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City of Denton
City Council
Presentation by, Frank Davila
April 21, 1992
A Brief Biography;
- long standing member of community
- friend of Denton Council and staff
- member of city boards and commissions
- advocate for parity and enhancement of individual
rights and privileges
- United Way
First Issue:
Neithar LULAC nor myself favor a mayoral form of
government and therefore that is considered a non-issue
Second Issue:
The Review of tie Charter and the apportionment of the
City Voting Linea.
The top priority is the Charter Review. Perhaps the best
way is to ask the question; When is it appropriate to
review a municipal charter?;
In my opinion, I would say that the charter needs to be
reviewed when the following conditions are in existence,
1. The population has grown over 25% in the city
1980 1990 1992 Inc.
Denton 46,063 66.270 66.900 39%
UNT• Ie,153 25,008 27,050 49%
1VU 7,935 91850 9.423 19%
74,151 101.128 103,373 39%
•
City ANG 40,612 51,968 27%
Min. BLk 4,742 6,206 31%
Pop, HIS 2,764 5,937 114%
Source: UNT-Pole. T'4U-Berry, City-Pereard
• 2. The shift in the population within the city has • •
changed dramatically. In 1985 , the Phoenix
apartments had 11% Hispanics as head of household,
currently, it has over 60%. There is growth in
number of families and interest to buy homes in SE
Denton by the Hispanic population.
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3. New Schools
The following schools have been built since 1960:
Evers Elementary
Hodge Elementary
McNair Elementary
Ryan High School
Central Services Building (Admin.)
1993 - New Elementary School in SE Denton
4. New Malls and Industries
I am sure everyone here can recall the growth in
urban development in areas such as: physical
development. (OT Mall finished in 1980), retail
business around it and in other areas, housing
expansion in Southridge and BE Denton, the Sheraton.
and many more.
5. The need to emerge and be recognized
Because of the large increase in population, it has
become a lonely place for some citizens who do not
feel the close ties with the city and what it is
currently offering.
6. Major legislative changes
The division of the City of Denton into three
congressional districts is confusing and should be
addressed in a more comprehensive manner. LULAC and
NAACP eagerly and happily assisted the City in
seeking a reversal of this from the justice
department. No thank you note has been received nor
is one expected: we were glad to do it.
7. Amnesty 1989-90 saw many new immigrants receiving
amnesty to live in the US. They will be up for
citizenship and able to vote in 1994 6 1995.
8. The bonafide request by LULAC and the NAACP and
other individuals to re-look at the City Charter was
a sincere one based on demographic data and on
perceptions that these segments of the population
tire not fully acknowledged or asked to provide on-
4oing input.
9. The perception by UNT and some 1VU etudents that
they have ueen left out and are not receiving
attention.
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10. The recognition that the current number of council
membere as it relates to the population growth has
reduced the contact time with its citizens since the
representative ratio etas increased dramatically.
It. The recognition that many municipalities in Texas
find it more suitable and manageable to go to a
single member district.
Summary
1. The demographics graphically describe the growth in
the population and other areas,
2. The move to consider a review of the charter would
be viewed as proactive by everyone;
3+ The opportunity to review the charter and consider
additional council seats is timely,
4. The concern by the students, LULAC and NAACP is
genuine and deserving of consideration; and ;
5. The message to be sent to the citizens is one of
renewal, reinvestment and respect.
Muchas grecias.
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OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Jennifer Walters, City Secretary
FROM., Joe D. Morris, Assistant City Attorney
SUBJECT: Initiatives and Referendums
DATE: March 12, 1992
In your request of February 27, 1992, you ask us to review your
summary of the provisions of Article IV of the City Charter provid-
ing for the enactment of ordinances by use of the
y initiative and
repeal of ordinances by use of the referendum. Your summary of the
charter provisions appears to be correct.
However, the Charter provisions are always subordinate to any con-
flicting provision of the Status Constitution or statutes, For
example, section 4.01 of the Charter allows the electors by
initiative to propose any ordinance "except an ordinance
appropriating money or authorizing the levy of taxes." Section
4.02 allows the voters to approve or reject any ordinance by
referendum except an ordinance appropriating money, issuing bonds
or authorizing the levying of taxes."
the
The power the subjectf matter aofvw'iich hasebe been solely vested in the ordinance
body by State law or where State law requires procedures that
cannot he followed in the initiative or referendum process. For
those reasons, the initiative and referendum has been held not to
apply to zoning matters or to the repeal on an annexation ordi-
nance. gancock v Rouse, 437 9.W.2d 1 (Tex. Civ. App. Houston
(1st Dist.] 1969, writ ref'd, n.r.e) (zoning)= San Pedro Narth
L.T.D. v1 City of San Antgrdg, 562 S.W.2d 260, (Tex. Civ. App,
San Antonio 1978, writ ref1d n.r.e.), cert. denied, 99 S. Ct. 626
(1978)(zoning)l City of Hitchcock y Longmire, 572 S.W.2d 122
(Tex. Civ. App. Houston (lot Dist.] 1978, writ ref'd. n.r.e.)
(annexation).
Finally, in paragraph 11 of your summary, you note that section
4.08 of the charter provides that an initiated or referred
• ordinance required to be sent to the voters must be submitted for • •
a vote not less than 30 or more than 60 days after the final
council vote. As you know, Section 41.001 of the Election Code
provides for four uniform election dates. Any election held under
the provisions of Article IV must be hold on one of those dates.
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Jennifer Walters, city secretary
March 12, 1992
Page 2
1 4'.
If you have any questions or comments about this matter, please
call at your convenience.
I
J D. Morris
JDMtis
pct,tL1oy4 Vo Marrel}# City Manager
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CITY of 09NTON, TEXA! MUNICIPAL BUILDING / 215 E. McKfNNEY / DENTON, TEXAS 76201
X290RANDUM
DATE: February 7, 1992
TO: LLoyd V. Harrell, City Manager
FROM. John F. McGrane, Executive Director of Finance
i
SUBJECT: SUGGESTED CHARTER REVISIONS
Pursuant to vour request, I have reviewed the current City Charter
and have the following suggested revisions.
Sec. 2.08. Powers of the Council.
(b) Currently reads: Appoint and remove the City Attorney and
the Municipal Court Judge.
Suggested: Appoint and remove the City Attorney.
(e) Currently reads: Fix the salary of the City Manager and,
in conjunction with the City Manager, all other salaries.
Suggested: Fix the salary of the city Manager and the
City Attorney and, in conjunction with the city manager,
all other salaries.
(o) Currently reads: Establish and maintain a frer, public
library and to cooperate for such purposes with any
person, firm or association or political subdivision in
a manner prescribed by ordinance.
Suggested: Establish and maintain a free public library
for all residents of the City of Denton and to cooperate
for such purposes within a person, firm, association, or
political subdivision in a manner prescribed by + +
ordinance.
$171566.5200 D/F'W METRO 431.2529
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Memo to Lloyd V. Harrell
February 7, 1992
Pago 2
Section 2.23. Independent Annual. Audit.
Currently reeds: Prior to the end of year fiscal year,
the Council shall designate a certified public accountant
who, as of the end of the fiscal year, shall make an
independent audit of accounts and other evidences of
financial transactions of the city government and shall
submit his report to the City Council and the City
Manager. Such accountant shall have no personal
interest, direct or indirect, in the fiscal affairs of
the city government or any of its officers. He shall not
maintain any accounts or records or the city businesses,
but within specifications approved by the council, shall
post, audit the booke and documents kept by the
Department of Finance and any separate or subordinate
accounts kept by any other office, department or agency
of the city government.
euggseted: The city shall on an annual basis have its
accounts and evidences of financial transactions audited
by an independent auditing firm or certified public
accountant. Such accountant shall have no personal
interest, direct or indirect in the fiscal affairs of the
city government or any of its officers.
Section 5.04. Absence of the City Manager.
suggested: I believe that this section instead of saying
that "a letter filed with the City Secretary," it should
have a definite line of succession for the position in
case of incapacity or other type of emergency situations
that could arise.
Section 6.03. Municipal Court.
suggested: Should spell out the Municipal Court judicial
0 and the Municipal Court Clerks office and designate such.
