November 20, 1948
Hon. S. C. Ratliff Opinion No. v-723
County Attorney
Delta County Re: Constitutionality of
Cooper, Texas S. 13. 70 (50th Leg.)
and validity of a Dro-
posed County Home Rule
Charter under Article
IX, Section 3, Texas
Constitution.
Dear Sir:
You request an opinion on the constitutional-
ity of Senate Bill No. 70 of the 50th Legislature and
the form of a proposed County Home Rule Charter for
Delta County.
Senate Bill No. 70 (passed by a 2&d major-
ity of both houses) reads:
"Sec. 1. ,The people of Delta County,
Texas, are hereby authorized to proceed un-
der the authority of Article IX, Section 3,
of the Constitution of the State of Texas,
for the adoption of a County Home Rule Char-
ter.
"Sec. 2. Such a County Home Rule Char-
ter shill be adopted by a majority vote of
the qualified electors residing In Delta
County, Texas."
The pertinent part of Section 3 of Article
IX of the Constitution reads:
"A county having ,a population of sixty-
two thousand (62,000) or more .iccordlng to
the then last FederA Census mly adopt a
County Home Rule Charter, to embrace those
powers ,ipproprlate hereto, within the specif-
ic limlt~tions hereinafter provided. It is
further provided that the Legislature, by a
favoring vote of two-thirds of the total
I .
Hon. S. C. Ratliff - Page 2 (V-723)
membership of both the Senate and the House
of Representat Ives, may authorize any county,
having a population less than that above
specified, to proceed hereunder for the adop-
tion of a Charter; however, as a condition for
such authorization, It is required that no-
tice of the intent to seek Legislative auth-
ority hereunder must be published In one or
more newspapers, to give general circulation
in the county affected, not less than once
per week for four consecutive weeks. . . No
County Home Rule Charter may he adopted by
any county save upon a favoring vote of the
resident qualified electors of the affected
County.”
You advise that the notice of intention to ask
the Legislature to pass such law was duly puhlished in
accordance with the above quoted part of Section 3 of Ar-
ticle IX. We are of the opinion th& said Act is valid
and that it authorizes Delta County to proceed to adopt
a County Home Rule Charter under, the provisions of the
Constitution.
Senate Rill No. 70 does not provide for any
procedure for the preparation or adoption of a County Home
Rule Charter. The only authority in that regard is con-
tained in Acts 1933, 43rd Legislature, 1st Called Session,
p. 239, ch. 91. (Article 1606a, V. C. S.) Section 1 and
the p’ertinent part of Section 2 of said Article reads:
“The purpose of this Act is to provide
an enabling Act under the recent Constitu-
tlonil Jmendment adopted and known as Section
3 of Article 9 of the Consti,tutlon of the
State of Texds, hereinafter sometimes referred
to as ’the ny
or all of them in the light of other constitutional pro-
visions having any bezing upon the subject. Nhere
there are two constructions possible, one of which would
mike inv.Lid or meanineless the amendment, or lead to an
absurd result, ;lnd another which .would give life and
meining to the Amendment and attribute to each p.art a
meaning consistent with the other parts so that dll may
stdnd, the first construction will be abandoned as in-
admissible and the second one Adopted as the proper one
to indicate the indispensable essential of intention.
Pierson v. Stste, 177 S. W. (2d) "75; State v. Gillette's
Est., 10 S. W. (2d) 984; Koy v. Schneider, 221 S. W. 8,?0;
Ex Parte Jnderson, 81 S. rl. 973; Warren v. Shuman, 5 Tex.
442.
Similarly, where a statute or constitution is
fAirly cspdble of two constructions, each of which would
leave doutt lrd uncertainty and possible public harm,
th:it construction which would leave the lesser vices and
dangers should he adopted ds more nearly indicative ,of
the real intention of the framers of the instrument.
Thornils v. Creager 107 S. d. (2d) 705; Orndorff v. State,
108 S. d. (2d) 206.
Another familiar rule of construction IS thdt
the Iffirmdtive grdnt of pi power carries with it by ne-
cessary implication of law the further power to do ~11
things necessary, or reasonably Jnd directly helpful in
carrying out the primary purpose. Ju'ilson v. Rbilene In-
dependent School District, 190 S. W. (2d) 406.
