November 

Hon. S. C. Ratliff 

County Attorney 

Delta County 

Cooper, Texas 

Dear Sir: 

20, 1948 

Opinion No. v-723 

Re: Constitutionality of 

S. 13. 70 (50th Leg.) 

and validity of a Droposed County Home Rule 

Charter under Article 

IX, Section 3, Texas 

Constitution. 

You request an opinion on the constitutionality of Senate Bill No. 70 of the 50th Legislature and 

the form of a proposed County Home Rule Charter for 

Delta County. 

Senate Bill No. 70 (passed by a 2&d majority of both houses) reads: 

"Sec. 1. ,The people of Delta County, 

Texas, are hereby authorized to proceed under the authority of Article IX, Section 3, 

of the Constitution of the State of Texas, 

for the adoption of a County Home Rule Charter. 

"Sec. 2. Such a County Home Rule Charter shill be adopted by a majority vote of 

the qualified electors residing In Delta 

County, Texas." 

The pertinent part of Section 3 of Article 

IX of the Constitution reads: 

"A county having ,a population of sixtytwo thousand (62,000) or more .iccordlng to 

the then last FederA Census mly adopt a 

County Home Rule Charter, to embrace those 

powers ,ipproprlate hereto, within the specific limlt~tions hereinafter provided. It is 

further provided that the Legislature, by a 

favoring vote of two-thirds of the total 
I . 

Hon. S. C. Ratliff - Page 2 (V-723) 

membership of both the Senate and the House 

of Representat Ives, may authorize any county, 

having a population less than that above 

specified, to proceed hereunder for the adoption of a Charter; however, as a condition for 

such authorization, It is required that notice of the intent to seek Legislative authority hereunder must be published In one or 

more newspapers, to give general circulation 

in the county affected, not less than once 

per week for four consecutive weeks. . . No 

County Home Rule Charter may he adopted by 

any county save upon a favoring vote of the 

resident qualified electors of the affected 

County.” 

You advise that the notice of intention to ask 

the Legislature to pass such law was duly puhlished in 

accordance with the above quoted part of Section 3 of Article IX. We are of the opinion th& said Act is valid 

and that it authorizes Delta County to proceed to adopt 

a County Home Rule Charter under, the provisions of the 

Constitution. 

Senate Rill No. 70 does not provide for any 

procedure for the preparation or adoption of a County Home 

Rule Charter. The only authority in that regard is contained in Acts 1933, 43rd Legislature, 1st Called Session, 

p. 239, ch. 91. (Article 1606a, V. C. S.) Section 1 and 

the p’ertinent part of Section 2 of said Article reads: 

“The purpose of this Act is to provide 

an enabling Act under the recent Constitutlonil Jmendment adopted and known as Section 

3 of Article 9 of the Consti,tutlon of the 

State of Texds, hereinafter sometimes referred 

to as ’ the <Amendment, ) in order that the Bties the provision of such article m.iy adopt, upon a vote of the quklifled 

resident electors of such countlec, a Home 

Rule Charter in accordance with the terms and 

provisions of such portion of the Constitution.” 

(Emphasis added throughout this @pinion) 

“This Act shall apply to anv qualified 

county of Texas, desiring to adopt a Home Rule 
Hon. S. C. Ratllff - Page 3 (V-723) 

Charter under the powers, and within the llmitations, expressed by Section 3 of .Artlcle IX 

of the Constitution of Texas. . . .I’ 

Failure of said Senate Bill No. 70 to provide 

any procedure or adopt the procedure under the enabling 

act for preparation or adoption of a County Home Rule 

Charter presents the further question: Does the language 

“counties coming within the provisions” and “This 4ct 

shall apply to any qualified county” in the enabling act 

include counties which came within the provisions of the 

law or to any county which may become qualified to adopt 

a Home Rule Charter after the law was passed? 

Morgan v. Potter, (Wls. Sup.) 298 N. W. 763, 

involved the construction of a statute which reads: 

“Any teacher coming under the provisions of this section (42.55) who has attained 

or shall attain the age of 70 years shall be 

retired by the managing body of the schools 

at the end of the school year in which said 

teacher has reached the age of seventy.” 

