Case Information
*1 The Attorn.ey General of Texas June 18. 1984
JIM MAl-rOX
Attorney General
supmIll court BulknmJ tionorable Micbsel J. Gu.rino Opinion No. .rt+169 P. 0. Box 12546 CrMnsl District Attorney Au~lln. TX. 16711-2548 Gslvcston county ik: Whether s village which 51214752501 .__ - _ 405 County.Courthou.e M(I b.COm. . tOWt pUr6USUC CO T&X 01om74-IS7 Telecopter 512l475.0255 Galveston, Texs. 77550 article 961, V.T.C.S.. pay
revert to village etatus. snd relsted question. 714 Jackson. Sulle 700 Dalla5. TX. 75202.45W
Dear Mr. Gusrino: 214f742.8944 You have posed ssv.r.1 question. about the legal status of 4524 *Ibetl~ Ave.. Suite 160 Dickinson.~ Texa.,~ which vs. originslly Incorporated s. s villsge El Pmo, TX. 79005-2703 pursuant to cbspter 11. Title 28, of the Rsvised Civil Statute., 91- article 1133. et ~(Ieq.. V.T.C.S. In 1982. the village board of aldermen unanimously passed sn ordinance adopting chapter. l-10 of tmi Texas. suits 700 Title 28 s. it. governing body of lsw (rstber ,tbsn chapter 11) snd nou*ton. TX. 770025111 filed It of record with the Galveston county clerk. Subsequently. you 71- edvise. s newly .elected board of sldsrmsn psssed en ordlnsnce
purporting to reps.1 the previous ordlnsnce sad thereby return Your questions concern the effect of Dickinson to "villsge" ststus. 606 Broadway. S@te 312 Lubbock, TX. 70401a479 the ordinsncss. .'~ Mw747.3235 Tex+. ~ststute. allow incorporation of s community under cbsptsr 11 if tb. number of inhsbitsnt. is mre tbsn two hundred but UQO N. Tenth. SuIta B less'tban tan thbcwand. V.T.C.S. srt. 1133. A toun 80 incorporated McAltul, TX. 76501.1665 5126524547 (which, uy be ,c.lled s "villsgs" instesd of s "town" without powers) become. "invested with sll tb. 3fgbt. diminishing incident [cbspter 11). V.T.C.S. art. to' suchxZorporation under this cbsptsr" 200 M&l Ptua. BIBIt* 400 1140. Tovn. ~incorporated under cbspter 11 bsve powers more lirited San Antonlo, TX. 78205cm7 512/225.4191 tbsn those organized under cbspters 1 through 10 of Title 28 (vbicb
uy bc csllsd "cities" instead of "towns" wltbout enlarging their V.T.C.S. art. 1153.. Town. est.blisbsd under chspter. l-10 povcrs). An Equal opportunttyl See m srs slso subject to' different orgsnirstional requlrsmsnta. Afflrmattw Action Empbyw of Wsxshscbi. v.~grows. 4 S.U. 207 (Tex. 1887); Cbsndlsr v. S.I. 315 - San Antonio 1958, writ ref'd n.r.e.1. S.W.2d 87 (T.x. Civ..App. Ilunicip.1 corporation. organized under either met of provision.
are brosdly considered "genersl lsw cities" to distingui.b,tbco from "home rule" cities tbst sre orgsnired pursusnt to article XI, section 5, the Tess. Constitution. becsuas home rule cities possess greeter powers. V.T.C.S. art. ,116s. See Forewood v. Ctty of Taylor, 214 S.W.2d 282 (Tar. 1948). Unlike~e'rule title., gsnersl lsw cities *2 (JM-169) Honorable Michael J. Cusrlno - Page 2 See 40 Tex.
have only those powers given them by the legislature.
Jur. 26 Hunlcipsl Corporations. $318 st 78.
The legislature has given villages organized under chapter 11 [if the power to choose to become towns they have 600 or more inhsbitsnte] governed by chapter6 l-10. V.T.C.S.. srt. 961; Been v. Town of Vidor.
440 S.W.2d 676 (Tex. Civ. App. - Beaumont 1969. writ ref’d n.r.e.); Lusby v. Cotby. 402 S.W.2d 799 (Tex. Civ. App. - Dallas 1966. no writ). Once chapter l-10 towns have been established. however. they have no correeponding power to revert to chapter 11 status.
