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Carlos B. Lopez, Constable

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Bruce Elfant

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Constable's Notebook - July 2010

In 1836 the newly formed Republic of Texas established 23 counties based on petitions filed by “at least 100 free male inhabitants of the territory” containing at least 900 square miles. According to the Republic of Texas Constitution, counties were created to “provide a court system “within a day’s horseback ride of the county seat and be responsible for roads and care for the indigent and education.”

Travis County was established by the Republic of Texas in 1840 on about 40,000 square miles of what was then Bastrop County just days after the community of Waterloo had been renamed Austin and designated the capital city. Today Travis County consists of about 989 square miles. In 1845, when Texas joined the United States, the Legislature established 36 counties but failed to clearly establish their authority. During Reconstruction following the Civil War, Texans were distrustful and even fearful of strong centralized government so the Constitution of 1876 required that each county have a Commissioners’ Court. Four commissioners and a county judge served as the administrative body for the county. But as a check on Commissioners’ Courts authority, other county officers including sheriffs, tax assessors, county and district clerks, treasurers, constables and justices of the peace were to be elected. District judges were directed to appoint county auditors to ensure their independence. The expectation was that counties would be governed by relative consensus and if that failed the voters could choose a new team.

Today the 254 counties of Texas range from Harris County with a population that exceeds 3.5 million people, to Loving County, the smallest in the nation with 65 residents. Since the first 23 Texas counties were formed 174 years ago, Texas’ population has increased from a few hundred thousand to more than 25 million residents. Much of that growth continues to spread into unincorporated areas of counties and is creating many of the same issues and conflicts that cities have struggled with for generations. Unlike cities which have the authority to pass local ordinances to manage health and safety issues, land use, construction, fire and water, etc. counties have almost none of the regulatory tools that have been granted to cities. In fast growing areas such as Central Texas it is common for zoning and health and safety codes to exist on one side of a street within the city limits or ETJ but not on the other side of the street.

The lack of county regulatory authority was not a problem a hundred years ago, long before urban sprawl spilled out into the countryside. But today it makes no sense that in identical neighborhoods and sometimes the same neighborhoods, counties don’t have the same authority to enact ordinances to make buildings safer and more fireproof, regulate the use of limited water resources or limit construction site water runoff into creeks, etc. The Texas Legislature should provide counties similar authority to address health and safety issues and manage growth. Just as is the case with cities, the decisions made regarding whether or how to use this authority will rest with local elected officials and ultimately the voters.



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