           THE      AVITORNEY          GENERAL

                        OF    TEXAS




Honorable George L. Preston, Chairman
Municipal & Private Corporation Committee
House of Representatives
Austin, Texas
                             Opinion No. WW- 1054
                             Re:   Constitutionality of House
                                   Bill 738, 57th Leg., R.S.,
                                   relating to the disannexa-
                                   tion by cities of certain
Dear Mr. Preston:                  territories.
          In your letter of March 29, 1961, you request the
opinion of this office on the constitutionality of House Bi11
No. 738, which reads as follows:
          "AN ACT AMENDING ARTICLE 1266, REVISED CIVIL
               STATUTES OF TEXAS, 1925, AUTHORIZING ANY
               CITY IN THE STATE OF TEXAS OF 150.000 OR
               MORE POPULATION ACCORDING TO THE PRECEDING
               FEDERAL CENSUS, LOCATED IN COUNTIES HAVING
               A POPULATION, ACCCRDING TO THE PRECEDING
               FEDERAL CENSUS, IN EXCESS OF 205,000,
               WHETHER ORGANIZED BY SPECIAL LAW. HOME RULE
               CHARTER OR GENERAL LAWS OF THE STATE ~OF
               TEXAS, TO DISANNEX UNIMPROVED TERRITORY
               AND TO DISANNEX ANY TERRITORY WHETHER IM-
               PROVED OR UNIMPROVED LYING WITHIN 2500
               FEET FROM THE THREAD OF ANY NAVIGABLE
               STREAM, AND DECLARING AN EMERGENCY.
          "BE IT ENACTED BY THE LEGISLATURE OF THE STATE
          OF TEXAS:
              "Section 1. Whenever there exists within
         the corporai- limits of any city in this State
         of 150,000 or more population according to the
         preceding Federal census located in a county
         having a population according to such census
         in excess of 205,000. whether such city was
         organized by special law, home rule charter,
Honorable George L. Preston, page 2 (WW-1054)


     or general laws of this State, territory to the
     extent of at least three acres contiguous,~unimprov-
     ed and adjoining the lines of any such city, -
                                                  and
     any territory of any extent, whether improved or
     unimproved, lying within twenty-five hundred feet
     from the thread of any navigable stream, the govern-
     ing body of any such city may, by ordinance duly
     passed, discontinue said territory as a part of any
     such city. When said ordinance has been duly passed,
     the governing body shall cause to be entered an
     order to that effect on the minutes or records of
     such city; and from and after the entry of such
     order, said territory shall cease to be a part of
     such city. Bmphasis supplied_,7
          "Section 2. All laws and parts of laws in
     conflict herewith are hereby repealed to the
     extent of such conflict.
          "Section 3. The fact that there is now no
     adequate law in force authorizing the discontin-
     uing or deannexing of improved as well as unim-
     proved territory adjoining navigable streams
     within cities in this State, and the importance
     of fostering commerce and industry along the
     nav!.gablestreams of this State, creates an
     emergency and an imperative public necessity
     that the consitutional rule requiring bills to
     be read on three several days in each House be
     suspended and that this Act take effect and be
     in force from and after its passage, and it is
     so enacted."
     Article 1266, as originally enacted in 1923, applied to
cities of the population stated according to the United
States Census of 1920. After the codification of 1925, the
population bracket was made referable to each preceding
Federal census, and the statute has remained the same since
that time with the exception of an amendment in 1959, permit-
ting the disannexation of improved territory "within the
corporate limits of any city in this state of five hundred
and ninety-six thousand (596,000) or more population accord-
ing to the last preceding Federal census, . . which is non-
taxable to the city and which is conti ous and adjoining the
lines of any such city." Acts 1959, 5rth Lag., p. 563, ch.
254, Sec.1.
Honorable George L. Preston, page 3 (WW-1054)


     The title of the amendatory bill under consideration makes
no reference to the fact that the bill omits the provisions
of the 1959 amendment and we are of the opinion that H.B. No.
738 is contrary to Section 35 of Article III of the Constitu-
tion of Texas and Is invalid to the extent that it attempts to
exclude that provision. The rule is stated in Volume 39 of
Texas Jurisprudence at page 103:
          I,
           . . . Thus a title that expresses a
     purpose to change a prior law by adding or
     extending a provision or conferring a right
     does not warrant an amendment that omits or
     restricts a provision of the original act or
     destroys a previously existing right. . . .
           "A title expressing a purpose to amend
     a statute in a certain particular is deceptive
     and misleading in so far as the body of the act
     purports to tmend the prior law in other particu-
     lars.          Citing the following cases: Ward
     Cattle 4 Pasture Co. v. Carpenter, 109 Tex. 103,
     200 S.W. 521 (1918); Lone Star Gas Co. v. Birdwell,
     74 S.W.2d 294 (Clv.App. 1934); Holman et al v.
     Pabst, 27 S.W.2d 340 (Civ.App. 1930, error ref.);
     Holman v. Cowden & Sutherland, 1.58 S.W. 571 (Civ.
     App. 1913, error ref,.).
     However, this defect does not render the bill unconstitu-
tional, but will only cause the 1959 amendment to remain in
effect.
     Following the enacting clause, there should be added a
provision to this effect: - "Section 1 of Article 1266, as
amended in 1959, is to be amended so as to hereinafter read
as follows: "
     Another problem is presented by that provision of H.B.
No. 738 which would permit the governing body of any city
coming within the specified population bracket, by ordinance
duly passed, to dlsannex "any territoryof any extent, whether
improved or unimproved, lying within twenty-five hundred feet
from the thread of any navigable stream. . . .'I The addition
of this quoted provision is the only change made in Article
1266, other than the omission of the 1959 amendment mention-
ed above.
Honorable George L. Preston, page & (WW-1054)


