Municipal Corner

A political subdivision has (1) jurisdiction over a portion of the state, (2) a governing body comprised of members locally elected or appointed, and (3) the power to assess and collect taxes. Tex. Att’y Gen. Op. No. JS-0007 (2023).

The Kerr County Attorney requested a Texas Attorney General opinion regarding whether a volunteer fire department is a political subdivision for purposes of a land exchange with a county under Texas Local Government Code subsection 263.006(e). The Attorney General determined that a court would likely conclude a volunteer fire department organized as a nonprofit entity is not a political subdivision within the scope of subsection 263.006(e).

Chapter 263 does not define the term “political subdivision,” so the Attorney General referred to the definition of a “political subdivision” provided in Guar. Petroleum Corp. v. Armstrong, 609 S.W.2d 529, 531 (Tex. 1980). In this case, the Texas Supreme Court stated that a “political subdivision” has three attributes:
(1) jurisdiction over a portion of the state, as opposed to jurisdiction throughout the state; (2) a governing body comprised of members who are locally elected or appointed by locally elected officials; and (3) the power to assess and collect taxes.

The Attorney General considered that state law does not provide for a volunteer fire department’s creation, government, or general powers (i.e., its jurisdiction over the state); that governing members are not required to be elected or appointed by locally elected officials; and that a nonprofit corporation is not authorized to assess and collect taxes. Accordingly, the Attorney General determined that a volunteer firefighter does not fit the definition of “political subdivision” provided by the Texas Supreme Court.

A municipal ordinance is preempted to the extent that it is inconsistent with state law. Tex. Att’y Gen. Op. No. KP-0446 (2023).

State Senator Brandon Creighton requested a Texas Attorney General opinion regarding the power of the Galveston Park Board of Trustees (the “Park Board”) under Texas Local Government Code Chapter 306 and its ability to use the City of Galveston’s (the “City’s”) hotel occupancy tax. Senator Creighton asked whether the City may (1) limit the Park Board’s powers granted by the state, (2) exercise control over hotel occupancy tax funds appropriated to the Park Board, and (3) remove previous parks and facilities designations.

First, the Attorney General reinforced that a municipal ordinance is preempted to the extent it is inconsistent with state law. Absent an express statement of preemption by the state legislature, the Texas Constitution prohibits city ordinances that conflict with state law. Accordingly, the Attorney General determined that the City may not limit the powers granted to the Park Board by the Texas Local Government Code because such a limitation would conflict with Local Government Code Chapter 306. Further, the Attorney General determined that, because the Legislature has not addressed whether parks and facilities may be removed from a park board’s management and control, a court would likely find that state law does not preempt the City from doing so.

Second, the Attorney General addressed use of the hotel occupancy tax and determined that the extent to which a municipality may exercise control over use of hotel occupancy funds after the funds are appropriated to a park board is determined by a contract governing the disbursement of funds. Therefore, whether the City may exercise control over appropriated funds is dependent on its contractual agreement with the Park Board.

A special district may not appoint more members to a district’s board of directors than are permitted by statute. Tex. Att’y Gen. Op. No. KP-0450 (2023).

The Hood County Attorney requested a Texas Attorney General opinion regarding whether Texas Local Government Code Chapter 383 authorizes the Hood County Development District No. 1 (the “District”) board of directors to appoint a sixth director. The Attorney General determined that a county development district may not add a sixth director because Chapter 383 establishes that a county development district should be governed by only five directors.

The Attorney General interpreted provisions in Chapter 383 related to the government of county development districts by looking at their plain language and construing the text in light of the statute as a whole. Based on this analysis, the Attorney General determined that language in subsection 383.048(d), allowing a district to appoint “another director” to “assist the secretary,” could not be construed as independent authority for the District to add an additional board member in context of the chapter as a whole.

Madison Huerta is an Associate in the Firm’s Governmental Relations, Water, and Districts Practice Groups. If you would like additional information or have questions related to these or other matters, please contact Madison at 512.322.5825 or mhuerta@lglawfirm.com.