Article 961, granting the powera to reorganize under chapter l-10, reads In pertinent part:
Any incorporated city, town or village in this State containing six hundred inhabitants or over, however legally incorporated . . . may accept the provisions of this title relating to cities sad towns, in lieu of any existing charter. by A two-thirds vote of the council of such city, town or village. had at A regular meeting thereof. and entered upon the jourosl of their proceedings, and s copy of the same signed by the mayor and Attested by the clerk or secretary under the corporate seal. filed and recorded in the office of the county clerk in which such city. town or village is situated, and the provisions of this title shall be in force, sad ~11 acts theretofore passed incorporstfng ssid city, town or village which may be in force by virtue of any uisting charter, shall be repealed from and after the filing of ssid copy of their proceedings. es tom or vlllsge sforeesid. is 00 When such city, incorporated se herein provided, the ssme shsll be known se s city or town. subject to the provisions of this title relsting to citlea end towns. snd vested with ~11 the rights, powers, privilsger and immunities ssd franchises tbsreln con- ferred . . . . (gmphsait~ added).
We believe it ia clear that the board of sldermen poseessed authority to nccspt for tbe vlllsge the benefits and responsibilities of chsptere 1 through 10 of Title 28. When it did, the villsge of Dickinsos, ipso ceased to exist as A corporate entity f*cto. authorized by chapter 11. end instsntly became one organized under chapters 1 through 10. V.T.C.S. art. 962; Luclby v. Cozby. 8uprcl at 803.
When the vote was taken that purported to return Dickineon to chapter 11 ststue. the town had slresdy become a municipal corporation controlled by chsptere 1 through 10 Title 28. Since there is no legislstively permitted procedure allowing such 8 reversion to chapter *3 .’
Honorable Michael .I. Guarino - Page 3 (JR-169)
11 status, the vote was a nullity. See Lum v. City of Bowie, 18 S.W.
142 (Tex. 1891); Largen v. State exrel. Abney, 13 S.W. 161 (Tex. (Tex. 1890). As noted in a
1890). Cf. Harness V. State, 13 S.W. 535 useful brief submitted 011 the auestion. a general law citv can exercise only those powers that a;e expressly or impliedly conferred by law, and any substantial doubt about such authority is resolved against the municipality. See State ex rel. Rea v. Etheridge, 32 -- S.W.2d 828 (Tex. Comm'n App. 19, 30); City of West Lake Hills v.
Westwood Legal Defense Fund;. 598 S.W.2d 681 (Tex. Civ. App. - Waco 1980, no writ).
Your specific questions are therefore answered as follows:
1. Did the board of aldermen, in their December 1982 action, err in passing Ordinance 63-82 to adopt chapters l-10, Title 28, since the provisions of article 961 requires entering the vote on the journal of their proceedings?
It is the action of the board, not the evidence or record thereof, that accomplishes the transformation of the municipality from one category to another. Lusby v. Cozby, supra. Minutes of the meeting can be corrected to make them speak the truth. city of Electra v. American La France 6 Foamite Industry, Inc., 133 S.W.2d 223 (Tex. Civ. App. - Fort Worth 1939, writ dism'd judmt car.); 39 Tex.
Jur. 2d Municipal Corporations 8140, at 524. Although article 961, V.T.C.S., would apparently allow the adoption of chapters l-10 by resolution rather than by ordinance, it requires only that the action be taken by a two-thirds vote of the governing body. An ordinance will serve. Lusby V. Cosby, supra.
2. Under the authority to repeal ordinances granted to city council in article 1011, V.T.C.S., can city council repeal Ordinance 63-821
As discussed above, once the adoption of chapters l-10 was complete, the action taken could not be rescinded.
3. In as much as no reference is wade to a 213 majority vote in article 1011, where power to rescind ordinances is granted, is other than a simple majority vote required to rescind Ordinance 63-827
Again, Ordinance 63-82 cannot be rescinded.
4. Would the rescinding of Ordinance 63-82 return the corporation to the village status as existed prior to the adoption of Ordinance 63-82 in December 1982?
NO.
.
Honorable Michael J. Guarino - Page 4 (JM-169)
,-,. 5. Assuming the proper procedures outlined in article 961 are followed in establishing a general law city under chapters l-10, Title 28, are there any statutory provisions allowing a return to a chapter 11 village?
Dickinson can become a village again only by dissolving present corporation pursuant to article 1241, V.T.C.S., and reincorporating under article 1133, V.T.C.S. Lum v. City of Bowie, supra at 144.
6. As a result of the action taken on December 14, 1982, and the rescinding action taken on May 3, 1983, has Dickinson returned to a village?
No.
SUMMARY The city of Dickinson currently has the legal status of a town or city operating under chapters 1 through 10 of Title 28 of the Revfsed Civil Statutes, and may not revert to village status under chapter 11 thereof. To regain village status, it must dissolve its present corporation and reincorporate as a village.
JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood