Select Page

State and Local Government Law
South Texas College of Law Houston
Festa, Matthew J.





I. Focus Topics (Class notes cover very well)

a. Const’l Limits of the Authority of States over Local Governments & Hunter pg. 28 – 37

b. Progressive Era History of State & Local Government Reform

c. Equal Protection pg. 38 and Due Process pg. 40 – Start pg. 37

d. Differences between Federal and State Law Conceptions of the Doctrine

II. Expanded

a. Federal Government pg. 3

i. Government of limited power as defined by Constitution with no express constitutional authority to intervene or participate in state or local government matters

ii. Exercise over state and local government via Congress comes from:

i. Spending power

ii. Power to regulate interstate commerce

iii. Power to adopt laws to implement 14th Amendment

iii. The Politics of federal intervention – change over history

i. Changing demographics has altered the way Congress spends on state and local – aide has restructured to reduce federal influence

iv. Affect of Federal financial assistance on state and local government

i. States must designate a single agency to administer federal assistance

ii. Local government – also have special units with statutory and fiscal power to administer federally aided programs.

iii. Affects state and local budgets and spending priorities

a. Ex: Civil rights, equal opportunity, minimum wage, maximum hour requirements

b. State Government

i. Structure and Function – Similarities and Differences from Fed

i. Difference

a. State has plenary, not limited authority

b. Possess full residual authority of governmental power, which they delegated up to federal government in the federal Constitution, and which they can delegate down to local governments through state constitution and state statues

c. See. Pg. 4 paragraph for examples

d. Must less centralized – Pres v. Governor (bottom pg. 4)

i. State governors usually weaker than President

i. Note: Governors can line item veto budget items passed by legislature (unlike Pres)

ii. Major reforms have strengthened governors

e. State Legislatures

i. Legislature leadership is critical and many times they have more power than their congressional counterparts and committee chairs

f. Power shift from state to federal government

ii. State Constitution

a. Difference from federal constitution pg. 5 bottom

i. Limited v. plenary

ii. More specific – listing of requirements and delegated authority affects the authority of state legislators to enact laws

iii. Do not need to draw authority from state constitution – but they can specify how delegated authority can be exercised

b. Similar

i. Prescribe basic government structure for state, delegate authority to state legislature and provide for organization of local governments

c. Home Rule Provision

i. State constitution specify powers of local governments, usually through home rule provision that confers home rule authority on local governments that adopt charters

c. State Government – Legislative Power: Grant v. Limitation (More similarities and differences)

i. Problem – Deals with population discrimination – See later chapter

ii. Role of State Constitutions as a limit on the state legislature

i. Utah School Boards Assoc v. Utah State Board of Ed pg. 8-13

a. Constitution’s failure to describe the full extent of leg’s power is critical to the result

iii. Notes and Questions pg. 13

i. The power of plenary legislative power

a. Important principles

i. State legislatures have plenary power

ii. Grant of power from the state constitution is not necessary

iii. State constitution is only a limit on legislative power

b. Two types of Constitutional provisions when considering limitations in a state constitution on state legislative power

i. Explicit delegation of legislative authority

ii. Limitation on how legislative authority can be exercised – not delegation of legislative authority

ii. Expressio Unius

a. Holds that a delegation of authority must be found within the statute – mention of one thing implies the exclusion of another

b. Not applied to state constitution

iii. Conflicts in agency jurisdiction

a. Limit-not-grant rule/Limitation v. Grant Doctrine

i. Often applied to conflicts in jurisdiction between state agencies

ii. Doctrine does not need to find constitutional authority for a statute, but only need to determine whether it “clearly violates” a constitutional prohibition

b. Note: Later chapters review traditional rule that courts must strictly construe statutory authority delegated to municipality corporation

c. Also an issue under constitutional home rule provisions (See Chap 3)

iv. Qualifications for Office pg. 15

a. Most courts hold legislature may not add qualifications for office

v. Debt Limitations

a. Principle that state legislature power is plenary except for special constitutional prohibitions has served to support validity of financing methods that do not fit constitutional mold

iv. Other constitutional limitation on state legislation – Delegation of Power and Special Legislation (See Chap 9)

i. Delegation of Power

a. Implicit constitutional limitation – prohibits delegation of legislative power to non-legislative agencies

b. State Delegation to State administrative agency

i. Carry out program authorized by state (ex: financial support to population over 1 million)

ii. Rule – Legislature has unconstitutionally delegated legislative power to the Dept unless the statute contains adequate standard to guide Department’s exercise of authority

c. State Delegation to State Courts

i. Occurs when authority delegated to courts to decide whether municipality incorporation or annexation by municipality can occur

ii. Rule – Unconstitutional unless adequate standards are provided for exercise of judicial authority

d. State Delegation to local governments

i. Usually treated as an exception to the doctrine that state legislatures may not delegate legislative authority w/out adequate standards

e. Delegation of legislative authority within local governments

ii. Special Legislation

a. Uphold only if there is a reasonable basis for classifying the favored class of local governments differently from others. Review classification of local governments under special legislation clause similarly to the way they review legislative classification under an equal protection clause

d. State Government – Local Government

i. Types

i. Counties

ii. Municipality

iii. Township

iv. Special Districts

v. School Districts

vi. Local Government Trends

a. Stability in numbers of most local governments; exception, rapid growth in special districts

ii. Notes and Questions

i. Historical Context

a. Explanation of the trend from the beginning until today.

b. Reviews vertical v. horizontal

ii. Regional Variations

e. State Government – How Municipalities are Governed

i. Evolution of municipalities pg. 24-25

ii. Note and Questions

i. Governing the City

ii. Who governs?

a. City manager or chief administrative officer.

b. Mayor varying powers

i. Is he elected?

ii. Does he have veto power over legislation?

f. Sources of Local Government Authority

i. Legal status of local governments

i. Any powers local governments possess must be delegated by the state, either by state statute or by constitutional home rule provisions (chap 3)

ii. Counties and townships

a. Key to legal status lies in their status as organized municipality corporations

b. History – Important point that municipality corps, unlike private corps, were subject to state control and domination. Municipality corps have dual status that distinguishes their public and proprietary dimension. Occurs for the first time in the Hunter decision.

iii. Statutes and Charters

a. State control over municipality corps is exercised via states and charters, all municipality power must find its source in either type of delegation. Local governments are governments of grant, not limitation.

b. Delegate authority to local governme

iii. DP

i. Substantive element of due process requires legislation to advance a legitimate government interest

a. Ex: Whether a program of public spending serves a public purposes and whether a statute licensing trades and professions is constitutional

iv. Fed Constitution – EP pg. 38

i. Rational

ii. Intermediate

iii. Strict

v. Fed Constitution – Substantive DP pg. 40

vi. State Constitutions

i. Baker v. State pg. 42 – 49

vii. Notes and Questions

i. State Court – Independent State Constitutional jurisprudence

ii. Approaches in applying state constitutional

a. Lockstep

i. Does not give state constitutions an independent interpretation

b. Primacy

i. Court goes on to examine fed Constitution, if right is protected under state constitution and applies the fed constitution if the right is not protected under state law

c. Interstial

i. Party must fairly invoke ruling that our constitution provides greater protection that counterpart

ii. Test pg. 50

iii. Baker and same-sex marital issues

viii.Whether an Independent State Constitutional Law is justified or Necessary pg. 51

i. Problem 1-3


ii. Also note, pg. 54 #3 – another example of EP and DP


I. Professor Festa Focus

a. Parts A and B (judicial review and incorporation/annexation)

b. Special districts

c. Home rule by lecture

II. Book Notes

a. Part A – Judicial Review pg. 58

b. Part B – Municipality Incorporation and Annexation pg. 71

i. Incorporation pg. 71

i. Definition – process of creating a new local government

ii. Annexation pg. 76

i. Definition – process of adding land area to an existing local government

c. Special Districts pg. 91

III. Fleshed out notes

a. Annexation and Incorporation

i. Interests at stake

i. Primary parties

a. Incorporation – Group of property owners who initiate incorporation proceedings

b. Annexation – municipality that begins annexation proceedings or adjacent landowner who petitions for annexation

ii. Those living within or adjacent to area in question – concerned that it will adversely affect their land

iii. Other governments in area – b/c lose tax base, zoning, or other regulatory controls.

ii. Major Theme of Chapter

i. Major question – how to compare the advantages and disadvantages of leaving an area unincorporated, allowing the incorporation or annexation that is proposed, or encouraging annexation by another municipality

iii. Incorporation and Annexation Procedures

i. Rare – Done through act of legislature

ii. Incorporation

a. Typically via procedures at local level authorized by general enabling legislation. Pg. 57

iii. Annexation

a. See 2 methods on pg. 57

iv. Incorporation and Annexation Standards

i. Extent statutes provides standards greatly varies

a. Determines amount of control to be exercised over substantive issues involve in incorp or annexation by local officials or courts

ii. Judicial Review Minimal

iii. Comprehensive statutory standards

a. i.e. Annexation must be necessary or in public interest

b. Test – In these states courts must decide what standards mean and how to apply them – see next section on judicial review