Can the Texas Legislature merge two whole counties into one?

Plain-English summary

Two thinly populated counties in the Texas Panhandle, Dallam and Hartley, were exploring whether they could merge into a single county to save money; a study put the savings at more than $382,000 a year. A state representative asked the Attorney General the threshold legal question: does the Texas Constitution actually allow the Legislature to combine two existing counties into one?

The Attorney General concluded it does not. The relevant provision, article IX, section 1, gives the Legislature power to create counties and to move territory around, but the way it is written assumes you are only ever moving a piece of a county, never the whole thing. Three features of the text drove the answer. First, it forbids reducing any existing county below 700 square miles; absorbing one whole county into another would shrink the absorbed county to nothing, which obviously crosses that line. Second, the section repeatedly talks about a "part" of a county being detached and attached elsewhere. Third, the detach-and-attach clause requires a vote of both counties' electors for moving "part" of a county, again picturing a partial transfer, not a wholesale merger.

The Attorney General reinforced this reading by looking at how the Legislature itself had implemented the provision. Chapter 71 of the Local Government Code, which governs creating counties, consistently speaks of organizing a new county out of part or parts of existing counties, and of apportioning the old county's debt to the detached piece, while the original county keeps existing. None of that fits a true merger. The opinion acknowledged one wrinkle: in a 1925 case, Robbins v. Limestone County, the Texas Supreme Court had said the Constitution authorizes the Legislature to consolidate two or more counties, but the Attorney General treated that statement as dictum (an aside not necessary to the decision) and did not follow it. The bottom line for Dallam and Hartley was that, absent a constitutional amendment, the Legislature could not merge them.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Article IX, section 1 of the Texas Constitution and chapter 71 of the Local Government Code may have been amended since 1993; a constitutional question like this one can also be affected by later court decisions or amendments, so confirm current law before relying on anything described here.

Background and statutory framework

Article IX, section 1 of the Texas Constitution gives the Legislature power to create counties subject to several limits. The "Second" clause provides that no new county may be created with less than 700 square miles and that no existing county may be reduced below 700 square miles, and bars creating a new county nearer than twelve miles to the county seat of any county from which it is taken; it also requires a "part stricken off" and attached to or made into another county to pay its proportion of the original county's existing liabilities. The "Third" clause provides that no "part" of an existing county may be detached and attached to another existing county until the proposition is submitted to the electors of both counties and approved by a majority in each.

The Attorney General read this language as contemplating only the transfer of a portion of a county, not the whole. Consolidating two counties (attaching the whole of one to the whole of another) would reduce an existing county below the 700-square-mile floor, and the section repeatedly refers to a "part" of a county. The Attorney General found this construction consistent with the Legislature's own implementation in chapter 71 of the Local Government Code, which speaks of organizing a new county out of part or parts of existing counties and of apportioning county indebtedness (for example, sections 71.011 and 71.013 (election for detachment or attachment of county territory), 71.021(a) and 71.025 (organization of counties), and 71.031 (apportionment of county indebtedness)), with the county from which territory is taken continuing to exist. That scheme does not describe merging two whole counties into one.

The opinion noted, in a footnote, that the Texas Supreme Court in Robbins v. Limestone County, 268 S.W. 915, 919 (Tex. 1925), had stated that the Texas Constitution authorizes the Legislature to consolidate two or more counties, but characterized that statement as dictum and did not treat it as controlling. The opinion also contrasted the Texas Constitution with the Model State Constitution, which expressly directs a legislature to provide by general law for merging or consolidating counties.

Citations

• Tex. Const. art. IX, § 1 (legislative power to create counties; 700-square-mile minimum; detachment and attachment of a "part" of a county on a vote of both counties)
• Local Gov't Code §§ 71.011, 71.013 (election for detachment or attachment of county territory)
• Local Gov't Code §§ 71.021(a), 71.025 (organization of counties)
• Local Gov't Code § 71.031 (apportionment of county indebtedness)
• Robbins v. Limestone County, 268 S.W. 915, 919 (Tex. 1925) (dictum that the Constitution authorizes consolidating counties)

Common questions

Can two Texas counties legally merge into one?
Under this opinion, no. The Attorney General concluded that article IX, section 1 of the Texas Constitution does not authorize the Legislature to consolidate two existing counties.

