                              April 15, 1988



Honorable  David Brabham                Opinion   No.   JM-894
Criminal  District Attorney
P. 0. Box 3403                          Re:  The constitutionality of
Longview,  Texas   75606                the Gregg County Special Road
                                        Law, and related questions
                                        (RQ-1138)

Dear   Mr.     Brabham:

      You have asked whether the special road law for Gregg
County is constitutional,   and  if it is, whether  the 1983
County Road    and  Bridge  Act, article  6702-1,  V.T.C.S.,
superseded   it.

      The special law was enacted in 1955.       See Acts 1955,
54th Leg., ch.    339, at 886.     Because it applies     only to
Gregg County, it     is a "local   law" within the    meaning   of
the Texas Constitution.     Tex . Const. arc. III,     556; Citv
of Fort Worth v. Bobbift,    36 S.W.2d 470    (Tex. Comm'n APP.
1931, opinion    adopted).     See  Attorney   General    Opinion
J-M-390 (1985).

      Article III, section      56, of    the Texas    Constitution
inhibits the legisla~ture from passing any local or special
law regulating    the  affairs of    counties,    authorizing     the
laying out, opening,      altering,  or    maintaining    of   roads,
highways,    streets   or   alleys,    or   creating     offices    01:
prescribing   the powers and duties of officers         in counties,
except upon    compliance    with   the    notice    provisions     of
article III, section 57, of the constitution.            There is no
record found of the     required notice respecting         the Gregg
County Road Law having ever been published.             If no notice
was given, the special      law is unconstitutional        unless it
is saved by article VIII, section 9,         of the constitution.
Bexar Countv v. Tvnan, 97 S.W.2d 467 (Tex. 1936).1



          1.     Two courts   have    asserted   in dicta that by      the
passage        of a special   law,   the   legislature   is conclusively
                                                   (Footnot:c Continued)
Honorable   David   Brabham   - Page   2 (JM-894)




      In 1890,   the constitution         was   amended   to   provide   in
article VIII,    section 9:

        And the Legislature   may pass local laws    for
        the maintenance    of public  roads and   high-
        ways, without the local notice required      for
        special or local laws.

The provision  operates as an exception  to the article III,
section 56 prohibition,   but as a narrow one. Snn. Henderson
Countv v. All&      40  S.W.Zd 17 (Tex. 1931).    The breadth
of the exception'   was explained in Hill v. Sterrett,     252
S.W.Zd 766, 771 (Tex. Civ. App. - Dallas     1952, writ ref'd
n.r.e.):

        [Vlalidity     of    [such]    legislation      is    in-
        variably   dependent     upon relationship      of   the
        particular     section     to    road     maintenance.
        'The authority     conferred     by section 9,      art.
        8, of the     Constitution,      sunra,    is not     "to
        enact special road lawsIN of all kinds,               for
        all   purposes      indiscriminately,          but      '
        authority   merely     to    pass    local    laws    fZ
        the maintenance       of   the    public    roads    and
        highways.'     Austin     Br    .    . Patton       Tex .
        Corn. App., 288 S.W. 18:: 18;.          A locai     road
        law, to come within        the protection      of   Art.
        8, sec.    9, must     be, limited to       the    main-
        tenance    of   public       roads    and     highways.
        Jameson v. Smith, Tex. Civ. App., 161 S.W.2d
        520; Tinner v.      Crow, [78      S.W.Zd 588      (Tex.
        1935)].


(Footnote Continued)
presumed   to   have    found    as a jurisdictional        fact    that
proper notice has       been theretofore      given.    See Moore     v.
Sdna HOSDital     District,    449 S.W. 2d 508 (Tex.      Civ. App. -
Corpus Christi 1979, writ ref'd n.r.e.); Moller v. Citv of
Galveston,    57 S.W. 1116 (Tex. Civ. App.         - Galveston     1900,
no writ).     But in both cases the issue at         hand was not an
entire absence of notice, but, rather,           whether the notice
admittedly    given was sufficient.        In Cravens v. State, 122
S.W. 29 (Tex. Crim. App. 1909), the court said such a con-
clusion was     proper     "in   the   absence    of  oroof     to   the
contrary."     Where    the    proof   shows that    no    notice    was
given, a special or        local law not otherwise       permitted    by
the constitution       will    be held   unconstitutional.         Bexar
Countv v. Tvnan, sunra.




