, 

, 

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 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 Representatives 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 Constitution 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 Dallas County to adopt a ‘Home Rule Charter’ in accordance 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 favoring 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 provided 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 

majori* of the votes cast without such collective 

9 

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 expression, ‘unless otherwise provided by a two-thirds vote of the total membership of each House of the Legislature,” is sufficient authority 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 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 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 possible, and will not strike down legislation unless it is clearly repugnant 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 valid unless the Constitution by express terms, or by 

necessary implication, prohibits the Legislature 

from doing what it has attempted to do in the passage of the act. In other words, an act of a state 

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, 12 S.W. 610. . . .* 

We must consider that a legislative interpretation of 

its constitutional authority, in the form of’legislation enacted thereunder, 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, “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 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 further is provided that the Legislature, by a favorable 

vote of two-thirds . . , may authorize any county, having 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 . . . (unless 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 Legislature cannot pass a special or local law for this purpose, we 

would be confronted with the ambiguous situation of the people determining that one method of vote counting is proper, by so providing in the Constitution. but at the same time instructing the Legislature that if they thought the method provided was unsound they 

must change it in its general application, in this manner overriding 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 government 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 meaning 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 express 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 action. 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 Constitution 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 Constitution as agaSmt a contention that this action was void as being repugnant 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 question. 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 affairs 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 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 Constitution.” 

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,gislature 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 urban votes cast as required by Section 3 of Article IX of the Constitution. 

SUMMARY 

Article IX, Section 3, of the Constitution 

of Texas, specifically provides that the Legislature 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 

APPROVED: