                        The Attorney           General of Texas
                                       October 28, 1977
JOHN L. HILL
Attorney General


                   Honorable Gib Lewis, Chairman          Opinion   No.   H-l080
                   House of Representatives
                   Committee on Intergovernmental         Re: Validity of House
                     Affairs                              Bill 1278, codified as
                   P. 0. Box 2910                         article 966i, V.T.C.S.
                   Austin, Texas 78769

                   Dear Chairman Lewis:

                        You have requested our opinion regarding the validity
                   of House Bill 1278, Acts 1977, 65th Leg., ch. 828, at 2077,
                   codified as article 966i, V.T.C.S. That statute provides,
                   in pertinent part:

                               Section 1. Any unincorporated area
                             having a population, according to the
                             last preceding federal census, of 8,000
                             inhabitants or more, and located wholly
                             within boundaries of a district created
                             pursuant to Article XVI, Section 59, of
                             the Texas Constitution, which district
                             furnishes water and sewer services to
                             householders, contains at least 10,000
                             acres, and portions of which district are
                             located within the corporate boundaries
                             of two or more municipalities, may be
                             incorporated as a city or town, with all
                             of the powers, rights, immunities, and
                             privileges mentioned and described in
                             the provisions of this title relating to
                             cities and towns, in the manner described
                             in Article 966, Revised Civil Statutes of
                             Texas, 1925, for incorporating cities and
                             towns, provided, however, that the appli-
                             cation to become incorporated shall be
                             signed by at least 500 resident electors.

                               .   .   .   .

                               Sec. 4. The provisions of this Act
                             shall not take effect until January 1,
                             1978. If, however, the unincorporated


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Honorable Gib Lewis      - Page 2   (H-1080)



          area described in Section 1 of this Act
          has been annexed by the principal city
          of the county wherein the unincorporated
          area lies or if annexation proceedings
          have been initiated by the principal city
          after January 1, 1977, then all provisions
          of this Act shall be held void.

           Sec. 5. If any provision of this Act or
         its application to any person or circumstance
         his held to be invalid for any reason, the
         invalidity does not affect any other pro-
         vision or application of this Act which can
         be given effect without the invalid pro-
         vision or application, and to this end
         the provisions of this Act are declared
         to be severable.

We must first determine whether section 1 renders House Bill
1278 a local or special law, in contravention of article 3,
section 56 of the Texas Constitution.

     House Bill 1278, by permitting the incorporation of an
area located within the extraterritorial jurisdiction of another
municipality, acts as an exception to the .Municipal Annexation
Act, article 970a, V.T.C.S.  Section 1 authorizes any area to
incorporate, so long as it contains at least 8,000 residents and
is located wholly within the boundaries of a district created
under article 16, section 59 of the Texas Constitution.   The
district in which the unincorporated area is located must itself
meet certain requirements.  It must contain at least 10,000 acres,
furnish water and sewer services to householders, and portions
thereof must be located within the corporate limits of two or
more municipalities.

     A statute will not be deemed a local or special law so
long as there is "a reasonable relationship between the classi-
fication and the objects sought to be accomplished by the
statute."  Smith v. Davis, 426 S.W.2d 827, 830 (Tex. 1968). We
believe the application of the Act to unincorporated areas of
more than a certain population would be found to be a reason-
able one. The qualifications imposed upon the district in which
the area is located present a more difficult question. Although
House Bill 1278 fails to recite any reasons for its classifica-
tion, it is possible that the Legislature's intention, in
restricting the application of the statute to areas located
in certain kinds of districts, was to avoid the burden of double
taxation which might occur under article 1182c-1, V.T.C.S., if




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Honorable Gib Lewis      - Page 3   (H-1080)



part, but not all, of the district were annexed by another munic-
ipality. Although we cannot say as a matter of law that a court
would be able to ascertain "a reasonable relationship between
the classification and the objects sought to be accomplished,"
neither can we be certain that there is no rationale which would
support that classification.  Since the constitutionality of a
statute must be sustained unless its invalidity is apparent
beyond a reasonable doubt, we cannot conclude that a court would
hold that House Bill 1278 is a local or special law on the basis
of the classification created by section i thereof. State v.
City of Austin, 331 S.W.2d 737 (Tex. 1960). See Attorney General
Opinions H-119, H-8 (1973); Letter Advisory NK    131, 130 (1977).
But see Rodriguez v. Gonzales, 227 S.W.2d 791, 793 (Tex. 1950).

     While section 1 may not render House Bill 1278 a local or
special law, a portion of section 4 is probably invalid. Section
4 would permit "the principal city of the county wherein the un-
incorporated area lies" to void "all provisions" of the statute,
either by annexing the unincorporated area or initiating an
annexation. We believe the second sentence of section 4 confers
upon a municipality the power to suspend an act of the Legislature,
in violation of article 1, section 28 of the Texas Constitution.

