                              ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                              September     12, 2005



The Honorable Jeri Yenne                                  Opinion No. GA-03 5 6
Brazoria County Criminal District Attorney
111 East Locust Street                                    Re: Retroactive      application of municipal        term
Angleton, Texas 775 15                                    limit provisions     (RQ-0327-GA)


Dear Ms. Yenne:

       On behalf of the Alvin City Attorney, you ask whether the term limit provisions of the Alvin
City Charter apply to combined service as city council member and mayor.’ You have submitted the
Alvin City Attorney’s letter on this matter.*

         You received a letter from a citizen of Alvin asking about the application of the term limit
provisions to the current mayor and forwarded it to the City Attorney for Alvin. See Request Letter,
supra note 1, at 1. The Alvin City Attorney subsequently reviewed records of past city charter
revisions and interviewed members of the 200 1 Charter Review Commission and other city officials
who attended Commission meetings. See id. at 2. She concluded that the city council “intended that
the term limit of an individual running for the elected office of Mayor was separate and exclusive
of any time served on the Council.” Katz Letter, supra note 2, at 2.

        The Alvin City Attorney has forwarded the following                 questions     to you, asking that you
request an attorney general opinion addressing them:

                  1.      Do term limits apply to combined terms of councilmember
                          and mayoral service?

                 2.        Are council District and At-Large positions                  considered
                           separate offices for term limit considerations?




           ‘Letter from Honorable Jeri Yenne, Brazoria County Criminal District Attorney, to Honorable Greg Abbott,
Texas Attorney General (Mar. 15,2005) (on file with Opinion Committee, also avadable at http://www.oag.state.tx.us)
[hereinafter Request Letter].

          2Letter from Bobbi J. Katz, Alvin City Attorney, to Mr. Jim Wiginton, Chief-Civil Division, Brazoria County
Attorney’s Office (Feb. 21, 2005) (attachment to Request Letter, Exhibit A) [hereinafter Katz Letter].
The Honorable Jeri Yenne - Page 2                        (GA-0356)




                 3.        What is the retroactive application of the term limit
                           provision? Does the 8 year term limit that became effective
                           May 2002 upon adoption of the charter revisions apply to
                           future service only?

Request Letter, supra note 1, at 2 (emphasis omitted). See also Katz Letter, supra note 2, at 1. Your
letter provides your analysis of and conclusions to these questions. See Request Letter, supra note
1, at 3-6.

          This office does not construe city charters unless the charter provision raises a question of
federal or state law. See Tex. Att’y Gen. Op. Nos. GA-0226 (2004) at 3, GA-0130 (2003) at 3,
GA-0068 (2003) at 2 n.2, JC-0143 (1999) at 3, JM-805 (1987) at 1 n. 1 (this office does not
ordinarily construe city charters, in deference to municipal officials), H- 10 14 ( 1977) (applicability
of city charter provisions to contract with county is to be determined by contracting parties). See
also Tex. Att’y Gen. Op. Nos. GA-0110 (2003) ( considering whether home-rule ordinance is
consistent with state statute); GA-0068 (2003) ( considering whether ethics ordinance proposed for
adoption by home-rule city is consistent with federal and state law). This office has issued opinion
request procedures stating that “[qluestions involving cities, independent school districts, or others
not specified in Sections 402.041-402.045 of the Government Code should be submitted by a
statutorily authorized requestor only if they concern subject matter covered by the jurisdiction and
duties of the office submitting the request.” ATTORNEYGENERALOF TEXAS, OPINIONREQUEST
PROCEDURES:       How TO REQUESTAN OPINION.~

         Thus, we decline to answer the questions asking for an interpretation of city charter
provisions. However, in connection with question three you raise a question of state law: whether
term limits may be applied retroactively. Request Letter, supra note 1, at 4. We will address this
question.

