R-362 

THEA 

~.. June .ll, 1947 

Bon, John M. Steele opinion No. "v.244. 

County Attorney 

Lubbock County ‘- ,, ‘Be: Obligatioh ,,of emiuty te 

Lubboak, Texas purchase right-of -way 

8 for a highway. across 

lands 'once annexed aud 

then purportedly relinquished ,by. a home ; , ~, Y 

,~ rule city. 

Dear Sir8 

. ., We refer to your letter of April’lO, 1947, in 

which you requested an opinion of this Department as 

followst . . 

” : 

“The clty~ of Lubbobk is-. a ‘Home E$l.s 

City since Its orgahisation in 1917. Prior 

,to 1934, the City annexed certain land. In 

1934 the CZty,~by Ordlnauce Do. 519, a copy 

of which I enclose, puvported to ~ellnqulsh 

and discontinue the lapddescribed in the 

Ordinance; ~, ‘tlie State Highway Gonssission 

BOW proposes td aonstruat a highway across 

this disputed laud? It la therefore uecessarg to determine who is to purchase the 

right-of-way, the City or the Oouuty. 

“It is the Gontentlon of the County of 

Lubbock that the purported Ordinance is invalld,and of no force and effect, and thereSore, it is the obligation of the city of 

~Lubbook to purchase such right-of-way. In 

this .counectlon, I would also call your 

attention to Article 1176 b2, ‘validation of .~ 

ordinances of Home Rule cities’, p ubliehed~ 

in compliance with charters~. Article ,973 

ldiscontinuingterrltory’, and in coonectlon 

with the lat.e~,~&ticle, note the word ‘uhin- 

. 

habited’. It ,$a the contention of the County 

that this terrltotig was at that time inhabited. I would appreciate your very valued 

opinion on this controversy. 
Eon. John H. st*.el& - Pegs '2 

', 

"It la tkie aontultion Of the county 

that other th@ &tlelb 973, th@me i.i ho 

provision for dlscontintring terz%toq and 

that the pmpaeed ordinances eneloue&+1D 

this letter is ImufficMnt, legally, Co 

discontlnub territory of a city once It Is 

aoaexed. I would further call your attention, If it would be or aq help, ~that & 

1934 .tdae olty of Lubbock ~88 l.Leble oxi 

several outtstandlng bond ,is~aues." (Emph& 

sla OUPS)) 

On l&r 10, 1947, at our requesmt, you subaltted 

addltioual iuforstlqn relrtw to the s@me subject matteF jhich is in pert-as followst 

m we wish to call jouv attention 

to a &e&&l dot passed by t&b 43d LeeIsl+tstrrre In 1934. Satah speclel act 1s her 

Article 118gd of Vernon's Gidl Statutes. 

"Xnce the Inception of this aontroreray between the City .%ud County of Lubbook, 

It IULS been our contention that Ordliuxnce 

519 of the City of Lubbock mia Invalid because the territory supposedly rell4uished 

was lnbablted, a min&blted, amI therefore, 

ati ordbaance was 'in violation of Article 

973, Vernon's Civil Statute8, 

%wever, if Irtlcle 11826 is coastltutlonal then regmdless of the orlginal~invalidity of the city ordinance, the seme is 

now valid,' and mm approved and mtlfled by 

the Legislature. 

"Ue suggest t&at you give this vallQrtlng act of the Legislature your close scmtiny, and, Lf ooa&venlent, please adFse me 

your opinion aa to the above fincts. 

You also aqnt us a eopr of the o rdlnume pars44 

by the City of Lubbock, dated Jplr 26, 1934, ~h.iCa d%acontinued OF relSn&.shed the psrt1Cul.w territory pot I8 

question. 

Article 973, V.CiS., IS as fol+ws: 

\ 
. . 

: ( 

* 

-. . . 

