Article XI, Section 5 of the Texas Constitution (discussion page)

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18 sw 553

22 Tex. 263

The taxation power of political subdivisions, unlike that of the legislature, is not inherent; it must be derived from grants or delegations of taxing authority in the state constitution or by statute. See Tri-CityFresh Water SupplyDist. No. 2~. Mann, 142 S.W,2d945,948-49 (Tex. 1940); Texas & P. Ry. Co. v. City of El Paso, 85 S.W.2d 245, 247 (Tex. 1935).

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In re Mayor of New York, 246 N.Y. 72, 76 (1927) (author: Cardozo, C.J.) ("Home Rule for cities, adopted by the people with much ado and after many years of agitation, will be another Statute of Uses, a form of words and little else, if the courts in applying, the [new constitutional standard regarding the validity of local and special laws] shall ignore the new spirit that dictated their adoption. The municipality is to be protected in its autonomy against the inroads of evasion.")

Article 11, Section 5 of the State Constitution, Vernon's Ann. St. confers upon cities of over 5,000 inhabitants the power to adopt or amend their charters subject to such limitations as may be prescribed by the Legislature. Among the enumerated powers granted to these cities by the Legislature is 'The power to fix the boundary limits of said city, to provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to said city, according to such rules as may be provided by said charter.' Vernon's Ann.Civ.Stat., art. 1175, subd. 2. The only limitation fixed by the Legislature on the power of a city to annex additional territory is that the territory shall be adjacent to the city and not included within the boundaries of any other municipality. City of Houston v. State ex rel. City of West University Place, 142 Tex. 190, 176 S.W.2d 928.

State ex rel. Pan Am. Production Co. v. Texas City, 303 S.W.2d 780, 781-82 (Tex. 1957)

City of Sweetwater v. Geron, 380 S.W.2d 550,552 (Tex. 1964)

stating that legislature may limit powers granted to home-rule cities by constitution if it does so with unmistakable clarity

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Stauffer v. City ofSan Antonio, 344 S.W.2d 158 (Tex. 1961), the Texas Supreme Court considered the status ofthe civil service commission ofthe City of SanAntonio

223 SW 166

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BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 13 (Tex. 2016) (section 382.113 of the Texas Clean Air Act “unmistakably expresses the Legislature’s desire to preempt any ordinance ‘inconsistent’ with the Act or with a [Commission] rule or order”); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on principle of statutory construction that the Legislature knows how to enact laws effectuating its intent).

State v. DeLoach, 458 S.W.3d 696, 698 (Tex. App.—San Antonio 2015, pet. ref’d) (“We must . . . determine whether the ordinance and the [state law] are attempting to regulate the same activity.”)

Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 531 (Tex. 2016)

Quick v. City of Austin, 7 S.W.3d 109, 123 (Tex. 1998) The power of initiative “‘is the exercise by the people of a power reserved to them, and not the exercise of a right granted.“’ GZass v. Smith, 244 S.W.2d 645,648-49 (Tex. 1951) (quoting Taxpayers ‘Ass ‘n ofHarris County v. City of Houston, 105 S.W.2d 655,657 (Tex. 1937)). The power of initiative may be limited by a city’s charter and is subject to limitations in the general law. See Glass, 244 S.W.2d at 649.

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Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 531 (Tex. 2016)

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Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641,643 (Tex. 1975)

Barrington v. Cohinos, 338 S.W.2d 133 (Tex. 1960)

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2We consider only whether the city is authorized to sponsor such a wrporation under Rate lsw. You & not ssk, and w do not address, whether the cily’s charter auIhorizes it to do so. See, e.g., Anderson Y. City of Son Antonio, 67 S.W.M 1036. 1037 (TX 1934); Levis Y. Ci(v o/Taylor, 67 S.W.Zd 1033,1034 (-Rx. 1934).

