Was Gregg County's 1955 special road law constitutional, and did the 1983 County Road and Bridge Act replace it?

Texas AG Opinion JM-894: Which Parts of Gregg County's Special Road Law Survived?

Plain-English summary

Gregg County Criminal District Attorney David Brabham asked whether the county's 1955 special road law was constitutional and, if so, whether the statewide County Road and Bridge Act of 1983 had replaced it.

Because the 1955 act applied only to Gregg County, it was a local law. Article III, section 56, of the Texas Constitution generally prohibited local laws regulating county affairs, road matters, or county officers unless the notice required by section 57 had been given. The Attorney General found no record that notice for the Gregg County law had been published and analyzed the statute on the condition that no notice was given.

Article VIII, section 9, supplied a narrow exception for local laws concerning maintenance of public roads and highways. It did not protect provisions regulating county government more broadly. Section 1 of the Gregg County act improperly required the county judge and at least three commissioners to be present before the commissioners court could adopt road rules, changing the quorum supplied by general law. Section 2 went outside road maintenance by letting the county judge appoint commissioner committees to supervise departments across county affairs. Those portions were unconstitutional if notice had not been published.

The rest of the law survived. Section 8 expressly stated that invalid language was severable and that the remaining portions would have been enacted without it. The Attorney General concluded that a complete, workable road law remained. A provision concerning equipment also had to be read consistently with general soil-conservation authority.

The 1983 County Road and Bridge Act did not repeal the surviving special law. Section 3.107 of article 6702-1 listed Gregg County as exempt from the road-commissioner or road-superintendent subchapter. The Legislature did not expressly repeal the county special acts, and the wording showed an intent to leave them controlling unless a county received express authority to adopt the general system instead.

Currency note

This opinion was issued in 1988. 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.

Common questions

Was the entire Gregg County special road law unconstitutional?

No. Assuming the required notice had not been published, only provisions outside the narrow road-maintenance exception were unconstitutional. The severability clause preserved a workable remainder.

Why was the quorum provision invalid?

General law allowed the commissioners court to conduct business without requiring the county judge to be present. The special act changed that rule for road decisions, which regulated county affairs and officer powers beyond the constitutional exception.

Why was the committee provision invalid?

It authorized commissioner committees to supervise various departments of county affairs under the county judge's direction. That subject was broader than maintaining public roads.

Did the 1983 County Road and Bridge Act replace the valid portions?

No. Gregg County was expressly exempted from the relevant general-law subchapter, and the Legislature had not expressly repealed the special act.

Which law controlled if a valid special provision conflicted with article 6702-1?

The opinion said the valid part of the Gregg County special law controlled for Gregg County, consistent with the act's own cumulative-and-conflict clause.

Background and statutory framework

Article III, sections 56 and 57, restricted local or special legislation and required notice. Article VIII, section 9, permitted local laws for maintaining public roads without that notice, but Hill v. Sterrett, 252 S.W.2d 766, 771 (Tex. Civ. App. - Dallas 1952, writ ref'd n.r.e.), explained that the exception covered maintenance, not every subject that could appear in a road law.

Bexar County v. Tynan, 97 S.W.2d 467 (Tex. 1936), supported invalidating an otherwise prohibited local law when proof showed no notice. Dalton v. Allen, 215 S.W. 439, 440 (Tex. 1919), addressed the commissioners court's ability to conduct business without the county judge present. Commissioners' Court of Limestone County v. Garrett, 238 S.W. 894 (Tex. Comm'n App. 1922, judgment adopted), and Altgelt v. Gutzeit, 201 S.W. 400 (Tex. 1918), supported the conclusion that the special quorum and county-affairs provisions exceeded the road-maintenance exception.

Section 8 of the 1955 act supplied an express severability clause. The opinion used it to preserve the remaining law after excising unconstitutional portions. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948), described the optional county-unit road system that existed when the special act was adopted.

The later County Road and Bridge Act carried road-superintendent provisions into subchapter B of article 6702-1. Section 3.107 exempted Gregg County from that subchapter. Neither the 1983 enactment nor the 1984 revision expressly repealed the county special acts. Hill County v. Bryant & Huffman, 16 S.W.2d 513 (Tex. 1929), and Dallas County v. Plowman, 91 S.W. 221 (Tex. 1906), supported continued control by valid special-law provisions over inconsistent general rules.