Section 7.02. Payment, Delinquency, Penalties.
lei Currently Reads: All taxes shall be payable at the
office of the assessor and collector, and may be paid at
any time after the tax rolls for the year have been
0 completed which shall not be later than October Is A •
suggeetedt All tax shall be paid at the Department of
Treasury, Cashiering Division and may be paid at any time
after the tax rolls for the year have been completed.
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Memo to Lloyd V. Harrell
February 7, 1992
Page 3
Section 7. Revenue and Taxation.
General Notes All references to tax assessor and collector
should be stated as the person responsible for the collection
of city ad valorem taxes.
Section 7.03. Seizures and Sale of Property of Delinquent Taxes.
General Note for Subsection (o)s Shall be personal property
seized by the person responsible for the collection of ad
valorem taxes, or his designee shall be sold at a auction to
the highest bidder at a place designated by the person
responsible for collection of city taxes.
Section 8.01. Fiscal Year.
Suggesleds The fiscal year paragraph should coincide with
the city's fiscal year. It may also be interesting since the
Appraisal Dist-'.ct does not get the numbers to us in a timely
fashion as before, there may be a consideration for changing
fiscal year to a later date.
Section 8.02.
Suggesteds Delete this section
Section 8.03. Preparation and Submission of Budget.
Suggested: Substitute at least sixty (60) days to forty-five
(45) days, and the requirement for priorities at least one
hundred twenty (120) days before the end of the fiscal year,
I would recommend changing that to ninety (90) days.
Section 8.04. Public Hearing On Budget.
Currer.tly reads: After such public hearing, the Council may
• make such changes in the budget as appear desirable, and may
increase or decrease the items of budget provided the total
proposed expenditures shall not exceed the total anticipated
revenue.
Suggested: Change the word from "revenue" to "resources".
Section 8.06. Budget Establish Appropriation of Tax Levies.
Suggested: A sentence should be stated after the first
sentence that says, "the budget may be amended by ordinance
approved by Council during the fiscal year.
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Memo to Lloyd V. Harrell
February 7, 1992
Page 4
Section 8.06., continued
Delete the section that begins, "a copy of the budget as
finally adopted shall be filed with the City Secretary, the
County Clerk of Denton County, and the State comptroller of
Public Accounts in Austin."
Delete last sentence that says, "All appropriaticns that have
not been expended or lawfully encumbered shall lapse at the
end of the budget year."
Section 8.08. Amending the Budget. +I
euggsatods in case of unforeseen or emergency expenditures
to meet conditions that were not known at the time of the
budget
of original aa
may eoauthorized rby an affirmative in
majority of the members of the City Council as an amendment i
to the original b,idget.
Section 8.09. Budget of Public Record. j
Suggested$ Delete this section.
Section 9.01. Power to Issue Bonds.
9ugg•stedi I would delete Sections C and D.
Section 9.02. Bond Ordinance and Election.
euggestadt I would put the words "General obligation" in the
following sentence, "after approval by a majority of the
qualified property tax paying voters and in an election
called for the purpose of authorizing the issuance of General
obligation Bonds."
Sectior. 9.04. sale of Bonds.
•
euggesteds Delete.
Section 9.06. Bond Register.
euggeaede Delete.
• Section 12.03. Excess Revenues of Utility System. •
Suggesedi Revised to reflect a percent of gross revenueu.
AFF0017D
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OFFICE OF THE CITY ATTORNEY
MEMORANDUM
Y J
TO: Honorable Mayor i Members of the City Council
FROMr Debra A. Drayovitch, City Attorney
SUBJECT: Charter Provisions Which Conflict with Existing state or
Federal Law
DATEi December 6, 1991
,
Lloyd ask that I sent you another copy of my memorandum of
September 24, 1991 regarding the above matter. If you have any
questions, please feel free to call me.
Respectfully submitted,
Debra A. Drayovitch,,,✓
DAD:lah
Attachment
pot Lloyd V. Harrell, City Manager
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OFFICE OF THE CITY ATTORNEY
MEMORANDUM
I
Tot Honorable Mayor & Members of the City Council
Lloyd V. Harrell, City Manager
FROM., Debra A. Drayovitch, City Attorney
Joe D. Morris, Assistant City Attorney
SUBJECTS Charter Provisions Which Conflict With Existing State or
Federal Law.
DATES September 24, 1991
Pursuant to your request at the council meeting of July 10, 19910
we have completed a review of the City Charter with regard to those
provisions which conflict with existing state, federal or case law.
As you know, those sections of the Charter which are in direct
conflict with state or federal laws are preempted by such laws and
are null and void to the extent they are superseded. Described
herein are those sections which we have reviewed and have found
conflicts.
ARTICLL I. INCORPORATIONO FORM OF OOVBRNNSNT AND POURS
soot!')o 1.06. Llabilitier, ii _1111111ad limitations
(c) No assignment of gages or other compensation
earned, or to be earned, by atfy employee of the
City shall be valid and the city shall never be
required to recognize any such assignment or to
answer in any proceedings thereon.
Co ,MMEENTS
The Legislature has enacted statutory
garnishment of wages in certain instaces, i.e. child support, see
TEX. FAMILY CODE, 1114.091 (1953). The Texas Supreme Court also
authorized the courts to order an individual to "turn over" his
paychecks under Sec. 31.0020 Texas Civil Practice and Remedies Code
in certain cases. See Raborn v. Davis, 795 S.N.2d 716 (Tex. 1990).
For these reasons, you may wish to delete this section as it is
misleading.
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Honorable Mayor i Members of the City Council
Lloyd V. Harrell, City Manager
September 24, 1991
Page 2
(d) The City of Denton shall never be liable for per-
sonal injury or property damages of any kind unless
within thirty (?0) days after the occurrence there-
of a notice in writing by or on behalf of the
j person injured or claiming damages is delivered to
the city manager stating specifically and accurate-
ly in complete detail when, where and how the exact
injury or damages occurred, the full extent there-
of, the basis of the claim and the amount of damag-
es claimed or asserted.
S~QIPSENT$
A similar provision in the City Charter of the City of Beaunont,
Texas, was struck down as being too restrictive and violative of
the Open Courts Doctrine. The Court of Appeals held that six
months notice provision would be appropriate. See Fitts writ of
1'o"uy may~'w689 to .2d 182 t(Tax. App. Beaumont 1985, writ denied) .
cognizant of the fact it is unenforc able,n the Charter, but be
(e) The City of Denton shall never be liable for per-
sonal injury or property damages resulting from any
defect in any public street, highway, alloy,
grounds or public work of the City unless the
haveiboondknown to thi city manager or from damage
inspection or written notice thereof for a period
of at least twenty-four (24) hours prior to the
occurrence of the injury or damage and proper
diligence shall not have been used to rectify the
defect after such inspection or notice. such
notice shall be required whether the defect arose
from any act or omission of the City itself through
0 its agent or employee, or otherwise.
COMMENTS
Again, there is a question as to whether the provision is legally
enforceable.
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Honorable Mayor i Members of the City Council
Lloyd V. Harrell, City Manager
September 24, 1991
Page 3
ARTICLL II. TEN COUNCIL.
Section 2.02. Qualificatioas
(a) Each member of the Council, in addition to having
the other qualifications prescribed by law:
(1) Shall be a qualified voter of the city;
(2) Shall have resided for at least one year next
preceding his election within the corporate
limits of Denton;
(3) Shall not hold any other public office of
emoluments
(4) Shall not be interested in the emoluments of
any contract, job, work or service of or with
the city, or interested in the sale to or by
the city of any articles, materials, supplies
or equipment; and
(5) Shall not be an officer or director of any
public service corporation within the city, or
without the city but serving inhabitants in
the city, nor shall he be the owner or propri-
etor of any public service corporation in the
city.
ANTS
Earlier this year, I wrote you an opinion regarding the differing
court opinions concerning the validity of Sec. 2.02(a)(3).
• The wording of subsection (b) above does not make sense and must be
rewritten in order to enforce the provisions of this section.