In this process of construction, literalism
will yield to the spirit of a constitution or statute
when the latter more accurately sho+s the real purpose
or intention of its makers.
11.2 Hon. s. c. Rat.liff - Page 6 (V-723)
In consonrnce with these indisputable rules
of construction pertinent to the situation, we arc of
the opinion tht the dominant purpose of the amendment
was to afford to the counties the greatest latitude o
lOCal Control Of their COUntY 9ffdirS. consistent Wit:
the suverior rights and vowers of the State.
If literalism should control our interpreta-
tion of the emphatic prohibitions in paragraph (2) of
the amendment, above quoted, no Home Rule nmandment
could be adopted at all, for the State in Its sover-
eign capacity has always promulgated laws for the con-
trol of county affliirs throughout the State. Literal-
ism, ho:dever, must yield to the purpose of the amend-
ment . Literallsm would forbid the adoption of any
charter that would abandon the County Commissioners’
Court ds it now exists and substitute therefor a gov-
erning body otherwise constituted. Yet these are the
precise things expressly authorized by the amendment.
The same comment may be made with respect to the power
conferred by pdrdgraph c. of Subdivision (3) authoriz-
ing the governing body established by any county to
“create, consolidate or abolish any office or depart-
ment, whether created by other provisions of the Con-
stitution or by statute, define the duties thereof,
fix~ the. compensation for the service therein, make
the same elective or appointlve, and prescribe the
time, qualifications and conditions for tenure in any
such office.”
The true rule deducible, therefore, is that
the amendment authorizes.any county adopting 1 Home
Rule Charter to “provide for ;I governing body” other
thin the Commissioners’ Court and incidentally to make
all provisions necessary or directly helpful to that
major purpose, And the meticulous limitLti.ons, quali-
fications, dna exceptions~contained in the amendment
attest the prohibition to take any step that would af-
fect the State’s powers of government other than those
expressly or by necessary implication conferred on the
county.
Inconsistencies, contr.idictions, and absurd-
ities are always to he avoided if possible in construc-
tion. Holman v, nrOddWdy Improvement Company, 330 S.W.
15; Cramer v. Sheppard 167 S.N. (2d) 147; Carpenter
v. Shcpp:ird, 145 S.W. f2d) 562; San fintonio Etc. Ry. v.
State, 75 2.W. (2d) 680; Ex Parte Cooks, 135 S.4. 139.
_ 13 :J
Hon. S. C. Ratliff - P’age 7’ (V-723)
Applying these rules of construction, we point
out some vices in the proposed charter, as follows:
Section 9 contains matter which we think is for-
bidden by the language of Paragraph (2) of Subdivision 3
of the amendment. We refer to the following portion of
Charter Section 9, to-wit:
"The (Manager) may authorize an offi-
cer or department hedid to appoint and re-
move subordinates under his respective
supervision."
It is contrary to the long established policy
of this State to permit dn officer of the State to dele-
gate his official power, to Another. No .duthorities,are
needed for d proposition so elementary. The last para-
graph of Section 9 is also of doubtful validity for the
same redson. In other words, the charter makes the Com-
mission d board of officers clothed with constitutional
dnd statutory powers generally to control and manage
county affairs, while this portion of Section 9, in some
measure at least, would delegate the power vested in the
Commission to its appointee, the County Manager.
.Section 13 is invalid wherein it attempts to
abol .ish the office of County T&x Assessor and Collector
and to estrblish in lieu thereof a County Manager as the
head of the finance department with the powers of County
Tax 4ssessor and Collector. The office of assessor and
collector of taxes is a constitutional one (Sec. 14, Art.
