   OFFICE   OF THE   ATTORNEY   GENERAL   STATE   OF TEXAS

   JOHN      CORNYN




                                                  August 30, 1999



The Honorable Jos& R. Rodriguez                              Opinion No. JC-0101
El Paso County Attorney
County Courthouse                                            Re: Constitutionality of an 1891 special law that
500 E. San Antonio, Room 203                                 purported to disincorporate   the City of San
El Paso, Texas 79901                                         Elizario (RQ-0030)



Dear Mr. Rodriguez:

         You have requested our opinion regarding the constitutionality      of an 1891 special law
purporting to disincorporate the City of San Elizario (“the City”). For the reasons stated below, we
conclude that the law is constitutional.

         The town of San Elizario was incorporated by special act of the legislature in 1871. Act of
Apr. 5,1871,12th Leg., R. S., ch. 42,187l Tex. Gen. Laws 83, reprinted in 6 H.P.N. GAMMEL,THE
LAWS OF TEXAS 1822-1897, at 1221 (Austin, Gammel Book Co. 1898). The town, contrary to its
special charter, operated as a general law city, with the result that many land titles became clouded.
In 1891, the legislature enacted a special law validating those deeds. Act approved Mar. 17, 1891,
22d Leg., R.S., ch. 4,189l Tex. Gen. Laws 5, reprinted in 10 H.P.N. GAMMEL,THE LAWS OFTEXAS
1822-1897, at 233 (Austin, Gammel Book Co. 1898). The same legislature then repealed the 1871
act that had incorporated the City of San Elizario. Act approved Mar. 23, 1891,22d Leg., R.S., ch.
11, 1891 Tex. Gen. Laws 24, reprinted in 10 H.P.N. GAMMEL,THE LAWS OF Texas 1822-l 897, at
252 (Austin, Gammel Book Co. 1898).

          You indicate that, in 1997, a group of San Elizario residents organized and held at-large
elections for city officers, purportedly under the charter and authority of the 1871 special law. In
briefing submitted by the city attorney, the City of San Elizario argues that the 1891 act repealing
the 1871 special law is unconstitutional,     and that, as a result, the city council may operate San
Elizario as a legally incorporated municipality. We will address each of the City’s three contentions
in turn. We begin, of course, with the presumption of constitutionality          that attaches to every
legislative act. TEX. GOV’T CODE ANN. 5 311.021(l) (Vernon 1998); Proctor v. Andrew& 972
S.W.2d 729,735 (Tex. 1998); Smith v. State, 898 S.W.2d 838,846-47 (Tex. Crim. App. 1995) (en
bane).
The Honorable Jose R. Rodriguez        Page 2       (JC-0101)




         The City first asserts that no notice of intent to enact the 1891 repealing law was published
in a local newspaper, in contravention of article III, section 57 of the Texas Constitution.       That
provision states:

                No local or special law shall be passed, unless notice of the intention
                to apply therefor shall have been published in the locality where the
                matter or thing to be affected may be situated, which notice shall state
                the substance ofthe contemplated law, and shall be published at least
                thirty days prior to the introduction into the Legislature of such bill
                and in the manner to be provided by law. The evidence of such
                notice having been published, shall be exhibited in the Legislature,
                before such act shall be passed.

The City, contending that the repealing act fails to state that notice was published or exhibited to the
legislature, raises an argument similar to the one rejected by the court of appeals in MoZZer V. Ci@
ofGalveston, 57 S.W. 1116 (Tex. Civ. App.-Galveston 1900, no writ). In that case, the court said
that “the passage of the act by the legislature is conclusive of the fact that due notice was given.”
Id. at 1120. Indeed, “[t]o hold otherwise would be to relegate to the courts the ascertainment of a
jurisdictional fact for the legislature, and to unsettle every special or local law that has been passed
 since the adoption ofthe constitution.” Id; see also Cravens v. State, 122 SW. 29,31 (Tex. Crim.
 App. 1909). It is consequently our opinion that the passage of the 1891 law itself is conclusive of
 the fact that notice as required by article III, section 57, was given.

