Our office has consistently construed this limitation to mean that "'[a] city is preempted from regulating in a field if the city's regulation is expressly prohibited, if the legislature intended state law to exclusively occupy that field, or if the city regulation conflicts with the state law even if state law is not intended to occupy that field.'" Tex. Att'y Gen. Op. No. JM-737 (1987) at 2 (quoting Tex. Att'y Gen. Op. No. JM-619 (1987) at 1); see also City of Lubbock v. South PlainsHardware Co., 111 S.W.2d 343, 345 (Tex.Civ.App.-Amarillo 1937, no writ) (citing City of Beaumont v. Fall, 291 S.W. 202 (Tex. 1927)) ("[C]ities [are] prohibited from enacting local laws which are directly in conflict with statutory or constitutional provisions, [and] from entering a field of legislation which has been occupied by general legislative enactments."); Tex. Att'y Gen. Op. No. JM-994 (1988) at 2; Tex. Att'y Gen. LO-92-030, at 3. Both Texas courts and this office recognize that the "'mere fact that the legislature has enacted a law addressing a subject does not mean the complete subject matter is completely preempted.
R., 190 S.W. 724; City of Houston v. City of Magnolia Park, 115 Tex. 101, 276 S.W. 685; City of Sherman v. Municipal Gas Co., 133 Tex. 324, 127 S.W.2d 193; City of Houston v. State, 142 Tex. 190, 176 S.W.2d 928; Smith v. City of Austin, Tex.Civ.App., 212 S.W.2d 947. The appellees cite City of Lubbock v. South Plains Hardware Co., Tex.Civ.App., 111 S.W.2d 343; but that case is easily distinguished, because in it the city ordinance provided for a lien to attach to all property owned January 1st "and that which was subsequently acquired," whether assessed or not; and it undertook to extend the tax lien to property not included in the assessment. Our conclusion is that Section 194 of the Dallas charter fixes a lien on personal property actually within the City on the specific date; and that the City has such a lien for its taxes, which was preserved in bankruptcy, but that payment of the claim therefor is required to be postponed until payment of the debts specified in clauses (1) and (2) of subdivision a of Section 104 of Title XI of the United States Code Annotated.
If the charter and ordinance claims are not in conflict with the statutory provisions of the State of Texas, the City will be correct; but where such provisions of the City charter or ordinance, as applied, are in conflict with the provisions of the state laws, they are invalid. Prescott v. City of Borger, Tex.Civ.App., 158 S.W.2d 578; City of Lubbock v. South Plains Hardware Co., Tex.Civ.App., 111 S.W.2d 343; City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202; Mission Independent School District v. Armstrong, Tex. Com.App., 222 S.W. 201. In discussing Article 1060 (which was then 958), the Supreme Court, in the Mission Independent School District case, supra, states [222 S.W. 202]: "As article 958 does not fix a specific date when the lien given therein shall attach; and in the absence of a specific date, the lien thus created attached and became an encumbrance upon the property as soon as the assessment was made."
For instance, in City of Lubbock, the city of Lubbock claimed to have created by ordinance a floating tax lien over subsequently acquired property. City of Lubbock v. S. Plains Hardware Co., 111 S.W.2d 343, 345 (Tex. Civ. App.—Amarillo 1937, no writ). The district court determined that the city's tax claim against the furniture and fixtures of the corporation in receivership were recognized liens, but that the city had no lien against the merchandise of the corporation because the city could not show that the merchandise was owned by the corporation on the date that the taxes due were levied.
A city is prohibited, not only from enacting local laws in direct conflict with statutes or constitutional provisions, but also from entering a field of legislation which has been occupied by general legislation. City of Lubbock v. South Plains Hardware, 111 S.W.2d 343 (Tex.Civ.App.-Amarillo 1937, no writ). Any reasonable doubt as to the existence of a power is resolved by the courts against a city.
Typical of instances in which the courts have considered the problem of consistency between general laws enacted by the Legislature and provisions of home rule charters are the decisions in these cases: Allen v. City of Austin, 116 S.W.2d 468 (Tex.Civ.App. Austin 1938, writ ref.); State v. Self, 191 S.W.2d 756 (Tex.Civ.App. San Antonio 1945, no writ); City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202 (1927); Xydias Amusement Co. v. City of Houston, 185 S.W. 415 (Tex.Civ.App. Galveston 1916, writ ref.); Temple Independent School District v. Proctor, 97 S.W.2d 1047 (Tex.Civ.App. Austin 1936, writ ref.); City of Lubbock v. South Plains Hardware Co., 111 S.W.2d 343 (Tex.civ.App. Amarillo 1937, no writ); Prescott v. City of Borger, 158 S.W.2d 578 (Tex.Civ.App. Amarillo 1942, writ ref.). Even if the Special Act which created the Authority could be termed a "general law," we find nothing in the Act to indicate with unmistakable clarity that the Legislature intended to withdraw from home rule cities the delegated power to fix utility rates within the limits of the cities.
It is well established that cities are precluded by this constitutional provision and by statute Art. 1165, Vernon's Ann.Tex.St., from entering a field of legislation which has been occupied by general legislative enactments. Prescott v. City of Borger, Tex.Civ.App., 158 S.W.2d 578, writ ref.; Xydias Amusement Co. v. City of Houston, Tex.Civ.App., 185 S.W. 415, writ ref.; City of Lubbock v. South Plains Hardware Co., Tex.Civ.App., 111 S.W.2d 343, no writ hist. When the legislature enacted Art. 1111c — 1, Texas Penal Code, it entered a field of legislation previously covered by the ordinance enacted by the governing authority of the City of Baytown.
Articles 4668 and 633a in unambiguous language prohibited the operation of pool halls in the State of Texas. The City's Ordinance No. 132 by undertaking to permit the operation of a pool parlor upon payment of a license fee, was in direct conflict with Art. 4668, V.A.C.S. and Art. 633a, Penal Code. The ordinance was therefore void when enacted. Constitution of Texas, Art. 11, Sec. 5, Vernon's Ann.Civ.St. Art. 1165, V.A.C.S.; City of Wink v. Griffith Amusement Co., 129 Tex. 40, 100 S.W.2d 695, 698 (1936); City of Corpus Christi v. Texas Driverless Co., 144 Tex. 288, 190 S.W.2d 484 (1945); City of Fort Worth v. McDonald, 293 S.W.2d 256 (Tex.Civ.App., Fort Worth 1956, writ ref'd n.r.e.); City of Fort Worth v. Atlas Enterprises, 311 S.W.2d 922 (Tex.Civ.App., Fort Worth 1958, writ ref'd n.r.e.); City of Austin v. Clendennen, 323 S.W.2d 158 (Tex.Civ.App., Austin 1959, writ ref'd n.r.e.); Prescott v. City of Borger, 158 S.W.2d 578 (Tex.Civ.App., Amarillo 1942, writ ref'd); City of Lubbock v. South Plains Hardware Co., 111 S.W.2d 343 (Tex.Civ.App., Amarillo 1937, no writ); 39 Tex.Jur.2d 601. In 1963 the Legislature amended Title 122A, Taxation — General, Art. 19.01 by adding Section 10; and in doing so expressly repealed Articles 4668, V.A.C.S. and 633a, Penal Code. But the repeal itself alone could not breathe life in Ordinance No. 132, which was born dead — void Ab initio because it was in direct conflict with the above cited constitutional and statutory provisions and judicial authority.
In our opinion that portion of the City of Lubbock's Zoning Ordinance which places the strip in a C or residential zone is in conflict with appellants' authority to select and use the strip as their right of way. City of Beaumont v. Fall et ux., 116 Tex. 314, 291 S.W. 202; City of Lubbock v. South Plains Hardware Co. et al., Tex. Civ. App. 111 S.W.2d 343; Prescott v. City of Borger et al., Tex. Civ. App. 158 S.W.2d 578, writ refused. The Building Code of the City of Lubbock, section 201, provides, "No person shall erect or construct or proceed with the erection or construction of any building or structure nor add to * * * extend or demolish any * * * structure * * * without first obtaining a building permit. * * *" In section 401, chapter 4, part 2, structure is defined as "that which is built or constructed * * * or any piece of work artificially built up or composed of parts joined together in some definite manner."
It is well established law in this state that, generally, the governing authorities of cities are prohibited by the Constitution, Art. 11, Sec. 5, and the statutes, Art. 1165 et seq., R.C.S. 1925, Vernon's Ann.Civ.St. art. 1165 et seq., from entering a field of legislation that has been occupied by general legislative enactments. Xydias Amusement Co. v. City of Houston et al., Tex. Civ. App. 185 S.W. 415; City of Lubbock v. South Plains Hardware Co., Tex. Civ. App. 111 S.W.2d 343. The article of the Constitution above cited provides that no city charter or ordinance passed thereunder shall contain any provision inconsistent with the constitution or general laws of the state and the identical language expressed in the constitution was, by the Legislature, brought forward in Art. 1165 of the Revised Civil Statutes.