THEA~TORNEYGENERAL 

OFTEXAS 

June 22, 1949 

Hon. Beauford H. Jester 

Governor of Texas 

Capitol Building 

Austin, Texas 

Opinion No. V-847. 

Re: Whether under H. B. 808 

(1) Federal rent control 

will be terminated and (2) 

cities and towns may establish emergency rent 

control within their limits. 

Dear Governor Jester: 

Your letter of June 14, 1949, states that House Bill 

808 relating to rent decontrol has been passed bye the Legislature 

and is on your desk. Your letter further states: 

“As I construe this Act, the Legislature 

has undertaken in it to accomplish two things: 

(1) To abolish federal rent control in 

the State of Texas under the provisions of Subsection j-2 of the Housing and Rent Act of 1949. 

(2) To provide for the imposition of 

local rent control by municipalities, by action of 

their governing bodies. 

“I would be grateful for your ,opinion as 

to whether these two objectives are or may be 

accomplished under the terms of House Bill 808 

,in the light of existing federal law and the Texas 

Constitution and Statutes.” 

House Bill 808 is brief. The substance of the bill 

is contained in Sections 1 and la: : 

“Section 1. Rent control as established 

by the Act of the Eighty-first Congress of the 

United States, extending rent control for a period of fifteen (15) months from and after March 

31, 1949, as further described in Housing and 
Hon. Beauford H. Jester, Page 2 (V-847) 

Rent Act of 1949, H. R. 1731, is hereby abolished in the State of Texas and is declared 

to be x10 longer needed in the State of Texas, 

and all Federal rent controls are hereby declared no longer needed in the State of Texas. 

“Sec. la. It is further provided however that the govern&g body of any city or ’ 

town may, by ordinance duly passed, finding 

that a housing emergency exists, establish 

rent control in such city or town for the duration of’such housing emergency provided that 

the ordinance so passed is approved by the 

Governor of the State of Texas.* 

The answer to the first part of your question is in 

the affirmative. The bill, if signed, will bring about ‘the end of 

Federal rent control in Texas. This will be true regardless of 

our answer to your second question, since the bill contains a proper severability clause. 

Without going into the technicalities of the greatly 

involved Federal Rent Control Act, as applicable’here, it provides that if a state: (1) declares by law that Federal rent control is no longer necessary, snd (2) so notifies the Federal Housing Expediter, all rent controls under the Federal act with reference to housing accommodations *shall be terminated on the 15th 

day after receipt of such advice.‘1 ‘, 

T This is the substance of Section 204j(2) of the Housing and Rent 

Act of 1947 as amended by Public Law 31, Blst Congress (1949). 

That section reads: 

“If any state by law declares that Federal rent cantrol is no longer necessary in such 

State or any part thereof and notifies the Housing Expediter of that fact, the Housing Expediter 

shall immediately make public announcement to 

the effect that he has been so advised. At the 

same time all rent controls under this act, is 

amended, with respect to housing accommodaWons with&such State of part thereof shall be 

terminated on the fifteenth day after receipt of 

such advice.* 
Hon. Beauford H. Jester, Page 3 (V-847) 

Section 1 of House Bill 808 declares that “Federal 

rent controls . . . are no longer needed in the State of Texas.“” In 

this manner the Legislature accomplishes all that is required to 

come within the terms of the quoted paragraph. If and when this 

bill becomes law, all that would be necessary to accomplish the 

first objective would be the notification to the Housing Expediter 

of the legislative action, thus bringing into effect the provisions 

of Section 204j(2) of the Federal act. 

. 

Thereupon, the Federal control, under existing 

law, will be terminated, If this bill ‘becomes law and the State 

is decontrolled, the Federal Housing Expediter cannot, under existing law, recontrol rents anywhere in Texas. This is because 

the Federal act also provides: 

“(6) No maximum rents shall be established or reestablished under this subzction for any housing accommodations . . . in 

ztate, city, town, village or locality in 

which rent controls under this title have bzn 

terminated pursuant to section 204(j).“‘ (Emphasis added). 