                                p. 4389
Honorable   David   Brabham   - Page   3   (JR-894)




      The all   v. Sterrett court was reviewing       section 4 of
a 1941 Dallas County     Road Law that     corresponds    word-for-
word to section 3 of     the 1955 Gregg County       law.   Several
sections of   the Gregg    County law     (hereinafter    set   out)
find duplicates   in the Dallas   County law.      Among   them   are
sections  1 and 2, which correspond     to sections    1   and  3  of
the 1941 Dallas    County law.    The   Hill  v.  Sterrett     court
did not invalidate   the portion     of the law at     issue there
-- a provision     empowering    the   commissioners      court    to
appoint a county     engineer,    which  the    court    considered
germane to road maintenance.

      The court in till         Sterrett reviewed      general pro-
positions   of law applica:ie    to the construction     of special
road laws, but declined      to discuss the legality         of other
subdivisions   of   the   Dallas   County     law.    It   said    its
observations   would be dicta, inasmuch as only a portion of
section 4 of that       act  was there     in   issue.    It   noted,
however,   that Attorney    General Opinion V-1315        (1951) had
pronounced   section 3 of that law (corresponding         to section
2 of the Gregg County law), as well as others, unconstitu-
tional.    In Attorney General      Opinion V-1315,    it was said
of the Dallas County special act:

        Section 3 [corresponding     to section 2 in      the
        Gregg County    statute]    requires    the   County
        Judge to appoint standing committees        composed
        of   two  or  more    county    commissioners      for
        supervising  the   various departments       of    the
        county's affairs.     Like section 2      [requiring
        Dallas County    commissioners     to   devote     all
        their time   to county     duties and    to    attend
        court sessions,     and fixing    their    compensa-
        tion], this section embraces matters         outside
        the scope of a road      law and is in violation
        of section 56 of Article III. . . .

      Likewise,   the   corresponding  section    of   the   Gregg
County law     (section   2)   is not saved    from   unconstitu-
tionality   by article VIII, section 9.     It embraces matters
outside the scope      of maintaining  roads.    It attempts     to
prescribe   the powers and duties of county      officers   and to
regulate county affairs.

      The provisions  of the   Gregg County law are lengthy,
but excerpts    from sections   1, 2 and 3 thereof are    re-
produced  here to supply    an understanding of the passages
under review:




                                F.   43%
Honorable   David   Brabham    - Page   4   (JM-894)




            Section 1. The       Commissioners      Court     of
        Gregg County, Texas,        shall have full       power
        and authority,     and it    shall be its duty        to
        adopt, at a meeting of said Court, at             which
        the Countv Judae and        at least three (3) of
        the   Countv    Commissioners      of   said    Countv
        shall be nresent and cause to be recorded             in
        the minutes     of   said Court,      and   put    into
        effect such rules,       regulations,     plans,    and
        system    for   the    maintenance,     laying     out,
        opening,      widening,      draining,        grading,
        constructing,      building,     and   repairing      of
        the public     roads    of    said    County      other
        than designated        State     highways      located
        therein   . . .     which    rules,     regulations,
        plans, and system, together with any changes
        thereafter    made    in same,    shall be     binding
        upon, observed,      and    obeyed by     the    County
        Commissioners,         County      Judge,        County
        Engineer,   and all employees      of Gregg County,
        Texas.

