DAN MORALES

.ATTcmNEY GENERAL 

# QBffice

of the JZlttornep

Qkneral &Mate of ?Itexae September

3.1993 Honorable Warren Chisum Chair Committee on Environmental Regulation Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 Dear Representative Chisum: Opiion No. DM-252 Re: Whether article Ix, section 1 of the Texas Constitution authorizes the legislature to consolidate two existing camties (RQ-495)

You have asked us to determine whether article DC, section 1 of the Texas Constitution authorizes the legislature to consolidate two existing counties. You explain that several of your constituents in Dallam and Hartley counties are interested in consolidating the two counties, presumably for reasons of cost et3iciency.r We conclude that article IX, section 1 of the Texas Constitution does not authorize two existing counties to consolidate. Article Df, section 1of the Texas Constitution reads in pertinent part as follows: Section 1. The Legislature shag have power to create counties for the convenience of the people subject to the following provisions:

. . Second. Within the territory of any wunty or wunties now existing no new county shag be created with a less area than seven 

### hundred squaremiles, nor shaIIany such county now existing be reduced to a less area than seven hun&ed square miles. No new counties shah be created so as to approach nearer than twelve miles of the wunty seat of any county from which it may in whole or in part be taken.
. When any prt of a county is stricken off and attached to, or created into another wunty, thepart stricken off shah be holden for and obliged to pay its proportion of all the liabilities then existing, of the county from which it was taken, in such manner as may be prescribed by law.

‘Youhave~l~a~~a~,~~aMorrEfIicicntGovcmmcnt: AnAdysisof the Pmpositionof MergingDalIamand HartleyCounties,”that estimatesthat a wasolidatc4 county anaoaUy will spendatleas1$382.000.00lessthantheamount thetwoamtics will spendseparately.

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Third. Noparf of any existing wunty shag be detached from it and attached to another existing county until the proposition for such change shag have been submitted, in such manner as may be provided by law, to a vote of the electors of both wunties, and shall have received a majority of those voting on the question in each. [Emphasis added.] In our opinion, the language of article JX, section 1 indicates that the legislature may attach to a county only a portion of another wunty, not the whole of the other county. Consolidating two counties-i.e., attaching the whole of one county to the whole of another-contravenes the wnstitutional prohibition against reducing an existing county to an area less than 700 square miles.2 Furthermore, section 1repeatedly refers to a “part” of a wunty.s An examination of the statutes the legislature has enacted pursuant to article IX, section 1indicates that this construction is wnsistent with the legislature’s construction of the section. Throughout chapter 71 of the Local Government Code, which governs the creation of counties, the legislature speaks of organikg a new county out of a part or parts of an existing county or wunties. See. e.g., Local Goti Code $4 71.011, 71.013 (providing for election for detachment or attachment of wunty territory), 71.021(a), 71.022(a), 71.023(a), 71.025 (providing for organization of counties), 71.031, 71.032, 71.033, 71.034 (providing for apportionment of county indebtedness). In our opinion, therefore, the legislature envisions only a situation in which a portion of a county is detached Tom an existing county and attached to another county; the county from which the territory is taken wntinues to exist as an autonomous county. This, of course, does not describe a situation such as the one you propose, in which the whole of two counties are merged into one. Consequently, we do not read article IX, section 1 of the Texas Constitution to authorize the consolidation of entire wunties.4

31n amhasl to ankle IX, section 1d the TexasConstitution, articleVIII, s&ton 8.01ef the Modelstate ccastihltion requuesa le8islanuc to ‘pmvide

by8cacrallaw.
. .formuhedsaadproccdure5 of,
. .merging,consolidating[ccaaties].” NATIONAL M~?~CIFLU LEML&

MODELSTATE

~ON~~V~ON art.VIII, 8 8.01,al 15(6thcd. 1%3); see a/soid. 0 8.03, at 117; id art.XI,g 11.01,

at 19;2D.BRUEN, **THECON~TUTION OF**  **THE STATUJFTEXASZ**  **AN** ANN~TATEDAND~~M~ARAT~~EANALY~IS~~~ (1977).

‘We note tba1IhcTexasSqmu hurl, inRobbins v. Limestone Corm@,has saidthattk Texas Chsdhdion authoriwsthelegislatu~te amsclidatetwocr morecoaatics.Robbins Y.Limesrom County 268SW. 915.919 (-Rx. 1925). ‘Tkannt’s pIonauremnt was, howcvu, dida.

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### SUMMARY Article IX, section 1 of the Texas Constitution does not authorize the legislature to consolidate two existing wunties.

DAN MORALES Attorney General of Texas WILL PRYOR Fkst Assistant Attorney General MARYKELLER Deputy Attorney General for Litigation RENEAHICKS State Solicitor MADJXJDJE B. JOHNSON Chair, Opiion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General

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