Untitled Texas Attorney General Opinion ( 1988 )

April 15, 1988
Honorable David Brabham Opinion No. JM-894
Criminal District Attorney
P. 0. Box 3403 Re: The constitutionality of
Longview, Texas 75606 the Gregg County Special Road
Law, and related questions
(RQ-1138)
Dear Mr. Brabham:
You have asked whether the special road law for Gregg
County is constitutional, and if it is, whether the 1983
County Road and Bridge Act, article 6702-1, V.T.C.S.,
superseded it.
The special law was enacted in 1955. See Acts 1955,
54th Leg., ch. 339, at 886. Because it applies only to
Gregg County, it is a "local law" within the meaning of
the Texas Constitution. Tex . Const. arc. III, 556; Citv
of Fort Worth v. Bobbift, 36 S.W.2d 470 (Tex. Comm'n APP.
1931, opinion adopted). See Attorney General Opinion
J-M-390 (1985).
Article III, section 56, of the Texas Constitution
inhibits the legisla~ture from passing any local or special
law regulating the affairs of counties, authorizing the
laying out, opening, altering, or maintaining of roads,
highways, streets or alleys, or creating offices 01:
prescribing the powers and duties of officers in counties,
except upon compliance with the notice provisions of
article III, section 57, of the constitution. There is no
record found of the required notice respecting the Gregg
County Road Law having ever been published. If no notice
was given, the special law is unconstitutional unless it
is saved by article VIII, section 9, of the constitution.
Bexar Countv v. Tvnan, 97 S.W.2d 467 (Tex. 1936).1
1. Two courts have asserted in dicta that by the
passage of a special law, the legislature is conclusively
(Footnot:c Continued)
Honorable David Brabham - Page 2 (JM-894)
In 1890, the constitution was amended to provide in
article VIII, section 9:
And the Legislature may pass local laws for
the maintenance of public roads and high-
ways, without the local notice required for
special or local laws.
The provision operates as an exception to the article III,
section 56 prohibition, but as a narrow one. Snn. Henderson
Countv v. All& 40 S.W.Zd 17 (Tex. 1931). The breadth
of the exception' was explained in Hill v. Sterrett, 252
S.W.Zd 766, 771 (Tex. Civ. App. - Dallas 1952, writ ref'd
n.r.e.):
[Vlalidity of [such] legislation is in-
variably dependent upon relationship of the
particular section to road maintenance.
'The authority conferred by section 9, art.
8, of the Constitution, sunra, is not "to
enact special road lawsIN of all kinds, for
all purposes indiscriminately, but '
authority merely to pass local laws fZ
the maintenance of the public roads and
highways.' Austin Br . . Patton Tex .
Corn. App., 288 S.W. 18:: 18;. A locai road
law, to come within the protection of Art.
8, sec. 9, must be, limited to the main-
tenance of public roads and highways.
Jameson v. Smith, Tex. Civ. App., 161 S.W.2d
520; Tinner v. Crow, [78 S.W.Zd 588 (Tex.
1935)].
(Footnote Continued)
presumed to have found as a jurisdictional fact that
proper notice has been theretofore given. See Moore v.
Sdna HOSDital District, 449 S.W.2d 508 (Tex. Civ. App. -
Corpus Christi 1979, writ ref'd n.r.e.); Moller v. Citv of
Galveston, 57 S.W. 1116 (Tex. Civ. App. - Galveston 1900,
no writ). But in both cases the issue at hand was not an
entire absence of notice, but, rather, whether the notice
admittedly given was sufficient. In Cravens v. State, 122
S.W. 29 (Tex. Crim. App. 1909), the court said such a con-
clusion was proper "in the absence of oroof to the
contrary." Where the proof shows that no notice was
given, a special or local law not otherwise permitted by
the constitution will be held unconstitutional. Bexar
Countv v. Tvnan, sunra.
p. 4389
Honorable David Brabham - Page 3 (JR-894)
The all v. Sterrett court was reviewing section 4 of
a 1941 Dallas County Road Law that corresponds word-for-
word to section 3 of the 1955 Gregg County law. Several
sections of the Gregg County law (hereinafter set out)
find duplicates in the Dallas County law. Among them are
sections 1 and 2, which correspond to sections 1 and 3 of
the 1941 Dallas County law. The Hill v. Sterrett court
did not invalidate the portion of the law at issue there
-- a provision empowering the commissioners court to
appoint a county engineer, which the court considered
germane to road maintenance.