Assuming the end of Federal control, we pass to 

your second inquiry as to whether the State can set up its own 

rent control in the manner directed by Section la of H. B. 808. 

We will first consider the matter directly from the standpoint 

of the power of the State itself. 

It now appears to be generally est~ablished that 

when, as a result of an emergency, an acute and unprecedented 

shortage of housing accommodations is found to exist, legislation intended .to prohibit the exaction of unjust and unreasonable 

rent during.the emergency has been held to be a legitimate exercise of the police.power of a state.3 The State of New York sftar 

both World Wars has enacted legislation setting up rent control 

in New York City during the emergency, Its highest court and the 

2 Subsection 6 of Section 204i. 

3 Block v, Hirsh, 256 U.S. 135 (1921); Brown Holding Co. v. Feldman, 256 U.S. 170 (1921);‘32 Am. Jur. 867; 52 C.J.S. 293; Annotations, 16 A.L.R. 178,,~86 A&R. 1546, and 162 A.L.R. 202. 
Hon. Beauford H. Jester, Page 4 (V-847) 

Supreme Court of the United States have upheld such legislation.4 

Congress also enacted similar legislation for the City of Washington, D.C., and the act was declared to be constitutional.5 The validity of such legislation rests entirely upon the state of the emergency. 

The Federal rent control law is based on the war 

power of Congress and the emergency situation created by the 

War. Its validity was upheld on that basis.6 The United States 

Supreme Court in 1948 held that the emergency was not over with 

the termination of hostilities, and that the extension of the Federal 

rent control law was constitutionsI.7 The Court took judicial no-. 

tice that there existed sufficient facts to uphold the Congressional 

declaration that the emergency still existed. 

The power of the states to act is not based on war 

power. but, as pointed out. upon their general police powers. This 

police power, in the rent control cases. has been held to depend 

also on the existence of an actual emergency, not merely a housing shortage unconnected with the general welfare, health, and 

safety of the people as a whole, 

So the question as to whether there is an emergency is of primary importance. With regard to Federal rent 

control, the United States Supreme Court after the first World 

War held in 1924 (many years after the cessation of hostilities in 

1918) that the Congressional declaration that there was still an 

emergency was not binding on the courts, and that such fact issue 

should be tried out on evidence to be presented. There are three 

cases by the Texas Courts which have invalidated legislation con4 Twentieth Century Associates v. Waldman, 294 N.Y. 571, 63 N. 

E.2d 177 (1945), appeaople (Durham Realty 

Co.) v. La Fetra. 230 N.Y. 429. 138 NE. 6011921); Edgar A. Levy 

Leasing Co. v. Siegel. 258 U.S. 242 (1922); Brown Holding Co.. v. 

Feldman. 256 US, 170 (1921); Finn v. Fifth Avenue Co., 153 F.2d 

‘wA.2d 1946, cert. den. 328 US. 838); Application of Zohlman, 76 N,Y.S.2d 388 (N.Y. Sup. 1947). 

5Block v. Hirsh, 256 U.S. 135 (1921). 

6 Bowles v. Willingham, 321 U.S. 503 (1944). 

7 Woods L &ler, 333 U.S. 138.(1948). 

. 

.* 
Won, Beauford H. Jester, Page 5 (V-847) 

trolling rents where the courts found no emergency to exist.8 

The Texas cases involved the validity of legislation enacted in 1915 which was designed to aid the tenant farmer. 

It provided among other things that any rental in excess of onethird of the value of the grain and one-fourth of the cotton would 

be+*,: that the landlord would lose his lien, and that the tenant 

could recover double its full amount of the rent so paid, The act 

was not based on emergency police power. It was held that the 

statute was void as a taking of property without compensation and 

without “the due course of the law of the landW within Sections 17 

and 19 of Article I of the Texas Constitution, It was also held to 

be a violation of the Fourteenth Amendment of the Federal Constitution. 

In Culberson v0 Ashford, one of the cases referred 

to above, the Texas Supreme Court recognized the holdings of the 

United States Supreme Court cases in the rent control cases above 

mentioned. Those cases were distinguished as being based “purely on the ground that they were emergency enactments and of limited duration q . ,I 

An earlier Texas case9 on the same statute dlstinguished the two situations: 

“To differentiate this case from the 

cases of People v. La Fetra and Block v. 

Hirsh it is necessary only to bear in mind 

that no abnormal si.tuation prevailed calling 

for regulating contracts between rural landlords and tenants as was done by our Legislature. and that no pretense was made to repress a wide-spread evil arising out of an 

emergency and afflicting the entire public, 

impairing the public welfare; whereas, the 

other two acts were passed to relieve cru- 

‘Cdberson v. Ashford, 118 Tex. 491. 18 S.W,2d 585 (1929); Miller 

v. Branch, 233 SW. 1032 (Tex. Civ. App. 1921); Rumbo v. Winterrowd. 228 SW. 258 (Tex. Civ. App. 1921), 

9. Miller v, Branch, 233 SW. 1032 (Tex, Civ, App. 1921). 
Hon. Beauford H. Jester, Page 6 (V-847) 

cial afflictions, pressing down upon the public out of a grave abnormality, superinduced 

by unprecedented and almost universal warfare, d o * And, as said, the legislative acts 

in both instances cited expressly recognized 

these conditions. and resorted to the police 

power as a temporary means of dealing with 

a temporary exigency, in its nature a present 

emergency demanding action for the public 

welfarc.‘” 

This case was cited with approval by the Texas Supreme Court in Culberson v. Ashford, supra. 

Taking the cases together, therefore, it is our conclusion that where there are found to be facts sufficient to constitute an actual emergency, the enactment of legislation regulating 

rent is a valid exercise of the police power of the State. The decisions are based not only on the fact that housing was so critical 

as to become affected with the public interest, but also upon the 

emergency situation affecting the health and welfare of the community,lO Where citizens are without shelter, or are forced to 

live in a crowded condition, or where great numbers of people are 

not able to obtain or retain healthful living quarters~, there is a 

problem of health and welfare for the whole community wliieb the 

courts say the State is not impotent to deal with. But the emergency must exist in fact, and it is so specified in Section la of H. 

B. 808, 

Having concluded that rent control is a subject upon which the State may constitutionally act’in certain far-reaching 

emergencies, we turn to the second part of your question: Does 

H. B. 808, in the light of the Texas Constitution and laws, accomplish its purpose. “‘to provide for the imposition of local rent control by municipalities, by action of their governing bodies ? ” 

loIn upholding the New York Rent Law, Justice Crane wrote: “This 

is not a case where the Legislature has undertaken to regulate 

housing rates because such a business has become charged with a 

public interest. D D F Circumstances due to war conditions have 

created a peril to life and health. and with this the state has attempted to deal until the peril has passed.’ Guttag V* Shatnkin. 

130 N.E. 929 (Ct. of App. N.Y. 1921). 
Hon. Beauford H, Jester, Page 7 (V-847) 

In 1912 the people of Texas adopted what is known 

as the “Home Rule Amendment’ to their Constitution. Art. XI, 

Section 5. It is applicable to cities of over 5,000 population which 

have elected to come under its provisions. Under the Amendment 

and statutes enacted in harmony with it, those cities have very 

broad powers.11 Such cities may not enact or enforce ordinances 

which violate any statutory or constitutional provisions. Nor may 

they enter a field of legislation that has been entered and occupied 

by general legislative enactments.12 

Among the powers possessed by such cities is the 

general police power delegated to them by the people in the “Home 

Rule Amendment” and by the Legislature in Articles 1165 to 1176, 

V.C.S. Section 34 of Article ll75 empowers cities “to enforce all 

ordinances necessary to protect health, life and property0 and to 

prevent and summarily abate and remove all nuisances and to praserve and enforce the good government, order and security of the 

city and its inhabitants.’ ,. *’ 

Article Ilf6 further provides ~that “the enumeration 

of powers hereinabove made shall never be construed to preclude, 

by implication or otherwise. any such city from exercising the 

powers incident to the enjoyment of local self-government, provided that such powers shall not be inhibited by the State Constitution. * 

This power is to be used, among other things, for 

the public health, safety, and morals, and many related purposes. 

