Tmm ATTORNEY GENERAL
OFTEXAS
Awn-m. TKIMS 7t37lS
February 14, 1975
The Honorable Jamee J. Kseter Opinion No. H- 527
Chairman
Intergovernmental Affair6 Committee Re: The extent of the State’s
House of Representatives power to grant zoning authority
P. 0. Box 2910 to counties.
Austin, Texas 78767
Dear Mr. Karter:
You have requested our opinion regarding the power of the Legis-
lature to confer limited zoning authority upon county commissioner’s
courts. Specifically you ask:
1. Whether article 2372L. V. T. C.S., which grants
to Cameron and Willacy Counties limited zoning
authority over parts of Padre Island, and article
2372L-1, which grants to Val Verde County limited
zoning authority over parts of the area surrounding
the Amistad Recreation Area, are violative of the
constitutional prohibition against local and special
laws, Article 3. Section 56, Texas Constitution.
2. Whether the Legislature may grant to all counties
of the State the authority to zone land adjacent to or
within two miles of designated parks and recreation
areas, so long as such authority is limited to territory
outside the limits of incorporated cities and towns.
Article 23721, empowers the Commissioners Courts of Cameron
and Willacy Counties, with respect to those portions of Padre Island
lying within such counties,
p. 2376
The Honorable James J. Kaster, page 2 (H-527)
. . . to regulate and restrict the height, number
of tiries, and size of buildings and other structures,
the percentage of lot that may be occupied, the size
of yards, courts and other open spaces, the density
of population, and the location and use of building,~
structures and land for trade, industry, residence,
or other purposes, and to regulate the placing of
water, sewerage, park and other public requirements
on such island in areas of such island lying outside
thecormra’telimits of a city, town or village, and
within two miles of any publicly owned park or
recreational development and all areas which lie
within two miles of any beach, wharf or bath house
which is used by as many as five hundred annually. . . .
[and to]
. . . divide said area in said islands into districts
of such number, shape, and area as may be deemed
best suited to carry out the purposes of this Act; and
within such districts [to] regulate and restrict the
erection, construction, reconstruction, alteration,
repair, or use of buildings, structures, or land.
Article 2372L-1 confers almost identical powers upon the Commissioners
Court of Val Verde County with respect to certain designated territory
surrounding the Amistad Recreation Area.
Article 3, section 56 of the Texas Constitution prohibits the Legis-
lature from enacting “any local or special law, authorizing . . . [regula-
tion of] the affairs of counties, cities, towns, wards or school districts , . .”
A local or special law is one which designates by name or otherwise a
particular city or county and operates only within that city or county.
City of Fort Worth v. Bobbitt, 36 S. W. 2d 470, 473 (Tex. Comm’n Appeals
1931). It is settled, however, that:
p. 2377
The Honorable James J. Kaster, page 3 (H-527)
. . . a statute is not local or special, within the meaning
of this constitutional provision, even though its enforce-
ment is confined to a restricted area, if persons or
things throughout the state are affected thereby, or if
it operates upon a subject that the people at large are
interested in. Lower Colorado River Authority v.
McGraw, 83 S. W. 2d 629, 636 (Tex. Sup. 1935).
We believe it is clear that both articles 2372L and 2372L-1
satisfy the criteria of McGraw. In the first place, article 23721, specifically
states:
The Legislature finds as a matter of fact that tkat portion
of Padre Island lying within Cameron and Willacy Counties
is frequented for recreational purposes by citizens from
every part of the State and that the orderly development
and utilization of this area is a matter of concern to the
entire State.
A similar decIaration is found in article 2372L-1 with respect to Val Verde
County and the Amistad Recreation Area.
These legislative findings are buttressed by the Supreme Court’s
decision in County of Cameron v. Wilson, 326 S. W. 2d 162 (Tex. Sup. 1959),
in which the Court upheld, over the objection that it wa6 a local or
special law, the validity of a statute authorizing counties bordering on
the Gulf of Mexico and within the boundaries of which are located any
island suitable for park purposes to maintain and operate parks. The
Court warn convinced that:
[tjhe maintenance of public parks on islands in the
Gulf of Mexico is undoubtedly a matter of intereet
to people throughout the State. la., at 165
We believe that the legislative declarati ens written into articles 2372L
and 2372L-1, together with the authority of County of Cameron v. Wilspn.
and the presumption of validity that attaches to any statutk, Smith v.
Davis, 426 S. W.2d 827 (Tex. Sup. 1968). compel the conclusion that
these statutes are constitutional.
p. 2370
.
The Honorable .ja :s J. Kaster, page 4 (H-527)
Your second questiu.1 is addressed to the validity of a statute which
would confer up07 all countie s the kind of zoning authority granted to
Cameron and Willlcy Counties by article 23721, and to Val Verde County
by article 2372L-1. It is, of course, obvious that such a statute would not
be prohibited by the constitutional proscriptions against local and special
laws, since it would apply to all counties of the State. See City of Fort
Worth v. Bobbitt, supra. It is well established that thezoning power
may be delegated by the Legislature. Porter v. Southwestern Public
Service Co., 489 S. W. 2d 361, 363 (Tex. Civ. App. --Amarillo 1972, reh.
den. 1.