     The constitutionality of Article 1266 as it existed
prior to 1959, was upheld in City of San Antonio v. State
ex rel. Criner, 270 S.W.2d 460 (Civ.App. 1954 error refT).
By quo warrant0 proceeding, an ordinance detahhing approxi-
mately 65 square miles of territory from the city was in-
validated. On appeal, the constitutionality of Article 1266
was challenged on the ground that it violated Section 56 of
Article III of the Constitution of Texas, which provides
in part that the Legislature cannot pass any local or special
law regulating the affairs of cities. (The city's contention
that the area detached was unimproved within the meaning of
Article 1266 was overruled.) With regard to the constitutional
objection posed, we quote at length from the per curiam opinion:
          1x
           . . . In 1923 the City of Dallas was the
     only city which fell within the population bracket
     fixed by this statute. Since such time however the
     cities of San Antonio, Fort Worth and Houston have
     grown into such bracket. It is therefore an establish-
     ed fact that this statute has elasticity and is not
     one which could never apply to a city not qualified
     at the time of the passage of the statute.
          "In Miller v. El Paso County, 136 Tex. 370,
     150 S.W.2d 1000,1002, the Supreme Court said:

              "'Resort to population brackets for
         the purpose of classifying subjects for
         legislation is permissible where the spread
         of population is broad enough to include or
         segregate a substantial class, and where
         the population bears some real relation to
         the subject of legislation and affords a
         fair basis for the classification.'
          "In Rexar County v. Tynan, 128 Tex. 223,
    97 S.W.2d 467, 469, (Comm.App.,Sec.A), the Court
    said:
              "'The Legislature may, upon a proper
         and reasonable classification, enact a
         general law which at the time of its
         enactment is applicable to only one county;
         provided its application is not so in-
         flexibly fixed as to prevent S.tever being
         applicable to other counties.'
          "We also quote from Rodriguez v. Gonzales,
     148 Tex. 537, 227 S.W.2d 791, 793, where the Court
     stated:
Honorable George L. Preston, page 5 (WW-1054)


              "'The primary and ultimate test of
         whether a law is general or special is
         whether there Is a reasonable basis for
         the classification made by the law, and
         whether the law operates equally on all
         within the class. Bexar County v. Tynan,
         128 Tex. 223, 97 S.W.2d 467; Miller V.
         El Paso County, 136 Tex. 370, 150 S.W.
         2d 1000; 1 Sutherland (2nd Ed.), Statutory
         Construction, Sec. 203. If the classifi-
         cation made by the law "is not based upon
         a reasonable and substantial difference in
         kind, situation OP circumstance bearing a
         proper relation to the purpose of the
         statute," it is a special law.'
         "It is our opinion that Art. 1266 meets the
    requirements of these decisions. The statute is
    not closed but it Is one into which cities not
    only may but have grown. Appellants as much as
    concede that the statute is not invalid on the
    ground that It is too restrictive but base their
    principal argument upon the ground that the classi-
    fication of the statute has no proper relation to the
    purpose of the statute. With this we do not agree.
         "The number of problems which a city has and
    their complexity increase with amazing alacrity
    as a city grows in size. To meet these problems
    the Legislature enacts various laws which It deems
    appropriate to cities of a given size. Art. 1266
    is one of these laws. It applies to the four
    largest cities in Texas and provides that they may
    not detach territory unless it exceeds three acres
    in size and is unimproved. On the other hand, the
    Legislature has provided that cities incorporated
    under general laws. usually less than 5,000 popula-
    tion, may detach if there is at least 10 acres
    which is uninhabited as defined in such statute.
         "The record in this case reflects a very
    sound basis for the distinction drawn by the
    Legislature as reflected by Arts. 1266 and 973.
    The nature of the improvements on this territory,
    sewers, gas, water, telephone, power facilities
    and paved roads are but the usual and customary
Honorable George L. Preston, page 6 (WW-1054)


