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                                         April   13, 1949



        Hon. Don A. Lewis,    Chairman                  Opinion   No. V-810.
        Committee    on Counties
        House of Representatives                        Re:   Constitutionality of House
        Slst Legislature                                      Bill No. 573 providing    for
        Austin. Texas                                         home rule charter    election
                                                              in Dallas County.

        Dear   Sir:

                       Referring  to your letter to this office,       we find that you
        submit    for our consideration  the following:

                        ‘The Committee     on Counties has asked me,
                 as Chairman.    to transmit to you H. B. 573 by the
                 Dallas County delegation in the House of Repre-
                 sentatives which provides    that Dallas County may
                 adopt a ‘Home Rule Charter’ by a majority vote
                 of the resident qualified electors   of said county.

                         ‘The Committee desires   your opinion as to
                 whether or not Section 3 of Article  IX of the Con-
                 stitution requires that the vote on a ‘Home Rule
                 Charter’ shall be separated   as m rural and urban
                 vote.”

                          House   Bill 573 includes   the following   provisions:

                         “Section 1. Authority is conferred       upon Dal-
                 las County to adopt a ‘Home Rule Charter’ in ac-
                 cordance    with the provisions     of Section 3 of Article
                 IX of Constitution of Texas by a favorable        vote of
                 the resident qualified electors       of said county. and
                 it shall not be necessary     for the votes cast by the
                 qualified electors residing      within the limits of all
                 incorporated    cities and towns in the county to be
                 separately    counted from those cast by qualified
                 electors   of the county who do not reside within the
                 limits of any incorporated      city or town, and a favor-
                 ing majority    of the votes of such electors     cast in the
Hon. Don A. Lewis,      Page    2   (V-810)




      county as a whole        so determine         the result   of such
      election.

             “Sec.   2. The authority hereby granted is by
      a two-thirds    (2/3) vote of the total membership of
      each House     of the Legislature:

              Subsection   2 of Section          3’of Article    IX reads    in part;

              (I. . . In elections    submitting to the voters      a
      proposal     to adopt a charter      (unless otherwise pro-
      vided by a two-thirds        vote of the total membership
      of each House of the Legislature)            the votes cast by
      the qualllied electors       residing    within the limits of
      alI the incorporated       cities and towns of the county
      shall be separately       kept but collectively      carried
      and votes of the qualified        electors    of the county who
      do not reside within the limits of any incorporated
      city or town likewise        shall be separately      kept and
      separately      counted, and unless there be a favorin
                                                                     9
      majori*      of the votes cast without such collective
      cities and towns, the charter          shall not be adopted.
            .
      . . .

              It cannot be doubted that House Bill No. 573 is a special
or local   law since by its very provisions it can apply only to Dallas
County and no other county may come within its terms.           We assume
compliance   with Section 57 of Article   ID of the Texas Constitution.
The inquiry thus presented     is whether or not the parenthetical      ex-
pression,  ‘unless   otherwise   provided by a two-thirds    vote of the to-
tal membership     of each House of the Legislature,”     is sufficient au-
thority for the Legislature    to pass a special law allowing Dallas
County to adopt a charter without following the provisions         of the
quoted sentence concerning      the manner of keeping and counting the
votes.

              Section   56 of Article          III of the Constitution      reads   in part:

             “The Legislature    shall not, except as other-
       wise provided by the Constitution,    pass any local
       or special law, authorizing:

                                      ******
                                            . ..   _,.
Hon. Don A. Lewis,     Page   3   (V-610)    -




              ‘Regulating the affairs  of counties,      cities,
        towns, wards or school districts;   . . .




