OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS 

JOHN CORNYN 

August 30, 1999 

The Honorable Jos& R. Rodriguez 

El Paso County Attorney 

County Courthouse 

500 E. San Antonio, Room 203 

El Paso, Texas 79901 

Opinion No. JC-0101 

Re: Constitutionality of an 1891 special law that 

purported to disincorporate the City of San 

Elizario (RQ-0030) 

Dear Mr. Rodriguez: 

You have requested our opinion regarding the constitutionality of an 1891 special law 

purporting to disincorporate the City of San Elizario (“the City”). For the reasons stated below, we 

conclude that the law is constitutional. 

The town of San Elizario was incorporated by special act of the legislature in 1871. Act of 

Apr. 5,1871,12th Leg., R. S., ch. 42,187l Tex. Gen. Laws 83, reprinted in 6 H.P.N. GAMMEL, THE 

LAWS OF TEXAS 1822-1897, at 1221 (Austin, Gammel Book Co. 1898). The town, contrary to its 

special charter, operated as a general law city, with the result that many land titles became clouded. 

In 1891, the legislature enacted a special law validating those deeds. Act approved Mar. 17, 1891, 

22d Leg., R.S., ch. 4,189l Tex. Gen. Laws 5, reprinted in 10 H.P.N. GAMMEL, THE LAWS OF TEXAS 

1822-1897, at 233 (Austin, Gammel Book Co. 1898). The same legislature then repealed the 1871 

act that had incorporated the City of San Elizario. Act approved Mar. 23, 1891,22d Leg., R.S., ch. 

11, 1891 Tex. Gen. Laws 24, reprinted in 10 H.P.N. GAMMEL, THE LAWS OF Texas 1822-l 897, at 

252 (Austin, Gammel Book Co. 1898). 

You indicate that, in 1997, a group of San Elizario residents organized and held at-large 

elections for city officers, purportedly under the charter and authority of the 1871 special law. In 

briefing submitted by the city attorney, the City of San Elizario argues that the 1891 act repealing 

the 1871 special law is unconstitutional, and that, as a result, the city council may operate San 

Elizario as a legally incorporated municipality. We will address each of the City’s three contentions 

in turn. We begin, of course, with the presumption of constitutionality that attaches to every 

legislative act. TEX. GOV’T CODE ANN. 5 311.021(l) (Vernon 1998); Proctor v. Andrew& 972 

S.W.2d 729,735 (Tex. 1998); Smith v. State, 898 S.W.2d 838,846-47 (Tex. Crim. App. 1995) (en 

bane). 
The Honorable Jose R. Rodriguez Page 2 (JC-0101) 

The City first asserts that no notice of intent to enact the 1891 repealing law was published 

in a local newspaper, in contravention of article III, section 57 of the Texas Constitution. That 

provision states: 

No local or special law shall be passed, unless notice of the intention 

to apply therefor shall have been published in the locality where the 

matter or thing to be affected may be situated, which notice shall state 

the substance ofthe contemplated law, and shall be published at least 

thirty days prior to the introduction into the Legislature of such bill 

and in the manner to be provided by law. The evidence of such 

notice having been published, shall be exhibited in the Legislature, 

before such act shall be passed. 

The City, contending that the repealing act fails to state that notice was published or exhibited to the 

legislature, raises an argument similar to the one rejected by the court of appeals in MoZZer V. Ci@ 

of Galveston, 57 S.W. 1116 (Tex. Civ. App.-Galveston 1900, no writ). In that case, the court said 

that “the passage of the act by the legislature is conclusive of the fact that due notice was given.” 

Id. at 1120. Indeed, “[t]o hold otherwise would be to relegate to the courts the ascertainment of a 

jurisdictional fact for the legislature, and to unsettle every special or local law that has been passed 

since the adoption ofthe constitution.” Id; see also Cravens v. State, 122 SW. 29,31 (Tex. Crim. 

App. 1909). It is consequently our opinion that the passage of the 1891 law itself is conclusive of 

the fact that notice as required by article III, section 57, was given. 

The City also suggests that the 1891 law is invalid because a general law could have been 

drafted to accomplish the same purpose. Article III, section 56 of the Texas Constitution provides, 

in relevant part: “And in all other cases where a general law can be made applicable, no local or 

special law shall be enacted. .” A statute directed at a specific municipality is a “special or local 

law.” City ofFort Worth v. Bobbitt, 36 S.W.2d 470,471 (Tex. 1931). The 1891 act ofrepeal is thus 

a “special or local law” because it is directed at a particular municipality, i.e., San Elizatio. 

Specifically, the City contends that, prior to 1891, the legislature “passed general laws dealing with 

specially incorporated towns.” For example, “[i]n 1881, the legislature enacted a general law that 

granted special-law municipalities that were incorporated as a town or village before June 30, 1881 

the ability to amend their charters.” Brief from John R. Batoon, Attorney at Law, to Opinion 

Committee, Attorney General’s Office (June 17,1999) (on tile with Opinion Committee). The City 

argues that just such a general law could have been enacted and applied to the disincorporation of 

San Elizario. 

City of Oak Cliffv. State ex rel. Gill, 77 S.W. 24 (Tex. Civ. App.-Dallas 1903), aff’d 79 S.W. 

1 (Tex. 1904), involved a challenge to a special act of the legislature that purported to abolish the 

city of Oak Cliff and incorporate it within the corporate limits of the city of Dallas. One of the 

contentions advanced in that case was that the special law contravened article III, section 56, because 
The Honorable Jose R. Rodriguez - Page 3 (JC-0101) 

there already existed “a general law for the disincorporation of cities incorporated under the general 

laws.” Id. at 25. The court said: 

The question whether a general law can be made applicable in any 

case is a question for the determination by the Legislature, and the 

courts will not interfere with their judgment in this respect. The 

fact that a general law has been passed by the Legislature on the same 

subject does not affect the question. 

Id. at 26. Subsequent cases have reached the same conclusion. See, e.g., Logan v. State, 111 S.W. 

1028, 1029 (Tex. Grim. App. 1908); Lamon v. Ferguson, 213 S.W.2d 86 (Tex. Civ. App.-Austin 

1948, no writ); see also Smith V. Grayson County, 44 S. W. 921 (Tex. Civ. App.-Dallas 1897, writ 

refd). On the basis of this authority, we conclude that the 1891 special law is not invalid for the 

reason that a general law could have been made applicable. 

The City’s last contention is that the 1891 special law, in purporting to abolish the City of 

San Elizario, contravened that portion of article III, section 56 that prohibits the legislature, by “local 

or special law,” from “[ilncorporating cities, towns or villages, or changing their charters.” The City 

argues that the 1891 repeal of its charter was necessarily an act that “changed its charter.” You 

contend, on the other hand, that the 1891 act is merely a repeal of an earlier law-one that granted 

the charter-and that article III, section 56, does not expressly prohibit such a repeal. 

A similar situation was before the court in Central Wharf & Warehouse Co. v. City of Corpus 

Christi, 57 S.W. 982 (Tex. Civ. App.-Galveston 1900, writ ref d). In that case, the appellee argued 

the invalidity, under a virtually identical provision of the 1869 Texas Constitution,’ of an 1875 act 

repealing the special law that had incorporated the City of Corpus Christi. The court declared: 

From a reading of the entire section [on local and special laws] it is 

clear that its object and meaning is to prohibit the granting of special 

favors by the legislature, and to require that all legislation upon the 

subjects therein enumerated should be equal and uniform. It certainly 

did not mean to take away from the legislature its inherent power of 

repealing any law theretofore passed by it, and we must hold that 

said repealing act is a valid law. 

Id. at 983 (emphasis added); see also City of Oak Clil3; 77 S.W. at 26. 

In our view, the same principle is applicable to the City’s assertion. Although the 1891 

special law may from one perspective be viewed as an act “changing the City’s charter,” it may more 

‘Article XII, section 40, of the 1869 Comtiltion (as amended and ratified in 1873) provided that “[tlhe 

legislature shall not pass local 01 special laws incorporating cities or towns 01 changing or amending the charter of 

any city or village.” See Central Whad57 SW. at 983. 
The Honorable Jose R. Rodriguez - Page 4 (JC-0101) 

properly be characterized merely as a law repealing an earlier law. And as the court noted in Central 

FI%arf; repealing a previous law is an inherent power of the legislature. It is therefore our opinion 

that the 1891 special act of the legislature repealing its prior incorporation of the City of San Elizario 

does not contravene either section 56 or section 57 of article III of the Texas Constitution. 

SUMMARY 

An 1891 special act of the legislature that repealed the 

legislature’s previous incorporation of the City of San Elizario does 

not contravene either section 56 or section 57 of article III of the 

Texas Constitution. 

Yo s ve truly 4JVh3- 

JOfiN CORNYN 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General - Opinion Committee