Construing th;rt statute, the Court said: 

“We consider that in Its opening phrase, 

‘any teacher coming’ under this section (42.55), 

the word ‘coming’ means ‘who is’, whether the 

teacher was under Sec. 42.55 when Ch. 160 was 

enacted, or came under the section theredfter. 

The word ‘coming’ by Implication covers those 

tedchers.who had come under Sec. 42.55 before 

par. (k) was enacted, and those #who should II 

. 

We Ire of the opinion thAt the language: ” in 

order that counties coming within the provisions of such 

article, may Adopt, etc.” In Section 1, and the language: 

“ihis fi,ct shdll apply to any qualified county of Texas, 

desiring to Adopt d Home Rule Ch.*rter under the powers, 

and within the limitations expressed by Section 3 of ,Artitle IX of the Constitution of Texas; lnd the people of 

any qualified county who miy desire to move for the ddoption of a county charter, under such Constitutional pro- 

-1: :;I.w.s, shill1 proceed, etc.,” (in Article 1606a, V.C.S.1 

is sufficient to briny Delta County within the provisions 

of that drticle, so tht It may proceed to adopt J. County 

Rome Rule Ch.irter under the procedure therein provided, 
Hon. S. C. Ratliff - Page 4 (V-723) 

under the authority given in Senate Bill No. 70. 

The validity of a County Home Rule Charter is 

controlled by numerous restrictions including those contained in Section 3 of Article IX of the Constitution, a 

pertinent part of which is: 

“(2) . . . . It Is expressly forbidden 

that any such charter may inconsonantly affect the operation of the General Laws of 

the State relating to the judicial, tax, fisCdl, educational, police, highday and health 

systems, or any other depdrtment of th,e 

State’s superior government. Nothing herein 

contAined shall be deemed to authorize the 

adoption of a Charter provision inimical to 

or inconsistent with the sovereignty and established public policies of this State, and 

no provision having such vice shall have 

validity as against the State. No Charter 

provision may operate to impair the exemption of homesteads as established by this 

Constitution and the Statutes relating thereto.” 

The amendment is a most unusual one, involving, 

as it does, a potential change in every county of the 

State in respect to its governmental affairs. It is unusual in length and scope. Its phrasing and meticulous 

limitations are extraordinary, and furthermore it cont ains some Apparently conflicting provisions . Because 

of its length it will not be here quoted, but specific 

portions thereof w.ill be set out along with the discussion. 

PerhAps ths most clemsntary and important ruls 

of construction of written instruments--*whether constitution, st:,ltute or contract whatsoever--is that the intention of I:~w rr.iker of the instrument is the re-:l meaning 

thereof. “:11 other rules are subordinate tc\ thi,s and Are 

m,zrely so miny Aids to the inquirer in his quest for the 

intention of’ the maker. 

tie shill first rive consideration to the overall., primdry pu-pose of the amendment, to discover the 
Hon. S. C. Ratliff - Page 5' (V-723) 

evil sought to be corrected and the means adopted for 

accomplishing it. 

Subsection (1) yields the key to the inquiry, 

that is, to afford to the county the "highest degree of 

JOCL 1 self -vr (LO e e Is c-tent with the aficient conduct of those affairs bv necessity lodged a 

the nation and the state." 

The instrument should be construed ds a whole, 

including the respective parts, separ+tely and collectively, each in the light of the other, ;Ind likewise =>ny 

or all of them in the light of other constitutional provisions having any bezing upon the subject. Nhere 

there are two constructions possible, one of which would 

mike inv.Lid or meanineless the amendment, or lead to an 

absurd result, ;lnd another which .would give life and 

meining to the Amendment and attribute to each p.art a 

meaning consistent with the other parts so that dll may 

stdnd, the first construction will be abandoned as inadmissible and the second one Adopted as the proper one 

to indicate the indispensable essential of intention. 

Pierson v. Stste, 177 S. W. (2d) "75; State v. Gillette's 

Est., 10 S. W. (2d) 984; Koy v. Schneider, 221 S. W. 8,?0; 

Ex Parte Jnderson, 81 S. rl. 973; Warren v. Shuman, 5 Tex. 

442. 

