Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
Hon. George H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Mr. Sheppard:
Opinion No. O-85
Your letter of
received.
From the facts r n, this department construes and d forth only as a amendment to th hereinafter set ght of the reoent sed by the Forty- Fifth Legislatu 5. B, No. 20, Sec- tion 16, appea? $enal Oode, Revised Btatutes 1925.L pass on the valid- ity of the amen ort Arthur as to its endment presentsd with Arthur valid?
~ hd T? hl it be neoessary for said oity to ho &other eleotion for the purpose, of amending its Charter in order to conform with the Aot of the Legislature above listed?"
As to the Pirst que~stion and the authority of the to pass said amendment reierreditq,this point seems to city have been raised in Pitre vs. Baker, 111 SW (2nd) 359, al- *2 Hon. George H. Sheppard, January 23, 1939, Page 2 though the court did not seem to pass directly upon the ques- tion. The holding in that case was that the eleotion in which the Port Arthur amendment to its oharter was passed, was not -- & efi'eot 2 loon1 option election, and could not be oontested under statutes regulating contests ofelectioz This holding is amply supported in the case oited therein, LeGois vs. State, 80 Tex. Cr. R. 356, 190 SW 734-6. From this case further assume that Port Arthur is classified as A ~~rn~?ule city, with full authority to govern,,vested in its city offi- cials, and by elections duly held, can amend its oharter; that the amendment in question waa adopted when the pity was "wet" on Rovenber 4, 1936.
When an amendment is adopted by a majority of the qualified voters at the election, and an order deolaring its adoption is antered in the records, it beoomes part of the charter and is entitled to the same oonsideration as if it were contained in an act of the Legislature. Revised Statutes 1925, Article 1170. Bland vs. City of Taylor, 37 EW (2nd) 291, 14 T. J. page 15, pagagraph 14.
Section,5, Article 11 of the Constitution of Texas provides that cities having more than five thousand inhabi- Mnts may by election held for the purpose, a,dapt or amend their charter, subject to such limitations as may be pres- scribed bp the Legislature. lt further provides that such amendment or act adopted shall not contain any provisions in- consistent with the Constitution and general laws enaoted by the Legislature. As to the purpose and intention of th$s home rule amendment, see LeGois vs. State, supra.
This department Baa heretofore held and the decisions sustain in my opinion, the authority of.home ru&e cities to regulate, within its limits, the trarrio ,in.lihor. Cohen vs. Rice, lQ$ SW 1052. Williams vs. State 10,7~ $W 1121 and Rx Parte Hollingsworth, 2g3 SW 1102. Such re&atioas, however, must not be inaonsistent with legislative reguqtion upon the same subject. Section 2 of Artiole 1 of tha Liquor Con- trol Act, ohapter 467,'passed by the Forty-Fourth Legislature, designates the act an eXerOise 1935, or polioe power Or the state. The amendment in question effeOtive~l927, would not necensarily invoke or supersede powersPrevioualY granted to hOme rule cities, in the absence of an irreooncilable Con- flict with charter provisions or such cities upon the same
. *3 Ron. George H. Sheppard, January 23, 1939, Page 3 subject.
I conclude, therefore, that the amendment as oon- tained in the 1937 act referred to in$our letter would not, in my opinion, render the Port Arthur nhartar or amendment, otherwise valid prior to its passage, invalid; Suoh amend- Eent would not affect the City of Port Arthur,'s present char- ter provision w??ich I am oonstrained to presume, in this .op- inion to he consistent with the Constitution and general laws of the State, existin,? at the time and prior to the adoption of Ynme.
Trusting that the above will answer your questions, I remain
Very .truly yours ATTORNEY GENERAL OF TEXAS APPROVED:
k----w
ATTORNEY GENERAL OF TEXAS.