Has the Secretary of State’s Elections Division issued
additional guidance on elections?
Yes, in addition to previously reported information, the
Elections Division issued the following guidance today.
Authorized Postponement of May 2, 2020 Election: On March
18, 2020, the Governor issued a proclamation that
authorized local political subdivisions to postpone their elections scheduled
on May 2, 2020 to November 3, 2020. There are a few key issues that we
[the Elections Division] wanted to address:
1. Make the decision as quickly as possible while
complying with open meetings laws: While the Governor’s proclamation
doesn’t prescribe a deadline for a local entity to make a decision on
postponement, we STRONGLY advise that the decision be made this
week. Election equipment must be programmed and tested and mail
ballots must be sent immediately if the election will be taking place May
2, 2020. Delaying the decision could subject your election to a contest if
mail ballots are sent out significantly later than the law requires.
2. Shelter-in-Place Orders: As many local
political subdivisions are enacting shelter-in-place orders, this has a
significant impact on elections. If your entity or your county has issued
such an order, you need to move your election; otherwise you are putting your
election at risk of an election contest due to voters not being able to
exercise their right to vote. Additionally, some political subdivisions have
enacted fines for violating their local ordinances; if your order does so and
there is no specific exemption for voting or conducting elections, you put your
voters at risk of criminal penalty for leaving their homes to vote.
3. Article XI, Section 11, Texas Constitution: If
your city is holding a special election to fill a vacancy due to the
requirements prescribed in Article XI, Section 11 of the Texas Constitution,
the Governor’s proclamation does NOT apply to your election. You must hold
your election within 120 days of the vacancy occurring. The Governor’s
proclamation does not suspend this requirement in the Texas
Constitution. However, given that many political subdivisions are enacting
shelter-in-place orders, it is imperative that some action be taken to move your
election dates. If you opt to move your election in response to this
public health crisis, and to do so safely would result in ordering the election
to occur outside of the constitutionally prescribed 120 day period, you should
consult with your attorney regarding Attorney General Opinion No.
JC-0318, as you may be required to hold your election on the
November 2020 uniform election date.
4. Certain Types of Special Elections: We have heard
from a number of entities that have special elections resulting from the
expiration of a sales tax that the November 3, 2020, uniform election date
occurs after their expiration date. For these elections, we recommend
consulting with the Comptroller’s office, as they may be able to provide
certain assistance with expiring taxes. Additionally, if you need to have
an election prior to November 3, 2020, you may have to seek permission from the
Governor in accordance with Section 41.0011 of the Texas Election Code to hold
your election on a non-uniform election date.
5. Options Other than November 3, 2020: The
Governor’s proclamation only authorized a move to November 3, 2020. There
is no authority for a local political subdivision, on its own order, to move an
election to any other date. If an entity would like to move to a date
other than November 3, 2020, there are likely only two ways to do so:
-Emergency Election under Section 41.0011(b) of the Texas
Election Code: A local political subdivision can request permission from the
Governor to allow the political subdivision to order a special election on
a non-uniform election date. Please note that this only applies to special
elections and not general elections
-Court Order for Non-Uniform Election Date: As there are no
other options outside of the Governor’s authorization to postpone the election
and the option under Section 41.0011 of the Texas Election Code, a political
subdivision that wishes to hold its election on a date other than the November
3, 2020 could try to seek court order for an alternative date.
[Editor’s note: the success of either of these two options
is very unlikely.]
Thank you all for your continued questions and all of your hard
work. Please let us know if you have any additional questions or
Christina Worrell Adkins
Legal Director – Elections Division
Office of the Texas Secretary of State
firstname.lastname@example.org | www.sos.texas.gov
Must a city provide for in-person comment/testimony when holding
a public hearing?
The term “public hearing” refers to a meeting at which a
governmental entity is required to receive and record public comment/testimony
on a matter. This requirement may arise under a state or federal statute or
rule, a city charter, a city ordinance, a city contract, or some other source.