Similarly, where a statute or constitution is 

fAirly cspdble of two constructions, each of which would 

leave doutt lrd uncertainty and possible public harm, 

th:it construction which would leave the lesser vices and 

dangers should he adopted ds more nearly indicative ,of 

the real intention of the framers of the instrument. 

Thornils v. Creager 107 S. d. (2d) 705; Orndorff v. State, 

108 S. d. (2d) 206. 

Another familiar rule of construction IS thdt 

the Iffirmdtive grdnt of pi power carries with it by necessary implication of law the further power to do ~11 

things necessary, or reasonably Jnd directly helpful in 

carrying out the primary purpose. Ju'ilson v. Rbilene Independent School District, 190 S. W. (2d) 406. 

In this process of construction, literalism 

will yield to the spirit of a constitution or statute 

when the latter more accurately sho+s the real purpose 

or intention of its makers. 
11.2 Hon. s. c. Rat.liff - Page 6 (V-723) 

In consonrnce with these indisputable rules 

of construction pertinent to the situation, we arc of 

the opinion tht the dominant purpose of the amendment 

was to afford to the counties the greatest latitude o 

lOCal Control Of their COUntY 9ffdirS. consistent Wit: 

the suverior rights and vowers of the State. 

If literalism should control our interpretation of the emphatic prohibitions in paragraph (2) of 

the amendment, above quoted, no Home Rule nmandment 

could be adopted at all, for the State in Its sovereign capacity has always promulgated laws for the control of county affliirs throughout the State. Literalism, ho:dever, must yield to the purpose of the amendment . Literallsm would forbid the adoption of any 

charter that would abandon the County Commissioners’ 

Court ds it now exists and substitute therefor a governing body otherwise constituted. Yet these are the 

precise things expressly authorized by the amendment. 

The same comment may be made with respect to the power 

conferred by pdrdgraph c. of Subdivision (3) authorizing the governing body established by any county to 

“create, consolidate or abolish any office or department, whether created by other provisions of the Constitution or by statute, define the duties thereof, 

fix~ the. compensation for the service therein, make 

the same elective or appointlve, and prescribe the 

time, qualifications and conditions for tenure in any 

such office.” 

The true rule deducible, therefore, is that 

the amendment authorizes.any county adopting 1 Home 

Rule Charter to “provide for ;I governing body” other 

thin the Commissioners’ Court and incidentally to make 

all provisions necessary or directly helpful to that 

major purpose, And the meticulous limitLti.ons, qualifications, dna exceptions~contained in the amendment 

attest the prohibition to take any step that would affect the State’s powers of government other than those 

expressly or by necessary implication conferred on the 

county. 

Inconsistencies, contr.idictions, and absurdities are always to he avoided if possible in construction. Holman v, nrOddWdy Improvement Company, 330 S.W. 

15; Cramer v. Sheppard 167 S.N. (2d) 147; Carpenter 

v. Shcpp:ird, 145 S.W. f2d) 562; San fintonio Etc. Ry. v. 

State, 75 2.W. (2d) 680; Ex Parte Cooks, 135 S.4. 139. 
Hon. S. C. Ratliff - P’age 7’ (V-723) 

_ 13 :J 

Applying these rules of construction, we point 

out some vices in the proposed charter, as follows: 

Section 9 contains matter which we think is forbidden by the language of Paragraph (2) of Subdivision 3 

of the amendment. We refer to the following portion of 

Charter Section 9, to-wit: 

"The (Manager) may authorize an officer or department hedid to appoint and remove subordinates under his respective 

supervision." 

It is contrary to the long established policy 

of this State to permit dn officer of the State to delegate his official power, to Another. No .duthorities,are 

needed for d proposition so elementary. The last paragraph of Section 9 is also of doubtful validity for the 

same redson. In other words, the charter makes the Commission d board of officers clothed with constitutional 

dnd statutory powers generally to control and manage 

county affairs, while this portion of Section 9, in some 

measure at least, would delegate the power vested in the 

Commission to its appointee, the County Manager. 

.Section 13 is invalid wherein it attempts to 

abol .ish the office of County T&x Assessor and Collector 

and to estrblish in lieu thereof a County Manager as the 

head of the finance department with the powers of County 

Tax 4ssessor and Collector. The office of assessor and 

collector of taxes is a constitutional one (Sec. 14, Art. 