VIII) and its functions are not those kiith respect to
county affairs %llone, hut involve essential St-;lte func-
tions 4s wsll. Indeed, the sum tot.21 of such officer's
fnncti~ons ,rt:fect the enti r*e Cin.inc5:\l r:cheme o!' fcvern-,
Tent. fi county could not .Iholish tbc office nT r:ssessor-
Collector !qithout serious interference with the superior
Stite t:overnment:il policies. .:'he St,lte m:~y not be de-
prived of it:: sovereign right to mike 1.1~s for its own
government. The Amerriment is to imp1cm6-rlt county controls
of county .Afi.~iirs, not to surrender functi.ons 3nd prerog.1
tives to dnother.
Section 23 is invalid insof:ir .LS it attempts to
Ybolish th- office of District Clerk for the reasons just
given, nor is it within the authority of Section 3, Sub-
division (3)~ authorizing the consolidation or abolishing
II' 4r-,y office or department. The offices and dep:artments
there contemnl.ated are those offices and departments hav-
. .
114
Hon. S. C. Ratllff - Page 8 (V-723)
ing to do with county affairs only. This does not in-
clude the District Clerk.
Section 26 Is Invalid. The office of Sheriff
is a constitutional office, elective for a definite term
of two years. His duties and functions are not wholly
with respect to county affairs, so that the public policy
of the State with respect to his selection and duties may
not be usurped by any individual county.
Section 27, abolishing the offices of Justices
of the Peace and Constables, is invalid for reasons al-
ready given with respect to other officers, and for the
further reason th.at these officers are concerned very re-
motely, If at Al, with county affairs. They have t,o do
for the most part with state affairs under the police
power, which field Is one of the principal prerogatives
of State sovereignty.
We need not discuss the various sections of the
proposed charter, seriatim, but the rules of construction
accompanied by the Illustrations of vice in those in-
stances pointed out will suffice, we think, as a guide in
the preparation of a charter for submission to the people
of ijelta County.
However, we call your attention to the first
paragraph of Section 3 of the proposed charter declaring
“except as otherwise provided in this charter, 311 Dower%
of the county shall be vested in a Commission of five mem-
hers, elected from the county at large in the manner here-
after provided, who shall serve without compensation. . .‘I
We entertain grave doubts as to t,he right of the
county to adopt a charter which would vest “all powers of
the county” in a commission. The Commissioners’ Court Is
a constl.tutlonal instrument~allty of government. Under the
established policy of the State from its earllest days that
body has been clothed with certain powers which are essen-
tlal.ly the sovereign powers of the State as contradlstin-
&shed from matters of rounty affairs. owe have in mind
especially such powers as the following:
Dividing the county into election precincts;
Ordering local option elections in regulation
of liquor;
.
Hon. S. C. Ratllff'- Page 9 (V-723')
Canvassing returns of elections of State
officers;
Appointing a health officer to act under
direction of the State Health Officer;
Acting as Board of Equalization in fixing
values of land for purposes of State taxation;
Approving reports and official bonds of
county officers.
Such a power to exercise "all powers of the
county" b y the five-member agency set up in the proposed
charter, certainly is not expressly conferred by the
amendment; neither is is impliedly conferred by the lan-
guage of subsection (3)a. providing: "In any event, In
addition to the powers and duties provided by any such
charter, such governing body shall exercise all powers,
and discharge all duties which, In the absence of the
provisions hereof, would devolve by law on County Com-
missioners and County Commissioners' Courts." The sig-
nificant phrase Jn the absm f the nr visions hereof ,
forbids such imnlication. BYetEe term "tohe nrovisions
hereof," is me&t a.11 the D bvisi ns of the am-
including the many and mandztory zestrictions. prohibl-
tlons, limitations and qualifications. The language
immediately following Is highly important and bespeaks
plainly the limited extent and scope of the powers con-
templated. It is as follows: l'Further, any such char-
ter may provide for the organizatton, re-organization,
establishment and administration of the government of
the county, including the control and regulation of the
performsnce of and the compensation for all duties re-
aulred in the conduct of the countv aff~airg, subject to
the limitations herein provided."