Citations

Constitutional and statutory authority:

• Texas Constitution article III, sections 56 and 57
• Texas Constitution article VIII, section 9
• Texas Constitution article V, section 18
• Acts 1955, 54th Legislature, chapter 339, sections 1 through 3, 7, and 8
• V.T.C.S. article 6702-1, section 3.107
• Local Government Code sections 81.001 and 81.006
• Agriculture Code section 201.151

Cases:

• City of Fort Worth v. Bobbitt, 36 S.W.2d 470 (Tex. Comm'n App. 1931, opinion adopted)
• Bexar County v. Tynan, 97 S.W.2d 467 (Tex. 1936)
• Henderson County v. Allred, 40 S.W.2d 17 (Tex. 1931)
• Hill v. Sterrett, 252 S.W.2d 766, 771 (Tex. Civ. App. - Dallas 1952, writ ref'd n.r.e.)
• Dalton v. Allen, 215 S.W. 439, 440 (Tex. 1919)
• Commissioners' Court of Limestone County v. Garrett, 238 S.W. 894 (Tex. Comm'n App. 1922, judgment adopted)
• Altgelt v. Gutzeit, 201 S.W. 400 (Tex. 1918)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Rowan v. Pickett, 237 S.W.2d 734 (Tex. Civ. App. - San Antonio 1951, no writ)
• Hill County v. Bryant & Huffman, 16 S.W.2d 513 (Tex. 1929)
• Dallas County v. Plowman, 91 S.W. 221 (Tex. 1906)

Prior Attorney General materials referenced: JM-390 (1985), V-1315 (1951), and JM-262 (1984).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-894
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0894.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

April 15, 1988

Honorable David Brabham
Opinion No. JM-894
Criminal District Attorney
P. O. Box 3403
Re: The constitutionality of
Longview, Texas 75606
the Gregg County Special Road
Law, and related questions
(RQ-1138)

Dear Mr. Brabham:

You have asked whether the special road law for Gregg County is constitutional, and if it is, whether the 1983 County Road and Bridge Act, article 6702-1, V.T.C.S., superseded it.

The special law was enacted in 1955. See Acts 1955, 54th Leg., ch. 339, at 886. Because it applies only to Gregg County, it is a "local law" within the meaning of the Texas Constitution. Tex . Const. art. III, §56; City of Fort Worth v. Bobbitt, 36 S.W.2d 470 (Tex. Comm'n APP. 1931, opinion adopted). See Attorney General Opinion JM-390 (1985).

Article III, section 56, of the Texas Constitution
inhibits the legisla~ture from passing any local or special law regulating the affairs of counties, authorizing the laying out, opening, altering, or maintaining of roads, highways, streets or alleys, or creating offices 01: prescribing the powers and duties of officers in counties, except upon compliance with the notice provisions of article III, section 57, of the constitution. There is no record found of the required notice respecting the Gregg County Road Law having ever been published. If no notice was given, the special law is unconstitutional unless it is saved by article VIII, section 9, of the constitution. Bexar County v. Tynan, 97 S.W.2d 467 (Tex. 1936).1

1. Two courts have asserted in dicta that by the passage of a special law, the legislature is conclusively (Footnot:c Continued)

Honorable David Brabham - Page 2 (JM-894)

In 1890, the constitution was amended to provide in article VIII, section 9:

And the Legislature may pass local laws for the maintenance of public roads and high- ways, without the local notice required for special or local laws.

The provision operates as an exception to the article III, section 56 prohibition, but as a narrow one. See Henderson County v. Allred 40 S.W.2d 17 (Tex. 1931). The breadth of the exception' was explained in Hill v. Sterrett, 252 S.W.2d 766, 771 (Tex. Civ. App. - Dallas 1952, writ ref'd n.r.e.):

[Vlalidity of [such] legislation is in- variably dependent upon relationship of the particular section to road maintenance.
'The authority conferred by section 9, art.
8, of the Constitution, supra, is not "to
enact special road lawsIN of all kinds,
for
all purposes indiscriminately, but '
authority merely to pass local laws for the maintenance of the public roads and highways.' Austin Bros. v. Patton, Tex. Comm'n App., 288 S.W. 182, 183. A locai road
law, to come within the protection of Art.
8, sec. 9, must be, limited to the main- tenance of public roads and highways.
Jameson v. Smith, Tex. Civ. App., 161 S.W.2d
520; Tinner v. Crow, [78 S.W.2d §88 (Tex.
1935)].

