One is the Loneliest Number: Is a law that applies to a single Texas city or county constitutional?

In February 2021, the cities of McAllen and Pharr filed a lawsuit against the State of Texas and the Texas Secretary of State, claiming a state law that requires them to surrender control of the May election to the county is an unconstitutional “local or special law.” Cause No. D-1-GN-21-000489, Travis County.

Voters submitted petitions to McAllen and Pharr in December, triggering a little-known provision of the Texas Election Code that requires municipalities and school districts to relinquish control of their elections to Hidalgo County if they receive a petition signed by just 1% of the registered voters who cast ballots in the last general election held by the municipality or school district.

According to the Plaintiffs' amended petition, only 1,907 people voted in the last city election in McAllen. That means just 20 signatures were needed to force McAllen to hand over control of their elections to the county. In Pharr, only 28 signatures were needed.

The challenged law—Tex. Elec. Code § 31.0925—is applicable only to a county with a population of at least 500,000 people that does not have a city with more than 150,000 residents and that is served by an elections administrator. Hidalgo County is the only county in Texas that meets all three requirements.

McAllen and Pharr claim that Tex. Elec. Code § 31.0925 is an unconstitutional “local or special law.” Article III, section 56, of the Texas Constitution prohibits the Legislature from passing what are generally referred to as “local or special laws” affecting certain specified subjects or areas. A local or special law is, in general, applicable only to a defined geographical territory or a limited classification—often by population.

A law is not necessarily unconstitutional merely because its scope is limited to a defined geographical area or class, and a law that is general in nature is not void merely because it only affects one city or county at the time of its passage.

However, a statute is a prohibited local or special law if—at the time of its enactment—the classification by population is based entirely on existing circumstances and the application of the statute is “closed” to other local units in the future. For example, courts have held that statutes were prohibited local or special laws under the following circumstances:

• Statute permitted a special tax to promote tourism and development in counties with populations of 25,000-175,000 and that contained a city of at least 90,000 inhabitants. The Texas Supreme Court held that there was not a substantial reason for the classification and that it was an arbitrary legislative device, which at the time of its enactment, was applicable only to El Paso and would continue to be so for five years until the next federal census. Miller v. El Paso County, 136 Tex. 370, 372, 150 S.W.2d 1000 (1941).
• Statute authorized the commissioners court of any county with a population of more than 1.5 million to regulate water and sewer rates of private water companies under certain circumstances. The court held that it was unconstitutional in that it could only apply to and, thus, was limited in application to Harris County for the one-year period of its duration. Suburban Utility Corp. v. State, 553 S.W.2d 396 (Tex. Civ. App. Houston 1st Dist. 1977), writ refused n.r.e., (Nov. 30, 1977).

Similarly, the attorney general has ruled that a statute applicable to any city with a population between 215 and 217 was an unconstitutional special law. When it was enacted, the law applied only to the town of Montgomery, which had a population of 216 in 1970. “[B]y confining the act’s population classification to the 1970 federal census, the legislature permanently closed the class of municipalities which could come within the classification at any time in the future. This renders the act a local or special law,” the attorney general opined. Op. Tex. Att’y Gen. No. JM-750 (1987).

By comparison, a Texas court upheld a statute relating to a firemen and policemen pension fund in cities of more than 275,000 and less than 300,000 and that was applicable only to the city of El Paso, because, irrespective of whether the statute affected only El Paso at time of its passage, any number of cities could qualify under the same statutory provision. Gould v. City of El Paso, 440 S.W.2d 696, 700 (Tex. Civ. App.—El Paso 1969, writ ref’d n.r.e.). And a Texas court upheld a statute applicable to cities over 150,000 located in a county over 205,000, because the statute “has elasticity and is not one which could never apply to a city not qualified at the time of the passage of the statute.” City of San Antonio v. State ex rel. Criner, 270 S.W.2d 460, 462 (Tex. Civ. App.—Austin 1954, writ ref’d).

Unfortunately, legal challenges to city statutes complaining that they constitute prohibited local or special laws are rarely successful. Courts generally defer to the discretion of the Legislature in making classifications for legislative purposes. Thus, it’s important for municipalities and counties to be involved in the legislative process and to engage in advocacy where legislation will affect their jurisdiction specially.

March 9, 2021 update:

The Travis County District Court denied a request from the cities of McAllen and Pharr to issue a temporary injunction. Although the temporary injunction was not granted, the McAllen City Attorney says the city is not making any preparations to turn over its May 2021 general election to Hidalgo County. The Texas Secretary of State says it has no authority to enforce section 31.0925 against the cities. If the cities refuse to turn over their elections to the county, they are subject to a lawsuit for declaratory or injunctive relief under sections 273.061 or 273.081 of the Texas Election Code.