VIII) and its functions are not those kiith respect to 

county affairs %llone, hut involve essential St-;lte functions 4s wsll. Indeed, the sum tot.21 of such officer's 

fnncti~ons ,rt:fect the enti r*e Cin.inc5:\l r:cheme o!' fcvern-, 

Tent. fi county could not .Iholish tbc office nT r:ssessorCollector !qithout serious interference with the superior 

Stite t:overnment:il policies. .:'he St,lte m:~y not be deprived of it:: sovereign right to mike 1.1~s for its own 

government. The Amerriment is to imp1cm6-rlt county controls 

of county .Afi.~iirs, not to surrender functi.ons 3nd prerog.1 

tives to dnother. 

Section 23 is invalid insof:ir .LS it attempts to 

Ybolish th- office of District Clerk for the reasons just 

given, nor is it within the authority of Section 3, Subdivision (3)~ authorizing the consolidation or abolishing 

II' 4r-,y office or department. The offices and dep:artments 

there contemnl.ated are those offices and departments hav- 
. . 

114 

Hon. S. C. Ratllff - Page 8 (V-723) 

ing to do with county affairs only. This does not include the District Clerk. 

Section 26 Is Invalid. The office of Sheriff 

is a constitutional office, elective for a definite term 

of two years. His duties and functions are not wholly 

with respect to county affairs, so that the public policy 

of the State with respect to his selection and duties may 

not be usurped by any individual county. 

Section 27, abolishing the offices of Justices 

of the Peace and Constables, is invalid for reasons already given with respect to other officers, and for the 

further reason th.at these officers are concerned very remotely, If at Al, with county affairs. They have t,o do 

for the most part with state affairs under the police 

power, which field Is one of the principal prerogatives 

of State sovereignty. 

We need not discuss the various sections of the 

proposed charter, seriatim, but the rules of construction 

accompanied by the Illustrations of vice in those instances pointed out will suffice, we think, as a guide in 

the preparation of a charter for submission to the people 

of ijelta County. 

However, we call your attention to the first 

paragraph of Section 3 of the proposed charter declaring 

“except as otherwise provided in this charter, 311 Dower% 

of the county shall be vested in a Commission of five memhers, elected from the county at large in the manner hereafter provided, who shall serve without compensation. . .‘I 

We entertain grave doubts as to t,he right of the 

county to adopt a charter which would vest “all powers of 

the county” in a commission. The Commissioners’ Court Is 

a constl.tutlonal instrument~allty of government. Under the 

established policy of the State from its earllest days that 

body has been clothed with certain powers which are essentlal.ly the sovereign powers of the State as contradlstin- 

&shed from matters of rounty affairs. owe have in mind 

especially such powers as the following: 

Dividing the county into election precincts; 

Ordering local option elections in regulation 

of liquor; 
. 

Hon. S. C. Ratllff'- Page 9 (V-723') 

Canvassing returns of elections of State 

officers; 

Appointing a health officer to act under 

direction of the State Health Officer; 

Acting as Board of Equalization in fixing 

values of land for purposes of State taxation; 

Approving reports and official bonds of 

county officers. 

Such a power to exercise "all powers of the 

county" b y the five-member agency set up in the proposed 

charter, certainly is not expressly conferred by the 

amendment; neither is is impliedly conferred by the language of subsection (3)a. providing: "In any event, In 

addition to the powers and duties provided by any such 

charter, such governing body shall exercise all powers, 

and discharge all duties which, In the absence of the 

provisions hereof, would devolve by law on County Commissioners and County Commissioners' Courts." The significant phrase Jn the absm f the nr visions hereof 

forbids such imnlication. BYetEe term "tohe nrovisions 

, 

hereof," is me&t a.11 the D bvisi ns of the amincluding the many and mandztory zestrictions. prohibltlons, limitations and qualifications. The language 

immediately following Is highly important and bespeaks 

plainly the limited extent and scope of the powers contemplated. It is as follows: l'Further, any such charter may provide for the organizatton, re-organization, 

establishment and administration of the government of 

the county, including the control and regulation of the 

performsnce of and the compensation for all duties reaulred in the conduct of the countv aff~airg, subject to 

the limitations herein provided." 

We note the following among the many express 

limitations: 

. May adopt '4 county home rule charter, 

ti ambrace those powers appropriate hereto, 

within the specific limitations hereinafter 

provided. . . It is cxpresslv forbidden that 

any such charter may inconsonantly affect 

the operation of the general laws of the 

State relating to the judicial, tax, fiscal, 
Hon. S. C. Ratllff - Page 10 (V-723) 

educational, police, highway and health system, 

or any other department of the State’s superior government. Nothing herein contained 

shall be deemed to authorize the adoption of 

a charter provlsian inimical to or Inconsistent 

with the sovereignty and established public 

policies of this State, and no provision having 

such vice shall have validity as against the 

State. . . .I’ Art. IX, Sec. 3(2). 

I, 

. . . Other than as herein provided, no such 

charter shall provide for altering the jurlsdiction or procedure of any court. . . .“lbid 

subsection (3)b. 

“Such charter may authorize the governing 

body . . . to prescribe the schedule of fees 

to be charged by the officers of the county 

. provided, however, no fee for a specihldd service shall,exceed in amount the fee 

fixed by General Law for that same service. . . 

may prescribe the qualifications for services, 

provided the standards therefor be not lower 

than those fixed by the General Laws of the 

State.” ibid subsection (5) 

I1 

. . . No such transfer or yielding of functions (of State agencies) may be effected, unless the proposal Is submitted to a vote of 

the people, and, unless otherwise provided by 

a two-thirds vote of the total membership of 

each House of the Legislature, . . . particularly, it is provided that the power to create 

funded Indebtedness and to levy taxes in support thereof may be exercised only by such 

procedures, and within such limits, as now are, 

or hereafter may be/provided by law to control such appropriate other governmental agencies were they to be independently administerea. . . .‘I ibid subsection (6)a. 

A reading of the amendment will show that It 

contains more prohibitions, limitations, qualifications, 

exceptions and restrictions than it does grants of power. 

Indeed, Section (1) declaring the purpose of the Act to 

be a grant of the “highest degree of local self-government which is consistent with the efficient conduct of 
-. . 

Hon. S. C. Ratliff - Page 11 (V-723) 

those affairs by necessity lodged In the Nation and the 

State," Is In truth the sole affirmative grant of power, 

and be it remembered this grant is limited to "local 

self-government." On the whole the amendment is more 

concerned with the preservation of the over-all supremacy of the State in matters concerning State affairs. 

Under every test It will appear that an effort to abolish the Commissioners' Court would be in disregard of 

these numerous prohibitions and limitations and therefore "inimical to, and inconsistent with the sovereignty and established public policies of this State." The 

amendment should not be construed as a complete divorcement of county and state in the matter of governmental 

powers. The Commissioners' Court of the county has not 

been expressly abolished by the amendment in any event, 

and such abolishment will not be implied. Repeals by 

Implication are not favored. Any other construction 

would bring chaos In the administration of the law. 

This discussion does not exhaust the large 

problems raised by Article IX, Section 3, its supporting 

Statutes , and the proposed charter. To discuss each 

line and phrase would mke this opinion too long. Problem and fact situations will arise whtch cannot be anticipated or properly decided in adv:tnce. If calied upon 

to p;iss thereon, they will be treated separately as they 

arise. 

H. B. 

is d valid 

to adopt d 

No. 70 of the 50th Legislature 

,Act and authorizes Delta County 

County Home Rule Charter. Morgan v. Potter, 298 N. W. 763. 

SUMMARY 

The Nanager provided in such a Charter may not be authorized to appoint and 

remove subordinate officers as such would 

be an unlawful delegation of power by the 

governing body. The Charter my not abolish the office of County Tax Assessor and 

Collector, District Clerk, Sheriff, Zustice of t!le Peace, Constable, or the Commissioners' Court, since each of these is 

a State functionary and exercises powers 
Hon. S. Ci Ratliff - Page 12 (V-723) 

and is charged with duties of state-wide 

iniportance as contradistinguished from 

county affairs, and such,abolishment 

would be contrary to the exprs~ss prohlbltlons of the amendment. 

Yours very truly, 

ATTORNEY GEmAL OF TEXAS 

0S:wb 

W. T. Williams 

Assist& 

$TTJl& 

ATTORNEY GENERAL