            Sec. 2.      Subject     to   the    provisions       of
        this    Act    and    all    laws    relating      to   the    ‘1
        subject matter,         the Countv      Judae of      Greaq
        County shall have the Dower and he is hereby
        reouired    to aoooint committees         of two (21 or
        more COmDOSed        of   Commissioners       who     shall
        have under their         immediate    suoervision       the
        various deDartmentS         of the Countv's        affairs
        under the aeneral direction           of the Court        as
        3 whole.    . . . Said committees           shall     have,
        and are hereby        given, subject        to the     pro-
        visions     of      this    Act,     such    power      and
        authority     as    is specifically       delegated       to
        them by     a    resolution     duly    passed     by   the
        Commissioners       Court bv the affirmative           vote
        of the    Countv      Judae and      two    (21 Commis-
        sioners,      and    it    is made      their     duty    to
        perform     all     acts    so   delegated      to    them:
        provided,     however, that they shall not             have
        authority     or power to make purchases           or bind
        the County       on   any    contract     or    pecuniary
        obligation,      but    in all    such matters        shall
        submit to the Court as a whole their                recom-     ?
        mendations     with reference       thereto,    and    said
        Court shall       pass    upon    all    such     matters,
        subject to the        provisions     of   this Act       and
        other laws       relating      thereto.      The    Countv
        Judah is herebv aiven            authoritv     to   chanae




                                 F. 4391
    Honorable      David        Brabham        - Page   5 (JM-894)




             the oersonnel                of     such     committees   at   his
             gleasure.

                Sec. 3. The Commissioners Court of Gregg
             County may, and  it is hereby empowered   to
             employ a County Engineer.

                   .    .   .   .

                 Said County Engineer shall supervise              the
             engineering      work    in    connection     with    all
             maintenance,      repair,      drainage,     and     con-
             struction   work on all        county roads in       said
             County    whether     the    same    be   in   relation
             to the present       roads     or any    roads    to   be
             opened, laid out, and constructed:            provided,
             however,   said Engineer       in the performance      of
             these duties      shall     be   under    the    general
             supervision      of   the     'standing      Committee'
             appointed     by    the   County     Judge,    and    all
             repairs, widening,        permanent      construction,
             new construction,        and    bridge    construction
             shall be done       only after the       Commissioners
P            Court has authorized        same.

                   .    .   .   .

                 The County Engineer shall perform any and
             all other duties as    may be prescribed     from
             time to time by the CommissionersCourt        and
             he shall at   all times be   under the    super-
             vision and control of said Court.      (Emphasis
             added.)

    Acts   1955,       54th     Leg.,     ch.    339,   at 886-88.

          Although Attorney General       Opinion V-1315     came to    a
    different   conclusion   regarding   the provisions   of the first
    section of the Dallas County special act          (repeated in the
    first section of     the Gregg     County statute),   we   conclude
    that the first     section of    the Gregg    County law is     also
    unconstitutional    because    it attempts     to   specify    which
    members of    the   commissioners     court   will   constitute     a
    quorum -- thus regulating      county affairs.      It purports    to
    permit the    commissioners    court    to  adopt rules,     regula-
    tions, plans and systems only        at a meeting   "at   which the
    Countv Judae and at least three (3) of         the countv commis-
    sioners of said county shall be oresent."          Cf. Tex. Con&.
    art. V, 518 (commissioners      court).
P




                                                 F. 43%
Honorable   David   Brabham   - Page   6   (JR-894)




      Since 1876,    the general    laws of   this    state   have
specified    that  group   of  persons   which    constitutes     a
quorum of the commissioners    court, enabling    it   to conduct
business.    See Acts 1876, 15th    Leg., ch. 55, 512,      at 51,
52.   Discussing  the subject, the Texas     Supreme Court said
in Dalton v. Allen, 215 S.W. 439, 440 (Tex. 1919):

        It thus   appears that,    since a     short   time
        after the adoption     of the Constitution,       it
        has been construed    by the Legislature     as not
        requiring  the county judge to be present and
        presiding  in   order for    the   commissionersJ
        court to transact    its business.