Why not, if both counties want it for cost savings?
The opinion concluded the Constitution only allows moving a "part" of a county to another county, and that merging two whole counties would reduce an existing county below the 700-square-mile minimum the Constitution sets. The desire for savings did not change the constitutional limit.

Didn't a Texas court once say counties could be consolidated?
The Texas Supreme Court said so in Robbins v. Limestone County (1925), but the Attorney General treated that statement as dictum, an aside not necessary to the court's decision, and did not follow it.

Was there any path to a merger?
The opinion did not identify a statutory path; because the limit is constitutional, changing it would require amending the Texas Constitution rather than just legislation.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0252
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0252.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

September 3, 1993

Honorable Warren Chisum
Chair
Committee on Environmental Regulation
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-252

Re: Whether article IX, section 1 of the Texas Constitution authorizes the legislature to consolidate two existing counties (RQ-495)

Dear Representative Chisum:

You have asked us to determine whether article IX, 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 efficiency.[Footnote 1: You have provided us with a study, "A More Efficient Government: An Analysis of the Proposition of Merging Dallam and Hartley Counties," that estimates that a consolidated county annually will spend at least $382,000.00 less than the amount the two counties will spend separately.] We conclude that article IX, section 1 of the Texas Constitution does not authorize two existing counties to consolidate.

Article IX, section 1 of the Texas Constitution reads in pertinent part as follows:

Section 1. The Legislature shall have power to create counties for the convenience of the people subject to the following provisions:

. . .

Second. Within the territory of any county or counties now existing no new county shall be created with a less area than seven hundred square miles, nor shall any such county now existing be reduced to a less area than seven hundred square miles. No new counties shall be created so as to approach nearer than twelve miles of the county seat of any county from which it may in whole or in part be taken. . . . When any part of a county is stricken off and attached to, or created into another county, the part stricken off shall 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.

Third. No part of any existing county shall be detached from it and attached to another existing county until the proposition for such change shall have been submitted, in such manner as may be provided by law, to a vote of the electors of both counties, and shall have received a majority of those voting on the question in each. [Emphasis added.]

In our opinion, the language of article IX, section 1 indicates that the legislature may attach to a county only a portion of another county, 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 constitutional prohibition against reducing an existing county to an area less than 700 square miles.[Footnote 2: text not legible in source scan.] Furthermore, section 1 repeatedly refers to a "part" of a county.[Footnote 3: In contrast to article IX, section 1 of the Texas Constitution, article VIII, section 8.01 of the Model State Constitution requires a legislature to "provide by general law . . . for methods and procedures of . . . merging, consolidating [counties]." National Municipal League, Model State Constitution art. VIII, § 8.01, at 15 (6th ed. 1963); see also id. § 8.03; id. art. XI, § 11.01; 2 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis (1977).]

An examination of the statutes the legislature has enacted pursuant to article IX, section 1 indicates that this construction is consistent 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 organizing a new county out of a part or parts of an existing county or counties. See, e.g., Local Gov't Code §§ 71.011, 71.013 (providing for election for detachment or attachment of county territory), 71.021(a), 71.022(a), 71.023(a), 71.025 (providing for organization of counties), 71.031, 71.032, 71.033, 71.034 (providing for apportionment of county indebtedness). In our opinion, therefore, the legislature envisions only a situation in which a portion of a county is detached from an existing county and attached to another county; the county from which the territory is taken continues 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 counties.[Footnote 4: We note that the Texas Supreme Court, in Robbins v. Limestone County, has said that the Texas Constitution authorizes the legislature to consolidate two or more counties. Robbins v. Limestone County, 268 S.W. 915, 919 (Tex. 1925). The court's pronouncement was, however, dictum.]

SUMMARY

Article IX, section 1 of the Texas Constitution does not authorize the legislature to consolidate two existing counties.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General