Could Dickinson repeal its adoption of the general-law city statutes and return directly to its former village status?

Texas AG Opinion JM-169: Dickinson Village Status

Plain-English summary

JM-169 concluded that Dickinson validly changed from a chapter 11 village to a municipality governed by chapters 1 through 10 of former Title 28. After that change, its governing body could not restore village status merely by repealing the adopting ordinance.

"Once chapter 1-10 towns have been established, however, they have no corresponding power to revert to chapter 11 status."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

The attempted reversion was legally ineffective because the legislature had supplied no procedure for it.

"Since there is no legislatively permitted procedure allowing such a reversion to chapter 11 status, the vote was a nullity."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

Dickinson could become a village again only by dissolving its current corporation and reincorporating under the village statute.

"Dickinson can become a village again only by dissolving its present corporation pursuant to article 1241, V.T.C.S., and reincorporating under article 1133, V.T.C.S."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

Currency note

This opinion was issued in 1984. 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

What had Dickinson's board done in 1982?

The board unanimously adopted chapters 1 through 10 of Title 28 as its governing law and filed the ordinance with the county clerk.

"In 1982, the village board of aldermen unanimously passed an ordinance adopting chapters 1-10 of Title 28 as its governing body of law (rather than chapter 11) and filed it of record with the Galveston county clerk."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

What was the later board trying to accomplish?

It passed an ordinance purporting to repeal the earlier ordinance and return Dickinson to village status.

"Subsequently, you advise, a newly elected board of aldermen passed an ordinance purporting to repeal the previous ordinance and thereby return Dickinson to 'village' status."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

What effect did the original adoption have?

It ended Dickinson's existence as a chapter 11 entity and immediately made it a municipality organized under chapters 1 through 10.

"When it did, the village of Dickinson, ipso facto, ceased to exist as a corporate entity authorized by chapter 11, and instantly became one organized under chapters 1 through 10."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

Did article 961 require an ordinance?

No. JM-169 said a resolution could apparently suffice, but an ordinance also served so long as the governing body acted by a two-thirds vote.

"Although article 961, V.T.C.S., would apparently allow the adoption of chapters 1-10 by resolution rather than by ordinance, it requires only that the action be taken by a two-thirds vote of the governing body. An ordinance will serve."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

Did a defect in the meeting record undo the change?

The board's action, not its evidentiary record, caused the transformation, and minutes could be corrected to speak the truth.

"It is the action of the board, not the evidence or record thereof, that accomplishes the transformation of the municipality from one category to another."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

"Minutes of the meeting can be corrected to make them speak the truth."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

Could article 1011's ordinance-repeal power rescind the change?

No. Once adoption was complete, the municipal reorganization could not be rescinded.

"As discussed above, once the adoption of chapters 1-10 was complete, the action taken could not be rescinded."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

Background and legal framework

The opinion described both chapter 11 villages and chapters 1-through-10 towns as general-law municipalities, distinct from home-rule cities.

"Municipal corporations organized under either set of provisions are broadly considered 'general law cities' to distinguish them from 'home rule' cities that are organized pursuant to article XI, section 5, of the Texas Constitution."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

General-law cities possessed only powers conferred by the legislature, and substantial doubts about municipal authority were resolved against the municipality.

"[A] general law city can exercise only those powers that are expressly or impliedly conferred by law, and any substantial doubt about such authority is resolved against the municipality."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

Holding

"The city of Dickinson currently has the legal status of a town or city operating under chapters 1 through 10 of Title 28 of the Revised Civil Statutes, and may not revert to village status under chapter 11 thereof. To regain village status, it must dissolve its present corporation and reincorporate as a village."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0169
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0169.pdf

Original opinion text

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

The Attorney General of Texas

JIM MATTOX
Attorney General

June 18, 1984

Honorable Michael J. Guarino
Criminal District Attorney
Galveston County
405 County Courthouse
Galveston, Texas 77550

Opinion No. JM-169

Re: Whether a village which has become a town pursuant to article 961, V.T.C.S., may revert to village status, and related questions

Dear Mr. Guarino:

You have posed several questions about the legal status of Dickinson, Texas, which was originally incorporated as a village pursuant to chapter 11, Title 28, of the Revised Civil Statutes, article 1133, et seq., V.T.C.S. In 1982, the village board of aldermen unanimously passed an ordinance adopting chapters 1-10 of Title 28 as its governing body of law (rather than chapter 11) and filed it of record with the Galveston county clerk. Subsequently, you advise, a newly elected board of aldermen passed an ordinance purporting to repeal the previous ordinance and thereby return Dickinson to "village" status. Your questions concern the effect of the ordinances.