Section 2604. yacsLeies ie CAMM",
where a vacancy In any place on the council shall occur,
the vacant place shall be filled by a special election, • `
• and, where necessary, by a run-off election, in the save
manner as provided in this charter for the regular
election of the councilperson. Such anoolal elsctien
shall be hold on a SatLrday _within sixty t601 days
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Honorable Mayor 6 Members of the City Council
Lloyd V. Harrell, City Manager
September 24, 1991
Page 4
1QS19wina the creation of the va a~w a + ae run-off
election. wbglre necessary shall be held on the four
teenth day ,after the prgcedina elections provided,
however, that where a vacancy- shall =Uwi his ena
hundred twenty (130) days of a reau>>re~e tionL M
sceeial election to fill the va a* hall be called.
unless more than one vacancy QCQure. (emphasis added)
Mailm
Act of May 27, 1991, ch. 389 $2, 1991 Tex. Seas. Law Serv. 1472
(Vernon) states, "(E)xcept as provided otherwiso in said Article,
every general or special election held by the City must be held on
one of the following dates: the third Saturday in January, the
first Saturday in May, the second Saturday in August, or the first
Tuesday after the first Monday in November." The Election Cods
prov'des that if a vacancy in office is to be filled at a special
election, the election must be called for one of these four dates
unless the governor finds the existence of an emergency that
warrants calling the election for an earlier date. It further
states that when the governing body of a political subdivision
wishes to call an emergency special election to fill a vacancy, the
governitg body shall submit a request to the governor for permis-
sion to call the election, and the governor may grant permission if
she finds that an emergency exists. Because of these statutory
provisions, the charter provision that specifies that special
elections to fill council vacancies shall be held within sixty (60)
days from the date of the creation of a vacancy is superseded by
state law.
section 2.036 Meetings of t'a council.
(a) On the second (2nd) Tuesday in April, or as soon
thereafter as practicable, the council shall most
at the city hall and the newly-elected meabers
shall qualify and assume the duties of office.
Thereafter, the council shall most regularly at
such times as may be prescribed by its rules but
not less frequently than once each calendar month.
All meetings of the council shall be held at the
city hall unless the council shall by ordinance or • •
• resolution designate another place.
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Honorable Mayor i Members of the City Council
Lloyd V. Harrell, City Manager
September 24, 1991
Page 5
COMMENTS
State law requires that municipal elections be conducted in May and
this section should be amended to so reflect. Where and when the
newly elected members are qualified and seated has been questioned
in past years. To avoid such questior,s, some cities provide that
newly elected council members take office on June 1.
section 2.00. powers o1_tbe council.
(o) Establish and maintain a free public library and to
coonerate for sue-': purposes with any person, firm,
association or v,litical subdivision in the manner
prescribed by ordinance,
ZMMENTS
In years past, the City Council has considered charging library
membership fees to patrons who reside in Denton County but outside
of the City. This has occurred when it appears county funding of
the Library is in jeopardy. To allow flexibility in this regard,
you may wish to delete the word "free".
ARTICLE III. NONINATIONA AND SUCTIONS
section 3.01, MuniciRal elections.
(a) The regular election for the choice of members of
the city council as provided in Article II shall be
held each year on the first Saturday in April, The
council may by resolution order special elections
which shall be held as nearly as practicable
• according to the provisions for a regular election.
The hours and places for holding all city elections
shall be determined by the city council
(b) on the first Saturday in April immediately follow-
ing adoption of Section 2.01, and the drawing of
election district boundaries by the council, the
• voters shall elects • •
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Honorable Mayor i Members of the City Council
Lloyd V. Harrell, city Manager
September 24, 1991
Page 6
STS
Again, pursuant to State law, regular municipal elections are now
held in May of each year and you may wish to amend Sec. 3.01(a) to
reflect the May date.
i
Section 2.02. Saffilaations.
(b) As an alternative method, any qualified person may
be nominated for councilman by a written petition
signed by thirty (30) qualified voters of the city,
provided the candidate signs the petition certify-
ing his acceptance. Once such petition shall be
circ•ilated and signed for each nominee or candi-
date. With each signature shall be stated the
place of residence of the signer, giving the ■treet
and number or other description sufficient to
identify it. Nominating petitions shall be filed
with the city secretary not more than ninety (90)
days nor less than thirty (30) days before the
election day, and shall be in substantially the
following forme
Na, the undersigned electors of the City of Denton,
hereby nominate whose
residence address is as a
candidate for Councilmen of the City of Denton, to
be voted for at the election to be held on the _
day of 19ri and we individually 1
certify that we are qualified to vote for a candi-
date for the Council.
Name Address Date of Signing
(Spaces for thirty (30) signatures and required data)
Acceptance of Nomination
I am qualified to serve on the council of the City
of Denton with respect to the qualifications set
• forth in this charter. r hereby accept the nomina- 0 0
tion for councilman and agree to serve if elected,
Signature of Candidate
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Lloyd V. Harrell, City Manager
September 24, 1991
Page 7
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Statement of Circulator
I
The undersigned is the circulator of the foregoing
petition containing thirty signatures. Each signa-
ture was appended thereto in my presence and is the
genuine signature of the person whose name it
purports to be.
i
Signature of Circulator ~
Address of Circulator
The foregoing petition was filed with the City
secretary on the day of 19_,
City Secretary
COMMENTS
This provision provides that any qualified person may be nominated
for councilmember by a written petition signed by thirty (30)
qualified voters of the City. Section 143,005 of the Texas
Election Code, (Vernon 1986) provides that the minimum number of
signatures that must appear on a petition for a place on the ballot
for an office of a home-rule city is 25 or the number equal to one-
half percent (1/21) of the total votes received in the territory
from which the office is elected by all candidates for mayor in the
most recent mayoral general election in the most recent election.
Although basically the Charter provision tracks state law require-
ments, the provision that thirty (30) qualified voters must sign a
• petition a be
statement that twenty-five
the candidate is The petition of must the
nepotism law. TEX. ELEC. CODE ANN. }141.031(4)(L) (Vernon Supp,
1991). This section should also reflect the statutory requirement
that an application for a place on the ballot be filed not later
than 45 days before the election. TEX. ELEC, CODE ANN. 1143.007
(Vernon Supp. 1991).
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Lloyd V. Harrell, City Manager
September 24, 1991
Page 8
ARTICLE IV. INITIATIVE, RzrsRENDUX AND RECALL
Section 4.01. aVOK of initiative.
The electors shall have power to propose any ordinance,
except an ordinance appropriating money or authorizing
the levy of taxes, and to adopt or reject the proposed
ordinance a+, the polls, such power being known as the
initiative. Any initiative ordinance may be submitted to
the council by a petition signed by qualified voters of
the city equal in number to at least twenty-five per cent
of the number of votes cast at the last regular municipal
election.
COMMENTS
You should be aware that case law places some restrictions upon the
ordinances that the voters may consider. For example, zoning and
annexation ordinances are not subject to the initiative and
referendum process. San Pedro North. 162
S.W.2d 260 (Tex. Civ. App.-San Antonio 1978, writ ref'd n.r.e.),
cert. denied, 439 U.S. 1004 (1978).
Section 4.08. Submission of electors.
If the council shall fail to pass an ordinance proposed
by initiative petition, or shall pass it in a form
different from that set forth in the petition therefor,
or if the council shall fail to repeal a referred
ordinance, the proposed or referred ordinance shall be
submitted to the electors not loss than thirty (30) days
nor more than sixty (60) days from the date the council
takes its final vote thereon. If no regular election is
to be held within such period the council shall provide
• for a special election.
S924iEL2$
In accordance with the comments under Section 2.04, it should be
noted that an initiative or referendum election may not be held
except on the dates specified by state law. This section could be
O rewritten to provide that the proposed or referred ordinance shall • •
be submitted to the electors on the next succeeding municipal
election date authorized by state law, provided that the election
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Honorable Mayor b Members of the City Council
Lloyd V. Harrell, City Manager
September 24, 1991
Page 9
shall be held not less than thirty (30) days from the date the
council takes its final vote thereon.