The court in till Sterrett reviewed general pro-
positions of law applica:ie to the construction of special
road laws, but declined to discuss the legality of other
subdivisions of the Dallas County law. It said its
observations would be dicta, inasmuch as only a portion of
section 4 of that act was there in issue. It noted,
however, that Attorney General Opinion V-1315 (1951) had
pronounced section 3 of that law (corresponding to section
2 of the Gregg County law), as well as others, unconstitu-
tional. In Attorney General Opinion V-1315, it was said
of the Dallas County special act:
Section 3 [corresponding to section 2 in the
Gregg County statute] requires the County
Judge to appoint standing committees composed
of two or more county commissioners for
supervising the various departments of the
county's affairs. Like section 2 [requiring
Dallas County commissioners to devote all
their time to county duties and to attend
court sessions, and fixing their compensa-
tion], this section embraces matters outside
the scope of a road law and is in violation
of section 56 of Article III. . . .
Likewise, the corresponding section of the Gregg
County law (section 2) is not saved from unconstitu-
tionality by article VIII, section 9. It embraces matters
outside the scope of maintaining roads. It attempts to
prescribe the powers and duties of county officers and to
regulate county affairs.
The provisions of the Gregg County law are lengthy,
but excerpts from sections 1, 2 and 3 thereof are re-
produced here to supply an understanding of the passages
under review:
F. 43%
Honorable David Brabham - Page 4 (JM-894)
Section 1. The Commissioners Court of
Gregg County, Texas, shall have full power
and authority, and it shall be its duty to
adopt, at a meeting of said Court, at which
the Countv Judae and at least three (3) of
the Countv Commissioners of said Countv
shall be nresent and cause to be recorded in
the minutes of said Court, and put into
effect such rules, regulations, plans, and
system for the maintenance, laying out,
opening, widening, draining, grading,
constructing, building, and repairing of
the public roads of said County other
than designated State highways located
therein . . . which rules, regulations,
plans, and system, together with any changes
thereafter made in same, shall be binding
upon, observed, and obeyed by the County
Commissioners, County Judge, County
Engineer, and all employees of Gregg County,
Texas.
Sec. 2. Subject to the provisions of
this Act and all laws relating to the ‘1
subject matter, the Countv Judae of Greaq
County shall have the Dower and he is hereby
reouired to aoooint committees of two (21 or
more COmDOSed of Commissioners who shall
have under their immediate suoervision the
various deDartmentS of the Countv's affairs
under the aeneral direction of the Court as
3 whole. . . . Said committees shall have,
and are hereby given, subject to the pro-
visions of this Act, such power and
authority as is specifically delegated to
them by a resolution duly passed by the
Commissioners Court bv the affirmative vote
of the Countv Judae and two (21 Commis-
sioners, and it is made their duty to
perform all acts so delegated to them:
provided, however, that they shall not have
authority or power to make purchases or bind
the County on any contract or pecuniary
obligation, but in all such matters shall
submit to the Court as a whole their recom- ?
mendations with reference thereto, and said
Court shall pass upon all such matters,
subject to the provisions of this Act and
other laws relating thereto. The Countv
Judah is herebv aiven authoritv to chanae
F. 4391
Honorable David Brabham - Page 5 (JM-894)
the oersonnel of such committees at his
gleasure.
Sec. 3. The Commissioners Court of Gregg
County may, and it is hereby empowered to
employ a County Engineer.
. . . .
Said County Engineer shall supervise the
engineering work in connection with all
maintenance, repair, drainage, and con-
struction work on all county roads in said
County whether the same be in relation
to the present roads or any roads to be
opened, laid out, and constructed: provided,
however, said Engineer in the performance of
these duties shall be under the general
supervision of the 'standing Committee'
appointed by the County Judge, and all
repairs, widening, permanent construction,
new construction, and bridge construction
shall be done only after the Commissioners
P Court has authorized same.