(Footnote Continued)
presumed to have found as a jurisdictional fact that proper notice has been theretofore given. See Moore v. Edna Hospital District, 449 S.W. 2d 508 (Tex. Civ. App. - Corpus Christi 1979, writ ref'd n.r.e.); Moller v. City of Galveston, 57 S.W. 1116 (Tex. Civ. App. - Galveston 1900, no writ). But in both cases the issue at hand was not an entire absence of notice, but, rather, whether the notice admittedly given was sufficient. In Cravens v. State, 122 S.W. 29 (Tex. Crim. App. 1909), the court said such a con- clusion was proper "in the absence of proof to the contrary." Where the proof shows that no notice was given, a special or local law not otherwise permitted by the constitution will be held unconstitutional. Bexar County v. Tynan, supra.

p. 4389

Honorable David Brabham - Page 3 (JM-894)

The Hill v. Sterrett court was reviewing section 4 of
a 1941 Dallas County Road Law that corresponds word-for- word to section 3 of the 1955 Gregg County law. Several sections of the Gregg County law (hereinafter set out) find duplicates in the Dallas County law. Among them are sections 1 and 2, which correspond to sections 1 and 3 of the 1941 Dallas County law. The Hill v. Sterrett court did not invalidate the portion of the law at issue there
-- a provision empowering the commissioners court to appoint a county engineer, which the court considered germane to road maintenance.

The court in Hill v. Sterrett reviewed general pro-
positions of law applicable to the construction of special road laws, but declined to discuss the legality of other subdivisions of the Dallas County law. It said its observations would be dicta, inasmuch as only a portion of section 4 of that act was there in issue. It noted, however, that Attorney General Opinion V-1315 (1951) had pronounced section 3 of that law (corresponding to section 2 of the Gregg County law), as well as others, unconstitu- tional. In Attorney General Opinion V-1315, it was said of the Dallas County special act:

Section 3 [corresponding to section 2 in the Gregg County statute] requires the County Judge to appoint standing committees composed of two or more county commissioners for supervising the various departments of the county's affairs. Like section 2 [requiring Dallas County commissioners to devote all their time to county duties and to attend court sessions, and fixing their compensa- tion], this section embraces matters outside the scope of a road law and is in violation of section 56 of Article III. . . .

Likewise, the corresponding section of the Gregg
County law (section 2) is not saved from unconstitu- tionality by article VIII, section 9. It embraces matters outside the scope of maintaining roads. It attempts to prescribe the powers and duties of county officers and to regulate county affairs.

The provisions of the Gregg County law are lengthy, but excerpts from sections 1, 2 and 3 thereof are re- produced here to supply an understanding of the passages under review:

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Honorable David Brabham - Page 4 (JM-894)

        Section 1. The       Commissioners      Court     of
    Gregg County, Texas,        shall have full       power

and authority, and it shall be its duty to
adopt, at a meeting of said Court, at
which
the County Judge and at least three (3) of the County Commissioners of said County shall be nresent and cause to be recorded in the minutes of said Court, and put into effect such rules, regulations, plans, and system for the maintenance, laying out,
opening, widening, draining, grading,
constructing, building, and repairing of
the public roads of said County other
than designated State highways located
therein . . . which rules, regulations, plans, and system, together with any changes thereafter made in same, shall be binding upon, observed, and obeyed by the County
Commissioners, County Judge, County
Engineer, and all employees of Gregg County, Texas.

        Sec. 2.      Subject     to   the    provisions       of

this Act and all laws relating to the ‘1
subject matter, the County Judge of Gregg
County shall have the power and he is hereby required to appoint committees of two (21 or
more composed of Commissioners who shall
have under their immediate supervision the
various departments of the County's affairs
under the general direction of the Court as
3 whole. . . . Said committees shall have,
and are hereby given, subject to the pro-
visions of this Act, such power and
authority as is specifically delegated to
them by a resolution duly passed by the
Commissioners Court by the affirmative vote
of the County Judge and two (2) Commis-
sioners, and it is made their duty to
perform all acts so delegated to them: provided, however, that they shall not have authority or power to make purchases or bind the County on any contract or pecuniary
obligation, but in all such matters shall
submit to the Court as a whole their
recom- ?
mendations with reference thereto, and said Court shall pass upon all such matters,
subject to the provisions of this Act and
other laws relating thereto. The County
Judge is hereby given authority to change

F. 4391

Honorable      David        Brabham        - Page   5 (JM-894)

the personnel
of such committees at his
pleasure.