8eetion 4.13. liliaa sad eert![ioatioa of aetitioae recall
(c) If the councilman whose removal is sought does not
resign within seven (7) days after such notice the
city council (hall thereupon order and fix a date
for holding a recall election not less than thirty
(30) nor more than sixty (60) days after the peti-
tion has been presented to the council. If no
general election is to be held within this time the
council shall provide for a special election.
T$
As noted in the comment regarding Section 4.08, a recall election may
not be held except on the dates specified in the state law.
AITICLI VII. P"IMOB AND TAXATION
section 7402, Pavmeat. delineusnoY aenall+
(b) All unpaid taxes shall become delinquent as of January 31
of the year following their assessment, and shall be
subject to such penalties and interest as are imposed by
law in the case of delinquent state and county taxes or
as the council may provide by ordinance.
NIS
The Texas Tax Code provides that taxes are due on receipt of the tax
billowin are delinquent if not paid before February 1 of the year g the (Vernon 1988). year in which
the date specified inx S ctionO7 02 (bj should
reflect the correct statutory date of February 1.
Section 7,03, gyre and sale o! nreper Y !er delinCU~ee • r..,
e • o
(a) The assessor and collector shall have authority to seise
and sell pernonal property to satisfy all delinquent
taxes and the penalty and Interest thereon.
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September 24, 1991
Page 10
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(b) if anyone against whom a personal tax is assessed and
unpaid, whether the tax is delinquent or not, shall have
removed or be about to remove his personal property out
of the city, it shall be the duty of the assessor and
collector to proceed at once to collect such taxes by
seizure and sale of such personal property.
(c) Personal property, seized by the tax collector shall be
sold at auction to the highest bidder at the front door
of the city hall after the assessor and collector has
given notice of the time and place of the sale by posting
a written notice at the city hall door and inserting
another notice in the official newspaper of the City of
Denton at least ten (10) days before the date of the
sale.
Subchapter 8 of the Texas Property Tax Code, enacted by the Legisla-
ture in 1981, addresses the seizure of personal property to satisfy
payment of a delinquent tax, penalty and interest. Texas Tax Code
133.21 provides that a persons personal property is subject to
seizure for payment of a tax imposed by a taxing unit on his property
before the tax becomes delinquent only ifi
(1) the collector discovers that the property on which the
tax has been or will be imposed is about to be removed
from the countyi and
(2) the Collector knows of no other personal property in the
county from which the tax may be satisfied.
Section 33.22 of the Texas Property Tax Code provides that a
collector may apply for a tax warrant to any court in any county in
which the person liable for the tax has personal property,
section 33.23 of the Texas Property Tax Code describes the conditions
placed upon tax warrants and Section 33,24 provides the methods for
prevention of seizure of property or salt of property seized,
Because of the cited statutory provisions, I would recommend the
amendment of these sections to provide that seizure of personal
property shall be conducted pursuant to state law.
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Honorable Mayor i Members of the City Council
Lloyd V. Harrell, City Manager
September 24, 1991
Page It
ARTICLE VIII. 9VDOET
section 6.06. flSIQC•t eatablisha■ ■ww►
'ations an4 : lave,
A copy of the budget as finally adopted shall be filed
with the city secretary, the county clerk of Denton county
and the state comptroller of public accounts in Austin. All not been encumberedishalltlaps2 aave t the end of the budget lawfully
get year.
&421Zmm
The state law which provided that a copy of the budget shall be
forwarded to the state comptroller of public accounts was amended in
1961 to delete this requirement. Accordingly, the City is not
required to send a copy of the budget to Austin and this Charter
provision should also be amended.
ARTICLE IN, BORROWING FOR PARNANENT INPROVENENTs
With respect to the provisions contained in Article Ix, I would
recommend that we request the City's bond counsel to review these
charter provisions, as they are the experts in this area of law.
ARTrCLa I. PLANNING AND soNIN0
section 10.02. PlaaniaQ anQ seniaa co -
(a) That there shall be a planning and zoning commission
which shall consist of seven (7) real property taxpayers,
who, during, their respective terms of office and for at'
least one year prior to beginning thereof, shall be residents
of the City of Denton.
zwEtiT$
section 10.02 requires members of the Planning and Zoning commission
to be "real property taxpayers," In Opinion No.
concluded that the re irement violates the •qualprot this office A
of the United States and Texas constitutions. Theproovision should
be deleted from the charter.
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Lloyd V. Harrell, City Manager
September 24, 1991
Page 12
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section 10.01. planning and soaine ooamission~ powers ■nd
duties
(a) The planning and zoning commission shalli
(1) Make, amend, extend and adA to the master plan for
the physical development of the city,
(2) Formulate and adopt regulations governing the platting
or subdividing of land within the city . . . ,
COMME Ld
The adoption and amendment of the City's master plan and subdivision
thregulations are City Council. These legislative provisions functions should be can
revised performed to state lthat
the commission makes recommendations on those matters.
section 10.10. Suildine Dersiits we ~d oooucancy
certifieate■
(a) The city shall have the erection, construction or use of any building or structure the
any kind within the city without a permit having first been
issued, by the city, for the construction of or erection of
such building or structure ,
COMMENTS
The City does not have the power to regulate the construction of
state or federal buildings. These provisions are also covered by
ordinances and we recommend they be deleted from the charter.
• ARTICLS XI. PAM UD RSCREATIOM
section 116026 Parks and reareatton boarA
(a) There shall be a Park and Recreation Board which
shall consist of five (S) resident property owning taxpayers
of the city.
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Lloyd V. Harrell, City Manager
September 21, 1991
Page 13
COMMENTS
Section 11.02 requires members of the Park and Recreation Board be
"real property taxpayers." See comment under section 10. above.
ARTICLE XII. PUBLIC UTILITIES
section 12401. General powers respecting utilities
(a) The City may licensep regulate, fix the rates, control
and supervise public utilities of all kinds.
COMMENTS
R oityO& power to regulate utilities has been considerably abridged
by state and federal law. Apart from the power to grant franchises
for the use of its streets or public property, Texas cities do not
have the inherent right to regulate the rates and control the opera-
tions of all utilities. Federal law, for example, has greatly
reduced the authority of cities to regulate cable television com-
panies. Since the City's authority to regulate utilities is now a
function of state or federal law, this provision of the charter could
be deleted.
(b) In addition to such public utilitiez as it may now own,
the City of Denton may . . . acquire , . , any other
public utility . . . but in such condemnation proceedings
no allowance shall be made for the value of any fran-
chise.
COMMENTS
• The fair market value to be paid in a condemnation proceeding is as
provided by State law. This provision could be deleted.
ARTICLE 1111, PRAMCEISES
• Section 1=.01, Franchises* RUblic utilities
J extendin Ve public ordinance utility a shall n be renewing or
9 a P Y franchise passed ed by a
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Honorable Mayor 6 Members of the city council
Lloyd V. Harrell, City Manager
September 24, 1991
Page 14
majority vote of the entire city council at three (3) regular
meetings of the council; no such ordinance shall take effect
until thirty (30) days after its final passage; pending such
time the full text of the ordinance shall be published once
each week for three (3) consecutive weeks in the official
newspaper . 1 and such ordinance shall be subject to
referendum as provided in Article IV of this Charter.
8eCti0a 1360?, Franchieese use Of a
The city may by ordinance grant franchises or permits for
the use and occupancy of streets . . . under the control of
the city. Before such ordinance can become effective it
shall be passed by a majority vote of the entire city council
at two (2) regular meetings of the council; no such ordinance
shall take effect until twenty-one (21) days after its final
passages pending such time the full text of the ordinance
shall be published once each week for two (2) cons•9cutive
weeks in the official newspaper. and such ordinance
shall be subject to referendum an provided in Article IV of
this charter.
QQMMENTS
Sectir,n 13.01 provides certain procedures for approving a "utility"
a`Frovine•a fra Section 13 chive tor 0"they useie ndaoccdiffert upancy of the procedure
streets."
The application of the two provisions is not clear. The City has no
inherent power to require a franchise from a utility unless it makes
use of the public streets. Section 13.02 ma•e have been intended to
apply only to franchisees that are not considered to be utilities,
such as taxicab companies.