. . . .
The County Engineer shall perform any and
all other duties as may be prescribed from
time to time by the CommissionersCourt and
he shall at all times be under the super-
vision and control of said Court. (Emphasis
added.)
Acts 1955, 54th Leg., ch. 339, at 886-88.
Although Attorney General Opinion V-1315 came to a
different conclusion regarding the provisions of the first
section of the Dallas County special act (repeated in the
first section of the Gregg County statute), we conclude
that the first section of the Gregg County law is also
unconstitutional because it attempts to specify which
members of the commissioners court will constitute a
quorum -- thus regulating county affairs. It purports to
permit the commissioners court to adopt rules, regula-
tions, plans and systems only at a meeting "at which the
Countv Judae and at least three (3) of the countv commis-
sioners of said county shall be oresent." Cf. Tex. Con&.
art. V, 518 (commissioners court).
P
F. 43%
Honorable David Brabham - Page 6 (JR-894)
Since 1876, the general laws of this state have
specified that group of persons which constitutes a
quorum of the commissioners court, enabling it to conduct
business. See Acts 1876, 15th Leg., ch. 55, 512, at 51,
52. Discussing the subject, the Texas Supreme Court said
in Dalton v. Allen, 215 S.W. 439, 440 (Tex. 1919):
It thus appears that, since a short time
after the adoption of the Constitution, it
has been construed by the Legislature as not
requiring the county judge to be present and
presiding in order for the commissionersJ
court to transact its business.
The Dalton Allen court held that statutes re-
quiring merely thz; the county judge preside whe or esent
and authorizing the transaction of the county': busines;
(except as there otherwise provided) by three members of
the commissioners court, were constitutional and conformed
"to the true intent and purpose of the Constitution.1' 215
S.W. at 440. Those statutes have come down to us as
articles 2342 and 2343, V.T.C.S., which, in 1987, were
incorporated into the Local Government Code as sections
81.001 and 81.006. ?
There is no general statute that requires a different
quorum for the adoption of rules, regulations, plans and
systems relating to roads, nor, so far as we can deter-
mine, did such a general law exist at the time the Gregg
County special law was enacted.. By altering the authority
conferred upon county commissioners to transact county
business in the absence of the county judge, the special
law attempts to prescribe the powers and duties of county
officers and to regulate county affairs; these matters are
outside the scope of article VIII, section 9, of the
constitution and in violation of article III,. section 56
thereof. Commissioners Court of Limestone Countv v.
Garrett, 238 S.W. 894 (Tex. Comm'n App. 1922, judgm't
adopted). See Altaelt v. Gutzeit, 201 S.W. 400 (Tex.
1918).
We conclude that sections 1 and 2 of the Gregg County
special road law are unconstitutional in the respects
discussed, but if a complete and workable law comporting
with the intent of the legislature remains after excising
the unconstitutional portions of a statute, the
courts will give the remaining portions effect. See
COmmiSSiOnerS Court of Limestone Countv v. Garrett, supra.
Section 8 of the Gregg County special road law. states:
p. 4393
Honorable David Brabham - Page 7 (JEs8g4)
If any section, subdivision, paragraph,
sentence, clause, or word of this Act be
held to be unconstitutional, the remaining
portions of same shall, nevertheless, be
valid, and it is declared that such re-
maining portions would have been included
in this Act though the unconstitutional
portions had been omitted.
Acts 1955, 54th Leg., ch. 339, 58, at 889.
We believe the unconstitutionality of portions of
sections 1 and 2 of the Gregg County law do not require a
declaration that the statute is unconstitutional in toto.
The legislative intent is made clear by section 8 of the
statute. &$s Attorney General Opinion JM-390 (1985). Cf.
Attorney General Opinion V-1315 (1951). A valid law
remains.2 Therefore, we turn to the other part of your
inquiry: Has the Gregg County law been superseded by the
County Road and Bridge Act of 1983?
