Is the City of Millican, Texas still legally a city?

TX AG Opinion GA-0483: Was the City of Millican legally dissolved?

Plain-English summary

Brazos County Attorney Jim Kuboviak asked the Attorney General a question with real practical stakes for a small place: had the City of Millican been dissolved? Millican had functioned as a municipality in Brazos County for many years, but its corporate status had come into doubt. The residents wanted the county to provide law enforcement, street repair, and other services, and the county was reluctant to do so until it knew whether Millican was still legally a city.

The opinion answered two questions. First, was Millican a general-law or a special-law municipality? Millican incorporated under general law by citizen election in 1866 with a population of about 3,000, then was incorporated again by a special act of the legislature in 1871. The opinion concluded that the later special-law incorporation prevailed, so Millican was a special-law municipality. A municipality, once created, continues until it is abolished in some legal way; mere "nonuse" of corporate powers, such as failing to elect officers, does not by itself dissolve a city.

Second, what did an 1897 statute do to that status? In 1897 the legislature amended article 397 of the Revised Civil Statutes to provide that a specially chartered town of more than 200 but fewer than 5,000 inhabitants, whose offices had been vacant for ten years or more, would have its charter become void and forfeited. That amendment was written to keep applying over time, and it stayed in effect until it was deleted in the 1925 codification of the civil statutes. The opinion held that if, at any time between 1897 and 1925, Millican's population was in that 200-to-5,000 range while its offices had been vacant for at least ten years, then Millican's charter became void and the city was dissolved by operation of that law.

The catch was the facts. The request told the AG that Millican's population was 1,200 in 1868 and had dwindled to 200 by 1940, and that the city had held essentially no local elections since 1871. But it did not provide the population for the crucial 1897-to-1925 window or the exact date the offices became vacant. So the opinion could state the rule but could not apply it; it could not say whether Millican had actually been dissolved.

Currency note

This opinion was issued in 2006. 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.

This opinion turns on nineteenth- and early-twentieth-century statutes, including an 1897 amendment that was repealed in 1925. The municipal-incorporation framework has changed substantially since then. Anyone researching Millican's status or a similar question today should verify the historical facts and the current law rather than relying on this opinion.

Who this opinion affected (as of 2006)

Brazos County officials: The opinion gave the county the legal framework for deciding whether Millican was still a city, while making clear that the ultimate answer depended on historical facts the AG had not been given.

Residents of Millican: The opinion explained that whether they lived in an existing municipality or in unincorporated county territory turned on the population and office-vacancy facts during the 1897-to-1925 period.

Local-government lawyers and historians: The opinion laid out how a general-law city that is later re-incorporated by special act becomes a special-law city, and how the 1897 amendment could dissolve such a city by operation of law.

Common questions

Was Millican a general-law or a special-law city?
The opinion concluded it was a special-law municipality. It first incorporated under general law in 1866, but the legislature re-incorporated it by special act in 1871, and the opinion held that the special-law status prevailed over the general-law origins.

Does a town stop being a city just because it stops holding elections?
No. The opinion explained that mere nonuse of corporate powers, including a failure to elect officers, does not dissolve a municipality unless a law authorizes dissolution for that. Failing to elect officers suspends the city's functions but does not by itself end the corporation.

What did the 1897 law do?
It amended article 397 of the Revised Civil Statutes so that a specially chartered town of more than 200 but fewer than 5,000 inhabitants, whose municipal offices had been vacant for ten years or more, would have its charter become void and forfeited. The provision was effective from 1897 until it was deleted in the 1925 codification.

So was Millican dissolved or not?
The opinion could not say. It held that if Millican's population was between 200 and 5,000 at the same time its offices had been vacant at least ten years, at any point between 1897 and 1925, the city was dissolved. But the request did not provide the population for that period or the date the offices became vacant, so the AG could only state the law, not apply it.

Background and statutory framework

Before 1897, article 397 of the Revised Civil Statutes addressed filling a vacant municipal office that could not be filled under a city's charter. In 1897 the legislature amended article 397 to void the charter of certain specially chartered towns with long-vacant offices (Act effective May 10, 1897, 25th Leg., R.S., ch. 114, § 1, 1897 Tex. Gen. Laws 1213, 1213), and that amendment was dropped in the 1925 codification (Tex. Rev. Civ. Stat. Ann. arts. 8307-end, Final Title, § 2 (Vernon 1967)). Millican's special-law incorporation came in 1871 (Act approved Mar. 13, 1871, 12th Leg., R.S., ch. VI, 1871 Tex. Spec. Laws 1149, 1149-52).

On the general-law versus special-law question, courts recognize that a special-law municipality may reincorporate under general law only if the legislature allows it (Largen v. State ex rel. Abney, 13 S.W. 161, 162 (Tex. 1890); Buford v. State, 10 S.W. 401, 401-02 (Tex. 1888); Pence v. Cobb, 155 S.W. 608, 609 (Tex. Civ. App.-El Paso 1913, no writ)). The converse situation, a general-law city continued by special act, appeared in a 1911 Fifth Circuit decision that did not resolve whether the special law preempted the prior general-law status (Ringling v. City of Hempstead, 193 F. 596 (5th Cir. 1911)). The opinion concluded Millican's special-law status prevailed, recognizing a reincorporation that occurs consistently with law (Buford, 10 S.W. at 402; State v. Dunson, 9 S.W. 103, 105 (Tex. 1888)).

