QBfficeof the JZlttornepQkneral
&Mateof ?Itexae
DAN MORALES
.ATTcmNEY
GENERAL September3.1993
Honorable Warren Chisum Opiion No. DM-252
Chair
Committee on Environmental Regulation Re: Whether article Ix, section 1 of
Texas House of Representatives the Texas Constitution authorizes the
P.O. Box 2910 legislature to consolidate two existing
Austin, Texas 78768-2910 camties (RQ-495)
Dear Representative Chisum:
You have asked us to determine whether article DC, section 1 of the Texas
Constitution authorizes the legislature to consolidate two existing counties. You explain
that several of your constituents in Dallam and Hartley counties are interested in
consolidating the two counties, presumably for reasons of cost et3iciency.r We conclude
that article IX, section 1 of the Texas Constitution does not authorize two existing
counties to consolidate.
Article Df, section 1 of the Texas Constitution reads in pertinent part as follows:
Section 1. The Legislature shag have power to create counties
for the convenience of the people subject to the following provisions:
. .
Second. Within the territory of any wunty or wunties now
existing no new county shag be created with a less area than seven
hundred square miles, nor shaII any such county now existing be
reduced to a less area than seven hun&ed square miles. No new
counties shah be created so as to approach nearer than twelve miles
of the wunty seat of any county from which it may in whole or in
part be taken. . When any prt of a county is stricken off and
attached to, or created into another wunty, thepart stricken off shah
be holden for and obliged to pay its proportion of all the liabilities
then existing, of the county from which it was taken, in such manner
as may be prescribed by law.
‘Youhave~l~a~~a~,~~aMorrEfIicicntGovcmmcnt: AnAdysisof
the Pmposition of Merging DalIam and Hartley Counties,”that estimates that a wasolidatc4 county
anaoaUywill spend at leas1$382.000.00less than the amountthe two amtics will spend separately.
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Honorable Warren Chisum - Page 2 (DMr252) \
Third. Noparf of any existing wunty shag be detached from it
and attached to another existing county until the proposition for such
change shag have been submitted, in such manner as may be provided
by law, to a vote of the electors of both wunties, and shall have
received a majority of those voting on the question in each.
[Emphasis added.]
In our opinion, the language of article JX, section 1 indicates that the legislature
may attach to a county only a portion of another wunty, not the whole of the other
county. Consolidating two counties-i.e., attaching the whole of one county to the whole
of another-contravenes the wnstitutional prohibition against reducing an existing county
to an area less than 700 square miles.2 Furthermore, section 1 repeatedly refers to a “part”
of a wunty.s
An examination of the statutes the legislature has enacted pursuant to article IX,
section 1 indicates that this construction is wnsistent with the legislature’s construction of
the section. Throughout chapter 71 of the Local Government Code, which governs the
creation of counties, the legislature speaks of organikg a new county out of a part or
parts of an existing county or wunties. See. e.g., Local Goti Code $4 71.011, 71.013
(providing for election for detachment or attachment of wunty territory), 71.021(a),
71.022(a), 71.023(a), 71.025 (providing for organization of counties), 71.031, 71.032,
71.033, 71.034 (providing for apportionment of county indebtedness). In our opinion,
therefore, the legislature envisions only a situation in which a portion of a county is
detached Tom an existing county and attached to another county; the county from which
the territory is taken wntinues to exist as an autonomous county. This, of course, does
not describe a situation such as the one you propose, in which the whole of two counties
are merged into one. Consequently, we do not read article IX, section 1 of the Texas
Constitution to authorize the consolidation of entire wunties.4
31namhasl to ankle IX, section 1 d the Texas Constitution,article VIII, s&ton 8.01 ef the
Modelstate ccastihltion requuesa le8islanucto ‘pmvideby 8cacral law. . . for muheds aad proccdure5
of, . . merging,consolidating[ccaaties].” NATIONAL M~?~CIFLU LEML&MODELSTATE~ON~~V~ON
art. VIII, 8 8.01, al 15 (6th cd. 1%3); see a/soid. 0 8.03, at 117;
id art. XI, g 11.01,at 19; 2 D. BRUEN,
THECON~TUTION OF THE STATUJFTEXASZ AN ANN~TATEDAND~~M~ARAT~~EANALY~IS~~~
(1977).
‘We note tba1 Ihc TexasSqmu hurl, in Robbins v. Limestone Corm@, has said that tk Texas
Chsdhdion authoriws the legislatu~ te amsclidatetwocr morecoaatics. Robbins Y. Limesrom County
268 SW. 915.919 (-Rx. 1925). ‘Tkannt’s pIonauremnt was, howcvu, dida.
p. 1312
Honorable Warren Chisum - Page 3, (DIG252)
SUMMARY
Article IX, section 1 of the Texas Constitution does not
authorize the legislature to consolidate two existing wunties.
DAN MORALES
Attorney General of Texas
WILL PRYOR
Fkst Assistant Attorney General
MARYKELLER
Deputy Attorney General for Litigation
RENEAHICKS
State Solicitor
MADJXJDJE B. JOHNSON
Chair, Opiion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General
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