See, e.g., Tex. Loc. Gov’t Code § 102.006(a) (“The governing body of a
municipality shall hold a public hearing on the proposed budget. Any person may
attend and may participate in the hearing.”).
Existing precedent makes clear the distinction between a public
hearing and general public comment at a meeting. One court held that comments
by the public at large need to be solicited and heard at a public hearing, and
that “the term ‘public hearing’ contemplates the opening of the floor for
public comment by anyone desiring to speak on the issue of concern.” Eudaly v.
City of Colleyville, 642 S.W.2d 75, 77 (Tex. App.—Fort Worth 1982, writ
This raises the question of whether the governor’s guidance about handling
general public comment at a meeting during the COVID-19 disaster is equally applicable
to a public hearing. In other words, is the receipt of public comment/testimony
via telephone, videoconference, email, etc. sufficient for a public hearing?
The answer to that question could depend on a variety of
factors, including how the meeting is conducted and the source of the public
hearing requirement. See id., e.g., (focusing on the statutory requirement that
“parties in interest and citizens shall have an opportunity to be heard”). That
said, we find no general requirement that in-person comment/testimony must be
allowed when conducting a public hearing.
It is important to note that, while the governor’s suspension
allows a city to post notice of a meeting on its website in lieu of posting the
meeting notice on a bulletin board, public hearings may require other forms of
notice and procedures that have not been suspended. For instance, notice of a
public hearing may need to be published in a newspaper. See, e.g., Tex. Loc.
Gov’t Code §102.0065 (notice of budget hearing).
If a city decides to issue a shelter-in-place order, should
certain businesses and activities be exempt from the order?
The Dallas County order or City of Waco order
issued earlier could serve as a template for other local orders. It appears to
follow what other states and localities have done with regard to
exemptions. For example, certain “critical infrastructure”
is typically exempted. That list from the U.S. Department of Homeland
Security is fairly broad. In addition, several industry groups (some of
which are already covered in the list) have reached out to the League asking
that we share their information with city officials. Here is a list
of those industries and requests:
-The Texas Hotel & Lodging Association has offered
the lease of certain hotels if needed by a city to respond to the
virus. The association also asked that any order contain a specific
provision that will allow hotels to continue to operate as “essential critical
infrastructure,” as they are classified as such by
the U.S. Department of Homeland Security. More is available on the
association’s coronavirus web page.
-The Texas construction industry, including the Texas
Association of Homebuilders and other associations, has issued an open letter to elected
officials asking that their work be allowed to continue.
-Animal rights groups have issued letters relating to companion animals and
the National Animal Care and Control Association has issued guidance on animal control functions.
-The U.S. Department of Homeland Security has issued a letter for telecommunications providers
to show government that they are working on critical communications
-Dollar Tree has asked that government classify them as
-Airlines have asked cities to consider Federal Aviation
administration guidance to airports related to attempted airports closures.
-The Texas Association of Realtors has asked that they be
exempted from any
-The Texas insurance industry has referred cities back to
the U.S. Department of Homeland Security’s critical infrastructure list
and some sent a letter to the governor
-The Texas Automobile Dealers Association has asked that motor vehicle
dealers be classified as essential infrastructure.
-A group of healthcare companies has asked that drug research
and similar activities be exempted from any shelter-in-place orders.
-The Association of Electric Companies of Texas has sent
the governor a letter asking that
electric companies be classified as essential infrastructure.
-The railroad industry has issued guidance on their status
as critical infrastructure.
-The Texas self-storage industry has sent a letter to the governor
asking to be classified as critical infrastructure.
-The Texas Bankers Association has asked that cities
classify them as critical infrastructure.
What happens if a city official is unable to complete a
state-mandated training by the deadline due to the coronavirus?