Sec. 3. The Commissioners Court of Gregg County may, and it is hereby empowered to employ a County Engineer.

. . . .

Said County Engineer shall supervise
the
engineering work in connection with all
maintenance, repair, drainage, and con-
struction work on all county roads in said
County whether the same be in relation to the present roads or any roads to be
opened, laid out, and constructed:
provided,
however, said Engineer in the performance of
these duties shall be under the general
supervision of the 'standing Committee'
appointed by the County Judge, and all
repairs, widening, permanent construction,
new construction, and bridge construction
shall be done only after the Commissioners
P Court has authorized same.

. . . .

The County Engineer shall perform any and all other duties as may be prescribed from time to time by the Commissioners Court and he shall at all times be under the super- vision and control of said Court. (Emphasis added.)

Acts 1955, 54th Leg., ch. 339, at 886-88.

Although Attorney General Opinion V-1315 came to a different conclusion regarding the provisions of the first section of the Dallas County special act (repeated in the first section of the Gregg County statute), we conclude that the first section of the Gregg County law is also unconstitutional because it attempts to specify which members of the commissioners court will constitute a
quorum -- thus regulating county affairs. It purports to
permit the commissioners court to adopt rules, regula- tions, plans and systems only at a meeting "at which the County Judge and at least three (3) of the county commis- sioners of said county shall be oresent." Cf. Tex. Const. art. V, §18 (commissioners court).
P

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Honorable David Brabham - Page 6 (JM-894)

Since 1876, the general laws of this state have specified that group of persons which constitutes a quorum of the commissioners court, enabling it to conduct business. See Acts 1876, 15th Leg., ch. 55, §12, at 51,

52. Discussing the subject, the Texas Supreme Court said
    in Dalton v. Allen, 215 S.W. 439, 440 (Tex. 1919):

    It thus   appears that,    since a     short   time
    after the adoption     of the Constitution,       it
    has been construed    by the Legislature     as not
    requiring  the county judge to be present and
    presiding  in   order for    the   commissioners'
    court to transact    its business.
    

    The Dalton v. Allen court held that statutes re-
    quiring merely that the county judge preside when present and authorizing the transaction of the county's business (except as there otherwise provided) by three members of the commissioners court, were constitutional and conformed "to the true intent and purpose of the Constitution.1' 215 S.W. at 440. Those statutes have come down to us as articles 2342 and 2343, V.T.C.S., which, in 1987, were incorporated into the Local Government Code as sections
    81.001 and 81.006. ?

    There is no general statute that requires a different
    quorum for the adoption of rules, regulations, plans and systems relating to roads, nor, so far as we can deter- mine, did such a general law exist at the time the Gregg County special law was enacted.. By altering the authority conferred upon county commissioners to transact county business in the absence of the county judge, the special law attempts to prescribe the powers and duties of county officers and to regulate county affairs; these matters are outside the scope of article VIII, section 9, of the constitution and in violation of article III, section 56 thereof. Commissioners Court of Limestone County v. Garrett, 238 S.W. 894 (Tex. Comm'n App. 1922, judgm't adopted). See Altgelt v. Gutzeit, 201 S.W. 400 (Tex. 1918).

    We conclude that sections 1 and 2 of the Gregg County
    special road law are unconstitutional in the respects discussed, but if a complete and workable law comporting with the intent of the legislature remains after excising the unconstitutional portions of a statute, the courts will give the remaining portions effect. See Commissioners' Court of Limestone County v. Garrett, supra. Section 8 of the Gregg County special road law. states:

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Honorable David Brabham - Page 7 (JM-894)

If any section, subdivision, paragraph, sentence, clause, or word of this Act be held to be unconstitutional, the remaining portions of same shall, nevertheless, be valid, and it is declared that such re- maining portions would have been included in this Act though the unconstitutional portions had been omitted.