As related to the problem at hand, the police power is commonly 

1L Beyond all question a home rule city acts by authority directly conferred by the Constitution nnd not through power conferred 

by the Legislature.” City of El Paso v. Ascarate. 209 S.W,2d 989 

(Tex. Civ. App. 1947. error ref”d.) ““The amendment constitutes 

the rule of the local inhabitants of the cityD and it is no longer 

necessary for the Legislature to confer powers on them to act, 

or is it necessary to look to the acts of the Legislature for a 

grant of power; only limitations on the power to act need be considered.” Yellow Cab Transit Co. vs Tuck, 115 S.W,2d 455 (Tex. 

Civ. App. 1938, error ref’d,) 

12Prescott v. City ,of Borger, 158 S.W.Zd 578 (Tex. Civ. App. 1942. 

error ref’d.) 
Hon. Beauford H. Jester, Page 8 (V-847) 

used to regulate the sine, height. and location of buildings in certain areas, to fix zones, to require sanitary facilities in buildings. 

to require fire exits and fire escapes in public buildings, to provide for slum clearance and low cost public housing, to promulgate and carry out regulations to safeguard public morals, to control indecent practices, gambling, lotteries, to prevent.extortion 

and oppression, to regulate public conveyances, and so forth. 

The police power of “Home Rule” cities has been 

tested in our courts. and where it has been reasonably exercised, 

it has been very generally upheld.13 For example, cities have 

been upheld in their power to provide for zoning.14 to inspect 

food,15 and to enact various other ordinances for the public health 

and welfare.16 The Texas Supreme Court in Lombard0 v. City of 

Dallas, 124 Tex. 1, 73 S.W.2d 475, adopted the following language: 

“The doctrine has long been establ&shed that the municipality may, under delegated police power, exercise reasonable 

supervision and control over all kinds of 

business and property within the corporate 

limits whenever necessary for the public 

health, safety, morals, or general welfare. 

Though their powers are not as broad or extensive, cities and towns which are not ‘Home Rule.” but are incorporated under the general laws, Articles 961 V.C.S. et seq., have 

been delegated appropriate police powers by the Legislature. 17 

Thus Article 962 provides that such incorporated cities: 

13 3 McQuillan on Municipal Corporations (Rev. Ed. 1943) 57, et 

seq,; 30 Tex. Jur, 119, et seq, 

14Lombardo v. City of Dallas. 124 Tex. 1, 73 S,W.td 475(1934). 

%lty of Dallas v. City Packing Co.. 86 S.W.2d 60 (Tex. Civ. App. 

1935. error dism”&) 

‘6city of Dallas v* Smith, 130 Tex. 225p 107 S.W.2d 872 (1937). 

17Such powers may be delegated by the Legislature to municipalities. 3 McQuillan on Municipal Corporations (Rev. Ed. 1943) 108; 

11 Am. Jur. 943, Constitutional Law, Sec. 223; 16 C.J.S. 546, Constitu&mol Law, Sec. 178; Stoutenburgh v. Hennick. 129 U.S 141 

(1889); Cox v. City of Kinston, 8 S;E.2d 252 (N.C, Sup. 1940). 
HOI-I, Beauford H. Jester, Page 9 (V-847) 

” 

. . . may ordain and establish such 

acts, laws, regulations and ordinances, not 

inconsistent with the Constitution and laws 

of this State, as shall be needful for the government, interest, welfare and good order of 

said body politic and under the same name 

shall be known in law ~ . . 

‘” 

They have other enumerated powers in Article 1015. 

Section la of H. B. 808 would be considered as an addition to such 

specifically enumerated powers, It would constitute an additional 

delegation of the police power to act in a housing emergency. 