Bon.‘John M. Steele - Page.3 

_) 

‘, ,. ~“Uhenevdr~thePe ejEfsts’wlthiu the 

.’ corporate’. l-t8 Of any clt* or town 

..’ 

. 

orgaulzed’under the ge&al-laws within 

this State~terrltorj to~‘the extent of 

at least ten aOres, aontiguour, unln- A . 

habited and adjoining the lines of any 

such city or town, the mayor and city or 

town council m&y by ordknance~duly passed, 

discontinue said territory as a part of 

said city or town; and when said ordinance 

has been duly passed, the mayor shall enter 

an order to that effect on the minutes or 

records of the.afty,or town council; and, 

from and after the entry o? such order, 

said territory &a$1 cease to be a part of 

said city or town. 

.’ The Cit;s ok Lubbo$c_is a home rule city aud- 

‘has adopted In Its ,charter all the powers authorized by 

Article 1177, .y.C.S~.; therefore, Article 973, supra, is 

applicable.‘t;o~:sald.&ity. 

.~~ 

According to your letter, the particular territory involved was Uhabited and not tminhabitedu~~o~~ 

time such ordlnanae was’wssed by the City of L , 

and’vas not i]l conformity with A&iale 973;-.supra.’ Hevertheless, thi$.being a question of fact and further, since 

the city council passed the ordinance, it Is presumed 

that the city council fouud all the facts pecessary for 

its ,validi.ty. As a matter bf law, it is presumed to be 

valid until the above .facts are shown in a court trial and 

the ordinance set aside. 

You stated in your letter that in 1934, the City 

of Lubbock was liable on several outstanding bond Issues 

and intimated that this might prevent the city from dlscontinuing or relinquishing the territory in question. 

Insofar as we are able to ascertain, there’i,s 

n&.hi~~Ih the statutes or Constitution vhich pr?hibits 

such a procedure and, in view of Article 971, V.C.S., we 

believe-that the territory may be relinquished even 

though there are outstanding bond issues, If such relinquishment is in other respects justified. Ue also fail 

to find any case vhere the Texas Courts have passed on 

this particular question; however, in 43 Corpus Jurls, p. 

149, Sec. 130, we find the. follovingo 
sessed, levied, 05 due, but not paid, at 

the time of the detachment of territory 

embrecing the lands taxed may be SUbsQquently colleoted by the municlpallty 

fFOlS the PeI’SOna liable, Uhllethe mcipalltg may not have the power, after 

the exclusion of ‘territory, to. enforae a 

lien on excluded land fortaxes~due,at 

the tine of the exc1uslon, the owner is 

not released from liability for t4e taxes, 

and his property remaining within the city 

may be aold fop the entire tax.” 1-P--, 

sis oara) , 

1 

Also, %ln Miller v. Plnevllle, 8g’s,W. 261, a 

Kentucky coupt passing on this same question had this to 

sayi 

“It is insisted that section 3483, 

&. St. 1903, which providea for the ~aduction of the territory of munioipalities, *: - 

Is unconstitutional, because only the city 

0~ taxpayer within the territory proposed 

to be stricken off can make a dafenae or 

file a remonstrance, and .becauae ,the defense is Us&ted to show ,that the majority 

of taxpayers within the proposedlatrlcken 

territory are against We change In the 1 

city limits, and that suoh a change will A \ 

impose unjust burdens on the taxpayers 

within the territory to be rtricken off. 

The question raised is anawe+ed by the mew 

, 

. . 

,statement that, if the Legislature can add ., 

fo OP reduce the liaita’ Of a city at till, 

then the power slso, exista to llmlt the 

defense to a proceeding instituted by aukhoP- : 

ity of the LeglslatuFe. to: alter or ‘charrge th0 

Legislature is. supreme G ‘% ~~~e~~;%d ~. 

limits of a municipalit 

Sa to whether it exercises its authtiity 

wisely cannot be questioned.” 