• utility cases there may be a question of what qualifies as a public
y for purposes of the charter. In City of is V
Kemp Hotel operatino Cp , 162 S.W.2d 150 (Civ. App.-Fort Worth 1912,
aff'd 170 S,W.2d 217), for example, the City made an award of an
chartervrequired cthat there be notice dispose and hearings given ~ befoThe re cthey
award of a "public utility franchise." The city did not comply with
the charter provisions. The court held that the collection and
• disposal of garbage was a public utility within the meaning of the •
charter (but not a "franchise" as used in the charter).
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Lloyd V. Harrell, City Manager
September 24, 1991
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We recommend that the charter provisions relating to the procedures
for approval of franchises and what is included as a public utility
be clarified. I
Those provisions also provide that the ordinance granting or amending
a franchise shall be subject to a referendum in accordance with
article IV of the charter, The referendum provision of the charter
requires the submission of a petition signed by at least twenty-
(iv-percent of the number of votes cast in the last regular municipal
election before.
e
State law provides that any municipal franchise granted for the use
of the streets shall be subject to voter approval if a petition
signed by ten nsrcen of voters is submitted before the franchise
takes effect. TEX. REV. CIV, STAT, ANN, article llei (Vernon Supp,
1991). To the extent the charter provision conflicts with state law,
it is invalid, The provision should be repealed or conformed to
State law.
section 134044
bl4111Etioe e[ util!!!rr
The city council shall have the power and duty to:
(a) Determine, fix and regulate the charges, fares or rates
of all public utilities operation within the city . , . ,
8
Section 13.04 contains a list of "powers and duties" regarding the
regulation of public utilities.
regulate all utilities that operate Cwithin the ioityfn cept as
provided by state or federal law. This section serves no purpose and
could be deleted.
ARTICLE XIV, GENERAL PROVISIONS
section 146026
Publieitr of records
All public records collected, assembled, or maintained by the
city in accordance with the transaction of official business
shall be available to the public during norasal business
hours, subject to the exceptions and regulations authorized
J by applicable state law,
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Honorable Mayor & Members of the City Council
Lloyd V. Harrell, City Manager
September 21, 1991
Page 16
COMM aTa
Access to public records is regulated by the State's Open Records
Act. This provision could be deleted.
eeatioa 36,05, NOS."
Yo person shall be appointed ` I
the City of Denton who is rel ted to any other m mberoofdthe
co'lnoil within the second degree of affinity or the third
degree of consanguinity, and this shall apply to heads of
departments in their respective departments.
STS
A state nepotism statute provides an exception to the charter
provision for the appointment, voting for, or confirmation of any
person appointed to s position it the person has been continuously
omployed n that position for at least thirty days. (T18. REV. CIV.
STAT. AW. art. 5996a (Vernon Supp. 1991). The Charter provision
should be deleted or revised to conform to exceptions contained in
the State law. The application of the provision relating to the
heads of departments is ambiguous and should be revised to clarity
its intent.
SUMMARY
This
Charter which u obviously conflict with existing ate or federal lave
Should you have any questions in this regard, do not hesitate to
call.
Respectfully Submitted,
•
De ra Drayovitch '
i
e D. Morris
DADJDMilah
N+uhr
V0.1
ai,' / r.. 'i 1 •'WMI'a+. , ♦ ~ t ! aCl~l a{ a Vy,4
Will
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OFFICE OF THE CITY ATTORNEY
MEMORANDUM
1
TO: Honorable mayor i Members of the City Council
Lloyd V. Harrell, City Manager
FROM: Debra A. Drayovitch, City Attorney
Joe D. Morris, Assistant City Attorney
SUBJECT: Charter Provisions Which Conflict With Existing State or
Federal Law.
DATEr September 24, 1991
Pursuant to your request at the council meeting of July lo, 1991,
we have completed a review of the City Charter with regard to those
provisions which conflict with existing state, federal or case law.
conflict with state or federal laws the Charter d by such laws
are preempted are
are null and void to the extent they are superseded, Described
herein are those sections which we have reviewed and have found
conflicts.
ARTICLE I. INCORPORATIOMe FORK Of OOVERMNT AND POWNRs
section 1.066
Lial0i11tiu, a:erpllens a~
(c) No assignment of wages or other compensation
earned, or to be earned, by any employee of the
City shall be valid and the city shall never be
required to recognize any such assignment or to
answer in any proceedings thereon.
SOMMENT&
• The Legislature has enacted statutory provisicns to provide for
garnishment of wages in cartain instances, i.e. child support. See
TEX. FAMILY CODE, 114.091 (1980. The Texas Supreme Court also
authorized the courts to cider an individual to "turn over" his
paychecks under See. 71.0020 Texas Civil Practice and Remedies Code
!n certain cases. See Raborn Y. Davis, 79$ S.W.2d 716 (Tex. 1990).
For these reasons, you may wish to delete this section as it is
• misleading.
'Dedicated to QuaI4 Suvice'
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September 24, 1991
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(d) The City of Denton shall never be liable for per-
sonal injury or property damages of any kind unless
within thirty (30) days after the occurrence there-
of a notice in writing by or on behalf of the
person injured or claiming damages is delivered to
the city manager stating specifically and accurate-
ly in complete detail when, where and how the exact
injury or damages occurred, the full extant there-
of, the basis of the claim and the amount of damag-
as claimed or asserted.
rDXtrra
A similar provision in the City Charter of the City of Beaumont,
Texas, was struck down as being too restrictive and violative of
the open Courts Doctrine. The Court of Appeals held that six
months notice provision would be appropriate, See Fitte V. City Of
Beaumont, 688 S.W.2d 182 (Tex. App. Beaumont 1986, writ denied).
You may wish to leave this provision in the charter, but be
cognizant of the fact it is unenforceable.
(a) The City of Denton shall never be liable for per-
sonal injury or property damages resulting from: any
defect in any public street, highway, alley,
grounds or public work of the City unless the
specific defect causing the injury or damage shall
have been known to the city manager from personal
inspection or written notice thereof for a period
of at least twenty-four (21) hours prior to the
occurrence of the injury or damage and proper
diligence shall not have been used to rectify the
defect after such inspection or notice. such
notice shall be required whether the defect arose
from any act or omission of the City itself through
• its agent or employee, or otherwise.
COWMKTa
Again, there is a question as to whether the provision is legally
enforceable.
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Lloyd V. Harrell, City Manager
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ARTICLI II. TR= COUNCIL.
8e0ti0n 2.02. 4ualifications
(a) Each member of the Council, in addition to having
the other qualifications prescribed by law:
(1) Shall be a qualified voter of the city:
(2) Shall have resided for at least cne year next
preceding his election within the corporate
limits of Denton:
(3) Shall not hold any other public office of
emolument:
(4) Shall not be interested in the emoluments of
any contract, jnb, work or service of or with
the city, or interested in the sale to or by
the city of any articles, materials, supplies
or equipment; and
(S) Shall not be an officer or director of any
public service corporation within the city, or
without the city but serving inhabitants in
the city, nor shall he be the owner or propri-
etor of any public service corporation in the
city.
COMMENTS
Earlier this year, I wrote you an opinion regarding the differing
1 court opinions concerning the validity of Sec. 2.02(x)(3).
• The wording of subsection (b) above does not make none* and must be
rewritten in order to enforce the provisions of this section.