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Southwestern Tel. Co. v. City of Dallas, 131 S. W., 80; Brown v. City of Galveston, 97 Texas, 1; Smith v. Grayson County, 18 Texas Civ. App., 156; City of Houston v. Stewart, 99 Texas, 67; City of Oak Cliff v. State, 77 S. W., 24

BCCA Appeal Grp., Inc. v. City <?l Houston,'496 S.W.3d 1, 7 (Tex. 2016)

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Home-rule cities possess the "full power of local self-government." TEX. Loe. Gov'T CODE § 51.072( a). But article XI, section 5 of the Texas Constitution provides that home-rule city ordinances must not "contain any provis1on inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." TEX. CONST. art. XI, § 5(a). Thus, "[ w ]hile home-rule cities have all power not denied by the Constitution or state law, and thus need not look to the Legislature for grants of authority, the Legislature can limit or withdraw that power by general law."

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And a political subdivision may “not, by contract or otherwise, bind itself in such a way as to restrict its free exercise of governmental powers, nor [can] it abdicate its governmental functions, even for a reasonable time.” Clear Lake City Water Auth. v. Clear Lake Util. Co., 549 S.W.2d 385, 391 (Tex. 1977). Under this common-law reserved powers doctrine, “[c]ertain powers are conferred on government entities for public purposes, and can neither be delegated nor bartered away.” Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 843 (Tex. 2010) (quotation marks omitted).

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Ex parte Anderson, 46 Tex. Crim. 372, 380, 81 S.W. 973, 976 (1904)

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• Bonner v. Belsterling, 138 S.W. 571, 574-75 (Tex. 1911) ("The policy of reserving to the people such power as the recall, the initiative, and the referendum is a question for the people themselves in framing the government, or for the Legislature in the creation of municipal governments. It is not for the courts to decide that question. We are unable to see from our viewpoint how it can be that a larger measure of sovereignty, committed to the people by this method of government, and a more certain measure of securing a proper representation in any way militates against its character as a republican form of government.")

• Ex parte Farnsworth, 135 S.W. 535, 538 (Tex.Crim.App. 1911) ("Local self-government is that and that only which is provided or authorized by the Constitution, is to be found in the delegation of authority, is based on the idea of representative government, and cannot under any circumstances under our Constitution be a pure democracy. All government with us finds its initial source in the Constitution—not outside of it—and any government that is in contravention or subversive of the Constitution is necessarily vicious and void. . . . If what has been stated is correct, then the ordinance in question is void.")

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Neither, we hold, does Section 5, Art. 11, interdict retroactive legislation affecting the power of home rule cities to annex territory. The Home Rule Amendment carefully preserved the priority of general laws enacted by the Legislature over ordinances passed by home rule cities. We find nothing in the amendment which curbs the power of the Legislature to limit the annexation powers of home rule cities; and nothing, where private rights are not involved, which curbs the power of the Legislature to impose retroactive limitations. Under the general rule quoted above from Blessing, the Legislature would have the power by general law, private rights not being involved, to detach from home rule cities all territory annexed since any given time or event; and if it may do that, it certainly had the power to provide that annexation proceedings pending on March 15, 1963, should conform to the limitations imposed by Section 7, par. B of Art. 970a

Deacon v. City of Euless, 405 S.W.2d 59 (1966)

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court of appeals ex parte wilson 1883 In answer to this provision we call attention to the language of the first paragraph of Sec. 56. It is in these words : "The Legislature shall not, except as otherwise provided in this constitution, pass any local or special law" upon the subject therein prohibited- Now, in Sec. 5 of Art. II of the constitution it is provided that, "cities having more than ten thousand inhabitants, may have their charters granted or amended by special act of the Legislature," etc. This provision is of equal and binding force with Sec. 56 of Art. III; they are both parts of the constitution; are not inconsistent, but entirely harmonious, and capable of being construed together, because Sec. 56 provides that where the constitution itself prescribes a different rule from the one therein provided, its provisions shall not control to prevent the passage by special law of any act of the Legislature with regard to any of the subjects therein mentioned. The constitution does "otherwise provide" with regard to the charter of cities having more than ten thousand inhabitants, and we presume that the 452 EX PARTE WILSON. Legislature was satisfied of the fact that the city of Dallas had the requisite population, or it would not have passed the special law amending the city charter. In our opinion, the constitutional objection to the amended charter is not tenable. But it is urged against the ordinance under whi