In view of the foregoing, it is the Opinion Of 

this Department that the territory may be relinquished by 

-. 
Hon. John W. Steele - Page 5 

the City of Lubbodk, Eli the s&me is othervise justified, 

even though there are outstanding bonds against the 

The question of the right of bond holders to subyz*the ~ellnquished territory to the payment of bonds 

outstandlng at the date of the rellnqulsbment is not 

hem involved.’ 

In Septembex 1934, the Leglalatrule passed 

Artlole 1182d, V*C A., as a validating statute, and if 

said statute Is constitutional, the aforementioned ordlnence being voidable only and not void, is now valid WItil it has been directly attacked in a Court of ooapetent jurisdiction and found to be invalid. 

Article 11826, V.CISi, is aa f6ilowat 

“That the Leglslatwe of the State of 

Texas hereby validates, ratifies and approves 

all ordlnances~ relfnqufahlng, discontfnuiiag, 

and segregating any territory vlthin the co*- . 

porate limit8 .* -iU@ Borne Rule City In this 

state, havlag a, 1. pulation of mope than tvengy 

thousand (26,000 3” lnhkbitauts and less than 

twenty-one thousaud (21,000) inhsbitaats, ac- 

.cording to the last preceding Federal census; 

,uhich city has adopted a charter uuder Article. 

11, Seation 5, OS the Const%tution .of the State 

,: of Texm and the p~ovl~qlon~ of Chapter 147, 

Act8 of the Regular Session~‘of the 33rd Legls- 

,.’ la$re of ,the State of ,,Texaa, passed in 1913. 

;c;a,19;3, 43rd Leg., 3rd C.S.,.p. 53, ob. 30, 

I . 

Seation 56 of Article III,;ot the, State Consti-’ 

tution, provldes in part 48, followtt~ ,I ,., 

“Seci 56~; 

,,. ,. 

Then LeglsLature shall noi, ~~- 

l iOept aa okhetiVi4e @w&lsd~: Iq @xta Conatitutloa, pals airy kod~l’df ‘@ecia$. law,.author- 

~%lngt ,‘, : ‘: ,_‘,, ., ., 

. b,,.. ‘, 

“Reguia&ag the affairs of counties, 

cities, towna, wards or schoo& districts;. . ** 

Our question, is whether ‘btlcle 1182d, supra, is 

itself a local and special law aa belng repugsaut, to hour 

Constitution. 

. j 
., 

Hon. John M. St&elk - Pige 6’, 

The census shows ‘that Lubbock ‘was the only 

city in the ‘State having a popula#iod:‘~oS Pot less thaa 

20,000 nor more &an 21,QOO for thb,~yeu 1930. lhir 

in aud of itselr does.not necessarily make the law a 

local or, apeoial one; but let us look fuH.her. aEticle 

1182d, supra, ,is, m&sly a validating statute and deals 

with only those ordinances which had already been passed 

at the t+e of the~euactment of 11828.. 

Validating sta~tutes are ouly applicable to’ 

those ~things ribI& have ..prevlously occuzrred and never 

deal with’ auythiug ,which may hapben in the future. The 

1930 census being .the oontrolling factor, then only 

those things occupz$.ng:in the interiti period, I. 8. those 

between the years 1930 and September, 1934 (date of the 

enactment oft the s~tatut) vould be,,val+dated. 

It ins tme ‘that other ~,aktlLea may move iuto~ the 

partloulm populat%on bra&et ttdt out in ~the Aat., yet, 

time the statute validatea only those ordinances in effeot prim to the tin@ of the euactraent of the statute, 

and, further, ainoe a validating statute can only ratitf 

those things already in exlatenoe at the tine, it is 

readily apparentthat the statute could never, upon auy 

contingency, apply to,any other city, '~, ~, 

In GBay v. Taylor, 227 u'. 5, 51: the Suprem 

Court of the United States defined a local law am 

“The phrase ‘local law’~means, primarily, 

at least, a law that In fact, if not in fora, 

io directed only to a specific spot.!,, : 

In the ease of City ‘of Ft’; Worth. v. Bobbitt, 36 

S.Y. (2nd) 470, Judge CritZ he9 pla to ,seyt 

.’ .‘i. 

