Sources & Hierarchy of Law in Texas

There are various sources of law in Texas.

Federal Law

  1. Constitutional law
    • U.S. Constitution, including amendments
    • Federal court interpretations of constitutional provisions
  2. Statutory law
    • Laws passed by the U.S. Congress
  3. Administrative law
    • Federal bureaucratic agency rules and regulations

State Law

  1. Constitutional law
    • Texas Constitution, including amendments
    • State court interpretations of constitutional provisions
  2. Statutory law
    • Laws passed by the Texas legislature
  3. Administrative law
    • State bureaucratic agency rules and regulations
  4. Local codes and ordinances
    • Laws passed by cities and counties

The U.S. Constitution states that federal laws are higher than state laws within the legal hierarchy (Supremacy Clause, U.S. Constitution).  Similarly, the Texas Constitution states that state laws (constitutional law, statutory law, and administrative law) are higher than local codes and ordinances within the legal hierarchy.Figure depicting legal hierarchy of federal, state, and local laws

Within both the federal and state legal systems, constitutional law is considered the foundation of government and, as such, is viewed as higher than statutory laws created by the legislature under their constitutional authority.  Statutory law is viewed as higher than administrative law, because legislatures create and delegate authority to bureaucratic agencies.

Figure depicting legal hierarchy of constitutional, statutory, and administrative laws

Inefficiency & Corruption in Local Government

Inefficiency in local government often results from either lack of coordination or pooling of resources and poor staffing/unqualified personnel.  The most common forms of corruption found in local government include bribery, extortion, embezzlement, graft, and nepotism.

Corruption in local government is what led to many of the institutional frameworks that are now used in local government.  For example, Dillon’s rule was proposed in response to concerns about irresponsible, unresponsive, and corrupt local governments; corruption in municipal government resulted in the creation of the council-manager system; and elected municipal and special district offices in Texas are now selected through nonpartisan elections.

Even with reforms to reduce corruption and increase accountability, transparency, and efficiency in local government, corruption and inefficiency in local government still occur, as the case of Progreso, Texas illustrates:

For almost a decade—from 2004 to 2013—several members of the same family, all Progreso government officials, used their positions to exact bribes and kickbacks from city and school district service providers. Through their illegal activities, they distorted the contract playing field, cheated the very citizens they purported to serve, stole education money from the children whose educations they were supposed to ensure, and lined their own pockets in the process.  (Corruption in a Small Texas Town, 2014).

A Closer Look: Texas Counties

Texas counties have several opportunities to be inefficient and engage in corruption because:

  • counties, as local governments, come into direct contact with individuals more often than state governments and the federal government
  • counties use partisan elections to select key county officials
  • most counties employ the patronage system (also known as the spoils system) in staffing
  • most counties do not have a centralized purchasing department
  • in most counties, commissioners are responsible for running the county government in their districts

Local governments, in general, are susceptible to corruption due to their proximity to, and daily interaction with, individuals.  More interaction with individuals is not necessarily a bad thing; in fact, it can promote civic knowledge and civic engagement.  The more frequently government officials meet with individuals, however, the more likely they are to encounter opportunities for certain forms of corruption, such as bribery.

Partisan elections and patronage systems increase the likelihood that key county officials and county staff working within the various county government departments will be selected based on nepotism or political loyalty as opposed to merit.

The lack of centralization when it comes to governance and purchasing in counties may result in poor coordination and duplication.  For example, in the majority of Texas counties, county commissioners are responsible for road construction and maintenance in their districts.  This decentralized model to governance, combined with a lack of centralized purchasing, means that counties may expend more money than they would have had it pooled their resources when developing requests for bids from private companies and renting or purchasing equipment and materials.

Special Districts in Texas: The Basics

Special districts are local governments that exist separately from county and municipal governments and perform a single function or limited set of related functions.  Special districts have significant powers, including the ability to impose and collect taxes and fees, issue bonds, borrow money, contract with other entities, and buy, sell, or lease property.  The most commonly created special districts in Texas are independent school districts.  Other examples of special districts include airport authorities, community college districts, library districts, municipal utility districts (which provide water, sewage, drainage, and other utility-related services to residents of the district), and economic districts.

“With the exception of school districts, historically most special districts have as their constitutional basis two amendments to the Constitution of 1876: (1) Article III, section 52 (1904), allowing the formation of special districts that could incur indebtedness up to one-fourth of the assessed property valuation, and (2) the conservation amendment, Article XVI, section 59 (1917), allowing the establishment of conservation and reclamation districts with no limit as to amount of debt or taxation.” (Smith, Tax Districts, Special, n.d.)

Similar to cities, special districts are formed through citizen input – residents within a proposed boundary may petition to create a special district.  The Texas legislature or a state bureaucratic agency (depending on the type of special district in question) then decides whether to authorize its creation.  Special districts operate under either the county commissioner’s court or a board of directors, which can be appointed by the special district or elected at-large by voters in the geographic boundary encompassed by the special district.

Even though special districts are the most common type of local government within the United States, special districts may be thought of as shadow governments or ghost governments because they tend to operate with little oversight from the state and/or the citizens who live within the special district.

Municipal Government in Texas: The Basics

Municipal governments oversee the operation and functions of geographic areas that are smaller than counties, including cities and townships.  In most places, municipal government is considered the level of government closest to the people.  Municipal governments provide a variety of services to local residents, including utilities, parks and recreation, street maintenance/construction and public transportation, and public safety.  Municipal governments are responsible for addressing issues relating to zoning, building regulations, and economic development.  Municipal governments generally have more ordinance authority than do counties.

Unlike Texas counties, which are created by the Texas legislature, Texas cities develop more directly from citizen input: to create a new municipal government, residents directly petition the state of Texas.  The Texas Constitution of 1876, as amended and statutory laws passed by the Texas legislature, give cities more discretion than counties to adapt to change in areas such as city organization, election systems, local laws, and forms of government.  The resulting flexibility better equips cities with the ability to carry out local government functions in a rapidly changing state.

Mayor-Council &  Council-Manager Systems

Most municipal governments in the United States use one of two basic structures:

  • mayor-council system, in which  voters elect both a mayor and members of the city council
    • in a weak mayor-council system, the mayor acts in a ceremonial capacity and does not have more power or authority than do individual members of the city council
    • in a strong mayor-council system, the major acts as an executive officer and can veto actions of the council, appoint department heads, and/or develop a municipal budget
  • council-manager system, in which the city council appoints a professional city manager to carry out the administrative functions of municipal government.  In council-manager systems, voters may either elect both the mayor and members of the city council or elect members of the city council, who then appoint a mayor

Direct Link: Local Government That Works: The Council-Manager Form of Government

General Law Cities

General law cities are the default organization for Texas cities.  Most Texas cities are general law cities.  General law cities operate under Dillon’s rule – their exact form of government, ordinance powers, and other aspects of city government are specified in the Texas Local Government Code, and they “are not authorized to perform any act or organize themselves in any fashion not expressly allowed by state law” (Blodgett, n.d. ).  Because of this, general law cities have limited powers.

There are three different forms of general law cities: type A general law cities, type B general law cities, and type C general law cities.

Type A General Law Cities

Type A general law cities operate under a city council whose size is determined by whether the city is divided into wards.  If there are no wards, the council consists of 5 council members and a mayor.  If the city is divided into wards, the city council consists of two council members per ward and a mayor.  The mayor only votes when there is a tie.

Type B General Law Cities

Type B general law cities operate under a board of aldermen, which consists of five aldermen and a mayor, all of whom are elected at large.  State constitutional and statutory law is unclear as to whether the mayor in Type B general law cities can vote.

Type C General Law Cities

Type C general law cities operate under a commission, which consists of a major and two commissioners, all of whom are elected at large.

Home Rule Cities

A general law city with a population of at least 5,000 may petition the state of Texas to become a home rule city.  Once a city has been granted home rule status, it maintains this status, even if its population falls below 5,000.

As their name implies, home rule cities operate under home rule – they are granted greater freedom in their structure and functions than general law cities.  “Generally, home rule municipalities are authorized to take any actions necessary to effectuate their governance and structure, as long as those powers are not specifically restricted in the Texas Constitution or by statute” (Texas Senate Research Center, 2014).  Home rule cities also have greater annexation powers than general law cities.

Home rule cities are governed by a city charter, or plan of government that details the structure and function of the city government.  In the city charter, a home rule city will identify how it will be structured (i.e., whether it will use a mayor-council system or a council-manager system).  Most home rule cities in Texas use a council-manager form of government.