Texas statutes allow the incorporation of a community under chapter 11 if the number of inhabitants is more than two hundred but less than ten thousand. V.T.C.S. art. 1133. A town so incorporated (which may be called a "village" instead of a "town" without diminishing its powers) becomes "invested with all the rights incident to such corporation under this chapter" [chapter 11]. V.T.C.S. art. 1140. Towns incorporated under chapter 11 have powers more limited than those organized under chapters 1 through 10 of Title 28 (which may be called "cities" instead of "towns" without enlarging their powers). V.T.C.S. art. 1153. Towns established under chapters 1-10 are also subject to different organizational requirements. See City of Waxahachie v. Brown, 4 S.W. 207 (Tex. 1887); Chandler v. Sisk, 315 S.W.2d 87 (Tex. Civ. App.—San Antonio 1958, writ ref'd n.r.e.).

Municipal corporations organized under either set of provisions are broadly considered "general law cities" to distinguish them from "home rule" cities that are organized pursuant to article XI, section 5, of the Texas Constitution, because home rule cities possess greater powers. V.T.C.S. art. 1165. See Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948). Unlike home rule cities, general law cities have only those powers given them by the legislature.

The legislature has given villages organized under chapter 11, if they have 600 or more inhabitants, the power to choose to become towns governed by chapters 1-10. V.T.C.S. art. 961; Been v. Town of Vidor, 440 S.W.2d 676 (Tex. Civ. App.—Beaumont 1969, writ ref'd n.r.e.); Lusby v. Cozby, 402 S.W.2d 799 (Tex. Civ. App.—Dallas 1966, no writ). Once chapter 1-10 towns have been established, however, they have no corresponding power to revert to chapter 11 status.

Article 961 granted an incorporated city, town, or village containing at least six hundred inhabitants power to accept the provisions relating to cities and towns in lieu of an existing charter by a two-thirds council vote at a regular meeting, entry in its journal, and filing a signed and attested copy with the county clerk. It further provided that the Title 28 provisions would then be in force, prior incorporating acts would be repealed, and the municipality would thereafter be known as a city or town subject to the title.

We believe it is clear that the board of aldermen possessed the authority to accept for the village the benefits and responsibilities of chapters 1 through 10 of Title 28. When it did, the village of Dickinson, ipso facto, ceased to exist as a corporate entity authorized by chapter 11, and instantly became one organized under chapters 1 through 10. V.T.C.S. art. 962; Lusby v. Cozby, supra at 803.

When the vote was taken that purported to return Dickinson to chapter 11 status, the town had already become a municipal corporation controlled by chapters 1 through 10 of Title 28. Since there is no legislatively permitted procedure allowing such a reversion to chapter 11 status, the vote was a nullity. See Lum v. City of Bowie, 18 S.W. 142 (Tex. 1891); Largen v. State ex rel. Abney, 13 S.W. 161 (Tex. 1890). Cf. Harness v. State, 13 S.W. 535 (Tex. 1890). A general law city can exercise only those powers that are expressly or impliedly conferred by law, and any substantial doubt about such authority is resolved against the municipality.

It is the action of the board, not the evidence or record thereof, that accomplishes the transformation of the municipality from one category to another. Lusby v. Cozby, supra. Minutes of the meeting can be corrected to make them speak the truth. Although article 961, V.T.C.S., would apparently allow the adoption of chapters 1-10 by resolution rather than by ordinance, it requires only that the action be taken by a two-thirds vote of the governing body. An ordinance will serve.

Once the adoption of chapters 1-10 was complete, the action taken could not be rescinded. Ordinance 63-82 could not be rescinded, and rescinding it would not return Dickinson to village status.

Dickinson can become a village again only by dissolving its present corporation pursuant to article 1241, V.T.C.S., and reincorporating under article 1133, V.T.C.S. Lum v. City of Bowie, supra at 144.

SUMMARY

The city of Dickinson currently has the legal status of a town or city operating under chapters 1 through 10 of Title 28 of the Revised Civil Statutes, and may not revert to village status under chapter 11 thereof. To regain village status, it must dissolve its present corporation and reincorporate as a village.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood