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DAN MORALES                            June 17, 1992
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     Honorable George Pierce                   Opinion No. DM-130
     Chairman
     Urban Affairs Committee                   Re: Whether a home rule city council
     Texas House of Representatives            member is barred by state law from
     P. 0. Box 2910                            voting on zoning matters affecting
     Austin, Texas 78768-2910                  territory which includes that member’s
                                               residence (RQ-346)

     Dear Representative Pierce:

            You ask whether a home rule city council member is barred from voting on a
     zoning matter affecting territory in which the member owns a residence.

           Section 171.004 of the Local Government Code provides in pertinent part:

                  (a) If a local public official has a substantial interest in
                  . . . real property, the official shall file, before a vote or
                  decision on any matter involving. . . the real property, an
                  affidavit stating the nature and extent of the interest and
                  shall abstain from further participation in the matter if:

                       . . . .


                      (2) in the case of a substantial interest in real property,
                      it is reasonably foreseeable that an action on the matter
                      will have a special economic effect on the value of the
                      property, distinguishable from its effect on the public.

                  (b) The affidavit must be filed with the official record
                  keeper of the governmental entity.



                                            p. 672
Honorable George Pierce - Page 2          (DM-130)




              (c) If a local public official is required to file and does file
              an affidavit under Subsection (a), the official is not required
              to abstain from further participation in the matter requiring
              the affidavit if a majority of the members of the
              governmental entity of which the official is a member is
              composed of persons who are likewise required to tile and
              who do file affidavits of similar interests on the same official
              action.

        We think it is clear that the provisions of section 171.004 would, in certain
circumstances, bar a city council member’s voting on a zoning matter affecting terri-
tory in which the member’s residence is located. A home rule city council member
is clearly a “local public offtcial” within the meaning of section 171.004. See Local
Gov’t Code 0 171.001(1) (defining “local public official,”for purposes of chapter 171,
to include “a member of the governing body . . . of any . . :municipality”). A zoning
matter affecting territory in which the member’s residence was located would, we
think, clearly “involve”such “real property,” within the meaning of section 171.004.
A council member’s interest in his residence would be a “substantial interest” in
“real property” within the meaning of section 171.004 if his real property interest in
the residence amounted to “equitable or legal ownership with a fair market value of
$2,500 or more.” Id 9 171.002(b) (defining “substantial interest in real property” for
purposes of the chapter).


        In view of the provisions of subsection (a)(2) of section 171.004, even where
a council member had a “substantial interest” in his residence, he would be required
to abstain from voting in the case of a zoning matter affecting territory in which the
residence was located only if it was “reasonably foreseeable that an action on the
matter will have a special economic effect on the value of the property,
distinguishable from its effect on the public.” And, even. in such a case, the
abstention requirement would not apply it, under subsection (c), the member had
filed the affidavit required by the section and a majority of the council also had
similar interests in the matter and’had filed the appropriate affidavits. Whether it
would be “reasonably foreseeable,” under subsection (a)(2), that an action on a
voting matter will have a “special economic effect” on the value of the member’s
residence “distinguishable from its effect on the public,” so as to trigger the affidavit
and abstention requirements of the section, would, of course, depend on the facts of
the particular case.




                                          p.   673
Honorable George Pierce - Page 3          (DM-130)




        You also ask whether it is “permissible or proper” for a council member to
abstain from voting on a zoning matter affecting territory in which his residence is
located. We find nothing in state law which would restrict a council member’s
abstaining under such circumstances. Particularly given the penal provisions, in
section 171.003, for “knowingly” violating section 171.004, it might, indeed, be
advisable for a member to comply with the affidavit and abstention requirements of
the latter section if he is in doubt as to whether his failure to do so will place him in
violation of the section.


       We caution, finally, that we limit our discussion here to state law. Notably
subsection (a) of section 171.007 provides that the provisions of chapter 171, which
we have discussed above with regard to your questions, “preempt[] the common law
of conflict of interests as applied to local public officials.” However, subsection (b)
of that section provides that the chapter “is cumulative of municipal charter
provisions and municipal ordinances defining and prohibiting conflicts of interest.”
Therefore, the charter provisions and ordinances of particular cities should be
consulted in order to determine if they place additional restrictions, to those
effected by state law, on council members’ participation in the matters you ask.


                                  SUMMARY

               Under certain circumstances, the provisions of chapter 171
          of the Local Government Code would require a home rule city
          council member to abstain from voting on a zoning matter
          affecting territory in which the member’s residence is located.




                                                    DAN      MORALES
                                                    Attorney General of Texas




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Honorable George Pierce - Page 4 (DM-130 1




WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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