        Article I, section 16 of the Texas Constitution provides that “[n]o bill of attainder, ex post
facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.” See TEX.
CONST.art. I, $ 16. This provision applies to charter provisions and ordinances adopted by cities.
See Coffee v. Castleberry, 258 S.W. 889, 892 (Tex. Civ. App.-Amarillo         1924), judge ‘t reformed
on other grounds and aff’d, 272 SW. 767 (Tex. Comm. App. 1925). It prohibits retroactive laws
only to the extent they “destroy or impair rights which had become vested.” See Subaru of Am. v.
David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002); Corpus Christi People’s Baptist
Church, Inc. v. Nueces County Appraisal Dist., 904 S.W.2d 621,626 (Tex. 1995); Merchant’s Fast
Motor Lines, Inc. v. R.R. Comm ‘n, 573 S.W.2d 502,504 (Tex. 1978); Deacon v. City ofEuless, 405
S.W.2d 59, 62 (Tex. 1966); McCain v. Yost, 284 S.W.2d 898, 900 (Tex. 1955). Thus a law is
not invalid even though retroactive in operation unless vested rights are destroyed or impaired.
Corpus Christi People’s Baptist Church, 904 S.W.2d at 626; Tex. Att’y Gen. Op. No. GA-0149
(2004) at 5-6.




        3AvailabZeat http://www.oag.state.tx.us/opinopen/opin-request~roc.sh~.
The Honorable Jeri Yenne - Page 3                         (GA-0356)




         The legislature may enact a statute shortening an incumbent officer’s term and apply it to
persons in office when the act becomes effective, as long as the Texas Constitution does not fix the
term of office. See Popham v. Patterson, 51 S.W.2d 680,683 (Tex. 1932). See also TEX. CONST.
art. IV, 5 4 (establishing four-year term of office for governor); id. art. V, 8 18 (establishing four-year
term for justices of the peace and constable; providing that each justice and constable in office when
precinct boundaries are changed shall serve out term). The Alvin City Charter sets the terms of
office for the mayor and city council members. See ALVIN, TEX., CITY CHARTER art. II, 5 1 (2002)
(attachment to Request Letter, Exhibit C).

         A public officer has no vested right in the office he holds,4 and the legislature may reduce
his term of service or abolish the office entirely. See Tarrant County v. Ashmore, 635 S.W.2d 417,
422 (Tex. 1982) (public officer’s qualified interest in office is neither property nor a vested right);
Tex. Att’y Gen. Op. Nos. JM-1233 (1990) at 3 (member of State Board of Pharmacy has no vested
right to his position); JM-23 5 (1984) at 3 (school board may establish single-member trustee districts
pursuant to statute, even though terms of some incumbent trustees will be shortened); H-955 (1977)
at 4 (absent legislative direction, state agency board that established chair’s term of office by
resolution may reduce terrn and apply change to present chair).

          In Attorney General Opinion JM- 1233, this office construed a term limit provision applicable
to members of the Texas State Board of Pharmacy, determining that the term limit provision applied
to service performed before the statute’s effective date. See Tex. Att’y Gen. Op. No. JM-1233
(1990) at 2-3. It found that the statute was not retroactive, noting that “the legislature could have
even reduced. . . [the board member’s] present term of service or abolished the office entirely.” Id.
at 3 (citing Attorney General Opinions JM-235 (1984) and H-955 (1977)). See also Tex. Att’y Gen.
Op. No. DM-493 (1998) at 3-4 (statute shortening term of incumbent does not violate constitutional
provision against retroactive laws). If a city charter term limit provision applies to service as a city
officer prior to its adoption, it does not impair a vested right and therefore is not a “retroactive law”
prohibited by article I, section 16.




           4A public officer may have a financial or property interest in his office that a court will protect against private
interference, for example in an election contest. See Tarrant County v. Ashmore, 635 S.W.2d 417,422 (Tex. 1982).
The Honorable Jeri Yenne - Page 4              (GA-0356)




                                        SUMMARY

                       An opinion of the Attorney General will not construe city
               charters unless the charter provision raises a question of state or
               federal law. If a city charter term limit provision applies to service as
               a city officer prior to its adoption, it does not impair a vested right
               and therefore is not a “retroactive law” prohibited by article I, section
               16 of the Texas Constitution.

                                               Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