               “And in all other cases where a general law
        can be made applicable,     no local or special law
        shall be enacted’ , . . . ”

            Unless the power to pass such a local or special law
can be found elsewhere   in the Constitution, House Bill No. 573 is
clearly void as being repugnant to Section 56 of Article  III of the
Texas Constitution.      The underlying     principle   in the determinatin
of the constitutionality    of any legislation    passed by the Legislature
is that the courts will attempt to sustain the validity, if at all pos-
sible, and will not strike down legislation        unless it is clearly   re-
pugnant to some part of the Constitution.          State V. Humble Pipe
Line Co., 112 Tex. 375. 247 S.W. 1082 (1923); Lower Colorado             River
Authority v, McGraw.       125 Tex. 268. 23 S.W.2d 629 (1935). In this
latter case the principle     was stated as follows:

                “It is the rule of constitutional     construction
        as applied to state Constitutions       that an act is val-
        id unless the Constitution       by express terms, or by
        necessary     implication,    prohibits  the Legislature
        from doing what it has attempted to do in the pas-
        sage of the act. In other words, an act of a state
        Legislature     must be held valid unless some supe-
        rior law in express       terms,   or by necessary     im-
        plication,   prohibits   its passage.    Lytle v. Half, 75
Tex. 128, 12 S.W. 610. . . .*

                We must consider     that a legislative   interpretation  of
 its constitutional  authority, in the form of’legislation       enacted there-
 under, will be given great weight by the courts in determining           the
 constitutionality  of the legislation   enacted.     Walker v. Meyers,    114
Tex. 225, 266 S.W. 499 (1924); First Nat. Bank of Port Arthur            v.
 City of Port Arthur,    35 S.W.Zd 258 (Ter. Civ. App. 1931). With these
 basic principles   firmly in mind. we turn to the bill before us for
 consideration.

                Taken in its context, the parenthetical  expression, “un-
 less   otherwise  provided by a two-thirds   vote of the total member-
Hon. Don A. Lewis,      Page 4    (V-810)




ship of each House of the Legislature,”    means, in our opinion, that
the Legislature    has authority to change the manner of totaling the
votes in an election to adopt a home rule charter in a particular
county.   Subsection 2 of Section 3 of Article IX, before the portion
hereinbefore    quoted, provides  that:

               “Any county having a population of 62,000 or
       more , rrnay      adopt a Home Rule Charter        . , . within
       the specific limitations    hereinafter   provided.    It fur-
       ther is provided    that the Legislature,   by a favorable
       vote of two-thirds    . . , may authorize    any county, hav-
       ing a population less than above specifz          to proceed
       . . . for the adoption of a Charter. . . . No County
       Home Rubs Charter       may be adopted by any county
       save upon a favoring     vote of the resident qualified
       electors   of the affected county. In elections . . . (un-
       less otherwise provided by a two-thirds         vote of . . .
       the Legislature),    the votes cast . . . shall be sbparately
       kept. . .w (Emphasis       added).

       The above language,       taken as a whole, indicates an intentian
that the Legislature shall      deal with special, local situations as
they think best.

        The quoted sentence sets up the procedure           which counties
must follow in the election provided for, but specifically            reserves
to the Legislature     the right to change this procedure.         The import
of the sentence, in its entirety, is that all counties must use the
method of counting required.         but the Legislature    has the power
to provide other methods for any county when the Legislature                finds
a need for a change.       If the’ opposite view is taken, that the Legis-
lature cannot pass a special or local law for this purpose,             we
would be confronted with the ambiguous           situation of the people de-
termining    that one method of vote counting is proper, by so provid-
ing in the Constitution.      but at the same time instructing       the Leg-
islature   that if they thought the method provided was unsound they
must change it in its general application,         in this manner overrid-
ing the people’s mandate.         It is more logical to say that when the
method was adopted by the people they determined               that it was
sound but realized      that it must be left to a branch of its govern-
ment informed on county affairs,          the Legislature,    to make spei5fic
 changes as necessary.         Hence, the provision     “unless otherwise
Hon. Don A. Lewis,     Page   5 (V-810)



provided by a two-thirds   vote of the total membership       of each
House of the Legislature.’


       In this manner we are confronted    with two separate sectians
of our Constitution -- one prohibiting   the Legislature  from passing
special laws regulating the affairs   of counties, whereas the other
 gives the Legislature   express   authority to provide that changes
‘might be made in the method of counting votes for the adoption of
 a home rule charter in particular     counties.   ln order to give mean-
 ing to every word in Section 3 of Article     DC the interpretation    must
 be given to the parenthetical   expression    quoted that it in itself is
 authority for the Legislature   to pass special laws providing for a
 different manner of tabulating the vote in a particular      county.