      The Dalton         Allen court      held   that statutes     re-
quiring merely thz; the county judge preside whe            or esent
and authorizing    the   transaction    of the    county': busines;
(except as there otherwise        provided)    by three   members of
the commissioners     court, were constitutional       and conformed
"to the true intent and purpose of the Constitution.1'             215
S.W. at   440.    Those    statutes    have come     down  to us     as
articles   2342   and 2343,     V.T.C.S.,   which,    in 1987,    were
incorporated    into the    Local Government      Code as    sections
81.001 and 81.006.                                                        ?

      There is no general statute that requires         a different
quorum for the adoption       of rules, regulations,       plans and
systems relating to      roads, nor, so     far as we    can deter-
mine, did such a general       law exist at the time       the Gregg
County special law was enacted..       By altering the authority
conferred   upon   county   commissioners    to   transact     county
business   in the absence     of the county judge,      the special
law attempts to prescribe      the powers and     duties of county
officers   and to regulate county affairs; these matters are
outside the     scope   of article    VIII,   section 9,     of    the
constitution    and in violation     of article III,. section 56
thereof.     Commissioners     Court   of   Limestone    Countv     v.
Garrett,   238   S.W.   894 (Tex.    Comm'n   App. 1922,     judgm't
adopted).    See   Altaelt    v. Gutzeit,    201   S.W. 400      (Tex.
1918).

      We conclude that sections      1 and 2 of the Gregg County
special road     law   are  unconstitutional      in  the   respects
discussed,    but if a   complete and workable       law comporting
with the intent of the legislature         remains after excising
the   unconstitutional      portions     of     a    statute,     the
courts will     give   the   remaining   portions     effect.     See
COmmiSSiOnerS    Court  of Limestone   Countv v. Garrett,     supra.
Section 8 of the Gregg County special road law. states:




                                p. 4393
Honorable      David   Brabham   - Page     7   (JEs8g4)




         If   any  section,     subdivision,      paragraph,
         sentence,  clause,     or word   of this     Act   be
         held to be    unconstitutional,     the   remaining
         portions  of   same    shall,   nevertheless,      be
         valid, and    it   is declared     that   such    re-
         maining portions      would have    been    included
         in this   Act    though    the   unconstitutional
         portions had been omitted.

Acts   1955,    54th   Leg.,   ch.   339,   58, at 889.

      We believe    the   unconstitutionality     of   portions    of
sections   1 and 2 of the Gregg County law        do not require a
declaration   that the statute is unconstitutional          in toto.
The legislative    intent is made     clear by section 8      of the
statute.    &$s Attorney General Opinion JM-390        (1985).   Cf.
Attorney   General   Opinion    V-1315    (1951).     A valid     law
remains.2    Therefore,   we   turn to the    other part of     your
inquiry:    Has the Gregg County law been        superseded   by the
County Road and Bridge Act of 1983?

      At the time the Gregg County special           law was enacted
in 1955, the Optional County Road Law of           1947 was applic-
able to    Gregg County     and to   every other      county in    the
state.    See Acts    1947, 50th    Leg., ch.     178, at 288.      It
provided   that the electorate     of the county might adopt its
provisions   for the county, which thereafter         would be under
the "county unit" system       of roads under the        direction  of
the county commissioners      court and a county road engineer
appointed   by   that   body.   See    Canales    v. Lauahlin,     214
S.W.Zd 451 (Tex. 1948).        But Gregg County,       together with
Dallas County and some others, was expressly           "exempted"   by
former article 6761, V.T.C.S.,        from the provisions      of then
articles   6743-6760,    V.T.C.S.,     setting    up   a   system   of
county "road superintendents."         The provisions     of the 1947
optional   road law    are now    contained    in  subchapter    C  of



        2.   The provision    in section 3 authorizing         the com-
missioners      court   to   lease    idle   equipment     to   certain
entities without apparent         limit should      be construed,      in
our opinion,      with   the   earlier provision       in   section     3
authorizing      the   provision    at   cost    of    the    necessary
machinery    and equipment     for purposes    "that    will conserve
the soil."       So   read, the    authority     is consistent      with
power conferred       by general    law.     Agric. Code      5201.151.
a    Rowan v. Pickett, 237 S.W.2d 734 (Tex. Civ. App. - San
Antonio    1951, no writ).




