 1949) ("Whether it was necessary for the city to comply with section 5 of article XI before the assumption agreement could be binding upon the city depends upon . . . . The debt created by virtue of the annexation of the property in this case was not directly created by the city either in the performance of its functions of municipal government or by contract, but was incidental to the annexation of the territory within the water district, and was for the purpose of adjusting the equities of the situation resulting from the creation of a common orbit of power between the city and the district over the same territory. The city's contention is overruled.")
  • Forwood v. City of Taylor, 214 S.W.2d 282, 286-87 (Tex. 1948) ("It was the purpose of the Home-Rule Amendment, Art. XI, Sec. 5, and the enabling statutes, supra, to bestow upon accepting cities and towns of more than 5000 population full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers. Yellow Cab . . . . Therefore, the City of Taylor, as a home-rule city, in the exercise of its full power of local self-government, was authorized to create a board of equalization of nine members.")
  • City of Houston v. McCraw, 113 S.W.2d 1215, 1219 (Tex. 1938) ("It is true that franchise taxes, parking meter revenues, occupation taxes, fines, and things of that kind may fluctuate, and that such revenues are in a sense uncertain; but so are all human institutions and all sources of revenue, public and private. Even ad valorem revenues . . . . In this case we simply hold that where a [home-rule] city has sources of revenue which are reasonably stable and sure, other than ad valorem taxes, the Attorney General should consider such other sources in passing on the question as to whether or not there is, and will be, sufficient margin of ad valorem taxing power to pay the bonds presented for approval.")
  • City of Beaumont v. Fall, 291 S.W. 202, 205 (Tex. 1927) ("[B]oth courts of last resort in this state, as well as this section of the Commission of Appeals, have definitely decided that cities cannot enact laws or ordinances which contravene general laws upon the same subject which are applicable to all cities. The Legislature was prohibited by section 56 of article 3 of the Constitution from passing any such ordinance for a city by special act. Under the Home Rule Amendment, cities, acting for themselves, are likewise expressly restricted. It has never been the intention of the people of this state to permit one city to enforce a law which is contrary to a general law governing other cities of the same class.")
  • Nalle v. City of Austin, 22 S.W. 668, 672 (Tex. 1893) ("In order for a city in this state to create a bonded indebtedness, the power must be conferred by statute. Section 5, art. 11, of the constitution, empowers the legislature to confer authority . . . . This does not confer authority upon a city to create a bonded indebtedness. It merely authorizes the legislature to grant the power, and prescribes a limitation upon the grant. Its purpose was to fix a limit upon the power of taxation for municipal purposes, and to hedge it about with salutary restrictions. At the time the city council passed the ordinance which provided for the issue of the bonds in controversy, the city was governed by virtue of a special charter.")
  • Werner v. City of Galveston, 7 S.W. 726, 727 (Tex. 1888) ("It is further claimed that the act is inoperative as to all cities having over 10,000 inhabitants, because of section 5, art. 11, Const., which provides that such cities 'may have their charters granted or annulled by special act . . . .' But we think that it was not intended by this section to prohibit the legislature from providing for the incorporation of such cities by general law, but to confer authority to grant special charters. We cannot presume that the framers of the constitution meant to prohibit the law-making power from passing a general act in reference to a special matter, which should apply alike to every municipal corporation in the state.")

Library Resources

Online Resources