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April 13, 1949

Hon. Don A. Lewis, Chairman Committee on Counties House of Representatives Slst Legislature Austin. Texas Opinion No. V-810. **Re:** Constitutionality of House Bill No. 573 providing for home rule charter election in Dallas County. Dear Sir: Referring toyour letter to this office, we find that you submit for our consideration the following:

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

‘The Committee desires your opinion as to whether or not Section 3of Article IX ofthe Constitution requires that the vote ona ‘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 Dallas County to adopt a ‘Home Rule Charter’ in accordance with theprovisions of Section 3of Article IX of Constitution of Texas by afavorable vote of the resident qualified electors of said county. and it shall notbe 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**afavoring majority ofthe votes of such electors cast in theHon. Don A. Lewis, Page 2 (V-810)

county as a whole so determine the result ofsuch election. “Sec. 2. The authority hereby granted is by a two-thirds (2/3) vote of the total membership of each House ofthe Legislature: Subsection 2 of Section 3’of Article IX reads inpart; (I

. . .In elections submitting to the voters a proposal toadopt a charter (unless otherwise provided by a two-thirds vote of the total membership of each House ofthe Legislature) thevotes cast by the qualllied electors residing within the limits of alI the incorporated cities and towns ofthe county shall be separately kept but collectively carried and votes ofthe qualified electors ofthe 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 afavorin majori* ofthe votes cast without such collective 9 cities and towns, the charter shall notbe adopted.

.
. . . Itcannot be doubted that House Bill No. 573 is a special or local law since by its very provisions it can apply only toDallas County and no other county may come within its terms. We assume compliance with Section 57 of Article ID ofthe Texas Constitution. The inquiry thus presented is whether or not the parenthetical expression, ‘unless otherwise provided by a two-thirds vote ofthetotal membership of each House ofthe Legislature,” is sufficient authority for the Legislature topass a special law allowing Dallas County to adopt a charter without following the provisions of the quoted sentence concerning the manner ofkeeping and counting the votes. Section 56 of Article III of the Constitution reads inpart:

“The Legislature shall not, except as otherwise 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 alocal or special law can be found elsewhere in the Constitution, House Bill No. 573is clearly void as being repugnant to Section 56of Article III ofthe 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 possible, and will not strike down legislation unless it is clearly repugnant to some part ofthe Constitution. State V.Humble Pipe Line Co., 112Tex. 375. 247 S.W. 1082 (1923); Lower Colorado River Authority v, McGraw. 125Tex. 268. 23 S.W.2d 629 (1935). Inthis latter case the principle was stated as follows:

“It is the rule of constitutional construction as applied to state Constitutions that anact is valid unless the Constitution by express terms, or by necessary implication, prohibits the Legislature from doing what ithas attempted todoin the passage ofthe act. In **other** words, an act **of**astate Legislature must be held valid unless some superior law in express terms, or by necessary implication, prohibits its passage. Lytle v. Half, 75 Tex. 128, 12S.W. 610.
. . .* We must consider that alegislative interpretation of its constitutional authority, in the form of’legislation enacted thereunder, will be given great weight by the courts in determining the constitutionality ofthe legislation enacted. Walker v. Meyers, 114 Tex. 225, 266 S.W. 499 (1924); First Nat. Bank ofPort Arthur v. City of Port Arthur, 35S.W.Zd 258 (Ter. Civ. App. 1931). With these basic principles firmly in mind. we turn tothe bill before us for consideration.Taken in its context, the parenthetical expression, “unless 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 oftotaling the votes in an election to adopt ahome rule charter in a particular county. Subsection 2of Section 3of Article IX, before the portion hereinbefore quoted, provides that:

“Any county having apopulation of 62,000 or more ,rrnay adopt aHome Rule Charter

. , .within the specific limitations hereinafter provided. Itfurther is provided that the Legislature, by afavorable vote oftwo-thirds

. . ,may authorize any county, having apopulation less than above specifz toproceed

. . .for the adoption of a

### Charter.

. . . No County Home Rubs Charter may be adopted by any county save upon afavoring vote of the resident qualified electors of the affected county. In elections

. . . (unless 

### otherwise provided by atwo-thirds vote of

. .. the Legislature), the votes cast
. . . shall be sbparately kept.