You have expressed concern, however, that the statute might
exceed the authority which the Legislature may constitutionally confer
upon a commissioners court. You call our attention specifically to
Sun Vapor Electric Light Company v. Kenan, 30 S. W. 868 (Tex. Sup.
1895) and related cases. Article 5, section 18 of the Texas Constitu-
tion provides that
. . . the county commissioners . . . shall exercise
such powers and jurisdiction over all county business
as is conferred by this Constitution and laws of the
State or as may be hereafter prescribed. (Emphasis
added)
The constitutionality of any such statute as you have described would thus
depend upon whether the powers to be delegated to the’commissioners court
are encompassed within the definition of “county business. ”
A number of court decisions have construed this constitutional
limitation. beginning with Sun Vapor Electric Light Company v. Kenan.
In that case, the Court held that administration of the affairs of
the defunct corporation of the City of Seymour was not county business
within the constitutional definition.
In Glenn v. Dallas Co. Bois d’Arc Island Levee Dist., 282 S. W.
339 (Tex. Civ. App. --Dallas 1926, reh. den.), a statute conferring upon
p. 2379
.
t
The Honorable James J. Kaster, page 5 (H-5271
a commissioners court the authority to organize a levee district from
territory located in several counties was upheld over the objection that
such authority was beyond the scope of “county business. ” The court
considered it:
. . . proper to give to the term “county business”
a broad and liberal construction so as . . . to include
any and all business of that county and any other
business of that county . . . connected with or inter-
related with the business of any other county properly
within the jurisdiction of such courts . . . 3, at 344
In Harris County Flood Control District v. Mann, 140 S. W. 2d 1098 (Tex.
Sup. 1940) the Supreme Court approved this broad view of “county business:”
[Glenn] very correctly holds that the phrase “county
business” used in the constitutional provison under
discussion, should be given a broad and liberal cons-
truction so as to extend powers to any and all business
of a county, and any other business of a county connected
with or interrelated with any business of the county pro-
perly within the jurisdiction of such courts under our
Constitution and laws. 5, at 1108.
In the Harris County case. the statute had created the Harris County
Flood Control District as an independent state agency, but had made the
commissioners court of Harris County the governing body of the. district.
The duties thus conferred upon the commissioners court were held to be
included within the definition of “county business. ” The Court distinguished
Sun Vapor by recognizing a “clear distinction” between a drainage district
and a town or city corporation with respect to the relation of each to the
county business. When a drainage district is an integral part of the county,
and when it is formed of a part of the county without regard to the lines of
any existing political subdivision of the county, there is no substantial basis
for the argument that the management of the affairs of such a district by
the commissioners court is not “county business. ” Harris County, at 1107.
p. 2300
The Honorable James J. Raster, page 6 (H-527)
We believe that the proposed statute confers authority upon the
commissioners courts which is more inextricably intertwined with the
business of the county than were the powers upheld as valid in Harris
County, Since counties are authorized to establish and maintain parks
by article 6078, V. T. C. S., it seems clear that the regulation of the use
of land adjacent to or within two miles of such parks and recreation areas,
and limited to territory outside the limits of incorporated cities and towns,
is within the scope of “county business. ”
Attorney General Opinion No. O-5047 0943) does not require a
different conclusion. That Opinion held unconstitutional proposed wartime
legislation which authorized the commissioners courts of counties having
military establishments within their limits to create military zones and
to punish the violation of regulations relative thereto. The Opinion based
its result upon the statute’s attempt “to confer upon commissioners courts
the power to make, change and suspend the law, to confer upon them legis-
lative powers, and to affix a penalty to acts which are not made penal
offenses and defined in plain language by the criminal law of this State. ”
This broad grant of authority bears little relation to ordinary zoning
regulations, and we do not deem it applicable to the proposed statute
which is the subject of your inquiry. Thus, it is our opinion that there
wouldbe no constitutional prohibition against legislation which would grant
to all counties the authority to zone land adjacent to or within two miles
of designated parks and recreation areas, with such authority limited to
territory outside the limits of incorporated cities and towns,
SUMMARY
Article 2372L, V. T. C. S., which grants to
Cameron and Willacy Counties limited zoning
authority over parts of Padre Island, and article
2372L-1, V. T. C. S., which grants to Val Verde
County limited zoning authority over parts of the
area surrounding the Amistad Recreation Area,
are not violative of the constitutional prohibition
against local and special laws established by
article 3, section 56, Texas Constitution. There
p. 2381
, .
The Honorable James J. Kaster page 7 (H- 527)
would be no constitutional prohibition against
legislation which would grant to all counties
the authority to zone land adjacent to or within
two miles of designated parks and recreation
areas, so long as such authority is limited to
territory outside the limits of incorporated
cities and towns.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, First Askstant
C. ROBERT HEATH, Chairman
Opinion Committee
lg
p. 2382