       OFFICE OF THE ATTORNEY         GENERAL   OF TEXAS
                             AUSTIN




Hon. George H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Mr. Sheppard:
                     Opinion No. O-85



            Your letter of
received.
          From the facts r                   n, this department
construes and d                               hereinafter set
forth only as a                              ght of the reoent
amendment to th                              sed by the Forty-
Fifth Legislatu                                5. B, No. 20, Sec-
tion 16, appea?                              $enal Oode, Revised
Btatutes 1925.L                               pass on the valid-
ity of the amen                            ort Arthur as to its
                                      endment presentsd with




                       Arthur valid?

         hd
          ~ T?
       to ho
                 hl   it be neoessary for said oity
               &other eleotion for the purpose,of
       amending its Charter in order to conform with
       the Aot of the Legislature above listed?"
          As to the Pirst que~stionand the authority of the
city to pass said amendment reierreditq,this point seems to
have been raised in Pitre vs. Baker, 111 SW (2nd) 359, al-
Hon. George H. Sheppard, January 23, 1939, Page 2

though the court did not seem to pass directly upon the ques-
tion. The holding in that case was that the eleotion in which
the Port Arthur amendment to its oharter was passed, was
                                                     -- not
& efi'eot2 loon1 option election, and could not be oontested
under statutes regulating contests ofelectioz    This holding
is amply supported in the case oited therein, LeGois vs. State,
80 Tex. Cr. R. 356, 190 SW 734-6. From this case
further assume that Port Arthur is classified as A ~~rn~?ule
city, with full authority to govern,,vested in its city offi-
cials, and by elections duly held, can amend its oharter; that
the amendment in question waa adopted when the pity was "wet"
on Rovenber 4, 1936.

          When an amendment is adopted by a majority of the
qualified voters at the election, and an order deolaring its
adoption is antered in the records, it beoomes part of the
charter and is entitled to the same oonsideration as if it
were contained in an act of the Legislature. Revised Statutes
1925, Article 1170. Bland vs. City of Taylor, 37 EW (2nd)
291, 14 T. J. page 15, pagagraph 14.
          Section,5, Article 11 of the Constitution of Texas
provides that cities having more than five thousand inhabi-
Mnts may by election held for the purpose, a,daptor amend
their charter, subject to such limitations as may be pres-
scribed bp the Legislature. lt further provides that such
amendment or act adopted shall not contain any provisions in-
consistent with the Constitution and general laws enaoted by
the Legislature. As to the purpose and intention of th$s
home rule amendment, see LeGois vs. State, supra.
          This department Baa heretofore held and the decisions
sustain in my opinion, the authority of.home ru&e cities to
regulate, within its limits, the trarrio ,in.lihor. Cohen
vs. Rice, lQ$ SW 1052. Williams vs. State 10,7~$W 1121 and
Rx Parte Hollingsworth, 2g3 SW 1102. Such re&atioas,    however,
must not be inaonsistent with legislative reguqtion upon
the same subject. Section 2 of Artiole 1 of tha Liquor Con-
trol Act, ohapter  467,'passed by the Forty-Fourth Legislature,
1935, designates the act an eXerOise    or polioe power  Or the
state.  The  amendment in question   effeOtive~l927,  would not
necensarily invoke or supersede powersPrevioualY granted
to hOme rule cities, in the absence of an irreooncilable Con-
flict with charter provisions or such cities upon the same




                                            .
Ron. George H. Sheppard, January 23, 1939, Page 3



subject.
          I conclude, therefore, that the amendment as oon-
tained in the 1937 act referred to in$our letter would not,
in my opinion, render the Port Arthur nhartar or amendment,
otherwise valid prior to its passage, invalid; Suoh amend-
Eent would not affect the City of Port Arthur,'spresent char-
ter provision w??ich I am oonstrained to presume,in this .op-
inion to he consistent with the Constitution and general laws
of the State, existin,?at the time and prior to the adoption
of Ynme.
            Trusting that the above will answer your questions,
I remain
                                       Very .trulyyours
                                    ATTORNEY GENERAL OF TEXAS




APPROVED:


k----w
ATTORNEY GENERAL OF TEXAS.