Section 2.04. 4acanates in rounall
where a vacanny in any place on the council shall occur,
the vacant place shall be filled by a special election,
• and, where necessary, by a run-off election, in the same
manner as provide in this charter for the regular • •
election of the couneilperson. Such aneaial aloction
shall be held on a Saturday within sixty (601 days
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Lloyd V. Harrell, City Manager
September 24, 1991
Page 4
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following the creation of the vacangyJ and the U
election, where necassarv shall bS held on the fo it
teenth day after thS orecadina et.~•+.
however that where a vacancy Shall a within lea:
hundred twnty f1201 a re~i + no
special eUctton to fill the vacancy shall be called
unless more than one vacancy, occrrs, (emphasis added)
COMMENTS
Act of May 27, 1991, ch. 389 S20 1991 Tex. Sass. LAW Serv. 1472
(Vernon) stags, "(E)xcept as provided otherwise in said Article,
every general or special election held by the City must be hold on
o
first ne of the following datesi the third Saturday in January, the
Tuesday after e heM the second Saturday in November.t"Au The oElection first Code
provides that if a vacancy in office is to be filled at a special
election, the election must be called for one of these four dates
unless the governor finds the existence of an emergency that
warrants calling the election for an earlier date. It further
states that when the governing body of a political subdivision
wishes to call an emergency special election to fill a vacancy, the
governing body shall submit a request to the governor for permis-
sion to call the election, and the governor may grant permission if
she finds that an emergency exists. Because of thus statutory
provisions, the charter provision that specifies that special
elections to fill council vacancies shall be held within sixty (60)
days from the date of the creation of a vacancy is superseded by
state law.
section 2.054 Ktstiaas of the council.
(a) on the second (2nd) Tuesday in April, or as soon
thereafter as practicable, the council shall meet
o at the city hall and the newly-elected members
shall qualify and assume the duties of office.
Thereafter, the council shall most regularly at
such times as may be prescribed by its rules but
not less frequently Char, once each calendar month.
All meetings of tho council shall be hold at the
city hall unless tin council shall by ordinance or
A resolution designate another place.
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Lloyd V. Harrell, City Manager
September 21, 1991
Page 5
State law requires that municipal elections be conducted in May and {
this section should be amended to so reflect. where and when the
newly elected membero are qualified and seated has been questioned I
in past years. To avoid such questions, some cities provide that
newly elected council members take office on June 1.
section 2,0e. ftwora of tke ern -
(o) Establish and maintain a free public library and to
acooperate
or such
political purposes subdivision Inrthe#manner
prescribed by ordinance.
CQiit'lEtiTB
rn years past, the City Council has considered charging library
membership fees to patrons who reside in Denton County but outside
Citry.isThiinsjhas occurred when dy. To allowiflexibilityointthis nregard,
you may wish to delete the word "free".
ARTICL/ III, NOMINATIONS AND SUCTIONS
section 1.016 W"ALmal elecliaas,
(a) The regular election for the choice of members of
the city council as provided in Article iI shall be
held each year on the first Saturday in April. The
council may by resolution order special elections
awhich shall be hold as to the provisions or ra regularlelection.
• The hours and places for holding all city elections
shall be determined by the city council.
(b) On the first Saturday in April immediately follow-
ing adoption of Section 2.010 and the drawing of
election district boundaries by the council, the
voters shall elects ,
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Lloyd V. Harrell, City Manager
September 24, 1991
page 6
COMMENTS
Again, pursuant to State law, regular municipal elections are now
held in May of each year and you may wish to amend Sec. 3.01(a) to
reflect the May date.
section 3.0a. NoRJAAIL
(b) As an alternative method, any qualified person may
be nominated for councilman by a written petition
signed by thirty (30) qualified voters of the city,
provided the candidate signs the petition certify-
inq his acceptance. Once such petition shall be
circulated and signed for each nominee or candi-
date. With each signature shall be stated the
place of residence of the signer, giving the street
and number or other description sufficient to
identify it. Nominating petitions shall be filed
with the city secretary not more than ninety (90)
days nor less than thirty (30) days before the
election day, and shall be in substantially' 'the
following form:
We, the undersigned electors of the city of Denton,
hereby nominate whose
residence address is as a
candidate for Councilman of the City of Denton, to
be voted for at the election to be held on the _
day of , 19_t and we individually
certify that we are qualified to vote for a candi-
date for the Council.
Name Address Date of Signing
• (Spaces for thirty (30) signatures and required date)
Acceptance of Nomination
I am qualified to serve on the council of the City
of Denton with respect to the qualifications sat
forth in this charter. I hereby accept the nomina-
tion for councilman and agree to serve if elected.
Signatuire of ^.andidate
rrw._.►-,. ..Y ^ • r rr~r i1Li0`C'['a ir.-. , s ~ I ~d ~i a,
n y C ~k.a~ ♦+'~fY x~F~ +~Ak. i
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September 24, 1991
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Statement of Circulator
The undersigned is the circulator of the foregoing
petition containing thirty signatures. Each signa.
ture was appanded thereto in my presence and is the
genuine slignature of the person whose name it
purports to be.
signature of Circulator
Address of Circulator
The foregoing petition was filed with the city
Secretary on the day of
r 19,__.
City Secretary
fors p
councilmember by rovision provides a that any n qualified person may be nominated
petition
qualified voters of the City. Section 143, 005b ofththey Texts
Election Code, (Vernon 1986) provides that the minimum number of
signatures that must appear on a petition for a place on the ballot
for an office of a home•ruli city is
ZS
or t
ha he
if n
arcs umber •
n
P t al
(1/2+) of the total votes received in the territory
from which the office is elected by all candidates for mayor in the
most recent mayoral general election in the most recent election.
Although basically the charter provision tracks state law require-
ments, the provision that thirty (30)
petition should qualified voters ld must
be replaced b twenty-five sign a
also contain a statement that the candidate iseapetition mthe
• nepotism law. TEX. ELEC. CODE ANN. 1141,071(4)(L) (Vernon Supp.
1991). This section should also reflect the statutory requirement
that an application for a place oa the ballot be . .d not later
than 45 days before the election. TEX. ELEC. CODE ANN. 1141.007
(Vernon Supp. 1991).
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September 24, 1991
Page B
ARTICLE IV. INITIATIVE, RZFZRENDDM AND RZCALL
8e0ti0a 4.02. Power of initiative.
The electors shall have power to propose any ordinance,
except an ordinance appropriating money or authorizing
the levy of taxes, and to adopt or reject the proposed
ordinance at the polls, such power being known as the
initiative. Any initiative ordinance may be submitted to
the council by a petition signed by qualified voters of
the city equal in number to at least twenty-five per cent
of the number of votes cast at the last regular municipal
election,
COMMENTS
You should be aware that case law places some restrictions upon the
ordinances that the voters may consider. For example, zoning and
annexation ordinances are not subject to the initiative. and
referendum process San Pedro North *d v Ian ►ntuni 0 562
S.W.2d 260 (Tax. Civ. App.-San Antonio 1978, writ ref'd n.r.e.),
cart. denied, 439 U.S. 1004 (1978).
section 4008. submission of electors.
If the council shall fail to pass an ordinance proposed
by initiative petition, or shall pass it in a form
different from that set forth in the petition therefor,
or if the council shall fail to repeal a referred
ordinance, the proposed or referred ordinance shall be
submitted to the electors not less than thirty (30) days
1 nor more than sixty (60) days from the date the council
takes its final vote thereon. If no regular election is
to be held within such period the council shall provide
• for a spacial election,
COMMENTS
In accordance with the comments under Section 2,040 it should be
noted that an initiative or referendum election may not be held
except on the dates specified by state law. This section could be
♦ rewritten to provide that the proposed or referred ordinance shall r
be submitted to the electors on the next succeeding municipal
election date authorized by state lav, provided that the election
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Honorable Mayor i Members of the City Council
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September 24, 1991
Page 9
shall be held not less than thirty (30) days from the date the
council takes its final vote thereon.
section 4.13. }ilia4 sad aertiliaatioa o! Datltioas
elsalsea
(c) If the councilman whose removal is sought does not
resign within seven (7) days after such notice the
city --ouncil shall thereupon order and fix a date
for holding a recall election not leas than thirty
(30) nor more than sixty (60) days after the peti-
tion has been presented to the council. If no
general election is to be held within this time the
council shall provide for a special election.
COMMENTS
As noted in the comment regarding Section 4.08, a recall election may
not be held except on the dates specified in the state law.
AATICLI VII. lt=0's11IIf AMD TAXATION
section 7402. P11zonk,dolinauonor. Donal ioa.
(b) All unpaid taxes shall become delinquent as of January 31
of the year following their assessment, and shall be
subject to such penalties and interest as are impr,sed b;►
law in the case of delinquent state and county tj%es of
as the council may provide by ordinance.