We note the following among the many express
limitations:
. May adopt '4 county home rule charter,
ti ambrace those powers appropriate hereto,
within the specific limitations hereinafter
provided. . . It is cxpresslv forbidden that
any such charter may inconsonantly affect
the operation of the general laws of the
State relating to the judicial, tax, fiscal,
Hon. S. C. Ratllff - Page 10 (V-723)
educational, police, highway and health system,
or any other department of the State’s super-
ior government. Nothing herein contained
shall be deemed to authorize the adoption of
a charter provlsian inimical to or Inconsistent
with the sovereignty and established public
policies of this State, and no provision having
such vice shall have validity as against the
State. . . .I’ Art. IX, Sec. 3(2).
I, . . . Other than as herein provided, no such
charter shall provide for altering the jurls-
diction or procedure of any court. . . .“lbid
subsection (3)b.
“Such charter may authorize the governing
body . . . to prescribe the schedule of fees
to be charged by the officers of the county
. provided, however, no fee for a speci-
hldd service shall,exceed in amount the fee
fixed by General Law for that same service. . .
may prescribe the qualifications for services,
provided the standards therefor be not lower
than those fixed by the General Laws of the
State.” ibid subsection (5)
I1. . . No such transfer or yielding of func-
tions (of State agencies) may be effected, un-
less the proposal Is submitted to a vote of
the people, and, unless otherwise provided by
a two-thirds vote of the total membership of
each House of the Legislature, . . . particu-
larly, it is provided that the power to create
funded Indebtedness and to levy taxes in sup-
port thereof may be exercised only by such
procedures, and within such limits, as now are,
or hereafter may be/provided by law to con-
trol such appropriate other governmental agen-
cies were they to be independently administer-
ea. . . .‘I ibid subsection (6)a.
A reading of the amendment will show that It
contains more prohibitions, limitations, qualifications,
exceptions and restrictions than it does grants of power.
Indeed, Section (1) declaring the purpose of the Act to
be a grant of the “highest degree of local self-govern-
ment which is consistent with the efficient conduct of
-. .
Hon. S. C. Ratliff - Page 11 (V-723)
those affairs by necessity lodged In the Nation and the
State," Is In truth the sole affirmative grant of power,
and be it remembered this grant is limited to "local
self-government." On the whole the amendment is more
concerned with the preservation of the over-all suprem-
acy of the State in matters concerning State affairs.
Under every test It will appear that an effort to abol-
ish the Commissioners' Court would be in disregard of
these numerous prohibitions and limitations and there-
fore "inimical to, and inconsistent with the sovereign-
ty and established public policies of this State." The
amendment should not be construed as a complete divorce-
ment of county and state in the matter of governmental
powers. The Commissioners' Court of the county has not
been expressly abolished by the amendment in any event,
and such abolishment will not be implied. Repeals by
Implication are not favored. Any other construction
would bring chaos In the administration of the law.
This discussion does not exhaust the large
problems raised by Article IX, Section 3, its supporting
Statutes , and the proposed charter. To discuss each
line and phrase would mke this opinion too long. Prob-
lem and fact situations will arise whtch cannot be anti-
cipated or properly decided in adv:tnce. If calied upon
to p;iss thereon, they will be treated separately as they
arise.
SUMMARY
H. B. No. 70 of the 50th Legislature
is d valid ,Act and authorizes Delta County
to adopt d County Home Rule Charter. Mor-
gan v. Potter, 298 N. W. 763.
The Nanager provided in such a Char-
ter may not be authorized to appoint and
remove subordinate officers as such would
be an unlawful delegation of power by the
governing body. The Charter my not abol-
ish the office of County Tax Assessor and
Collector, District Clerk, Sheriff, Zus-
tice of t!le Peace, Constable, or the Com-
missioners' Court, since each of these is
a State functionary and exercises powers
Hon. S. Ci Ratliff - Page 12 (V-723)
and is charged with duties of state-wide
iniportance as contradistinguished from
county affairs, and such,abolishment
would be contrary to the exprs~ss prohlbl-
tlons of the amendment.
Yours very truly,
ATTORNEYGEmAL OF TEXAS
W. T. Williams
Assist&
0S:wb
$TTJl&
ATTORNEYGENERAL
Untitled Texas Attorney General Opinion
Combined Opinion