Social distancing requirements have led to the cancellation of
many in-person training sessions across the state, many of which fulfill a
state-mandated training requirement. Beyond that, many city officials are
simply overwhelmed with performing essential functions in their communities to
attend a training session at this time.
Two types of required training – training under the Public Funds
Investment Act (PFIA) and the newly-imposed cybersecurity training – are
available to be completed online using TML resources. In addition to in-person
trainings, TML offers online PFIA training that can be taken anytime. More on
PFIA training options through TML can be found here. Mandatory cybersecurity training is
being offered by the TML Intergovernmental Risk Pool, and can be taken through
a free online video. More on this training option can be found here.
The attorney general offers online training videos for city
officials needing to complete training for the Open Meetings Act or Public
Some city officials will understandably not have the time to
complete even the online trainings in the coming weeks. Though the trainings
mentioned above are mandatory, there are no specific penalty provisions for
failing to take the training by the respective deadline. Still, city officials
are encouraged to take any mandatory training as soon as possible under the
What happens if our appraisal district is late submitting our
certified appraisal rolls this year?
State law generally requires a chief appraiser to submit the
certified appraisal rolls to cities by July 25th. Tex. Tax Code § 26.01(a). The
certified roll is then used to calculate the city’s no-new-revenue tax rate and
voter-approval tax rates, among others.
Senate Bill 2 (2019) amends the Tax Code to provide that, if the
appraisal review board has not approved the appraisal records by July 20th, the
chief appraiser shall prepare and certify to the assessor for each taxing unit
an estimate of the taxable value by not later than July 25th. Id. § 26.01(a-1).
If a certified estimate is provided instead of a certified appraisal roll, the
officer or employee designated by the city council shall calculate the
no-new-revenue tax rate and voter-approval tax rate using the certified
estimate of taxable value. Id. § 26.04(c-2).
Because the coronavirus will undoubtedly impact the efficiency
of appraisal districts to handle property tax protests statewide, many cities
should expect to calculate rates based off of the certified estimate instead of
the certified appraisal roll. Ideally, either the certified roll or the
certified estimate of values is submitted by July 25th to ensure the city has
adequate time to calculate rates and comply with the increased transparency
requirements under S.B. 2.
Any delay in the submission of the certified roll or certified
estimate of value would push back the amount of time the city has to adopt a
tax rate that does not exceed the voter-approval tax rate until the 60th day
after receipt of the document. Id. § 26.05(a). However, adopting a property tax
rate exceeding the city’s voter-approval tax rate could be rendered a legal
impossibility if the city receives the certified appraisal roll or certified
estimate of values late. That’s because a city must adopt a rate exceeding the
voter-approval rate by no later than the 71st day before the November uniform
election date. In 2020, that deadline will be August 24th. Pursuant to his
emergency powers, the governor may suspend a deadline imposed by state law
related to budget or tax rate adoption. See Tex. Gov’t Code § 418.016(e). At
this point, the governor has not suspended any budget or tax deadlines.
As mentioned in a previous TML Coronavirus Update, the statewide
disaster declaration related to the coronavirus gives cities the option of
calculating their voter-approval rates at 8 percent beyond a city’s maintenance
and operations rate instead of at 3.5 percent beyond the city’s maintenance and
operations rate. A city that receives its certified appraisal roll or certified
estimate of values late might consider opting into the 8 percent voter-approval
rate calculation, if for no other reason than to potentially buy enough time to
legally comply with the notice and transparency requirements in the Tax Code.
Can a city postpone utility bill payments and waive
disconnection of service for its municipally-owned utility (MOU) in response to
Yes. Cities have inherent authority to regulate their utility in
“a manner that protects the interests of” the city. Tex. Loc. Gov’t Code §
552.001(b). This inherent authority arguably includes postponing utility bill
payments and waiving disconnection of service and related fees.
A city isn’t required by law to disconnect customers. It can
choose to do so after providing due process to its customers, including notice
and opportunity for a hearing, before disconnecting utility service. A city can
choose to waive, terminate, or modify that process.