Home rule cities may choose from four election systems to select council members:

  • at-large elections, in which candidates compete for city council seats without any reference to specific seats or districts, and voters may vote for as many candidates as there are seats on the council
  • at-large by place elections, which are similar to at-large elections, but with candidates declaring which seat they are running for
  • single-member districts, in which a city is divided into several election districts equal to the number of seats on the city council; each district then elects one member, with voters in each district casting a single vote for their most preferred candidate
  • cumulative voting systems, which are similar to at-large elections, but voters can give all their votes to a single candidate or spread them across candidates

County Government in Texas: The Basics

County governments serve a smaller area than states and a larger area than cities.  Article 9 of the Texas Constitution of 1876 grants the Texas Legislature the power to create counties, subject to limitations relating to geographic size.  Today, Texas has a total of 254 counties – more counties than any other state.

Texas counties operate under Dillon’s rule.  Texas counties are considered extensions of state government: their structure is defined by the statutory law, and they may only exercise the powers that have been specifically granted to them by the state of Texas.  As such, Texas counties use a one-size-fits-all approach to local governing authority.

Commissioner’s Court

County governments in the United States usually use one of three basic structures:

  • commission system, in which an elected commission serves as the governing body of the county
  • council-administrator system, in which an elected council appoints an administrator to oversee the daily operation of county government
  • council-elected executive system, in which voters elect both the members of the council and the executive

In Texas, we use a commission system: county government is led by a commissioner’s court, which consists of four county commissioners, each of whom represents one of four geographic districts within the county, and the county constitutional court judge.  The commissioner’s court acts as a legislative body and an executive body.

Legislative Functions

  1. Limited authority to pass ordinances that govern the county
  2. May determine the types and rates of taxes to fund county government
  3. Pass the annual county budget

Executive Functions

  1. Administer state and federal funds for local government use (this relates to fiscal federalism)
  2. Oversee the various county departments and agencies
  3. Hold final responsibility for the conduct of elections in the county

County Commissioners

County commissioners are chosen using single-member district plurality elections, in which voters in each district cast one vote for their most preferred candidate, and whichever candidate wins the most votes wins the election.  Note that “most” is not the same thing as “majority” (50% + 1 vote).  To uphold the principle of “one person, one vote”, these commissioners’ districts are redistricted every ten years, following an election.

Each county commissioner is responsible for running the county government in his or her district. County commissioners do not have to work collectively but may act solely in the interests of their precincts; however, in some counties, commissioners agree to pool resources and make decisions collectively in the interest of the whole county.

County Constitutional Court Judge

The constitutional county court judge is elected by the county in an at-large election.

The county constitutional court judge serves as the presiding officer of the commissioner’s court, certifies elections, and appoints temporary commissioners when a commissioner resigns before the end of an elected term.  In smaller counties, the judge for the county constitutional court also performs judicial duties.

Other Key County Officers

In addition to a commissioner’s court, most Texas counties also have an auditor, who oversees county finances; a tax assessor, who collects county taxes and user fees; a county clerk, who maintains county records and, in some counties, oversees elections; justices of the peace, who acts as judicial officers for minor criminal and civil cases; constables, who act as judicial officers for minor criminal and civil cases and assists the justice of the peace in his or her duties; a sheriff, who oversees county law enforcement; and a county attorney, who represents the county in legal activities and offers legal advice to county government.

Functions of County Governments

Early county governments in Texas were given responsibility for performing several functions on behalf of the state, including:

  • operating justice of the peace courts, county constitutional courts, county statutory courts, statutory probate courts, and district courts
  • maintaining vital records, including marriage licenses, birth certificates, death certificates, and property deeds
  • collecting funds for state government, including property tax and motor vehicle registration fees
  • conducting elections
  • road construction and maintenance

As Texas’s population increased throughout the 20th century, “county operations expanded to include such additional programs as health and social welfare, solid-waste management, and housing and community development” (Smith, County Organization, n.d.).

Texas counties are granted limited authority to set property tax rates and may employ the power of eminent domain, or the ability to expropriate private property for public use with the payment of compensation.

County Finances and Operations

Day-to-day county operations are funded primarily by a small portion of property taxes collected by that county.  Because of this, some counties have significantly more revenue and can provide significantly more services than other counties.

County government may choose to contract with private businesses to provide basic services to county residents either through privatization, in which a service is transferred from public to private ownership, resulting in residents working with private entities to receive these services, or contract outsourcing, in which the county enters into a contract with a private entity and agrees to pay the private entity in exchange for the delivery of a service.

Citizens within counties may create special districts to provide additional services that are not provided by the county government.

Counties and cities may also enter into interlocal agreements to share services.  We see this occur frequently with property tax collections, with counties collecting property taxes and fees on behalf of county government, municipal government, and special districts.