It is not necessary to decide whether either or both 

these types of cities could independently enact rent control ardinances in a dire emergency by exercise of their general police 

power. House Bill 808 delegates that power to them. The specific provisions of Section la, when added to their broad police powers, would enable both these types of cities and towns to so act. 

Of course, the Legislature does not undertake to apply Section la 

to unincorporated towns and villages, since it is limited to those 

cities and towns which can act by “ordinance” of its “governing 

body. ” 

We wish to repeat here that this power to enact 

housing control ordinances is wholly dependent upon the actual 

existence of some great emergency. And the emergency must, 

under the cases, be closely associated with and affect the public 

health, safety, morals, or general welfare, For example, it is 

recited in sn opinion of New York’s highest court that when New 

York in 1920 enacted its rent laws, there were upwards of 100,000 

eviction suits actually pending in the courts of New York City; 

each proceeding involved a family averaging 4 or 5 persons; 

large numbers of people were forced to live in such crowded 

conditions that actual health 2nd moral problems were presented; 

construction of housing facilities was at a standstill or was greatly insufficient because of the shortage of material due to the war; 

many landlords were taking advantage of the situation; and those 

tenant& who could, paid exorbitant rents rather than to take the 

risk of being unable to find other places of abode. The situation 

was critical enough to warrant a special session of the New York 

Legislature.18 In upholding the law, it was pointed out that it was 

18People ex rel. Durham Realty Co. v. La Fetra, 230 N.Y. 429. 

130 N.E. 681. 
Hon. Beauford H. Jester, Page 10 (V-847) 

an emergency measure which by its own terms was to remain in 

force for only two years. 

On the other hand, where Congress sought to control rent in Washington, D.C.. some six years after the end of 

World War I, and the validity of such action was challenged in the 

Supreme Court of the United States, Mr. Justice Holmes wrote 

concerning the weight to be given to the declaration by Congress 

that a sufficient emergency existedr 

“We repeat what was stated in Block 

vs Hirsh, 256 U.S. 135, 154, as to the respect 

dim to a declaration of this kind by the legislature so far as it relates to present facts. 

But even as to them a Court is not at liberty 

to shut its eyes to an obvious mistake, when 

the validity of the law depends upon the truth 

of what is declared . . . . And still more, obviously so far as this declaration looks to the 

future it can be no more than prophecy and 

is liable to be controlled by events. A law 

depending upon the existence of an ,emergency 

or other certain state of facts to uphold it 

may cease to operate if the emergency ceases 

car the facts change even though valid when 

passed. . . , 

u s . . In our opinion it is open to inquire whether the exigency still existed upon 

which the continued operation of the law depended. It is a matter of public knowledge 

that the Government has considerably diminished its demand for employees that was one 

of the great causes of the sudden afflw of 

people to Washington, and that other causes 

have lost at least much of their power, It is 

conceivable that, as is, shown in an affidavit 

attached to the bill, extensive activity in 

building has added to the ease of finding an 

abode. If about all that remains of war conditions is the increased cost of living, that 

is not in itself a justification of the act.“18 

“Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924). 
Hon. Beauford H. Jester, Page 11 (V-847) 

In this regard, the Texas Supreme Court wrote: 

*A law which assumes to be a police 

regulation but deprives the citizen of the use 

of his property under the pretense of preserving the public health, safety, comfort, or welfare, when it is manifest that such is not the 

real object and purpose of the regulation, will 

be set aside as a clear and direct invasion of 

the right of property without any compansatoiy *dVantagesT * Spann v, City of D&s, 111 

Tex. 513, 235 S.W. at 513 (1921). 

Again, the Texas Supreme Court has declared void 

the fixing of rents where there was no emergency. Culberson v. 