How can a city postpone utility payments and refuse to
disconnect service for its MOU?
A city has several options available. A city council can
vote to modify existing policies and postpone payments and waive disconnection.
If the council has delegated that authority to another individual, such as a
mayor or city manager, that individual could postpone payments and waive disconnection.
The city should check its local ordinances and policies to determine if and how
authority has been delegated.
Alternatively, the city could provide for postponing payments
and waiving disconnection in its emergency management plan. Each city is required
to maintain its own emergency management agency or participate in a local
interjurisdictional emergency management agency that has an emergency
management plan. See Tex. Gov’t Code § 418.106(a); 37 TAC § 7.1. The
purpose of an emergency management plan is to provide for disaster mitigation,
preparedness, response, and recovery. See Tex. Gov’t Code § 418.106(a).
Each emergency management plan must be signed by the mayor, and must include,
at a minimum: (1) wage, price, and rent controls and other economic
stabilization methods; (2) curfews and other movement restrictions; (3)
limitations on utility use in areas affected by a disaster; and (4) rules
governing entrance to and exit from the affected area, and other security
measures. Id. § 418.106(b); 37 TAC §7.12. Under Section 418.106(b)(1), the
plan could postpone utility payments and waive disconnection until the disaster
has ended, for example.
When the mayor declares a local disaster, it activates the
appropriate provisions of the emergency management plan, including any
provisions the city adopted suspending utility payments and disconnection for
the duration of the disaster. Tex. Gov’t Code § 418.108(c).
If a city does not have provisions for utility payment deferral
and waiving disconnection in its emergency management plan, it may amend the
emergency management plan to provide for it. See also next question.
Can a mayor postpone utility payments under a local disaster
Arguably. In a disaster, the mayor serves as the governor’s
designated agent in the administration and supervision of disaster management
duties set out in state law and may exercise the same powers granted to the
governor under the Texas Disaster Act (Chapter 418 of the Government Code) on
an appropriate local level. Id. § 418.1015(b). The governor may use all
available resources of state government and of political subdivisions that are
reasonably necessary to cope with a disaster. Id. § 418.017.
A mayor can declare a local disaster under Government Code
Section 418.108. Using his or her authority acting as the governor’s designated
agent and Section 418.017, a mayor probably could suspend utility payments and
waive disconnections during a declared local disaster. See also Id. at
Can a city or mayor waive payment of utility bills in response
Probably not. Generally, the Texas Constitution prohibits a city
from giving a gratuitous donation or gift. TEX. CONST. arts. III, § 52(a)
(providing the legislature shall have no power to authorize any city “to lend
its credit or to grant public money or thing of value in aid of, or to any
individual, association or corporation whatsoever, . . . .”); XI, § 3
(providing no city “shall hereafter become a subscriber to the capital of any
private corporation or association, or make any appropriation or donation to
the same, or in anywise loan its credit. . . .”).
A city can use public funds to make a donation under limited
circumstances. The Texas Supreme Court has held that “[a] political subdivision’s
paying public money is not ‘gratuitous’ if the political subdivision receives
return consideration.” Texas Mun. League Intergovernmental Risk Pool v. Tex.
Worker’s Comp. Comm’n, 74 S.W.3d 377, 383 (Tex. 2002). Before making a gift or
donation to a private entity, the city council should determine that: (1) the
conveyance will serve a predominantly public purpose of the city; (2) the city
will retain sufficient control to ensure the public purpose is carried out; and
(3) the city will receive return benefit. Id.
Any city considering waiving utility bills instead of delaying
or postponing them should consult with its city attorney prior to doing so.
Has the Texas Department of Licensing and Regulation waived
continuing education deadlines for its licensees?