COMMENU
The Texas Tax Code provides that taxes are due on rec& tax
bill and are delinquent it not paid before February iar
following the year in which imposed. TEX. TAX COD! 01..02
(Vernon 1988). Thus, the date specified in Section 7.4 c0m%uld
reflect the correct statutory date of February 1.
saction 7.03, faisuro sad sale of s~teesrty ter Qsl AWa
9 (a) The assessor and collector shall have authority to seise r + +
and moll personal property to satiety all delinquent
taxes and the penalty and interest thereon.
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September 24, 1991
Page 10
(b) If anyone against whom a personal tax is assessed and
unpaid, whether the tax is delinquent or not, shall have
removed or be about to remove his personal roert out
f
of the city, it shall be the duty of the assessor and
collector to proceed at once to collect such taxes by
seizure and sale of such personal property.
(c) Personal property, seized by the tax collector shall be
sold at auction to the highest bidder at the front door
of the city hall after the assessor and collector has
agiven ityahallf dothe ors and by inserting
another notice in the official newspaper of the City of
Denton at least ten (10) days before the date of the
sale.
COMMBNTc
Subchapter B of the Texas Property Tax Code, enacted by the Legisla-
ture in 1981, add+'esses the seizure of personal property to satisfy
payment of a delinquent tax, penalty and interest. Texas Tax Code
133.21 provides that a person's personal property is subject to
seizure for payment of a tax imposed by a taxing unit on his property
before the tax becomes delinquent only if:
(1) the collector discovers that the property on which the
tax has been or will be imposed is about to be removed
from tho county; and
(2) the Collector knows of no other personal property in the
county from which the tax may be satisfied.
Section 33.22 of the Texas Property Tax Code provides that a
collector may apply for a tax warrant to any court in any county in
• which the person liable for the tax has persin31 property.
Section 33.23 of the Texas Property Tax code describes the conditions
placed upon tax warrants and Section 33.24 provides the methods for
prevention of seizure of property or sale of property seized.
Because of the cited statutory provisions, r would recommend the
• amendment of these sections to provide that seizure of personal • O
property shall be conducted pursuant to state law.
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September 24, 1991
Page 11
ARTICLE VIII. BUDGET
Section s.06. Sudaet eatablis~as acnro~ria Ions U4 tax levy.
A copy of the budget as finally adopted shall be filed
with the city secretary, the county clerk of Denton :ounty
and the state comptroller of public accounts in Austin. All
eappumroperedriatishaons
at the not
been eended or of the bud lawfully
get year.
I
COMMENTS
The state law which provided that a copy of the budget shall be
forwarded to the state comptroller of public accounts was amended in
1981 to delete this requirement. Accordingly, the CO- is not
required to send a copy of the budget to Austin and th Charter
provision should also be amended.
ARTICLE IX. BORROWING FOR PUKANENT IMPROVEMENTS
With respect to th4 provisions contained in Article IX, I would
recommend that we request the City's bond counsel to review these
charter provisions, as they are the experts in this area of law.
ARTICLE X. PLUMING AND ZONING
section 10.020 P13IIaina and aoaina oorLissj2a
(
a) That there shall be a planning and zoning commission
which shall
• who, during, ctheirt roof
s; ective (termsaof officeyand for taxpayers,
at
least one year prior to beginning ttereof, shall be residents
of the City of Denton.
CO ► S
Section 10.02 requires members of the Planning and zoning commission ,
• to be "real property taxpayers." In Opinion No. 88-09, this office • 0
concluded that the requirement violates the equal protection clause
of the United States and Texas constitutions. Tho provision should
be deleted from the Charter.
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September 24, 1991
Page 12
6ectiOn 10.03. Planning 'and sooinc o Mlesioot Powers a
QuLi•■
(a) The planning and zoning commission shall;
(1) Make, amend, extend and add to the master plan for
the physical development of the city.
(2) oForrmilate r subdividaindgaodop landgwithinntheo cityl . . the.plattinq
COMMR~tTa~.
The adoption and amendment of the City's master plan and subdivision
regulations are legislative functions that can be performed only by
the City Council. These provisions should be revised to state that
the Commission makes recommendations on those matters.
section 10.104 flliildina oeriit• use sad oeauII new
certitioa es (a) The cit shall have the ower to prohibit the
erection, construction or use of any buildii,? or structure of
any kind within the city without a permit laving first been
issued, by the city, for the construction of or erection of
such building or structure . . . .
99 MUM
The City does not have %he power to regulate the construction of
state or federal buildings. These provisions are also covered by
ordinances and we recommend they be deleted from the charter.
ARTICLi 21. PARRS AM RYCRUTION
Section 1142. Parks and reareatioII 522
shall aconsist ofafive (S) resident property owning taxpayers
® of the city. '
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September 24, 1991
Page 11
COMMENTS
Section 11.02 requires members of the Park and Recreation Board be
"real property taxpayers." See comment under section 10.02, above.
ARTICLE III. PUBLIC UTILITIES
Section 12.01.
j
(a) The City may license, regulate, fix the rates, control
and supervise public utilities of all kinds.
COMMENTS
A city's power to regulate utilities has been considerably abridged
by state and federal law. Apart from the power to grant franchises
for the use of its streets or public property, Texas cities do not
have the inherent right to regulate the rates and control the opera-
tions of all utilities. Federal law, for example, has greatly
reduced the authority of cities to regulate cable television com-
panies. Since the City's authority to regulate utilities is now a
function of state or federal law, this provision of the charter could
be deleted.
(b) In addition to such public utilities as it may now own,
the City of Denton may . . acquire . . . any other
public utility . . but in such condemnation proceedings
no allowance shall be made for the value of any fran-
chise.
COMMENTS
• The fair market value to be paid in a condemnation proceeding is as
provided by State law. This provision could be deleted.
ARTICLE IIII. PIAMCEISEs
section 12.01. Framcbisest public utilities (c) Every ordinance granting, amending, renewing or
extending a public utility franchise shall be passed by a
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September 24, 1991
Page 14
majority vote of the entire city council at three (3) regular
meetings of the council; no such ordinance shall take effect
until thirty (30) days after its final passage; pending such
time the full text of the ordinance shall be published once
each week for three (3) consecutive weeks in the official
newspaper . . . ; and such ordinance shall be subject to
referendum as provided in Article IV of this Charter.
section 13.02. Fraannisest use of streets
The city may by ordinance grant franchises or permits for
the use and occupancy of streets . . , under the control of
the city, Before such ordinance can become effective it
shall be passed by a majority vote of the entire city council
at two (2) regular meetings of the council; no such ordinance
shall take effect until twenty-one (21) days after its final
passages pending such time the full text of the ordinance
shall be published once each week for two (2) consecutive
weeks in the official newspaper. and such ordinance
shall be subject to referendum, as provided in Article IV of
this Char'_ar.
COMMENTS
Section 13.01 provides certain procedures for approving a "utility"
franchise. Section 13.02 provides a different procedure for
approving a franchise for "the use and occupancy of the streets."
The application of the two provisions is not clear. The city has no
inherent power to require a franchise from a utility unless it makes
use of the public streets. Section 13.02 may have been intended to
apply only to franchisees that are not considered to be utilities,
such as taxicab companies.
In some cases there may be a question of what qualifies as a public
♦ utility for purposes of the charter. In city of Wichita Fall■ v
Kemp Hotel Operating-, 162 S.W,2d 150 (Civ. App.-Fort Worth 1942,
aff'd 170 S.W,2d 217), Cor example, the City made an award of an
exclusive contract to collect and dispose of city garbage. The city
charter required that there be notice and hearings given before the
award of a "public utility franchise." The city did not comply with
the charter provisions. The court held that the collection and
• disposal of garbage was a public utility within the meaning of the • •
charter (but not a "franchise" as used in the charter).
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Lloyd V. Harrell, City Manager
September 24, 1991
Page 15
We recommend that the Charter provisions relating to the procedures
for approval of franchises and what is included as a public utility
be clarified.
Those provisions also provide that the ordinance granting or amending
a franchise shall be subject to a referendum in accordance with
article IV of the charter. The referendum provision of the charter
requires thri submission of a petition signed by at least twenty-five
percent of the number of votes cast in the last regular municipal
election before.
