                             QBfficeof the JZlttornepQkneral
                                         &Mateof ?Itexae
DAN MORALES
 .ATTcmNEY
       GENERAL                             September3.1993

     Honorable Warren Chisum                             Opiion No. DM-252
     Chair
     Committee on Environmental Regulation               Re: Whether article Ix, section 1 of
     Texas House of Representatives                      the Texas Constitution authorizes the
     P.O. Box 2910                                       legislature to consolidate two existing
     Austin, Texas 78768-2910                            camties (RQ-495)

     Dear Representative Chisum:

             You have asked us to determine whether article DC, section 1            of the Texas
     Constitution authorizes the legislature to consolidate two existing counties.     You explain
     that several of your constituents in Dallam and Hartley counties are             interested in
     consolidating the two counties, presumably for reasons of cost et3iciency.r     We conclude
     that article IX, section 1 of the Texas Constitution does not authorize          two existing
     counties to consolidate.

             Article Df, section 1 of the Texas Constitution reads in pertinent part as follows:

                     Section 1. The Legislature shag have power to create counties
                for the convenience of the people subject to the following provisions:

                       . .


                      Second. Within the territory of any wunty or wunties now
                 existing no new county shag be created with a less area than seven
                hundred square miles, nor shaII any such county now existing be
                reduced to a less area than seven hun&ed square miles. No new
                counties shah be created so as to approach nearer than twelve miles
                of the wunty seat of any county from which it may in whole or in
                part be taken.     . When any prt of a county is stricken off and
                attached to, or created into another wunty, thepart stricken off shah
                be holden for and obliged to pay its proportion of all the liabilities
                then existing, of the county from which it was taken, in such manner
                as may be prescribed by law.


             ‘Youhave~l~a~~a~,~~aMorrEfIicicntGovcmmcnt:                                  AnAdysisof
      the Pmposition of Merging DalIam and Hartley Counties,”that estimates that a wasolidatc4 county
      anaoaUywill spend at leas1$382.000.00less than the amountthe two amtics will spend separately.




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Honorable Warren Chisum - Page 2                (DMr252) \




                 Third. Noparf of any existing wunty shag be detached from it
            and attached to another existing county until the proposition for such
            change shag have been submitted, in such manner as may be provided
            by law, to a vote of the electors of both wunties, and shall have
            received a majority of those voting on the question in each.
            [Emphasis added.]
        In our opinion, the language of article JX, section 1 indicates that the legislature
may attach to a county only a portion of another wunty, not the whole of the other
county. Consolidating two counties-i.e., attaching the whole of one county to the whole
of another-contravenes the wnstitutional prohibition against reducing an existing county
to an area less than 700 square miles.2 Furthermore, section 1 repeatedly refers to a “part”
of a wunty.s

         An examination of the statutes the legislature has enacted pursuant to article IX,
section 1 indicates that this construction is wnsistent with the legislature’s construction of
the section. Throughout chapter 71 of the Local Government Code, which governs the
creation of counties, the legislature speaks of organikg a new county out of a part or
parts of an existing county or wunties. See. e.g., Local Goti Code $4 71.011, 71.013
(providing for election for detachment or attachment of wunty territory), 71.021(a),
71.022(a), 71.023(a), 71.025 (providing for organization of counties), 71.031, 71.032,
71.033, 71.034 (providing for apportionment of county indebtedness). In our opinion,
therefore, the legislature envisions only a situation in which a portion of a county is
detached Tom an existing county and attached to another county; the county from which
the territory is taken wntinues to exist as an autonomous county. This, of course, does
not describe a situation such as the one you propose, in which the whole of two counties
are merged into one. Consequently, we do not read article IX, section 1 of the Texas
Constitution to authorize the consolidation of entire wunties.4




          31namhasl to ankle IX, section 1 d the Texas Constitution,article VIII, s&ton 8.01 ef the
Modelstate ccastihltion requuesa le8islanucto ‘pmvideby 8cacral law. . . for muheds aad proccdure5
of, . . merging,consolidating[ccaaties].” NATIONAL M~?~CIFLU        LEML&MODELSTATE~ON~~V~ON
art. VIII, 8 8.01, al 15 (6th cd. 1%3); see a/soid. 0 8.03, at 117;
                                                                  id art. XI, g 11.01,at 19; 2 D. BRUEN,
THECON~TUTION      OF THE STATUJFTEXASZ    AN   ANN~TATEDAND~~M~ARAT~~EANALY~IS~~~
                                                                                (1977).

       ‘We note tba1 Ihc TexasSqmu     hurl, in Robbins v. Limestone Corm@, has said that tk Texas
Chsdhdion authoriws the legislatu~ te amsclidatetwocr morecoaatics. Robbins Y. Limesrom County
268 SW. 915.919 (-Rx. 1925). ‘Tkannt’s pIonauremnt was, howcvu, dida.




                                                p.   1312
Honorable Warren Chisum - Page 3,        (DIG252)




                                  SUMMARY
               Article IX, section 1 of the Texas Constitution does not
           authorize the legislature to consolidate two existing wunties.




                                                     DAN      MORALES
                                                     Attorney General of Texas

WILL PRYOR
Fkst Assistant Attorney General

MARYKELLER
Deputy Attorney General for Litigation

RENEAHICKS
State Solicitor

MADJXJDJE B. JOHNSON
Chair, Opiion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




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