                                     F. 4394
Honorable   David   Brabham     - Page   8     (JM-894)




article 6702-1, V.T.C.S.      The former provisions       setting up
the   "road   superintendent"      system     are   now     found   in
subchapter   B of    the   latter    statute,     and   "exemptions"
therefrom   are now   contained   in   section 3.107 of       article    --
6702-l.

      Article     6702-1,   section    3.107,    lists   fifty-five
counties,   including     Gregg County,     as  "exempt from    this
subchapter,"    i.e., subchapter     8, which    sets up a    system
of road    commissioners      or   road   superintendents.       The
concluding    sentence of the section reads:

        However,  the commissioners   courts of    Dallas
        and Collin   counties    may accept    and  adopt
        this subchapter   instead of the special     acts
        for Dallas or Collin county,, if in its judg-
        ment, the provisions    of this subchapter     are
        better suited    to   Dallas or   Collin   county
        than the special laws.

This section,    and    especially   the  quoted   passage,   is   a
clear indication    that   the legislature     did not intend     by
the enactment    of article     6702-l to   repeal or    supersede
special road laws     such as the     one for Gregg    County, but
intended them    to   control    unless express    authority     was     ?
given to adopt the general law instead.

      None   of  the   special   county    acts  were   expressly
repealed   either by   the 1983    act that originally    enacted
article 6702-l or by the 1984 legislation       that revised and
reenacted   it and   ratified  its   repealer provisions.      &
Acts 1983, 68th    Leg., ch. 288,     at 1431; Acts    1984, 68th
Leg., 2nd C.S., ch. 8, at 44.

      Section   7 of the      Gregg   County    special   law reads:

            The provisions    of this Act are and        shall
        be held and     construed    to   be cumulative      of
        all   General    Laws    of   this    State   on   the
        subject treated of and embraced          in this   Act
        when not in conflict        herewith,   but in    case
        of such conflict,      in whole or in part,       this
        Act shall     control Gregg      County:    provided,
        however, that nothing in         this Act shall      be
        construed   to    impair    or,to   take    from   the
        County the right to       issue bonds, under       the
        provisions    of Section 52 of Article 3 of the
        State Constitution      and   the General Laws       in
        pursuance   thereof.




                                  p. 43%
     Honorable   David   Brabham    - Page       9     (J&894)




     Acts 1955, 54th Leg., ch. 339, 57, at 889.          To the extent
     that the Great Countv      law is consti.tutional,    it controls
i-   inconsistent-provisions      that  may   be   found   in  article
     6702-1, V.T.C.S.    (as they respect Gregg County).      See Hill
     County v. Brvant     & Huffman,   16 S.W.2d    513 (Tex.    1929);
     Dallas Countv v.     Plowman, 91 S.W.    221 (Tex. 1906).      Cf.
     Attorney  General Opinion JM-262     (1984).

           We advise that the  valid portions                    of the   1955 Gregg
     County special road   law have not   been                   superseded  by  the
     County Road and Bridge Act of 1983.

                                   SUMMARY

                   If the notice   required by article     III,
             section 57 of the Texas Constitution      was  not
             given, portions of the 1955 special road       law
             for Gregg County    are unconstitutional.      But
             its remaining  portions   constitute  a complete
             and workable  law that has not been superseded
             by the County Road and Bridge Act of 1983.




                                                     -J I M    MATTOX
                                                      Attorney  General    of Texas

     MARY KELLER
     First Assistant     Attorney    General

     LOU MCCREARY
     Executive  Assistant     Attorney         General

     JUDGE ZOLLIE STEAKLEY
     Special Assistant  Attorney             General

     RICK GILPIN
     Chairman,  Opinion     Committee

     Prepared by Bruce Youngblood
     Assistant Attorney General




                                        F.    4396
