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                             TEXFC AITORNEY          GENERAL
                                      OF-XAS




         Honorable Frank R. Nye, Jr.           Opinion No. M-211
         County Attorney
         Starr County                          Re:   Whether an incorpora-
         Rio Grande City, Texas                      tion election may be
                                                     held to incorporate
                                                     the "City " of La Grulla
                                                     in less than one year
                                                     from the date the city
         Dear   Mr.   Nye:                           was finally abolished.

                   In a recent letter you request an opinion
         concerning the above captioned question. We quote from
         your letter as follows:

                      "The City of La Grulla was incorporated
                by an election held on the 20th day of March,
                1965. A subsequent election for the aboli-
                tion of the City of La Grulla was held on
                July 19, 1966. The results were for the
                abolition of the Ci? of. La G~L1-1-s. The
                matter of the abolition of the City of La
                Grulla was taken to court in the case of
                 City of La Grulla vs. Hon. M. J. Rodriguez,
                 County Judge, et al. The Court of Civil
                Appeals Judgment affirming the trial
                 court was rendered May 10, 1967 and the
                 Supreme Court refused a Writ of Error
                 on October 4, 1967 and overruled a Mo-
                 tion for Rehearing on same on November 1,
                 1967 making the Supreme Court Judgment
                 final on November 15, 1967.

                     "A petition was filed with the
                County Judge on 19th day of October,
                1967 requesting an election to incor-
                porate said City. The County Judge
                replied that he felt that while liti-
                gation was in progress on the matter,
                the election was premature.




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Hon. Frank R. Nye, Jr., page 2, (M-211)



         “Now, the litigation has come to
    an end and some opponents of the incor-
    poration have stated that the incorpora-
    tion election could not be held within
    one year since Article 1134 provides
    that a new election for incorporation
    shall not be called in less than one
    year and is applicable in this instance.

         "They take the position that the
    time that the matter was in litigation
    should not be counted and that no elec-
    tion should be called until one year
    after the date of the final judgment
    in the Supreme Court, to-wit, November
    15, 1968.

          "The cases they rely upon are. . .

         "Middle States Petroleum Corp.,
    et al vs. John Messenger and R. J.
    Whelan, 368 S.W.Zd 645, p. 651.

         "Mitchell vs. Brockenbush,   363
    S.W.2d 166, p. 1969.

         "Midwest Oil Corporation vs.
    Winsauer, 323 S.W.Zd 944. . .

    which hold that litigation will toll
    the computation of time in various
    instances."

          The two statutes involved are Article 1134
and Article 1261 of Vernon's Civil Statutes. Article
1134 provides:

         "If the inhabitants of such town
    or village desire to be so incorporated,
    at least twenty residents thereof, who
    would be qualified voters under the
    provisions of this chapter, shall file
    an application for that purpose in the
    office of the county judge of the county
    in which the town or village, is situated,
    stating the boundaries of the proposed



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Hon. Frank R. Nye, Jr., page 3,   (M-211)




    town or village, the name by which it
    is to be known when incorporated, and
    accompany the same with a plat of the pro-
    posed town or village including therein
    no territory except that which is in-
    tended to be used for strictly town
    purposes.   If any town or village be
    situated on both sides of a line di-
    viding two counties, application may
    be made to the county judge of either
    county in which a portion of said town
    or village is located, in manner and
    form as herein provided.   A new elec-
    tion shall not be ordered in less than
    one year." Acts 1889, p. 5; G.L. vol.
    9, p. 1033.   (Emphasis added.)

         Article 1261 provides:

         "When twenty-five of the quali-
    fied voters of any incorporated town
    or village shall desire the abolish-
    ment of such corporation they may peti-
    tion the county judge to that effect,
    who shall thereupon order an election
    to be held in such town or village,
    as in the case of its incorporation;
    and, if there be a majority of the
    voters of said corporation, voting
    at such election in favor of abolish-
    ing such corporation, the County Judge
    shall declare the corporation abolished,
    and enter an order to that effect upon
    the minutes of the commissioners court.
    From and after the date of such order,
    the said corporation shall cease to
    exist. Nothing in this chapter shall
    be construed to repeal or otherwise
    affect any laws now upon the statutes
    of this State providing for the incor-
    poration of towns and villages for
    school purposes; said towns and vil-
    lages having not less than two hun-
    dred inhabitants."  Acts 1897, p. 194.

