## 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, andarticle 2372L-1, which grants to Val Verde Countylimited zoning authority over parts of the area surrounding theAmistad 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 toall counties ofthe 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 thelimits of incorporated cities andtowns. Article 23721, empowers **the** Commissioners **Courts** of Cameron and Willacy Counties, with respect to those portions ofPadre Island lying within such counties,

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

. . . to regulate and restrict theheight, number of tiries, and size of buildings and other structures, the percentage oflot that may be occupied, the size ofyards, courts and other open spaces, the density of population, and the location and use ofbuilding,~ 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 ofa city, town or village, and within two miles ofany publicly owned park or recreational development and all areas which lie within two miles of any beach, wharf or bathhouse which is used byas 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 ofthis Act; and within such districts [to] regulate and restrict the erection, construction, reconstruction, alteration, repair, or use ofbuildings, structures, or land. Article 2372L-1 confers almost identical powers uponthe Commissioners Court of Val Verde Countywith respect to certain designated territory surrounding theAmistad Recreation Area.

Article 3, section 56 ofthe 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). Itis settled, however, that:

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

. . . a statute is not local or special, within the meaning of this constitutional provision, even thoughits 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 botharticles 2372L and 2372L-1 satisfy the criteria of McGraw. In thefirst place, article 23721, specifically states: The Legislature finds as a matter of fact thattkatportion

ofPadre Island lying within Cameron and Willacy Counties is frequented for recreational purposes by citizens from every part ofthe State and thatthe 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 andtheAmistad 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 thatit wa6 a local or special law, thevalidity ofa statute authorizing counties bordering on the Gulf of Mexico andwithin the boundaries ofwhich are located any island suitable for park purposes to maintain and operate parks. The Court warnconvinced that:

[tjhe maintenance ofpublic parks onislands in the Gulf of Mexico is undoubtedly a matter ofintereet to people throughout theState. la., at 165 We believe that the legislative declarati ens written into articles 2372L and 2372L-1, together with the authority ofCounty ofCameron v. Wilspn. andthe presumption ofvalidity thatattaches 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 tothe validity ofa statute which would confer up07 all counties thekind of zoning authority granted to Cameron and Willlcy Counties byarticle 23721, and to Val Verde County by article 2372L-1. Itis, of course, obvious that such a statute would not be prohibited by the constitutional proscriptions against local and special laws, since it would apply toall counties ofthe State. See City of Fort Worth v. Bobbitt, supra. It is well established thatthezoning 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, thatthe statute might exceed the authority which the Legislature may constitutionally confer upona commissioners court. You call our attention specifically to SunVapor Electric Light Company v. Kenan, 30 S.W. 868 (Tex. Sup. 1895) and related cases. Article 5, section 18ofthe Texas Constitution provides that

. . . the county commissioners
. . . shall exercise such powers andjurisdiction over all county business as is conferred bythis Constitution andlaws of the State or as may behereafter prescribed. (Emphasis added) The constitutionality of any such statute as youhave described would thus depend uponwhether 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 SunVapor Electric Light Company v. Kenan.

Inthat case, the Court held thatadministration of theaffairs of the defunct corporation of the City ofSeymourwas not countybusiness within the constitutional definition.

InGlenn 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 upheldover the objection that such authority was beyond the scope of “county business. ” The court considered it:

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

abroad and liberal construction so as . . . to include anyand all business ofthatcountyand any other business of that county
. . . connected with or interrelated with the business ofany other county properly within thejurisdiction of such courts
. . . 3, at 344 InHarris CountyFlood Control District v. Mann, 140S.W. 2d 1098 (Tex. Sup. 1940) the Supreme Court approved this broad viewof “county business:”

[Glenn] very correctly holds thatthe 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 andall business ofa county, and any other business of a county connected with or interrelated with any business of the county properly within thejurisdiction of such courts under our Constitution and laws. 5, at 1108. IntheHarris County case. the statute had created the Harris County Flood Control District as an independent state agency, buthad made the commissioners court of Harris County the governing body of the.district. The duties thus conferred uponthe commissioners court were held to be included within the definition of “county business. ” The Court distinguished SunVapor by recognizing a “clear distinction” between a drainage district anda townor city corporation with respect tothe relation of each to the county business. When a drainage district is anintegral part ofthe county, andwhenit is formed of a part of the countywithout regard to the lines of any existing political subdivision of the county, there is no substantial basis for theargument that the management oftheaffairs of such a district by the commissioners court is not “county business. ” Harris County, at 1107.

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

We believe that the proposed statute confers authority uponthe commissioners courts which is more inextricably intertwined with the business of the county thanwere thepowers upheld as valid in Harris County, Since counties are authorized to establish and maintain parks byarticle 6078, V. T. C.S., it seems clear thatthe regulation of the use ofland adjacent to or within two miles of such parks and recreation areas, andlimited toterritory 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 topunish theviolation of regulations relative thereto. The Opinion based its result uponthe statute’s attempt “to confer uponcommissioners courts the power to make, change and suspend the law, to confer upon them legislative powers, andto affix a penalty toacts which are not made penal offenses and defined in plain language by the criminal law ofthis State. ” This broad grant of authority bears little relation toordinary zoning regulations, andwe donot deem it applicable tothe proposed statute which is the subject ofyour inquiry. Thus, it is our opinion that there wouldbe no constitutional prohibition against legislation which would grant toall counties the authority to zone land adjacent toor within two miles of designated parks and recreation areas, with such authority limited to territory outside the limits of incorporated cities andtowns, 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 theAmistad 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 twomiles 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