     improvements to be found within the limits of
     all large cities such as San Antonio, Dallas,
     Houston and Fort Worth. Small towns as those
     affected by Art. 973 are not so likely to be
     as highly improved and hence are the subject of
     different legislative treatment in this respect.
          "In our opinion there is a legitimate
     relationship between the size of a city and the
     privilege of detaching a portion of its terri-
     tory and that Art. 1266, based upon such relation-
     ship, is a valid statute. Whether it is wise or
     unwise is exclusively a legislative matter.
          "We have no hesitancy in saying, however,
     that a city dweller who becomes accustomed to
     city services and privileges such as water,
     sewer, garbage, schools and fire and police
     protection or who has improved his property
     in reliance upon city zoning laws is entitled
     to reasonable safeguards against the overnight
     destruction of these advantages and that the
     enforcement of Art. 1266 will have this wholesome
     effect."
     We are of the opinion that H.B. No. 738 is violative of
Section 56 of Article III of the Constitution of Texas because
the classification of the bill has no proper relation to the
purpose of the Statute. While there may well be, as announced
in the City of San Antonio case, supra, "a legitimate relation-
ship between the size of a city and the privilege of detaching
a portion of its territory," we believe that the legitimacy is
attributable to the fact that the legislation there reviewed
had as its purpose the granting of permission to cities the
power to make reasonable, orderly alterations of its boundaries
by the exclusion of property not necessary for, nor benefited
by, inclusion within the corporate limits.
     But the avowed purpose of H.B. No. 738 is "the importance
of fostering commerce and industry along the navigable streams
of this State, . . .' and we can perceive of no distinguishing
characteristics between cities of the population expressed in
the bill and those of lesser population, where both have
navigable streams within their limits, that would impart legiti-
macy to the classification. The rule was pronounced in Leonard
v. Road Maintenance District No. 1, 187 Ark. 599, 61 S.Wm
n--m33)    and cited with approval in Miller v. El Paso County,
136 Tex. $70, 150 S.W.2d 1000 (19&l), as follows:
            .   .   .




Honorable George L. Preston, page 7 (WW- 1059


              . 'The rule is that a classlfica-
    tion cannot be adopted arbitrarily upon a
    ground which has no foundation in difference
    of situation or circumstances of the munici-
    palities placed in the different classes. There
    must be some reasonable relation between the
    situation of municipalities classified and the
    purposes and objects to be attained. There must
    be something * * * which in some reasonable
    degree accounts for the division into classes.'"
In Oliver v. city of Burlington, 75 N.J.L. 227, 67 Atl. 43,
(1907) a statute granting to cities of the third class
authority to lease their wharves was held to be void because
it was local or special. We quote from the court's opinion:
          0 . . . In this case there has been no
     reason assigned, nor is it apparent, why all
     cities should not have the power to lease their
     wharves as well as cities of the third class.
     Population cannot have any just reference to
     this distinction between these classes by which
     the one is separated from the others. There is
     no natural connection between the number of people
      ina city and its right to lease its wharves. The
     classification made by a statute is justified or
     not, by considering whether the statute is thereby
     rendered general :r special, not whether it is wise
     or unwise.           Cf. Christoph v. Chilton, 205
     WIS. 418, 23-ii.i. 134 (1931).
     In view of the above authorities, H.B. No. 738 is unconsti-
tutional as local and special legislation.
     In our opinion, there is also a serious question as to
whether H.B. No. 738 is violative of the due process section
of the Constitution of Texas, to the extent that it would
allow summary diaannexation of improved property lying within
twenty-five hundred feet from the thread of any navigable
stream.
     In H.B. No. 738 no standard is provided, other than that
the property lie within twenty-five hundred feet of a navigable
stream; nor is there opportunity for notice, hearing or remon-
strance by the owners of the property affected. The proposed
amendment would afford no reasonable safeguard against the
overnight destruction of those advantages accruing to a city
dweller who has become accustomed to city services and privileges
such as water, sewer, grabage, schools and fire and police
                                               .   ,




Honorable George L. Preston, page 8 (WW-1054)


protection, or who has improved his property in reliance
upon city zoning laws. We refer again to the last-quoted
paragraph of City of San Antonio v. State, supra, at page
6 of this opinion.


                          SUMMARY
         H.B. No. 738 violates Section 35 of
         Article III of the Constitution of
         Texas in that the title of the Act
         fails to reflect that a provision of
         the amended Act is omitted; however,
         this defect does not render the bill
         unconstitutional but will only cause
         the 1959 amendment to remain in effect.
         H.B. No. 738 is unconstitutional as it
         violates Section 56 of Article III of the
         Texas Constitution, because the classifi-
         cation of the Act has no proper relation
         to the purpose of the Act.
                          Yours very truly,
                          WILL ,WILSON
                          Attorney General of Texas


                               L-Le.+.)-zc:u
                          BY
                               Dudley D. McCalla
DDM:hmc:ms                     Assistant

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
William H. Pool, Jr.
Raymond V. Loftin, Jr.
Houghton Brownlee, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
By: Morgan Nesbitt