Yes. The Texas Department of Licensing and Regulation (TDLR)
requested, and the Governor granted the agency, authority to suspend certain
statewide regulatory requirements. Under that authority, TDLR is waiving
continuing education requirements for all licenses expiring in March, April,
and May 2020. TDLR regulates a multitude of occupational licensing programs,
including code enforcement officers and sanitarians.
Licensees must still submit their renewal applications, pay the
required fees, and have their criminal histories checked but they will not need
to complete any required continuing education requirements this licensing
Has the Texas Department of Licensing and Regulation extended
building inspection deadlines in the Elimination of Architectural Barriers
Yes. The Texas Department of Licensing and Regulation (TDLR)
requested, and the Governor granted the agency, authority to extend by 60 days
all building inspection deadlines in the Elimination of Architectural
Barriers Program for any inspections due in March, April, and May in
case any of those buildings are needed to be used immediately as part of the
Has the Texas Department of Licensing and Regulation extended
building inspection times for permitted boilers and elevators?
Yes. The Texas Department of Licensing and Regulation (TDLR)
requested, and the Governor granted the agency, authority to extend inspection
times for boilers and elevators with permits
expiring in March, April, and May in order to allow any healthcare operations
What is a city required to do if the city elects to suspend the
Public Information Act (PIA) because it has been impacted by COVID-19?
A previous update included
detailed information relating to local suspension of certain PIA deadlines
during an emergency. PLEASE NOTE THAT the days that a city is closed,
working with a skeleton crew, or working remotely do not count as business days
for purposes of the PIA. The attorney general’s office has released a clarification notice
concerning the PIA, calculating business days and COVID-19.
The attorney general’s office has asked that the League help clarify
some of the procedures involved with that process.
The city is required to:
1. submit a catastrophe notice to
the attorney general’s office. The notice has to be on the form created by the
attorney general’s office. The form (first page)
requires the following information: (a) name of the governmental body; (b)
identify and describe the catastrophe; (c) the dates for the beginning and end
of the suspension period (only a seven calendar day period is allowed, with one
extension); and (d) name, title, phone number, and signature of the
governmental body’s contact person; and
2. post notice of the PIA suspension in the same places the city
would post notice of an open meeting.
Tex. Gov’t Code §§ 552.233(c),(f),(j); see id. §§ 551.050,
551.056. Here is an example of a properly filled out form.
How long can a city temporarily suspend the PIA?
The initial temporary suspension of the PIA is seven consecutive
calendar days. Id. § 552.233(d). The city can extend the temporary suspension
for another seven consecutive calendar days. Id. § 552.233(e). The city can
only suspend the PIA for a total of up to 14 calendar days.
Is the attorney general’s office required to post these
catastrophe forms on its website?
Yes. The attorney general’s office is required to post submitted
catastrophe notice forms to its website. Id. § 552.233(i). These notices will
be continuously posted until the first anniversary of the date the attorney
general’s office received the form. Submitted notice can be seen here.
Is there a different notice form that the city has to fill out
if the city decides to extend the temporary suspension of the PIA?
Yes. The attorney general’s office has promulgated an extension catastrophe notice form
(second page) for the extension of the temporary suspension of the PIA. The
following information is required for the extension form: (a) name of the
governmental body; (b) identify and describe the catastrophe; (c) the dates for
the beginning and end of the original suspension period and the extension
period (only a seven calendar day period is allowed, with one extension); and
(d) name, title, phone number, and signature of the governmental body’s contact
person. Id. § 552.233(j). As with the initial catastrophe notice, the
extension has to be submitted to the attorney general’s office and posted where
open meetings notice are required to be posted. Here is an example of a filled out catastrophe extension
How does the city submit the catastrophe notice forms to the
attorney general’s office?
A city can submit its catastrophe notice form to the attorney
general’s office either electronically or via US
Attn: Public Information Act Catastrophe Notice
Office of the Attorney General
Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Where can I find archived issues of the TML Coronavirus Updates?
TML Coronavirus Updates are archived chronologically here and by subject here.