State law provides that any municipal franchise granted for the use
of the streets shall be subject to voter approval if a petition
signed by ten oercent of voters is submitted before the franchise
takes effect. TEX. REV. CIV. STAT. ANN. article 1181 (Vernon Supp.
1991). To the extent the charter provision conflicts with State law,
it is invalid. The provision should be repeated or conformed to
State law.
Section 13.04. Regulation of utill Lu
T'1 city council shall have to power and duty tot
(a) Determine, fix and regulate the charges, fares or rates
of all public utilities operation within the city . . . .
COMMENTS
Section 13.04 contains a list of "powers and duties" regarding the
regulation of public utilities. The City has no inherent power to
regulate all utilities that r-+rate within the city, except as
provided by state or federal la.r. This section serves no purpose and
could be deleted.
•
ARTICLa live CRNRRRL PROVISIONS
section 14.01. JQlicitr of records
All public records collected, assembled, or maintained by the
• city in accordance with the transaction of official business • •
shall be available to the public during normal business
hours, subject to the exceptions and regulations authorized
by applicable state law.
MINNOW-
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Honorable Mayor 6 Members of the City Council
Lloyd V. Harrell, City Manager
September 24, 1991
Page 16
S:41P1&NT8
Access to public records is regulated by the Status Open Records
Act. This provision could be deleted.
Section 14.os. N*poti
No person shall be appointed to an office or be employed by l
the City of Denton who is related to any other member of the
council within the second degree of affinity or the third
degree of consanguinity, and this shall apply to heads of
departments in their respective departments.
god=
A state nepotism statute provides an exception to the charter
provision for the appointment, voting fort or confirmation of any
person appointed to a position if the person has been continuously
employed in that position for at least thirty days. (TEX. REV. CiV.
STAT. ANN, art. 5996a (Vernon Supp. 1991). The Charter provision
should be deleted or revised to conform to exceptions contained in
the State law. The application of the provision relating to the
heads of departments is ambiguous and should be revised to clarify
its intent.
SiXMKgy
This memorandum updates our previous analysis of Sections of the City
Charter which obviously conflict with existing state or federal law.
should you have any questions In this regard, do not hesitate to
Respectfully Submitted,
De rwitch
e D. Morris ~
DADJDM:lah
charter
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MEMORANDUM
TOs All Council Members
From: Burt R. Solomons, Acting City Attorney
DATE: September 27, 1979
REr Charter Revision
Per your authorization, I have contacted the law firm of Saner,
Jack, Salinger i Nichols in Dallas about our charter revision.
They have expressed a willingness to help us on this matter as
sort of an "independent consultant". This particular law firm
has an excellent reputation in the area of municipal law and
they represent several cities in this area (i.e., Richardson,
Carrollton, Flower Mound, etc.). If the Council is interested
in this approach, I am sure someone from the firm would be most
happy to meet with you.
Meanwhile, I have attached a copy of Article 1170 which will
provide you an idea on time factors to be considered. J
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Blurt H. o omons
Acting City Attorney
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Art. 1170. Amendments
when the overnI Dod desires to submit amendments to an
! I in charter, said bop may on Its own motion. In t e a ,nce o a
petition, and shaft, upon receiving a pellt on s gned by qualil!ed voters
in such city, town or political subdivision In number not less than five
per cent {5%) thereof or 20,000 signatures, whlchever Is less, submit ,
an ro osed amendment or amendments to such charter. If14
ordlnanee rov n or l e su mss ono we amen Went or
amendments shat) require the SubmisiVon thereo at en act on to
Laid not less Than thirty 301 avs nor more an n nay vs a er
I this passage or bard ordlnance. It tha nest r ulx municipal eleelfon Is
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i to be hold ddrind Weld period, 1 egbm anion o ea am ment or . i'e
i mandmenis
iI be at such election, Otherwise a s octal M11, t•
ihatl be called for the purpose. Notice o the a ecl on
ld amendment or amendments shall De given
ubllcaUon 1 ereo n some news a er o enera c rcu a on
published in said C IV m the eame av n abon o two auocNe ve
weeks
h e o h first ublicalion to De not less than fourteen 11
da s rior to the date set for said election. MajaM ouch holies
shall be as prescribed by the governing body or as may be otherwise
prescribed by law, and shall Include a substantial copy of the
ro osed amendment or amendments. Every amendment submitted
must contain only one subject. a n preparing the ballot for such
amendment, It shall be done In such manner that the voter may vote ,
"Yes" or "No" on any amendment or amendments without voting
"Yes" or "No" on all of said amendments. Each Such proposed i
amenidmenl, it approved by the majority of the qualified voters voting
at said eteClton, shall become a part of the charter of Bald city. No
amendment shat) be considered adopted until an official order has been
entered upon the records of said city by the governing body thereof
declaring the same adopted.
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C'TY of DENTON, TEXAS MUNICIPAL BUILDING / DENTON, TEXAS 76201 / TELEPHONE OM 382-9601
Office of City Attorney
September 25, 1979
Mr. Robert L. Dillard, III.
Saner, Jack Salinger a Nichols
1200 Republic National Bank Bldg.
Dallas, Texas 75201
k
Dear Rob,
Please find enclosed a copy of the current City of Denton
Charter and the Report of the 1979 City Charter Revision Committee.
The City Counci: has authorized me to inquire of your firm
whether you would be • terested in handling the charter revision
and the approximate cot for such services. The City Council is
eager to call an early election on this matter and would need the
charter re-drafted, certain matters researched (see section on
bonds), election advice, administrative ordinances drafted, etc.
I should tell you that the City Council is in the process of
obtaining a City Attorney and, in the end, they may want this office
to perform the necessary services. However, I have advised them that
this is a major project even for an existing well-staffed office.
Also because of the controversy over the limitation on bond sales,
they may want an independent opinion on this matter.
Please let me know what you can do for us on this matter.
Sincerely yours,
Burt R. Solomonr
Acting City Atto. ^ly
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CITY OF DENTON
MEMORANDUM
DATE: February 17, 1975
TO: City Council Members
FROM: Paul C. Isham, City Attorney
SUBJECT: Charter Amendments
I
The Home Rule Charter of the City of Denton may be amended by
submitting any proposed amendment or amendments to a vote of
the qualified voters of the City. Any proposed amendment or
amendments, if approved by the majority of the qualified voters
voting at the election, shall become a part of the Charter of
the said City. Each amendment shall be submitted so that the
voter may vote yes or no on any amendment or amendments without
voting yes or no on all of said amendments. 1
A proposed amendment or amendments shall be submitted for a vote
when the governing body desires to submit such amendments upon
its motion, or upon receiving a petition signed by not less than
five percent (5%) of the qualif ed voters in the City. The ordi-
nance providing for the submission of such amendment or amend-
ments shall require the submission thereof at an election to be
held not less than thirty (30) days nor more than ninety (90)
days after the passage of said ordinance. If the next regular
municipal election is to be held during said period the sub-
mission of said amendment or amendments shall be at such election.
The law provides that no City Charter shall be altered, amended
or repealed oftener than every two years. However, the failure
of passage of any proposed amendment or amendments does not pro-
hibit another election for the purpose of voting on the proposed
amendments within the two year period. The two year ceriod
starts when the Charter has been officially amended or altered.
The governing body of the City may, by two-thirds (213) votes of
its members, or upon petition of ten percent (10%) of the quali-
fied voters provide for an ordinance for the submission of the
® uestion "shall a commission be chosen to frame a new charter", 0
Such question must be presented to the electorato not less than
thirty (30) days nor more than ninety (90) days after the passage
of the ordinance, and must be held on the same day as a municipal
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February 17, 1975
Page Two
election if one falls within that time period. A Charter Com-
mission may not be formed except after an affirmative majority
vote of qualified voters within the city. However, I do not
think that the statutes would prohibit the appointment of an
Advisory Committee to study the Charter and make recommendations
to the City Council for the purposes of an.ending the Charter,
but the proposed amendment or amendments must be submitted by
the Council or after the requirements of the petition have been
complied with.
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