Tmm ATTORNEY GENERAL 

OFTEXAS 

Awn-m. TKIMS 7t37lS 

February 14, 1975 

The Honorable Jamee J. Kseter 

Chairman 

Opinion No. H- 527 

Intergovernmental Affair6 Committee 

House of Representatives 

P. 0. Box 2910 

Austin, Texas 78767 

Re: The extent of the State’s 

power to grant zoning authority 

to counties. 

Dear Mr. Karter: 

You have requested our opinion regarding the power of the Legislature to confer limited zoning authority upon county commissioner’s 

courts. Specifically you ask: 

1. Whether article 2372L. V. T. C.S., which grants 

to Cameron and Willacy Counties limited zoning 

authority over parts of Padre Island, and article 

2372L-1, which grants to Val Verde County limited 

zoning authority over parts of the area surrounding 

the Amistad Recreation Area, are violative of the 

constitutional prohibition against local and special 

laws, Article 3. Section 56, Texas Constitution. 

2. Whether the Legislature may grant to all counties 

of the State the authority to zone land adjacent to or 

within two miles of designated parks and recreation 

areas, so long as such authority is limited to territory 

outside the limits of incorporated cities and towns. 

Article 23721, empowers the Commissioners Courts of Cameron 

and Willacy Counties, with respect to those portions of Padre Island 

lying within such counties, 

p. 2376 
The Honorable James J. Kaster, page 2 (H-527) 

. . . to regulate and restrict the height, number 

of tiries, and size of buildings and other structures, 

the percentage of lot that may be occupied, the size 

of yards, courts and other open spaces, the density 

of population, and the location and use of building,~ 

structures and land for trade, industry, residence, 

or other purposes, and to regulate the placing of 

water, sewerage, park and other public requirements 

on such island in areas of such island lying outside 

thecormra’telimits of a city, town or village, and 

within two miles of any publicly owned park or 

recreational development and all areas which lie 

within two miles of any beach, wharf or bath house 

which is used by as many as five hundred annually. . . . 

[and to] 

. . . divide said area in said islands into districts 

of such number, shape, and area as may be deemed 

best suited to carry out the purposes of this Act; and 

within such districts [to] regulate and restrict the 

erection, construction, reconstruction, alteration, 

repair, or use of buildings, structures, or land. 

Article 2372L-1 confers almost identical powers upon the Commissioners 

Court of Val Verde County with respect to certain designated territory 

surrounding the Amistad Recreation Area. 

Article 3, section 56 of the Texas Constitution prohibits the Legislature from enacting “any local or special law, authorizing . . . [regulation of] the affairs of counties, cities, towns, wards or school districts , . .” 

A local or special law is one which designates by name or otherwise a 

particular city or county and operates only within that city or county. 

City of Fort Worth v. Bobbitt, 36 S. W. 2d 470, 473 (Tex. Comm’n Appeals 

1931). It is settled, however, that: 

p. 2377 
The Honorable James J. Kaster, page 3 (H-527) 

. . . a statute is not local or special, within the meaning 

of this constitutional provision, even though its enforcement is confined to a restricted area, if persons or 

things throughout the state are affected thereby, or if 

it operates upon a subject that the people at large are 

interested in. Lower Colorado River Authority v. 

McGraw, 83 S. W. 2d 629, 636 (Tex. Sup. 1935). 

We believe it is clear that both articles 2372L and 2372L-1 

satisfy the criteria of McGraw. In the first place, article 23721, specifically 

states: 

The Legislature finds as a matter of fact that tkat portion 

of Padre Island lying within Cameron and Willacy Counties 

is frequented for recreational purposes by citizens from 

every part of the State and that the orderly development 

and utilization of this area is a matter of concern to the 

entire State. 

A similar decIaration is found in article 2372L-1 with respect to Val Verde 

County and the Amistad Recreation Area. 

These legislative findings are buttressed by the Supreme Court’s 

decision in County of Cameron v. Wilson, 326 S. W. 2d 162 (Tex. Sup. 1959), 

in which the Court upheld, over the objection that it wa6 a local or 

special law, the validity of a statute authorizing counties bordering on 

the Gulf of Mexico and within the boundaries of which are located any 

island suitable for park purposes to maintain and operate parks. The 

Court warn convinced that: 

[tjhe maintenance of public parks on islands in the 

Gulf of Mexico is undoubtedly a matter of intereet 

to people throughout the State. la., at 165 

We believe that the legislative declarati ens written into articles 2372L 

and 2372L-1, together with the authority of County of Cameron v. Wilspn. 

and the presumption of validity that attaches to any statutk, Smith v. 

Davis, 426 S. W.2d 827 (Tex. Sup. 1968). compel the conclusion that 

these statutes are constitutional. 

p. 2370 
. 

The Honorable .ja :s J. Kaster, page 4 (H-527) 

Your second questiu.1 is addressed to the validity of a statute which 

would confer up07 all countie s the kind of zoning authority granted to 

Cameron and Willlcy Counties by article 23721, and to Val Verde County 

by article 2372L-1. It is, of course, obvious that such a statute would not 

be prohibited by the constitutional proscriptions against local and special 

laws, since it would apply to all counties of the State. See City of Fort 

Worth v. Bobbitt, supra. It is well established that thezoning power 

may be delegated by the Legislature. Porter v. Southwestern Public 

Service Co., 489 S. W. 2d 361, 363 (Tex. Civ. App. --Amarillo 1972, reh. 

den. 1. 

You have expressed concern, however, that the statute might 

exceed the authority which the Legislature may constitutionally confer 

upon a commissioners court. You call our attention specifically to 

Sun Vapor Electric Light Company v. Kenan, 30 S. W. 868 (Tex. Sup. 

1895) and related cases. Article 5, section 18 of the Texas Constitution provides that 

. . . the county commissioners . . . shall exercise 

such powers and jurisdiction over all county business 

as is conferred by this Constitution and laws of the 

State or as may be hereafter prescribed. (Emphasis 

added) 

The constitutionality of any such statute as you have described would thus 

depend upon whether the powers to be delegated to the’commissioners court 

are encompassed within the definition of “county business. ” 

A number of court decisions have construed this constitutional 

limitation. beginning with Sun Vapor Electric Light Company v. Kenan. 

In that case, the Court held that administration of the affairs of 

the defunct corporation of the City of Seymour was not county business 

within the constitutional definition. 

In Glenn v. Dallas Co. Bois d’Arc Island Levee Dist., 282 S. W. 

339 (Tex. Civ. App. --Dallas 1926, reh. den.), a statute conferring upon 

p. 2379 
. 

t 

The Honorable James J. Kaster, page 5 (H-5271 

a commissioners court the authority to organize a levee district from 

territory located in several counties was upheld over the objection that 

such authority was beyond the scope of “county business. ” The court 

considered it: 

. . . proper to give to the term “county business” 

a broad and liberal construction so as . . . to include 

any and all business of that county and any other 

business of that county . . . connected with or interrelated with the business of any other county properly 

within the jurisdiction of such courts . . . 3, at 344 

In Harris County Flood Control District v. Mann, 140 S. W. 2d 1098 (Tex. 

Sup. 1940) the Supreme Court approved this broad view of “county business:” 

[Glenn] very correctly holds that the phrase “county 

business” used in the constitutional provison under 

discussion, should be given a broad and liberal construction so as to extend powers to any and all business 

of a county, and any other business of a county connected 

with or interrelated with any business of the county properly within the jurisdiction of such courts under our 

Constitution and laws. 5, at 1108. 

In the Harris County case. the statute had created the Harris County 

Flood Control District as an independent state agency, but had made the 

commissioners court of Harris County the governing body of the. district. 

The duties thus conferred upon the commissioners court were held to be 

included within the definition of “county business. ” The Court distinguished 

Sun Vapor by recognizing a “clear distinction” between a drainage district 

and a town or city corporation with respect to the relation of each to the 

county business. When a drainage district is an integral part of the county, 

and when it is formed of a part of the county without regard to the lines of 

any existing political subdivision of the county, there is no substantial basis 

for the argument that the management of the affairs of such a district by 

the commissioners court is not “county business. ” Harris County, at 1107. 

p. 2300 
The Honorable James J. Raster, page 6 (H-527) 

We believe that the proposed statute confers authority upon the 

commissioners courts which is more inextricably intertwined with the 

business of the county than were the powers upheld as valid in Harris 

County, Since counties are authorized to establish and maintain parks 

by article 6078, V. T. C. S., it seems clear that the regulation of the use 

of land adjacent to or within two miles of such parks and recreation areas, 

and limited to territory outside the limits of incorporated cities and towns, 

is within the scope of “county business. ” 

Attorney General Opinion No. O-5047 0943) does not require a 

different conclusion. That Opinion held unconstitutional proposed wartime 

legislation which authorized the commissioners courts of counties having 

military establishments within their limits to create military zones and 

to punish the violation of regulations relative thereto. The Opinion based 

its result upon the statute’s attempt “to confer upon commissioners courts 

the power to make, change and suspend the law, to confer upon them legislative powers, and to affix a penalty to acts which are not made penal 

offenses and defined in plain language by the criminal law of this State. ” 

This broad grant of authority bears little relation to ordinary zoning 

regulations, and we do not deem it applicable to the proposed statute 

which is the subject of your inquiry. Thus, it is our opinion that there 

wouldbe no constitutional prohibition against legislation which would grant 

to all counties the authority to zone land adjacent to or within two miles 

of designated parks and recreation areas, with such authority limited to 

territory outside the limits of incorporated cities and towns, 

SUMMARY 

Article 2372L, V. T. C. S., which grants to 

Cameron and Willacy Counties limited zoning 

authority over parts of Padre Island, and article 

2372L-1, V. T. C. S., which grants to Val Verde 

County limited zoning authority over parts of the 

area surrounding the Amistad Recreation Area, 

are not violative of the constitutional prohibition 

against local and special laws established by 

article 3, section 56, Texas Constitution. There 

p. 2381 
, . 

The Honorable James J. Kaster page 7 (H- 527) 

would be no constitutional prohibition against 

legislation which would grant to all counties 

the authority to zone land adjacent to or within 

two miles of designated parks and recreation 

areas, so long as such authority is limited to 

territory outside the limits of incorporated 

cities and towns. 

Very truly yours, 

Attorney General of Texas 

DAVID M. KENDALL, First Askstant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

lg 

p. 2382