          An analysis of the case of City of La Grulla
v. Rodriguez, 415 S.M.2d 701 (Tex.Civ.App. 1967, error
ref. n.r.e.1, reveals that the election contest in ques-
Hon. Frank R. Nye, Jr., page 4, (W-211)



tion was brought under the authority of Article 9.15
of the Texas Election Code, and appealed under the au-
thority of Article 9.17 of the Election Code.

          Article 9.17 provides that contested elec-
tion cases, such as the one in question, are subject
to the "same rules and regulations as are provided for
appeals in civil cases. . . ." .Therefore in such an
election case the judgment of the trial court may be
superseded while on appeal. We will assume for pur-
poses of this opinion that the lower court's judgment
was superseded on appeal. The Supreme Court over-
ruled the motion for rehearing of the writ of error
on November 1, 1967, and by virtue of the abolishment
election, the City of La Grulla has ceased to exist.

          Based upon the assumption, that the judgment
was superseded, and the fact that the petition for in-
corporation was filed on October 19, 1967, before the
question of the abolition of the city became final,
it is our opinion that the petition was submitted pre-
maturely.  Especially since Article 1134 (quoted above)
contemplates that the inhabitants seeking incorpora-
tion must be from an unincorporated town or village.
This question was not finally resolved by the courts
until November 1, 1967.

          It seems to be your position that a new in-
corporation election cannot be called until one year
after the question of abolition had been resolved, that
is one year from November 1, 1967. This position assumes
that an incorporation election cannot be called for
one year from date of an abolition election, and fur-
ther that this one year is tolled by intervening liti-
gation. We do not believe that this is the law.

          The Supreme Court of Texas in Polk v. Vance,
150 Tex. 592, 243 S.W.2d 829 (1951), at page 831, clear-
ly pointed to the distinction between the incorpora-
tion process and the abolition process.




                           -1015-
     .




Hon. Frank R. Nye, Jr., page 5,    (M-211)



     the Act dealt with two different kinds
     of elections in separate sections and
     placed a limitation upon only one of
     them, there was no intention to place
     that same limitation upon the other.
     As a further indication of the legisla-
     tive intent to treat incorporation and
     abolition separately we observe that
     Article 1134 falls within Chapter 11,
     Title 28, pertaining to the incorpora-
     tion of towns and villages, while each
     Article pertaining to their abolition
     appears in Chapter 19 of the same Title.
     Each chapter is complete within itself
     in so far as it relates to its particular
     subject, and we can find no warrant for
     holding that the Legislature intended
     for the provision under discussion to
     apply to the elections governed by
     Chapter 19."   (Emphasis added.)

          It is clear to us that the provision "a new
election shall not be ordered in less than one year."
(contained in Article 1134 to incorporate a city) onlv
applies when the incorporation election fails to carry.
When an incorporated city has been abolished by virtue
of an election, held under the provisions of Article
1261, the territory thereof becomes an unincorporated
town or village, and has the same status as it had
prior to its incorporation.

          Therefore it is our opinion that an election
for incorporation may be called within less than one
year from the date the question of the abolition of
the City of La Grulla was finally resolved in the courts.

          The cases cited in your opinion request have
been analyzed and it is our opinion that they have no
bearing upon the question here. The cited cases deal
with the matter of contract law and the tolling of the
computation of time by agreement either express or
implied.




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        Hon. Frank R. 'Nye, Jr., page 6,    (M-211)




                                  SUMMARY
                                  ----e-w

                  An incorporation election to inCOr-
             porate the recently abolished "city" of
             La Grulla may be held in less than one
             year from the date the question of aboli-
             tion was finally resolved in'the courts,
             because the one-year limitation of Arti-
             cle 1134, Vernon's Civil Statutes, is not
             applicable.   A petition to incorporate
             must, inter alia, have as its object an
             unincorporated town or village.

                                                  truly yours,




        Prepared by James C. McCoy
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Hawthorne Phillips, Chairman
        Kerns Taylor, Co-Chairman

        W. V. Geppert
        John Fainter
        Bill Craig
        Roger Tyler

        A. J. CARUBBI, JR.
        EXECUTIVE ASSISTANT




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