Honorable M. F. Kieke 

county xttorney 

Lee county 

Giddings, Texas 

Dear Sir: Opinion No. O-2502 

Ret: ,hre the inhabitants of an 

incorporated oity permitted 

to vote in a stook law eleotion under Article 6954, R. 

C.S., such city being inoluded w-thin the desoription of 

the subdivision? And related 

question. 

Your letter of recent date requesting a legal opinion from this 

department states that in 8 stook law election under Article 6954, 

Revised Civil Statutes of Texas, an inoorporated city is included nithin the description of the sub-division in which the election is to Ix 

held. You ask if the inhabitants of suoh oity are permitted to vote in 

the election, and if not, would the city nevertheless be effeoted by and 

included within such sub-division. 

Article 6954 provides in part as follows': 

"Vpon the written petition of one hundred (100) freeholders of any of the following counties: . . . Lee. . . . 

or upon the petition of fifty (50) freeholders of any such 

subdivision of a county as may be desoribed in the petition, 

and defined by the Commissioners Court of any of the above 

named counties, Commissioners i%urt of said County shall 

order an election to be held in such County or such subdivision of a county 8s may be desoribed in the petition 

and defined by the Commissioners Court on the day named in 

the order for the purpose of enabling the freeholder6 of 

such oounty or subdivision of a oounty as may be described 

in the petition an&defined by the Commissioners Court to 

determine whether horses, mules, jaoks, jennets, and aattle 

shall be permitted to run at large in such county or such 

sub-division of a oounty as may be desoribed in the petition 

and defined by the Conmissioners Court." 

In the case of Conner vs. Skinner, et al, 156 SW 567 (Court of 

Civil Appeals). it is saidt 
Honorable M. F. Kieke, Page 2 O-2502 

n 

. . . ..Tt iS SUffiOient answer to Say the record nowhere 

discloses that any general stock lam is in force in Eastland County, and therefore, if the statutes cited were applicable to that county, some of which are not, yetthere 

is nothing, as indicated, to show that the people of that 

county have ever availed themselves of the privilege of 

adopting the provisions of the general stock lam so as tc 

put the same in force in the tom of Eastland ' -__. ..(F$l$FZs ours) 

In.considering the question as to whether an incorporated city or town may be embraced within a designated 

derritory within which the stock laws would apply, the 

Court of Criminal Appeals in the case of Eeuvar vs., State, 

163 sll58, declared: 

"None of the statutory enactments providing for the 

adoption by vote of either of said stock laws excluded 

the incorporated towns or oities from being embraced 

within the territory designated within which such stock 

law should apply. . . . . 80 that we think it is clear that 

the petition for the election in a certain part of Lavaca 

County designated by metes and bounds in the petition, 

the orders of the commissioners court and in the adoption 

of the aot. were perfectly legal and valid, although it 

embraced three incorporated towns within its boundaries1 

and that the freeholder6 within said incorporated town could 

vote at such election the same as a freeholder voter in 

any part of the territory....," 

To the same effect is the case of Bishop vsO State, 167 .S.W 363, 

from which we quote as follows: 

"Said election district, as No. 6, therefore had embraced 

the city of Weimer. Weimer, long before then, had been 

incorporated under the general incorporating act, authorizing 

toan6 of one thousand inhabitants or over to incorporate.,,. 

As such corporation, it had just such power and authority.,. 

to regulate and prohibit stock running at large SR were 

given by aaid statutes to such incorporated tams. It had 

passed no ordinances, and ,had none regulating or prohibiting 

stock running at large.... He contends, first, that Rimer 

oould not be included in the territory for such election 

because it was incorporated.... This court in Neuvar vss 

State, 163 SW 58, expressly decided appellant's first 

ground against him. We have no doubt of the oorreotness of 

that decision, and that Weimer could be, as it wasp embraced 

in said distriot eight...." 

The rule announced in these cases by the Court of Criminal Appeals cf Texas was recognized and its correctness re-affi~rmed in the 
. . _- - 

Honorable M. F. Kieke, Page 3 O-2502 

case of Lambert, et al vs. Sourlook, et al, (Court of Civil Appeals) 286 

SPY 6'79, wherein the court saidr 

"Appellant.....asserts that the eleation was void 

because in a sub-division of Jefferson County whioh 

included Port Arthur, an incorporated city, nhioh had 

theretofore adopted the stook law, and henoe could not 

be lawfully included in said election. 00.01) We do 

not deem it neaessary to go into a lengthy discussion 

of these cases, but will say that they were in effeot 

overruled in Xeuvar ~8. State, 72 Tex. Grim, Rep. 410; 

