*1 QBffice of the JZlttornep Qkneral
&Mate of ?Itexae September 3.1993 .ATTcmNEY GENERAL Opiion No. DM-252
Honorable Warren Chisum 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. AnAdysisof
‘Youhave~l~a~~a~,~~aMorrEfIicicntGovcmmcnt: the Pmposition of Merging DalIam and Hartley Counties,” that estimates that a wasolidatc4 county anaoaUy will spend at leas1$382.000.00 less than the amount the two amtics will spend separately. *2 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, In our opinion, 71.033, 71.034 (providing for apportionment of county indebtedness). 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
31n amhasl to ankle IX, section 1 d the Texas Constitution, article VIII, s&ton 8.01 ef the Model state ccastihltion requues a le8islanuc to ‘pmvide by 8cacral law. . . for muheds aad proccdure5 of, . . merging, consolidating [ccaaties].” NATIONAL M~?~CIFLU LEML& MODEL STATE ~ON~~V~ON art. VIII, 8 8.01, al 15 (6th cd. 1%3); see a/so id. 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 Texas Sqmu hurl, in Robbins v. Limestone Corm@, has said that tk Texas Chsdhdion authoriws the legislatu~ te amsclidate two cr more coaatics. Robbins Y. Limesrom County 268 SW. 915.919 (-Rx. 1925). ‘Tkannt’s pIonauremnt was, howcvu, dida.
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. 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