        A study of the cases in which the courts of this State have
declared laws unconstitutional   on the basis of Section 56 of Article
III of the Constitution reveals that in those cases there was no ex-
press authority given in another section of the Constitution upon
which the action taken by the legislature   was based.   ln all cases
it seems that the action taken by the legislature   was such as was
based upon the general legislative   powers and when these actions
are in conflict with that section of the Constitution prohibiting
special or local laws, the courts have stricken the legislative    ac-
 tion. Cf. Miller v. El Paso County. 136 Tex. 370. I50 S.W. 2d
 1000 (1941); Anderson v. Wood. 137 Tex. 201, 152 S.W, 2d 1084 (1941).

        It is to be noted that in Section 56 of Article ID the Constitu-
 tion provides that the Legislature     may not pass local or special
 laws except “as otherwise provided by the Constitution”        In all
 cases when the courts have been confronted with a contention that
 the Legislature    has acted under a specific provision of the Consti-
 tution as agaSmt a contention that this action was void as being re-
 pugnant to that section of the Constitution    prohibiting the passage
 of local or special laws, the courts have held that the legislative
 action was proper and that the grant nf the right to pass local and
 special laws superseded     the prohibition  in Section 56 of Article  III.

       In Jones v. Anderson,   189 S.W.2d 65 (Tex. Civ. App. 1945.
 error ref.) the court had occasion   to deal with this specific ques-
 tion. Justice Murray   speaking for the San Antonio Court of Civil
 Appeals made the following observation:
Hon.   Don A. Lewis,    Page   6 (V-810)



               “Appellant   further complains    that the Act
       violates Sections 56 and 57 of Article       III of our
       Constitution in that it attempts to regulate       the af-
       fairs of a county by a local or special law. We
       overrule    this contention, the first sentence in
       Section!% reads as follows:       ‘The Legislature
       shall not. except as otherwise      provided in this
       Constitution,    pass any local or special law.’ Sec-
       tion 1, Article   5, of the Constitution   authorizes    the
       enactment of just such an Act as Article         52-161,
       C.C.P.,    and is therefore  made an exception in the
       very first sentence of Sec. 56, Art. 3, of the Con-
       stitution.”

       Some of the cases which have held to the same effect are
Lytle v. Halff, 75 Tex. 128, 12 SW. 610 (1889); State of Texas v.
Brownson,   94 Tex. 439, 61 S.W. 115 (1901); San Antonio and A.P.
Ry. Co. v. State, 128 Tex. 33, 95 S.W.2d 688 (1936): Jenkins v.
Autry, 256 SW. 672 (Tex. Civ. App. 1923, error     ref.);,
Autry,  256 S.W. 674 (Tex. Civ. App. 1923, error   ref.)

        It follows from what has     been said that we are of the opinion
that the passage of House Bill      No, 573 introduced    in the 51st L,e,gis-
lature will validly provide for     the adoption of a county home rule
charter in Dallas County by a       majority  vote of the county as a
whole and make it unnecessary         to keep separate   the rural and ur-
ban votes cast as required    by    Section 3 of Article   IX of the Con-
stitution.

                                SUMMARY

              Article  IX, Section 3, of the Constitution
       of Texas, specifically    provides  that the Legis-
       lature may pass laws changing the manner of
       counting and keeping the ballots in an election to
       determine    whether or not a county shall adopt a
       home rule amendment to its charter.         If H.B.
       573, 51st Legislature.    is enacted, as now written,
       by a 2/3rd vote of the Legislature,     its provisions
       for counting together.rural     and urban votes on
.

    Hon.   Don A. Lewis,     Page   7 (V-810)




             Home    Rule Charter elections     in Dallas    County
             would   be constitutional.

                                                   Yours    very    truly

                                          ATTORNEY          GENERAL         OF TEXAS


                                                 ~~
                                           BY
                                                      E. Jacobson


    EJ:erc

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