      It is now generally held that local option laws, in which
the Legislature makes a certain prohibition, but permits local
governments to exempt themselves from its operation, are not
unconstitutional.   Ex parte Mode, 180 S.W. 708, 722 (Tex. Crim.
App. 1915)                            , 203 S.W.2d 320, 324 (Tex.
Civ. App.                              but cf., Spence v. Fenchler,
180 S.W. 597, 605-07 (Tex. 1915). In such instances, the law
itself is valid, and "it remains the law whether a vote is ever
held under its provisions or not." Ex parte Mode, supra, at 723.
But the Legislature is empowered to delegate to local governments
the authority to determine whether or not a general statute shall
become effective only “within their respective jurisdictions."
Reynolds v. Dallas County, supra, at 324. The power of legisla-
tion which the Leqislature may confer upon a municipality is
confined to matters of local self-qovernment, and any authoriza-
tion extending to matters that are-not of purely local concern is
constitutionally invalid. Green v. City of Amarillo, 244 S.W. 241,
243, 244 (Tex. Civ. App. -- Amarillo 19221, aff'd, 267 S.W. 702
 (Tex. Comm'n App. 1924, jdgmt adopted).

     The second sentence of section 4 authorizes any "principal
city" to abrogate "all provisions" of House Bill 1278 at any
date subsequent to January 1, 1977. Thus, the governing body
of one municipality is granted unbridled and unlimited discre-
tion to suspend statewide an act of the Legislature.  In our




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Honorable Gib Lewis      - Page 4   (H-1080)



opinion, such a broad delegation of the legislative prerogative
is proscribed by article 1, section 28 of the Texas Constitution.

     Even if the second sentence of section 4 is void under
article 1, section 28, however, it does not follow that the
remainder of the statute is invalid. Section 5, the sever-
ability clause, specifically declares that the invalidity of
"any provision" of the statute "does not affect any other pro-
vision . . . which can be given effect without the invalid
provision.'  In our view, the effective date provision may be
given effect without reference to the second sentence of sec-
tion 4.

      It has been suggested that all of section 4 constitutes one
"provision," and that, if a part thereof is invalid, the entire
section must fall. Apart from the obvious strain which such a
construction would place on the usual meaning of the word "pro-
vision," we believe that it would also subvert the clear legis-
lative intent. Section 4 indicates that the Legislature intended
that the statute be effective either on January 1, 1978, or not
at all. Although the Legislature may not constitutionally con-
dition the effective date of this statute upon the act of a
municipality, as noted above, it is not constitutionally pro-
hibited from adopting a prospective effective date. In our
opinion, the legislative intent can best be effected by holding
that the effective date provision is severable from the remainder
of section 4 and, as a result, must be given effect. Thus, we
believe that House Bill 1278 will be effective on January 1,
1978.

     Finally~, you ask whether House Bill 1278 authorizes incor-
poration by two or more noncontiguous tracts of land. Although
the Supreme Court has held that there is no constitutional barrier
to the incorporation of noncontiguous areas, City of West Lake
Hills v. State ex rel. City of Austin, 466 S.W.2d 722, 729 (Tex.
1971). any statute which purports to permit the incorporation
of such area must specifically indicate the Legislature's intent
to do so. See City of West Lake Hills v. State ex rel. City of
Austin, sup=    at 729-730; State ex rel. Wilke v. Stein, 26
S.W.Zd 182 (Tex. Comm'n App. 1930,
City of West Lake Hills, 457 S.W.2d 398, 410, 411 (Tex. Civ. App. --
Austin 19701, rev'd on other grounds, 466 S.W.2d 722 (Tex. 1971).
Accordingly, we do not believe that House Bill 1278 authorizes
the incorporation of noncontiguous areas.

                       SUMMARY

          House Bill 1278, Acts 1977, 65th Leg.,
          ch. 828, at 2077, codified as art. 966i,




                             p. 4423
Honorable Gib Lewis          - Page 5   (H-1080)



            V.T.C.S., is not unconstitutional as a
            local or special law. That portion of
            section 4 which authorizes a "principal
            city" to abrogate all provisions of the
            statute is an invalid delegation of the
            power to suspend an act of the Legislature,
            but this provision is severable from the
            remainder of the act. House Bill 1278
            will take effect on January 1, 1978. The
            statute does not authorize incorporations
            by two or more noncontiguous tracts of
            land.

                                 Very truly yours,



                                  OHN L. HILL
                                 Attorney General of Texas
                            /'
APPROVED:              ,w




DAVID M.,II<NDALL, First Assistant




C. ROBERT HEATH, Chairman
Opinion Committee

jst




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