Texas Attorney General Opinion: JC-142 Page: 4 of 9
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The Honorable Bill G. Carter - Page 4
Because it is a home-rule municipality, the Town may exercise any governmental power that
the legislature has not withheld from it. See Lipscomb v. Randall, 985 S.W.2d 601, 605 (Tex.
App.-Fort Worth 1999, pet. dism'd) (stating that Town has "full power of self government"); see
also Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) (citing Lower Colo. Riv. Auth. v. City
of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975) (stating that legislature may only limit power of,
but may not grant power to, home-rule municipality). A home-rule municipality has "all the powers
of the state not inconsistent with the Constitution, the general laws, or the city's charter." Proctor,
972 S.W.2d at 733 (citing TEX. CONST. art. XI, 5). The legislature may circumscribe a home-rule
municipality's broad power, but only if it does so "'with unmistakable clarity."' Id. (citing, e.g.,
Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex.
1993); City ofSweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964)); City of Santa Fe v. Young,
949 S.W.2d 559, 560 (Tex. App.-Houston [14th Dist.] 1997, no writ). Consequently, with respect
to each of your questions, we analyze first whether a growth-management plan comports with state
and federal law. (We assume that an ordinance adopting a growth-management plan is authorized
by the city's charter.) Second, we consider whether the legislature has, "with unmistakable clarity,"
limited a home-rule municipality's authority to adopt a growth-management plan.
With certain caveats, we conclude that a home-rule municipality may, even in the absence
of an emergency, limit the number of building permits the municipality will issue in a given period
of time. First, a growth-management plan does not appear to be generally inconsistent with
constitutional and statutory law. Second, the legislature has not, with "unmistakable clarity,"
forbidden a home-rule municipality to adopt a growth-management plan in the absence of an
emergency.
A. Whether. in the absence of an emergency, a home-rule municipality may implement a
growth-management plan, which limits the number of building permits the
municipality will issue in a given period of time?
The general concept of a growth-management plan does not per se facially contravene federal
or state constitutional provisions. The Town must, however, adopt a growth-management plan in
compliance with constitutional requirements regarding substantive and procedural due process. See
U.S. CONST. amend. XIV, 1. Substantive due process is satisfied if a generally applicable
ordinance "is designed to accomplish an objective within the government's police power and if a
rational relationship exists between the ordinance and its purpose." Mayhew v. Town ofSunnyvale,
964 S.W.2d 922, 938 (Tex. 1998), cert. denied, 119 S. Ct. 2018 (1999). Procedural due process
requires the government to provide a building permit applicant "an appropriate and meaningful
opportunity to be heard." Id. at 939. Depending on the particular facts surrounding the denial of a
building permit application, we can imagine that a municipality might run afoul of one or more of
these constitutional doctrines.
Nor does a growth-management plan in the abstract contravene state statutory law. We have
examined chapters 211, 212, and 214 of the Local Government Code. Chapter 211 provides
municipal zoning authority. See TEX. Loc. GOV'TCODEANN. 211.003(a) (Vernon 1999). Chapter(JC-0142)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-142, text, November 10, 1999; (https://texashistory.unt.edu/ark:/67531/metapth274451/m1/4/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.