At the time the Gregg County special law was enacted
in 1955, the Optional County Road Law of 1947 was applic-
able to Gregg County and to every other county in the
state. See Acts 1947, 50th Leg., ch. 178, at 288. It
provided that the electorate of the county might adopt its
provisions for the county, which thereafter would be under
the "county unit" system of roads under the direction of
the county commissioners court and a county road engineer
appointed by that body. See Canales v. Lauahlin, 214
S.W.Zd 451 (Tex. 1948). But Gregg County, together with
Dallas County and some others, was expressly "exempted" by
former article 6761, V.T.C.S., from the provisions of then
articles 6743-6760, V.T.C.S., setting up a system of
county "road superintendents." The provisions of the 1947
optional road law are now contained in subchapter C of
2. The provision in section 3 authorizing the com-
missioners court to lease idle equipment to certain
entities without apparent limit should be construed, in
our opinion, with the earlier provision in section 3
authorizing the provision at cost of the necessary
machinery and equipment for purposes "that will conserve
the soil." So read, the authority is consistent with
power conferred by general law. Agric. Code 5201.151.
a Rowan v. Pickett, 237 S.W.2d 734 (Tex. Civ. App. - San
Antonio 1951, no writ).
F. 4394
Honorable David Brabham - Page 8 (JM-894)
article 6702-1, V.T.C.S. The former provisions setting up
the "road superintendent" system are now found in
subchapter B of the latter statute, and "exemptions"
therefrom are now contained in section 3.107 of article --
6702-l.
Article 6702-1, section 3.107, lists fifty-five
counties, including Gregg County, as "exempt from this
subchapter," i.e., subchapter 8, which sets up a system
of road commissioners or road superintendents. The
concluding sentence of the section reads:
However, the commissioners courts of Dallas
and Collin counties may accept and adopt
this subchapter instead of the special acts
for Dallas or Collin county,, if in its judg-
ment, the provisions of this subchapter are
better suited to Dallas or Collin county
than the special laws.
This section, and especially the quoted passage, is a
clear indication that the legislature did not intend by
the enactment of article 6702-l to repeal or supersede
special road laws such as the one for Gregg County, but
intended them to control unless express authority was ?
given to adopt the general law instead.
None of the special county acts were expressly
repealed either by the 1983 act that originally enacted
article 6702-l or by the 1984 legislation that revised and
reenacted it and ratified its repealer provisions. &
Acts 1983, 68th Leg., ch. 288, at 1431; Acts 1984, 68th
Leg., 2nd C.S., ch. 8, at 44.
Section 7 of the Gregg County special law reads:
The provisions of this Act are and shall
be held and construed to be cumulative of
all General Laws of this State on the
subject treated of and embraced in this Act
when not in conflict herewith, but in case
of such conflict, in whole or in part, this
Act shall control Gregg County: provided,
however, that nothing in this Act shall be
construed to impair or,to take from the
County the right to issue bonds, under the
provisions of Section 52 of Article 3 of the
State Constitution and the General Laws in
pursuance thereof.
p. 43%
Honorable David Brabham - Page 9 (J&894)
Acts 1955, 54th Leg., ch. 339, 57, at 889. To the extent
that the Great Countv law is consti.tutional, it controls
i- inconsistent-provisions that may be found in article
6702-1, V.T.C.S. (as they respect Gregg County). See Hill
County v. Brvant & Huffman, 16 S.W.2d 513 (Tex. 1929);
Dallas Countv v. Plowman, 91 S.W. 221 (Tex. 1906). Cf.
Attorney General Opinion JM-262 (1984).
We advise that the valid portions of the 1955 Gregg
County special road law have not been superseded by the
County Road and Bridge Act of 1983.
SUMMARY
If the notice required by article III,
section 57 of the Texas Constitution was not
given, portions of the 1955 special road law
for Gregg County are unconstitutional. But
its remaining portions constitute a complete
and workable law that has not been superseded
by the County Road and Bridge Act of 1983.
-J I M MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attorney General
F. 4396