On dissolution, a municipal corporation is created only as provided by law and continues until abolished in some legal method (Harness v. State, 13 S.W. 535, 537 (Tex. 1890); Largen, 13 S.W. at 162). Mere nonuse, including a failure to elect officers, does not dissolve a corporation absent a law authorizing dissolution on nonuse (Dunson, 9 S.W. at 104; Pence, 155 S.W. at 611). Applying the 1897 amendment, the opinion held that a qualifying population coupled with a ten-year office vacancy during the amendment's effective period would have voided Millican's charter, but it lacked the facts to determine whether that occurred.

Citations

Statutes and session laws:

• Act effective May 10, 1897, 25th Leg., R.S., ch. 114, § 1, 1897 Tex. Gen. Laws 1213, 1213
• Act approved Mar. 13, 1871, 12th Leg., R.S., ch. VI, 1871 Tex. Spec. Laws 1149, 1149-52
• Tex. Rev. Civ. Stat. Ann. arts. 8307-end, Final Title, § 2 (Vernon 1967)

Cases:

• Largen v. State ex rel. Abney, 13 S.W. 161, 162 (Tex. 1890)
• Buford v. State, 10 S.W. 401, 401-02 (Tex. 1888)
• Pence v. Cobb, 155 S.W. 608, 609 (Tex. Civ. App.-El Paso 1913, no writ)
• Ringling v. City of Hempstead, 193 F. 596 (5th Cir. 1911)
• State v. Dunson, 9 S.W. 103, 105 (Tex. 1888)
• Harness v. State, 13 S.W. 535, 537 (Tex. 1890)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0483
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0483.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 21, 2006

The Honorable Jim Kuboviak
Brazos County Attorney
Brazos County Courthouse
300 East 26th Street, Suite 325
Bryan, Texas 77803

Opinion No. GA-0483

Re: Whether the City of Millican has been dissolved (RQ-0456-GA)

Dear Mr. Kuboviak:

You ask whether the City of Millican has been dissolved. You indicate that Millican "has existed in Brazos County for many years by all accounts as a municipality. However, the question of Millican's corporate status has recently been raised," and you ask us to resolve the question. Request Letter, supra note 1, at 1.

Prior to 1897, article 397 of the Revised Civil Statutes provided for the filling of a vacant municipal office that could not be filled under the municipal charter or other law. In 1897 article 397 was amended to provide for the dissolution of certain municipalities with a vacant municipal office. That amendment (the "1897 Amendment") provided as follows:

[W]here [a town or city with a vacant municipal office] has been chartered by special act of the legislature and such town or city contains more than 200 and less than 5000 inhabitants and the offices of such town or city have been vacant for a period of ten years or more, such charter of said town or city shall become void and forfeited, and no election of officers in such town or city shall be had; but the inhabitants of such town or city may reincorporate under the general laws of this State relating to towns and cities in the manner as now or may hereafter be prescribed by the laws of this State.

Act effective May 10, 1897, 25th Leg., R.S., ch. 114, § 1, 1897 Tex. Gen. Laws 1213, 1213; accord Request Letter, supra note 1, at 3-4. The 1897 Amendment appears to have been deleted when the civil statutes were codified in 1925. See Tex. Rev. Civ. Stat. Ann. arts. 8307-end, Final Title, § 2 (Vernon 1967) ("Repealing clause").

Your letter suggests that Millican's inhabitants would like Brazos County to provide them with law enforcement, city street repair, and other public services, but the county is reluctant to provide county services "until the issue of the city's corporate status is determined." Request Letter, supra note 1, at 1. You therefore ask two questions:

(1) Is Millican a general law municipality or a special law municipality[?]

(2) If Millican is a special law municipality, what is the effect of the [1897 Amendment] on its corporate status[?]

Id. at 5. We consider your questions in the order you ask them.

The City of Millican, you inform us, was incorporated under general law by citizen election in 1866 with a population of 3,000. See id. at 3; Christina L. Gray, "Millican, Texas," The Handbook of Texas Online (last visited Nov. 13, 2006). In 1871 Millican was incorporated again by a special act of the legislature. See Request Letter, supra note 1, at 3; see Act approved Mar. 13, 1871, 12th Leg., R.S., ch. VI, 1871 Tex. Spec. Laws 1149, 1149-52, reprinted in 6 H.P.N. Gammel, The Laws of Texas 1822-1897, at 11-14.

