Untitled Texas Attorney General Opinion ( 1984 )

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