Local Governing Authority: Dillon’s Rule vs. Home Rule

There are two different legal theories concerning the governing authority of local governments: Dillon’s rule and the Cooley Doctrine (more commonly referred to as the home rule doctrine).  States may apply only Dillon’s rule or home rule to local governments, or they may apply a combination of Dillon’s rule and home rule.  Local governments in most states operate exclusively under Dillon’s rule or a combination of Dillon’s rule and home rule.  Texas local government operates under a combination of Dillon’s rule and home rule.

Direct Link: Home Rule

Dillon’s Rule: State Preemption & Narrow Local Authority

“Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control. ”  – John Forrest Dillon in Clinton v. Center Rapids and the Missouri River Railroad, 1868

According to Dillon’s rule, the state government has authority and supremacy over its respective local governments, which are considered extensions of state government.  Local governments, as extensions of state government, must be structured per state requirements and can only provide those services that the state authorizes them to provide.  “Dillon’s Rule states that if there is a reasonable doubt whether a power has been conferred to a local government, then the power has not been conferred” (National League of Cities, 2016).  Because local governments exist at the pleasure of the state, the state can step in and dissolve them, reorganize them, or take them over.  Furthermore, because local governments are essentially extensions of state government, states are held accountable for the actions taken by their respective local governments.

Dillon’s rule resulted from concerns about local corruption and fiscal irresponsibility.  Dillon’s rule is often viewed as consistent with the principles of federalism outlined in the U.S. Constitution, including a limited federal government and relatively strong states.  “The Founders designed the federal government to be dependent on the states, while the states could stand on their own” (Russell & Bostrom, 2016).  Dillon’s rule extends this dependence on the states to the local level.  As such, federal courts have often ruled in support of this doctrine of governing authority of local governments.

Home Rule: Broad Local Authority

“. . . local government is [a] matter of absolute right; and the state cannot take it away.”  –  Thomas M. Cooley in People v. Hurlbut, 1871

Under the home rule doctrine, local governments have local autonomy and an inherent right to self-government.  Home-rule provisions allow local governments flexibility in addressing the needs of their citizens, without requiring specific delegations of power from the state.  Local governments operating under home rule have some discretion to make decisions about their structure, enact local laws, and make decisions relating to taxation without state interference.  The extent of a local government’s discretion is bound by a state’s constitutional or statutory laws and is often spelled out within a local charter.

During the late 1800s and 1900s, states began to pass legislation and/or include constitutional provisions allowing for home rule in local governments in response to the inability of local governments to respond to increasingly complex problems.

Comparing Dillon’s Rule & Home Rule

Dillon’s rule and home rule are contrasting theories; the advantages of home rule can be seen as offsetting the disadvantages of Dillon’s rule, and vice versa.

Dillon’s Rule

  1. Allows for uniform taxation, environmental regulation, and land use, which benefits businesses
  2. Reduces arbitrary risks that can be taken by local governments
  3. Prevents cities from straying too far from legitimate authority as recognized by the U.S. Constitution
  4. Reduces local corruption

Home Rule

  1. Gives government the ability to make decisions based on local needs, rather than using a one-size-fits-all approach
  2. Provides local control and freedom to self-govern, which may empower citizens
  3. Allows local governments to address financial difficulties by developing new revenue streams
  4. Frees up the state legislature to focus on statewide issues

Local Government in Texas: The Basics

Texas has the second-highest number of local governments of all fifty states with a total of 5,343 local governments in 2017.  Of these local governments, 1,472 are general-purpose governments (254 counties – the highest of any state – and 1,218 municipalities) and 3,871 are special districts (independent school districts, municipal utility districts, community college districts, etc.).  Keep in mind, however, that Texas is a large state.  Even though Texas has more local government entities than every state except Illinois, it ranks 33rd in total number of local governments per capita (39th in number of general-purpose governments per capita and 29th in number of special districts per capita).

Legal Foundations of Texas’s Local Governments

The U.S. Constitution is silent on the creation and authority of local governments.

“The fact that states are mentioned specifically and local jurisdictions are not has traditionally meant that power independent of the federal government resides first with the state. Through their own constitutions and statutes, states decide what to require of local jurisdictions and what to delegate.” – American Government (Openstax)

The legal foundations for Texas local government can be found in Texas law – specifically, the Texas Constitution of 1876 and various state laws passed by the Texas legislature, most notably the Texas Local Government Code.  These constitutional and statutory laws have outlined what kinds of local government may exist in Texas, how various types of local government may be structured, which state functions they are responsible for carrying out, and what services they can provide to their citizens.