Acts 1955, 54th Leg., ch. 339, §8, at 889.

We believe the unconstitutionality of portions of
sections 1 and 2 of the Gregg County law do not require a declaration that the statute is unconstitutional in toto. The legislative intent is made clear by section 8 of the statute. See Attorney General Opinion JM-390 (1985). Cf. Attorney General Opinion V-1315 (1951). A valid law remains.2 Therefore, we turn to the other part of your inquiry: Has the Gregg County law been superseded by the County Road and Bridge Act of 1983?

At the time the Gregg County special law was enacted
in 1955, the Optional County Road Law of 1947 was applic- able to Gregg County and to every other county in the state. See Acts 1947, 50th Leg., ch. 178, at 288. It provided that the electorate of the county might adopt its provisions for the county, which thereafter would be under the "county unit" system of roads under the direction of the county commissioners court and a county road engineer appointed by that body. See Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948). But Gregg County, together with Dallas County and some others, was expressly "exempted" by former article 6761, V.T.C.S., from the provisions of then articles 6743-6760, V.T.C.S., setting up a system of county "road superintendents." The provisions of the 1947 optional road law are now contained in subchapter C of

2. The provision in section 3 authorizing the com-
missioners court to lease idle equipment to certain entities without apparent limit should be construed, in our opinion, with the earlier provision in section 3 authorizing the provision at cost of the necessary machinery and equipment for purposes "that will conserve the soil." So read, the authority is consistent with power conferred by general law. Agric. Code §201.151. See Rowan v. Pickett, 237 S.W.2d 734 (Tex. Civ. App. - San Antonio 1951, no writ).

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Honorable David Brabham - Page 8 (JM-894)

article 6702-1, V.T.C.S. The former provisions setting up the "road superintendent" system are now found in subchapter B of the latter statute, and "exemptions" therefrom are now contained in section 3.107 of article -- 6702-l.

Article 6702-1, section 3.107, lists fifty-five
counties, including Gregg County, as "exempt from this subchapter," i.e., subchapter B, which sets up a system of road commissioners or road superintendents. The concluding sentence of the section reads:

However, the commissioners courts of Dallas and Collin counties may accept and adopt this subchapter instead of the special acts for Dallas or Collin county, if in its judg- ment, the provisions of this subchapter are better suited to Dallas or Collin county than the special laws.

This section, and especially the quoted passage, is a clear indication that the legislature did not intend by the enactment of article 6702-l to repeal or supersede special road laws such as the one for Gregg County, but intended them to control unless express authority was ? given to adopt the general law instead.

None of the special county acts were expressly repealed either by the 1983 act that originally enacted article 6702-l or by the 1984 legislation that revised and reenacted it and ratified its repealer provisions. See Acts 1983, 68th Leg., ch. 288, at 1431; Acts 1984, 68th Leg., 2nd C.S., ch. 8, at 44.

Section 7 of the Gregg County special law reads:

The provisions of this Act are and shall be held and construed to be cumulative of all General Laws of this State on the subject treated of and embraced in this Act when not in conflict herewith, but in case
of such conflict, in whole or in part, this
Act shall control Gregg County: provided,
however, that nothing in this Act shall be
construed to impair or,to take from the
County the right to issue bonds, under the
provisions of Section 52 of Article 3 of the
State Constitution and the General Laws in
pursuance thereof.

p. 43%

Honorable David Brabham - Page 9 (JM-894)

Acts 1955, 54th Leg., ch. 339, §7, at 889. To the extent that the Gregg County law is constitutional, it controls i- inconsistent-provisions that may be found in article 6702-1, V.T.C.S. (as they respect Gregg County). See Hill County v. Bryant & Huffman, 16 S.W.2d 513 (Tex. 1929);
Dallas County v. Plowman, 91 S.W. 221 (Tex. 1906). Cf.
Attorney General Opinion JM-262 (1984).

We advise that the valid portions
of the 1955 Gregg
County special road law have not been superseded by the County Road and Bridge Act of 1983.

SUMMARY

If the notice required by article III, section 57 of the Texas Constitution was not given, portions of the 1955 special road law for Gregg County are unconstitutional. But its remaining portions constitute a complete and workable law that has not been superseded by the County Road and Bridge Act of 1983.

-J I M MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney
General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood
Assistant Attorney General

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