                                  The Attorn.ey General of Texas
JIM MAl-rOX                                             June 18. 1984
Attorney General


supmIllcourtBulknmJ            tionorable Micbsel J. Gu.rino                      Opinion   No.   .rt+169
P. 0. Box 12546
                               CrMnsl    District Attorney
Au~lln. TX. 16711-2548
                               Gslvcston county                                   ik:     Whether s village       which
51214752501                     .__ -                                             _     -
T&X 01om74-IS7                 405 County.Courthou.e                              M(I b.COm.    . tOWt pUr6USUC      CO
Telecopter 512l475.0255        Galveston, Texs.     77550                         article     961,    V.T.C.S..     pay
                                                                                  revert   to village     etatus.   snd
714 Jackson. Sulle 700                                                            relsted   question.
Dalla5. TX. 75202.45W
214f742.8944                   Dear Mr. Gusrino:

                                      You have posed ssv.r.1     question.      about the legal        status    of
4524 *Ibetl~ Ave.. Suite 160
                               Dickinson.~ Texa.,~ which vs.     originslly      Incorporated    s.    s villsge
El Pmo, TX. 79005-2703
91-                            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
tmi Texas. suits 700           Title   28 s. it. governing body of lsw (rstber          ,tbsn chapter 11) snd
nou*ton. TX. 770025111
                               filed It of record with the Galveston county clerk.            Subsequently. you
71-
                               edvise.    s newly .elected    board   of    sldsrmsn     psssed   en ordlnsnce
                               purporting    to reps.1    the previous      ordlnsnce     sad thereby       return
606 Broadway. S@te 312         Dickinson to "villsge"    ststus.    Your questions     concern the effect        of
Lubbock, TX. 70401a479         the ordinsncss.     .'~
Mw747.3235

                                     Tex+. ~ststute.       allow     the incorporation         of s community under
UQO N. Tenth. SuIta B          cbsptsr 11 if      tb. number of inhsbitsnt.           is mre tbsn two hundred but
McAltul, TX. 76501.1665        less'tban tan thbcwand. V.T.C.S. srt.                 1133. A toun 80 incorporated
5126524547                     (which, uy       be ,c.lled      s "villsgs"        instesd     of   s "town"     without
                               diminishing    its   powers) become. "invested with sll tb. 3fgbt. incident
200 M&l Ptua. BIBIt* 400       to' suchxZorporation       under this cbsptsr"          [cbspter   11).    V.T.C.S.   art.
San Antonlo, TX. 78205cm7      1140. Tovn. ~incorporated under cbspter                 11 bsve powers more lirited
512/225.4191                   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
An Equal opportunttyl
Afflrmattw Action Empbyw       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 home rule 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 cities
Honorable Michael       J. Cusrlno    - Page 2     (JM-169)




have only those powers   given          them by the legislature.            -See 40 Tex.
Jur. 26 Hunlcipsl Corporations.           $318 st 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. Town of 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.       When such city,         tom or vlllsge      is 00
             incorporated      se herein provided,          the ssme shsll be
             known se 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       con-
             ferred . . . .         (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;  Luclby v. Cozby. 8uprcl at
803.

       When the vote was taken      that purported to return Dickineon to
chapter 11 ststue.     the town had slresdy become a municipal corporation
controlled    by chsptere   1 through 10 of Title  28.   Since there is no
legislstively    permitted procedure allowing such 8 reversion   to chapter
.’




     Honorable Michael .I.Guarino - Page 3   (JR-169)




     11 status, the vote was 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. Harness V. State, 13 S.W. 535 (Tex. 1890). As noted in a
     useful brief submitted 011 the auestion. 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, no writ).

           Your specific questions are therefore answered as 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 journal of their proceedings?

          It is the action of the board, not the evidence or record
     thereof, that accomplishes the transformation of the municipality from
     one category to another. Lusby v. Cozby, supra. Minutes of the
     meeting can be corrected to make them speak the truth. city of
     Electra v. American La France 6 Foamite Industry, Inc., 133 S.W.2d 223
     (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
     resolution rather than by ordinance, it requires only that the action
     be taken by a two-thirds vote of the governing body. An ordinance
     will serve. Lusby V. Cosby, supra.

                   2. Under the authority to repeal ordinances
                granted to city council in article 1011, V.T.C.S.,
                can city council repeal Ordinance 63-821

     As discussed above, once the adoption of chapters l-10 was complete,
     the action taken could not be rescinded.

                  3. In as much as no reference is wade to a 213
               majority vote in article 1011, where power to
               rescind ordinances is granted, is other than a
               simple majority vote required to rescind Ordinance
               63-827

     Again, Ordinance 63-82 cannot be 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
                in December 1982?

     NO.




                                   p. 745
                                                                        .




Honorable Michael J. Guarino - Page 4     (JM-169)


                                                                            ,-,.


             5. Assuming the proper procedures outlined in
          article 961 are followed in establishing a general
          law city under chapters l-10, Title 28, are there
          any statutory provisions allowing a return to a
          chapter 11 village?

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. Lum v. City of Bowie, supra at 144.

             6. As a result of the action taken on December
          14, 1982, and the rescinding action taken on May
          3, 1983, has Dickinson returned to a village?

No.

                               SUMMARY

            The city of Dickinson currently has the legal
         status of a town or city operating under 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 reincorporate as a village.




                                         JIM     MATTOX
                                         Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood


                                       p. 746