         The City also suggests that the 1891 law is invalid because a general law could have been
drafted to accomplish the same purpose. Article III, section 56 of the Texas Constitution provides,
in relevant part: “And in all other cases where a general law can be made applicable, no local or
special law shall be enacted.    .” A statute directed at a specific municipality is a “special or local
law.” City ofFort Worth v. Bobbitt, 36 S.W.2d 470,471 (Tex. 1931). The 1891 act ofrepeal is thus
a “special or local law” because it is directed at a particular municipality, i.e., San Elizatio.
Specifically, the City contends that, prior to 1891, the legislature “passed general laws dealing with
specially incorporated towns.” For example, “[i]n 1881, the legislature enacted a general law that
granted special-law municipalities that were incorporated as a town or village before June 30, 1881
the ability to amend their charters.” Brief from John R. Batoon, Attorney at Law, to Opinion
Committee, Attorney General’s Office (June 17,1999) (on tile with Opinion Committee). The City
argues that just such a general law could have been enacted and applied to the disincorporation of
San Elizario.

         City of Oak Cliffv. State ex rel. Gill, 77 S.W. 24 (Tex. Civ. App.-Dallas 1903), aff’d 79 S.W.
1 (Tex. 1904), involved a challenge to a special act of the legislature that purported to abolish the
city of Oak Cliff and incorporate it within the corporate limits of the city of Dallas. One of the
contentions advanced in that case was that the special law contravened article III, section 56, because
The Honorable     Jose R. Rodriguez       - Page 3          (JC-0101)




there already existed “a general law for the disincorporation           of cities incorporated    under the general
laws.” Id. at 25. The court said:

                 The question whether a general law can be made applicable in any
                 case is a question for the determination by the Legislature, and the
                 courts will not interfere with their judgment in this respect.     The
                 fact that a general law has been passed by the Legislature on the same
                 subject does not affect the question.

Id. at 26. Subsequent cases have reached the same conclusion. See, e.g., Logan v. State, 111 S.W.
 1028, 1029 (Tex. Grim. App. 1908); Lamon v. Ferguson, 213 S.W.2d 86 (Tex. Civ. App.-Austin
 1948, no writ); see also Smith V. Grayson County, 44 S. W. 921 (Tex. Civ. App.-Dallas 1897, writ
refd). On the basis of this authority, we conclude that the 1891 special law is not invalid for the
reason that a general law could have been made applicable.

         The City’s last contention is that the 1891 special law, in purporting to abolish the City of
San Elizario, contravened that portion of article III, section 56 that prohibits the legislature, by “local
or special law,” from “[ilncorporating cities, towns or villages, or changing their charters.” The City
argues that the 1891 repeal of its charter was necessarily an act that “changed its charter.” You
contend, on the other hand, that the 1891 act is merely a repeal of an earlier law-one         that granted
the charter-and    that article III, section 56, does not expressly prohibit such a repeal.

         A similar situation was before the court in Central Wharf & Warehouse Co. v. City of Corpus
Christi, 57 S.W. 982 (Tex. Civ. App.-Galveston       1900, writ ref d). In that case, the appellee argued
the invalidity, under a virtually identical provision of the 1869 Texas Constitution,’ of an 1875 act
repealing the special law that had incorporated the City of Corpus Christi. The court declared:

                  From a reading of the entire section [on local and special laws] it is
                  clear that its object and meaning is to prohibit the granting of special
                  favors by the legislature, and to require that all legislation upon the
                  subjects therein enumerated should be equal and uniform. It certainly
                  did not mean to take away from the legislature its inherent power of
                  repealing any law theretofore passed by it, and we must hold that
                  said repealing act is a valid law.

Id. at 983 (emphasis added); see also City of Oak Clil3; 77 S.W. at 26.

        In our view, the same principle is applicable to the City’s assertion. Although the 1891
special law may from one perspective be viewed as an act “changing the City’s charter,” it may more



           ‘Article XII, section 40, of the 1869 Comtiltion      (as amended and ratified in 1873) provided that “[tlhe
legislature shall not pass local 01 special laws    incorporating cities or towns 01 changing or amending the charter of
any city or village.” See Central Whad57        SW. at 983.
The Honorable    Jose R. Rodriguez    - Page 4        (JC-0101)




properly be characterized merely as a law repealing an earlier law. And as the court noted in Central
 FI%arf; repealing a previous law is an inherent power of the legislature. It is therefore our opinion
that the 1891 special act of the legislature repealing its prior incorporation of the City of San Elizario
does not contravene either section 56 or section 57 of article III of the Texas Constitution.

                                          SUMMARY

                         An 1891 special act of the legislature that repealed the
                legislature’s previous incorporation of the City of San Elizario does
                not contravene either section 56 or section 57 of article III of the
                Texas Constitution.

                                                 Yo    s ve   truly



                                               4JVh3-
                                                 JOfiN    CORNYN
                                                 Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