Several cases consider the circumstances in which a municipality that was originally incorporated under special law may reincorporate under general law. See, e.g., Largen v. State ex rel. Abney, 13 S.W. 161, 162 (Tex. 1890); Buford v. State, 10 S.W. 401, 401-02 (Tex. 1888); Pence v. Cobb, 155 S.W. 608, 609 (Tex. Civ. App.-El Paso 1913, no writ). In those circumstances, the courts acknowledge that a special-law municipality may reincorporate as a general-law municipality only if the legislature allows it to; and if the legislature has not allowed it by either general or special law, the attempted general-law incorporation is ineffective. See Largen, 13 S.W. at 163; Buford, 10 S.W. at 403; Pence, 155 S.W. at 611. The converse case, where a municipality incorporated under general law is reincorporated by special law, is rarer in judicial decisions, however. We found only a 1911 decision of the United States Court of Appeals for the Fifth Circuit that presented an analogous fact situation. See Ringling v. City of Hempstead, 193 F. 596 (5th Cir. 1911). In that case, the City of Hempstead had incorporated as a general-law municipality and "was continued by a special act of the Legislature" in 1871. Id. at 598. The City of Hempstead subsequently, and in accordance with general law, reincorporated as a general-law municipality. Id. Unfortunately, the court did not discuss whether the special law preempted the City of Hempstead's prior general-law status. See id.

Whether the City of Millican's original general-law incorporation and the subsequent special-law incorporation are irreconcilable (for example, by reason of boundaries or municipal powers), we believe the City's special-law status prevails over its general-law origins. Courts recognize a reincorporation that occurs consistently with law. See Buford, 10 S.W. at 402; State v. Dunson, 9 S.W. 103, 105 (Tex. 1888). Presuming that the special law incorporating the City of Millican was adopted in accordance with legal requirements, we must conclude that it replaced the 1866 general-law incorporation.

Because the City of Millican was a special-law municipality in 1897 when the legislature adopted the 1897 Amendment, we consider your second question: what effect the 1897 Amendment had on the City of Millican's status. See Request Letter, supra note 1, at 5. A municipal corporation may be created "only in the manner provided by law, and when created must continue until abolished in some legal method." Harness v. State, 13 S.W. 535, 537 (Tex. 1890); see also Largen, 13 S.W. at 162 ("The state creates [municipal] corporations for public ends, and they will and must continue until the legislature annuls or destroys them, or authorizes it to be done.") (quoting 1 Dill. Mun. Corp. § 167). Mere "nonuse" of a municipality's corporate powers, including a failure to elect officers, is insufficient to dissolve the corporation unless some law authorizes dissolution upon nonuse. See also Dunson, 9 S.W. at 104 ("under the great weight of authority," a failure to elect "proper officers . . . does not operate a dissolution"); Pence, 155 S.W. at 611 ("The state creates municipal corporations for public ends and purposes, and such a corporation cannot dissolve itself by nonuse of its corporate functions; mere failure or neglect to elect officers suspends the functions but does not dissolve the corporation . . . [unless] dissolved by legislative enactment, or in some other mode provided by law.").

Under the 1897 Amendment, the city charter of a special-law municipality with a population of more than 200 but less than 5,000 is void if the municipal offices have been vacant for a period of ten years or more. See Act effective May 10, 1897, 25th Leg., R.S., ch. 114, § 1, 1897 Tex. Gen. Laws 1213, 1213. The 1897 Amendment was written in such a way as to remain applicable beyond the date it first became applicable. See id. If, then, at any time while the 1897 Amendment was effective, Millican, a special-law municipality, had a population of more than 200 but less than 5,000 at the same time that the municipal offices had been vacant for at least ten years, Millican's charter became void and the city was dissolved.

We are unable to determine whether Millican's charter was voided by operation of the 1897 Amendment prior to its deletion in 1925. You inform us that Millican's population in 1868 was 1,200, dwindling to 200 by 1940. See Request Letter, supra note 1, at 2; Christina L. Gray, "Millican, Texas," The Handbook of Texas Online (last visited Nov. 13, 2006). But you do not tell us what the population was at any time between 1897 and 1925, when the 1897 Amendment was effective. You also inform us that, since its initial incorporation in 1866, Millican has elected only one mayor, although two governors subsequently appointed mayors and aldermen, the latest appointment apparently being made in 1871. Request Letter, supra note 1, at 3. "With these exceptions, Millican [has] had no local elections" since 1871. See id. You do not tell us, however, the date on which the municipal offices became vacant. Therefore, we cannot apply but can only state the law that if, between 1897 and 1925, the City of Millican's population was between 200 and 5,000 at the same time that the municipal offices had been vacant at least ten years, the city was dissolved under the 1897 Amendment.

SUMMARY

Where a municipality is incorporated under general law and then reincorporated by special law, the municipality becomes a special-law municipality. If, between 1897 and 1925, the special-law City of Millican's population was between 200 and 5,000 at the same time that the municipal offices had been vacant at least ten years, the city was dissolved under an amendment to article 397 of the Revised Civil Statutes that was effective during that same time period.

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Honorable Jim Kuboviak, Brazos County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Feb. 22, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. We have not been informed whether the boundaries or powers described in the original general-law incorporation were the same as those described in the 1871 special law. See Act approved Mar. 13, 1871, 12th Leg., R.S., ch. VI, art. 1, 1871 Tex. Spec. Laws 1149, 1149-52, reprinted in 6 H.P.N. Gammel, The Laws of Texas 1822-1897, at 11-14.