163 SW 56. In that case a stock law elecvtion '~88 held 

valid, although it included within the bounds of the 

sub-division in whiah the election was held three incorporated towns, In Bishop VS. State,...,.the question 

,....was again considered. and it was again hsl~d that 

such town could be included in such sub-division....ev 

And in English ~8~ State, 292 SW 229, it was again declared by 

the Court of Criminal Appeals; 

"This oourt is called upon to determine whether, 

upon a proper construction of the statute quoted, it 

is legal to include in the district wherein the 

eleotion was ordered the territory embraced within 

the inaorporated oity of Port Arthur..... It is true 

that the people within a oity are not dependent upon 

the eleation, but the aity might,by ordinance, prohibit stock from running at large within the corporate 

limits. This was known to the Legislature, however, 

when the statute uas enacted, without providing that 

in defining a district the oonmnissioners" court should 

not include the territory embraced in any incorporated 

aity. . . . ..Nothing in the language used can, in the 

opinion of the writer, imply any intention or direction that the people of the incorporated oities within 

the counties might not participate, and this as above 

state, though such cities might, by ordinances, protect 

themselves against stock running at large within their 

boundaries. The language used with referenoe to the 

entire county, and the manifest intent that the election 

should be one in which all freeholders, whether urban 

or suburban, could participate, is illustrative of the 

legislative intent in its use of practically the same 

language with referenae to sub-divisions of the oounty. 

The precedents are not harmonious, but somewhat oOnfuSingeoee" 

*a have reviewed the foregoing cases beoause, 8s pointed out by 

the court in the English case, the precedents are not harmonious. For 

e~mple, in the 0a80 of &wand vs. State. 202 SW 961, it was held on 
Honorable M. F. Kieke, Page 4 O-2502 

the authority of the case of Reuter vs. State, 67 SW 505, that a local 

option election could not be held within the oily of Dallas beoause by 

the aot of the 30th Legislature in granting a speaial oharter to the 

city of Dallas, the aity eas given the power to regulate and prohibit 

the running at large of stook. This could not be invaded by the ettempt of the commissioners* court of Dallas oounty to include the city 

of Dallas within the district. 

In the Beuter case, referred to above, the Court of Criminal 

Appeals had held that the Legislature by special aot having given 

authority to the city of Dallas to regulate the running at large of 

stock, the city was supreme, end an eleotion ordered by the Commissioners' oourt of the aounty to prohibit stock running at large in the 

oounty would not affect the city of Dallas, The court reasoned that 

the general lam appliaable to every county was at all times subject to 

change and modification "by special laws acting upon the same subject 

in particular counties or special localities, though suoh ohange will 

not affeot the operation of general law, except in those localities 

which are to be taken out of the general rule." ihe special eat of the 

Legislature giving to the oity of Dallas the authority to regulate the 

matter precluded the epplioation of the general stock law statutes., 

The opinions in both the Cowand and Reuter cases were written 

by Judge Davidson. In the Newsr case, discussed above, the same court, 

through Judge Prendergaat, declaredr 

'We do not regard the ease of Renter vs. State, 43 Tex, 

Grim. Rep. 672, 67 SW 505, es applicable to the questions 

presented in this ease** 

df course these oases mey be distinguished upon the prooosition 

that they involved an act of the Legislature which granted c special 

charter to the aity, giving to the oily the express and specifio power 

to regulate the matter else regulated by the general stook lam statute., 

Yet, as pointed out by Judge Morrow in the English ease, the cases are 

"somewhat oonfusing." 

76s were orally advised by you that the incorporated city of 

Lexington, &ioh does not operate under an existing aharter as was 

involved in the Cowaad and Reuter cases, is the subject oity of your 

request, and that it has not adopted a stock law. Clearly, therefore, 

your question would be controlled by the authority of the cases uhioh 

hold that GUI iaaorporated city or town may be legally embraoed within 

the territory designated within whioh a stock law would apply, and that 

the freeholders within the inaorporated aity ortown may vote at the 

stock law election. 

Aooordingly, you are advised that the freeholders within the 

inoorporatsd oity of Lexington, the subjeat city of your request, should 
Honorable M. F. Kieke, F'age 6 O-2502 

be permitted to vote in a stock law election under Article 6954, such 

city being embraced within the desoription of the sub-division of the 

oounty within rhiah the stock law would apply, It thereupon benomea 

umneaessary for us to disouss your seoond question, 

Very truly yours 

ATTORNEY GEEML OF TEX&S 

By s/Zollie C. Steakley 

Zollie C. Steakley 

Assistant 

APPROVXD AUG. 2, 1940 

s/Grover seller* 

FIRST ASSISTANT 4TTORNEY GEhSRAL 

Approved Opinion Committee By EWE3 Chairman