Thursday, August 19, 2010

DEFIANCE: BROWNSVILLE CITY COMMISSION ON PATH OF TOTAL SELF DESTRUCTION

I did not see the entire meeting on Tuesday, I was busy putting down sod. It is only this morning I am learning the city commission voted to allow BCIC to borrow money for the sports park. They just do not get it. You cannot keep on putting the people into debt against our wishes. While I recognize it will be highly unlikely that three qualified people will announce against Troiani, Atkinson, and Longoria, I also recognize the people are mad and mad as hell. Given the mood in Brownsville to end the contempt the city commission has for the people, maybe just maybe three highly qualified candidates will run. The debt spending has to end.

BACK TO THE CO’s

I am really trying to understand a clear argument on this issue for one side or the other. Because of the word “regardless” in the CO Act, on that issue and that issue alone I think the city is standing on solid ground. But it does not end on that issue.

There are rules of construction when interpreting a statute. The Texas Constitution governs over any statute. This is where the statute gets very suspect.

§ 9.004 of the Texas Local Government Code provides for a specific procedure to amended the City Charter. This is based on a clear command on the issue from the Texas Constitution. “The adoption or amendment of charters is subject to such limitations as may be prescribed by the Legislature.” (See below for the complete language from the Texas Constitution.)

Nothing in the Texas Local Government Code allows the legislature to amend city charters by state statute. But still it is not this simple. If the state statute stated that it is illegal to put CO’s to a public vote, the city might have an argument. “no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”

But even there a problem develops because if the CO Act was passed after the city charters provided for a vote, the court could rule the CO Act as applied to these cities acts as an unconstitutional ex post facto law.

“The Texas Supreme Court has repeatedly recognized that the home rule amendment
grants to home rule cities the “full power of local self-government.” Texas courts of appeals
have consistently held that home rule cities derive their authority from the Constitution and look
to the legislature only for a limitation on that authority. In other words, legislation is not
required for home rule cities to act.”

This is from the article which follows - p. 12. The Texas Supreme Court case is City of Houston v. State ex rel City of West University Place, 142 Tex. 190, 176 S.W.2d 928, 929 (1943).

This is a great article written by a lawyer as his thesis for a Masters in Public Administration

http://ecommons.txstate.edu/cgi/viewcontent.cgi?article=1282&context=arp

How can Home Rule cities be self-governing if the Legislature can pass laws using words like “may” which effectively allows city commissioners to ignore city charters? Further, how is a discretionary function created by the word “may” be a limitation on power” which is all the legislature can do when it comes to Home Rule cities?

So while I think the CO Act by its language gives great weight to the city’s argument, when read in context with the Texas Constitution and the purpose of Home Rule cities there are only two options. As to the City of Brownsville the CO Act is unconstitutional, or the CO Act authorizes the city commission permission to go to the people to amend the city charter to allow for CO’s without a vote. The problem with the latter is, the city commissions can already do that. So in the end the only real option is, as to cities like Brownsville the CO Act is unconstitutional.

This lawsuit is anything but frivolous.

Finally, I have been highly critical of Brownsville for its lack of proactive participation in anti-government movements. Right now we have the CO movement and speech movement. I hope both groups can be guided by rational minds which allows them to grow. Both groups can form the foundation for a strong anti-city commission vote come May 2011. This will only happen if both groups proceed rationally and without drama. I hope both succeed. But they need to grow in numbers. They need to educate the people with information booths in places like the mall.

Sec. 5. CITIES OF MORE THAN 5,000 POPULATION; ADOPTION OR AMENDMENT OF CHARTERS; TAXES; DEBT RESTRICTIONS. Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters. If the number of inhabitants of cities that have adopted or amended their charters under this section is reduced to five thousand (5000) or fewer, the cities still may amend their charters by a majority vote of the qualified voters of said city at an election held for that purpose. The adoption or amendment of charters is subject to such limitations as may be prescribed by the Legislature, and no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State. Said cities may levy, assess and collect such taxes as may be authorized by law or by their charters; but no tax for any purpose shall ever be lawful for any one year, which shall exceed two and one-half per cent. of the taxable property of such city, and no debt shall ever be created by any city, unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and creating a sinking fund of at least two per cent. thereon. Furthermore, no city charter shall be altered, amended or repealed oftener than every two years.

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