Ashford, 118 Tex. 491, 18 S.W.2d 585. This will serve to emphssize that the validity of these ordinances will absolutely depend 

upon the existence of a grave emergency, and that they will be 

valid only so long as such emergency exists. We are not here 

dealing with the regulation of rents as an ordinary measure to 

meet an ordinary housing shortage or high rents. The Texas Supreme Court has held that this may not be done, and the Legislature has not attempted to regulate housing under ordinary circumstances, House Bill 808 authorizes such action only upon a “finding that a housing emergency exists,’ and the courts will inquire 

into the actualities of such a finding. We have pointed out the type 

of emergency which must be found in order to justify use of the 

police powers of a city for such purposes, A mere “housing emergency” unconnected with the public health. welfare, safety or morals, would not justify such extraordinary use of, the police powers 

to interfere with, take or regulate private property. Rent control 

in the latter case would be unconstitutional, and it is presumed 

that the Legislature intended to authorize control only in that type 

of “housing emergency’ which would serve as a basis for constitutional exercise of such powers. 

Assuming the finding of such a grave emergency 

as to warrant and justify the exercise of the police power to control housing, the ordinance of a city imposing such control would 

have to be very carefully drawn in order to be valid. It would 

have to provide adequate standards for the operation of the ordi- 
Han, Beauford H. Jester, Page 12 (V-847) 

nancel9 and provide for a fair rental and fair return on investments, 

and for adjustments in new and unusual situations; it must provide 

for trials on contested cases, with adequate pr~i.isions for notice, 

hearing and appeals, et cetera, Since H. B0 808 uses the word 

“housing, ” it is evident that the Legislature did not intend for commercial rent property to be controlled, What types of “housing” 

are to be controlled would have to be determined by the city depending on the type and extent of the emergency, Finally, the ordinance must be reasonable and must be executed in a reasonable 

manner. As stated by the Court of Civil Appeals: 

““While a city has the power to enact 

ordinances to protect. the public health, and 

while ordinances are a valid exercise of the 

city”6 delegated police power under the Home 

Rule amendments, the power authorized under such ordinance cannot be exercised arbitrarily and unreasonably,‘P City of Dallas v, 

City Packing Co,, 86 S.W.2d 60 (1935, error 

dism’d,) 

House Bill 808 contains a severability clause. So 

regardless of the validity or invalidity of Section la, the provision 

in Section 1 for the end of Federal rent control will stand, In any 

event, if and when this bill is signed and becomes effective, Federal rent control will be at an end in Texas. 

suMh4ARY 

1. House Bill 808, 51st Legislature, 

if and when signed and effective, will bring 

about the end of Federal rent control in Texas. 

191n Spann v, City of Dallas; 111 Tex. 513, 235 SW, 513 ‘(1921); an ordinance prohibited any commercial building in a residential area 

except under certain circumstances. Among other reasons, the 

ordinance was held void because, ““No rule or standard is given 

to govern the applicant in fashioning the design of his building or 

to govern the inspector in approving or rejecting it B 0 0 This 

leaves the right to construct the building subject to the arbitrary 

discretion of the inspector and of itself renders the ordinance 

void.“” 235 S.W. at 517, 
Hon. Beauford H. Jester, Page 13 (V-847) 

This is true regardless of the validity of Section la of the bill providing for municipal rent 

.control where a housing emergency is found 

to exist in incorporated cities. 

2. Section la of H. B. 808 authorizes 

incorporated cities and towns in Texas to establish rent control upon a finding that a housing emergency exists. That bill, together with 

their general police powers, give the cities 

the power to regulate housing only where there 

is such a grave emergency as to affect the 

health, welfare, safety or morality of the people of the city as a whole. This power may 

not be exercised in the absence of a clear 

showing of such a grave emergency. Whether 

such emergency exists is a question of fact to 

be determined by the governing body of the 

city or town in the first place. In the event of 

suit. the court may reexamine such finding, 

because the validity of such ordinances absolutely depends upon an emergency and is valid 

only so long as the emergency exists. 

Yours very truly, 

APPROVED: ATTORNEY GENERAL OF TEXAS 

%LdikLp g.&J&Jwc 

ATTORNEY GENERAL BY 

Joe R, Greenhill 

First Assistant 

Assistant 

JRG:EJ:erc