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 ofan 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 ofthe legislature in 1871. Act of Apr. 5,1871,12th Leg., R. S., ch. 42,187l Tex. Gen. Laws 83, reprinted in6H.P.N. GAMMEL,THE LAWSOFTEXAS 1822-1897, at 1221 (Austin, Gammel Book Co. 1898). The town, contrary to its special charter, operated as ageneral 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 10H.P.N. GAMMEL,THELAWSOFTEXAS 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 The same legislature then repealed the 1871 act that had incorporated the City of San Elizario.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 10H.P.N. GAMMEL,THELAWSOFTexas 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 ofthe 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 asalegally incorporated municipality. We will address each ofthe City’s three contentions in turn. We begin, of course, with the presumption of constitutionality that attaches to every legislative act. TEX. GOV’TCODEANN. 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 ofthe intention to apply therefor shall have been published in the locality where the matter orthing tobe affected may be situated, which notice shall state the substance ofthe contemplated law, and shall be published atleast 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 orexhibited to the legislature, raises an argument similar to the one rejected by the court of appeals in MoZZerV.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 ofthe 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 ofthe 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 ofthe 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 aspecific municipality is a“special or local law.” City ofFort Worth v.Bobbitt, 36 S.W.2d 470,471 (Tex. 1931). The 1891 act ofrepeal isthus 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 ageneral law that granted special-law municipalities that were incorporated as atown orvillage 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 thatjust such ageneral law could have been enacted and applied to the disincorporation of San Elizario. City ofOak Cliffv. State exrel. Gill, 77S.W. 24 (Tex. Civ. App.-Dallas 1903), aff ’d 79 S.W. 1(Tex. 1904), involved achallenge to a special act ofthe 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 inthat case was that the special law contravened article III, section 56,becauseThe Honorable Jose R. Rodriguez - Page 3 (JC-0101)

there already existed “ageneral law forthe disincorporation ofcities 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 theirjudgment in this respect. The fact that ageneral law has been passed bythe 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 ofthis 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 ofarticle III, section 56that prohibits the legislature, by “local or special law,” from “[ilncorporating cities, towns orvillages, orchanging 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 actismerely arepeal of an earlier law-one that granted the charter-and that article III, section 56, does not expressly prohibit such arepeal. Asimilar situation was before the courtin Central Wharf& Warehouse Co. v.City ofCorpus Christi, 57 S.W. 982 (Tex. Civ. App.-Galveston 1900, writ ref d). Inthat case, the appellee argued the invalidity, under avirtually identical provision ofthe 1869 Texas Constitution,’ of an 1875 act repealing the special law that had incorporated the City of Corpus Christi. The court declared:

From areading ofthe entire section [on local and special laws] it is clear that its object and meaning isto prohibit the granting of special favors by the legislature, and to require that all legislation upon the subjects therein enumerated should be equal anduniform. Itcertainly did not mean to take awayfrom 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 ofOak 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 beviewed asanact“changing the City’s charter,” itmay more

‘Article XII, section 40, of the 1869 Comtiltion (as amended and ratified in 1873) provided that “[tlhe legislature shall not pass local 01special laws incorporating cities or towns 01changing 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 asalaw repealing anearlier law. And asthe court noted in Central FI%arf;repealing aprevious law is an inherent power ofthe legislature. It is therefore our opinion that the 1891 special actofthe legislature repealing itsprior incorporation ofthe City ofSan Elizario does not contravene either section 56 or section 57 of article III ofthe Texas Constitution. SUMMARY An 1891 special act of the legislature that repealed the legislature’s previous incorporation ofthe City of San Elizario does not contravene either section 56 or section 57 of article III of the Texas Constitution. Yo sve truly 

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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