=&in act which designates a particular 

city or county by name, or by a description 

so qualified that a partienlar city or county 

is plainly intendad &nd that no other can 

reasonably be expeoted to have the distlnguiahlng cheractsrlatics, and whan,e ,operation ie 

llmited to such cfity or cmin$y, Is hold to be 

local or speoial. 

Xn the case of Bexer County v. Tynan, et ~01; qy 

S.Y. (2nd) 467, the Supreme Court had this to sayt 

i 
Hon. Sohn M. Steele - 

“It is well 

aining whether a 

reaogni&ed that ‘iti detelclaw is public, general, 

special or local the coWts will look.to 

its substance and practical operation ratAer than to its title, form and waseologg, 

because otherli%e prohibitions of the fundamental law against special legislation ~ 

would be nugatory.’ 

I 

. . . 

Page 7 

“‘The rule is that a classification 

csnnot be adopted orbitrarlly upon a gMund 

which has no fomdation in difference of 

situation co' ctiowsstances of the mnloipalities placed in the different classes. 

There muat be some Ireasonable relation between the situation of mpieipalitlss 

classified and the purposes aud objeots to 

be ,atteined. There must be something + * * 

rhleh in so18 reasonable de#rea aceounta-IoF 

the di?isZon lhto olasaea.’ ,: 

When ie looi to the pracrtical 6pmatilon of the 

Act in question, it is the opinion of this Departunt 

that the attempted cla+islficatlon Is so unreasouable and 

arbitrary; as to indibte beyond doubt,that the purpom of 

the Legislature was to single out the CSty OS Lubbock; 

In view of the foregoing, jgP.,ffe respectfully 

l 4vlsed that it iS the opinion of this Depaxtment thrt 

Irtiole 1182d is a local and special law, beiiag iu violation of, Section 56, Article’ 1x1, of the Constitution, 

and is therefore void. yet, as. ,atitsd before, since tha 

ordinance is voidable only, the sam is ‘valid until it has 

been di.reaOly attacked in a ~court tif oollprtstkt juHrdlotion 

and fouad to bq ‘igvalld~ Therafoue, you am respectfully 

advised that It Xr:the opinion of this Department that uutll said o~dlnau~be has been hsld .invalld in a suit ‘directly 

attacki the same, the psrtlcular teprltory isPot legal1 

a palt 7 othe City of Lubbook, and the county is under obl I - 

gatlon to purchase such right of uay, ii one is to be (Loquired. 

The ordinance passed by the City of 

. ‘Lubbock relinquishing certain territory fro8 

the city is voidable only,azttj not void. The 
Hon. Jobn*M. Steele - ‘,Page 8 : 

ordinance ievalid until diliectly attacked 

in a Court of competent jurisdic%ion and 

round to be invalid. 

Art. 11826, validating certain ~01l.m 

quiahments, is void, .&elng In violation 

of Sec. 56 cf Art. III of the Cons itutlon. 

i 

City of Ft. Worth v. Bobbitt, 36 $ .W. (2W) 

d 

70; Be* County V. !Pynan, et al, 97 S.W. 

2nd) 467) Pet, the ordinance passed by the 

lty of Lubbook rellnQtiahlng aertain territorf Pot hvLng been held Invalid by court 

adWon, is presumed to be vrlid, and such 

territory is not a psrt of the City. 9b.e 

county Is lrgally under ob$igation to peohaae the p t 

aory, if au 3P 

of vag through such terrirl@it of way Is to be acquired, 

tmleas such ordirrance is 8et Uide -XV dIma 

BAodjr 

. 

.