. .w (Emphasis added). The above language, taken as awhole, indicates an intentian that the Legislature shall deal with special, local situations as they think best. The quoted sentence sets up theprocedure which counties must follow in the election provided for, but specifically reserves **to**the Legislature the right to change this procedure. The import ofthe **sentence,** in its entirety, is that all counties must use the method of counting required. but the Legislature has the power toprovide other methods for any county when the Legislature finds aneed for a change. If the’opposite view is taken, that the Legislature cannot pass a special or local law 

### for this purpose, we would be confronted with the ambiguous situation ofthe people determining that one method ofvote counting is proper, by so providing in the Constitution. but atthe same time instructing the Legislature that ifthey thought the method provided was unsound they must change itin its general application, in this manner overriding the people’s mandate. Itis 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 abranch ofits government informed on county affairs, the Legislature, tomake spei5fic changes as necessary. Hence, the provision “unless otherwiseHon. Don A. Lewis, Page 5 (V-810)
provided by atwo-thirds vote of the total membership ofeach House ofthe Legislature.’ Inthis 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 toprovide that changes

‘might be made in the method of counting votes for the adoption of ahome rule charter in particular counties. ln order to give meaning to every word inSection 3of Article DCthe interpretation must be given tothe parenthetical expression quoted that itinitself is authority **for** the Legislature to pass special laws providing for a different manner oftabulating the vote in aparticular county. A study ofthe cases in which the courts ofthis State have declared laws unconstitutional on the basis ofSection 56of Article III ofthe Constitution **reveals** that in those cases there was no express authority given in another section ofthe Constitution upon which the action taken by the legislature was based. lnall 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 action. Cf. Miller v. El Paso County. 136Tex. 370. I50S.W. 2d 1000 (1941);Anderson v. Wood. 137Tex. 201,152S.W, 2d 1084 (1941). Itis tobe noted **that** in Section 56ofArticle ID the Constitution provides that theLegislature may notpass local or special laws except “as otherwise provided by the Constitution” In all cases when the courts have been confronted with acontention that the Legislature has **acted** under a specific provision ofthe Constitution as agaSmt a contention that this action was void as being repugnant tothat section ofthe Constitution prohibiting the passage oflocal or special laws, the courts have held that the legislative action was proper and that the grant nf the right topass local and special laws superseded the prohibition inSection 56ofArticle III. In Jones v. Anderson, 189S.W. 2d 65(Tex. Civ. App. 1945. error ref.) the court had occasion to deal with this specific question. Justice Murray speaking for the San Antonio Court of Civil Appeals made thefollowing observation:Hon. Don A. Lewis, Page 6 (V-810)
“Appellant further complains that the **Act** violates Sections 56and 57of 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.’ Section 1,Article 5,of the Constitution authorizes the enactment ofjust such 

### anAct as Article 52-161, C.C.P., and is therefore made an exception in the very first sentence of Sec. 56, Art. 3, ofthe Constitution.” Some of the cases which have held to the same effect are Lytle v. Halff, 75Tex. 128, 12SW. 610(1889); State of Texas v. Brownson, 94Tex. 439, 61S.W. 115(1901); San Antonio and A.P. Ry. Co. v. State, 128Tex. 33, 95S.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.) Itfollows from what has been said that we are ofthe opinion that the passage of House Bill No, 573 introduced in the 51stL,e,gislature will validly provide for the adoption of a county home rule charter in Dallas County by amajority vote ofthe county as a whole and make it unnecessary to keep separate the rural and urban votes cast as required by Section 3ofArticle IX ofthe Constitution. 

### 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 toits charter. IfH.B. 573, 51stLegislature. is enacted, as now written, by a 2/3rd vote ofthe 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 APPROVED: