JIMMAl-rOX AttorneyGeneral 

### supmIll court BulknmJ P.0. Box12546 Au~lln.TX. 16711-2548 51214752501 T&X 01om74-IS7 Telecopter 512l475.0255

714Jackson. Sulle 700 Dalla5.TX. 75202.45W 214f742.8944

4524*Ibetl~ Ave..Suite 160 ElPmo, TX. 79005-2703 91-
tmiTexas.suits 700 nou*ton. TX. 770025111 71-

606Broadway. S@te312 Lubbock,TX. 70401a479 Mw747.3235

UQON.Tenth. SuIta B McAltul, TX. 76501.1665 5126524547

200M&l Ptua. BIBIt*400 SanAntonlo,TX. 78205cm7 512/225.4191

AnEqualopportunttyl Afflrmattw Action Empbyw 

# The Attorn.ey General of Texas

tionorable Micbsel CrMnsl District Gslvcston county
.__ - June 18. 1984

J. Gu.rino Attorney Opinion No. .rt+169
ik: Whether s village which

_ - 405 County.Courthou.e Galveston, Texs. 77550 M(I b.COm.
. tOWt pUr6USUC CO article 961, V.T.C.S.. pay revert to village etatus. snd relsted question. Dear Mr. Gusrino: You have posed ssv.r.1 question. about the legal status of Dickinson.~ Texa.,~ which vs. originslly Incorporated s. s villsge pursuant to cbspter 11. Title 28, of the Rsvised Civil Statute., article 1133. et ~(Ieq.. V.T.C.S. In 1982. the village board of aldermen unanimously passed sn ordinance adopting chapter. l-10 of Title 28 s. it. governing body of lsw (rstber ,tbsn chapter 11) snd filed It of record with the Galveston county clerk. Subsequently. you edvise. s newly .elected board of sldsrmsn psssed en ordlnsnce purporting to reps.1 the previous ordlnsnce sad thereby return Dickinson to "villsge" ststus. Your questions concern the effect of the ordinsncss. .'~ Tex+. ~ststute. allow the incorporation of s community under cbsptsr 11 

### if tb. number of inhsbitsnt. is mre tbsn two hundred but 

### less'tban tan thbcwand. V.T.C.S. srt. 1133. A toun 80 incorporated (which, uy be ,c.lled s "villsgs" instesd of s "town" without diminishing its 

### powers)become. "invested with sll tb. 3fgbt. incident to' suchxZorporation under this cbsptsr" [cbspter 11). V.T.C.S. 

### art. 1140. Tovn. ~incorporated under cbspter 11 bsve powers more lirited tbsn those organized under cbspters 1 through 10 of Title 28 (vbicb uy bc csllsd "cities" instead of "towns" wltbout enlarging their povcrs). V.T.C.S. art. 1153.. Town. est.blisbsd under chspter. l-10 **srs** slso subject to' different orgsnirstional requlrsmsnta. See m of Wsxshscbi. v.~grows. 4 S.U. 207 (Tex. 1887); Cbsndlsr v. S.I. 315 S.W.2d 87 (T.x. Civ..App. - San Antonio 1958, writ ref'd 

### n.r.e.1. Ilunicip.1 corporation. organized under either met of provision. are brosdly considered "genersl lsw cities" to distingui.b,tbco from "home rule" cities tbst sre orgsnired pursusnt to article XI, section 5, 

### of the Tess. Constitution. becsuas homerule 

### cities possess greeter **powers.** V.T.C.S. art. ,116s. See Forewood v. Ctty of Taylor, 214 S.W.2d 282 (Tar. 1948). Unlike~e'rule title., gsnersl lsw citiesHonorable Michael J. Cusrlno - Page 2 (JM-169)

have only those powers given them by the legislature. See 40 Tex. - Jur. 26Hunlcipsl Corporations. $318st 78. The legislature has given villages organized under chapter 11 [if they have 600 or more inhsbitsnte] the power to choose 

### to become towns governed by chapter6 l-10. V.T.C.S.. srt. 961; Been v. Townof Vidor. 440 S.W.2d 676 (Tex. Civ. App. - Beaumont 1969. writ ref ’d n.r.e.); Lusby v. Cotby. 402 S.W.2d 799 (Tex. Civ. App. - Dallas 1966. no writ). Once chapter l-10 towns have been established. however. they have no correeponding power to revert to chapter 11 status. Article 961, granting the powera to reorganize under chapter l-10, reads In pertinent part:

Any incorporated city, town or village in this State containing six hundred inhabitants or over, however legally incorporated

. . . may accept the provisions of this title relating to cities sad towns, in lieu of any existing charter. by A two-thirds vote of the council of such city, town or village. had at A regular meeting thereof. and entered upon the jourosl of their proceedings, and s copy of the same signed by the mayor and Attested by the clerk or secretary under the corporate seal. filed and recorded in the office of the county clerk in which such city. town or village is situated, and the provisions of this title shall be in force, sad ~11 acts theretofore passed incorporstfng ssid city, town or village which may be in force by virtue of any uisting charter, shall be repealed 

### from and after the filing of ssid copy of their proceedings. es sforeesid. Whensuch city, 

### tom or vlllsge is 00 incorporated se herein provided, the ssme shsll be knownse s city or town. subject to the provisions of this title relsting to citlea end towns. snd vested with ~11 the rights, powers, privilsger and immunities ssd franchises tbsreln conferred

. . . . (gmphsait~added). We believe it ia clear that the board of sldermen poseessed the authority to nccspt for tbe vlllsge the benefits and responsibilities of chsptere 1 through 10 of Title 28. When it did, the villsge of Dickinsos, ipso f*cto. ceased to exist as A corporate entity authorized by chapter 11. end instsntly became one organized under chapters 1 through 10. V.T.C.S. art. 962; Luclbyv. Cozby. 8uprcl at 803. When the vote was taken that purported to return Dickineon to chapter 11 ststue. the town had slresdy becomea municipal corporation controlled by chsptere 1 through 10 

### of Title 28. Since there is no legislstively permitted procedure allowing such 8 reversion to chapter.’ 

### HonorableMichael .I. Guarino - Page 3 (JR-169)

11 status, thevotewas a nullity. See Lum v. City of Bowie, 18 S.W. 142 (Tex. 1891); Largen v. State exrel. Abney, 13 S.W. 161 (Tex. 1890). Cf. HarnessV. State, 13 S.W. 535 useful brief submitted 011the auestion. (Tex. 1890). As noted in a a general law citv can exercise only those powers that a;e expressly or impliedly conferred by law, and any substantial doubt about such authority is resolved against the municipality. See State ex rel. Rea v. Etheridge, 32 -- S.W.2d 828 (Tex. Comm'n App. 19, 30); City of West Lake Hills v. Westwood Legal Defense Fund;.598 S.W.2d 681 (Tex. Civ. App. - Waco 1980,nowrit).
Your specificquestionsare thereforeansweredas follows:

1. Did the board of aldermen, in their December 1982 action, err in passing Ordinance 63-82 to adopt chapters l-10,Title 28, since the provisions of article 961 requires entering the vote on the journalof theirproceedings?
It is the action of the board, not the evidence or record thereof,thataccomplishesthe transformationof themunicipality from one category to another. Lusby v. Cozby, supra. Minutes of the meeting can be corrected to make them speak the truth. city of Electrav.AmericanLa France 6 Foamite Industry,Inc., 133 S.W.2d223 (Tex. Civ. App. - Fort Worth 1939,writ dism'd judmt car.); 39 Tex. Jur. 2d Municipal Corporations 8140, at 524. Although article 961, V.T.C.S., would apparently allow the adoption of chapters l-10 by resolutionrather thanby ordinance, it requiresonly that the action be taken by a two-thirdsvote of the governing body. An ordinance will serve. LusbyV. Cosby,supra.

2. Under the authority to repeal ordinances grantedto city council inarticle 1011,V.T.C.S., can city councilrepealOrdinance63-821
As discussed above, once the adoption of chapters l-10was complete, the action taken couldnotbe rescinded.

3. Inasmuch asno referenceiswade toa 213 majority vote in article 1011, where power to rescind ordinances is granted, is other than a simplemajorityvote requiredto rescindOrdinance 63-827 Again,Ordinance63-82 cannotbe rescinded.

4. Would the rescinding of Ordinance 63-82 return the corporation to the village status as existed prior to the adoption of Ordinance 63-82 inDecember 1982?
NO.



### p. 745.



### HonorableMichael J. Guarino - Page4 (JM-169)

,-,.



### 5. Assuming the proper procedures outlined in article 961are followedin establishinga general law city under chapters l-10, Title 28, are there any statutory provisions allowing a return to a chapter 11village? Dickinson can become a village again only by dissolving its 

### present corporation pursuant to article 1241, V.T.C.S., and reincorporating under article 1133,V.T.C.S. Lumv. City of Bowie,supra at 144.

6. As a resultof theaction takenonDecember 14, 1982, and the rescinding action taken on May 3, 1983,has Dickinsonreturnedto avillage?
No.
SUMMARY

The city of Dickinson currently has the legal status of a town or city operatingunder chapters 1 through 10 of Title 28 of the Revfsed Civil Statutes, and may not revert to village status under chapter 11 thereof. To regain village status, it must dissolve its present corporation and reincorporateas avillage.

JIM MATTOX AttorneyGeneralof Texas
TOM GREEN FirstAssistantAttorneyGeneral
DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby BruceYoungblood AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE RickGilpin.Chairman Colin Carl SusanGarrison JimMoellinger Nancy Sutton BruceYoungblood

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