Untitled Texas Attorney General Opinion ( 1971 )

May 21, 1971
Honorable Clyde Slavin Opinion No. M-867
County Attorney
Donley County Courthouse Re: Qualifications of annlicants
Clarendon, Texas 79226 for incorporation of a
new town pursuant io Art.
Dear Mr. Slavin: 1134, etc., V.C.S.
Your request for an opinion from this office presents
the following questions:
1. Do the applicants referred to
in Article'1134 V.A.T.S. have to reside
within the boundaries of the,proposed
town for 6 months prior to their becoming
eligible to sign the petition seeking
incorporation?
2. Does the term "inhabitants" as
used in Article 1136, V.A.T.S. refer to
the populace in general or does it make
reference only to the resident,qualified
electors resid,ingwithin the territory
sought to be incorporated?
This opinion will deal with these questions in the
order in which they are presented.
Article 1134 states that if,,theinhabitants of a
town desire to be incorporated, . . . at least 20
residents ,thereof,who would be qualified voters under
the provisions of this chapter, . . ." may file an
application with the County Judge setting forth their
desire to be so incorporated. The statute states that
the application must be signed by 20 residents who
would be qualified to vote under Article 1137, Vernon's
Civil Statutes, which specifically states that an elector
is one who has attained the age of twenty-one (21) years
and "who has resided within the limits of the proposed
town for 6 months" next proceeding any;such election
and who is otherwise qualified utider.Article5.02 of
the Election Code, Vernon's Civil Statutes. It is
quite clear that at the time the application is signed
-4213-
Honorable Clyde Slavin, page 2, (M-867)
the applicants must be qualified electors, meaning among
other things that they must have resided within the terri-
tory sought to be incorporated for at least 6 months.
Article 1136 sets forth the duties of the County
Judge in calling an election when presented with a statu-
tory petition and satisfactory proof that the town or
village contains the requisite number of inhabitants.
The word "inhabitants" as used in Chapter 11, Title 28,
of the Revised Civil Statutes of Texas, 1925, would
appear to'have but a single meaning.
Article 1133:
"Where a town or village contains
more than two hundred (200)
habitants, it may be incorporated ,'i-
a town or village . . .'
Article 1134:
"If the inhabitants of such town
or village desire to be so incorporated,
at least twenty residents thereof, who
would be qualified voters under the
provisions of this chapter, shall file
an application . . .'
Article 1136:
"If satisfactory proof is made
that the town or village contains the
requisite number of inhabitants, the
county judge shall make an order for
holding an election . . .'
The "inhabitants" of a town or village would appear
to be those persons who have established permanent resi-
dencies or domiciles in that oarticular communitv. Houston
Printing Co. v. Tennant, Texas, 120 Tex.~539, 39 S.W.2d
3.089 (1931) and would not refer merely to the "resident
qualified electors" of the town or village who would of
course be included within the term "inhabitants".
To hold that the judge must be satisfied that there
are more than 200 inhabitants who are also resident quali-
fied electors within a town or village before he can order
-4214-
Honorable Clyde Slavin page 3, (M-867)'
an election for its incorporation would be to add an
additional requirement to those set out in the statutes.
The only time the statutes call for one to be a
qualified elector is in the case of the parties petitioning
the court for such incorporation as specifically set out
in Article 1134. It would therefore seem reasonable to
assume that the legislature would have with equal clarity
included this requirement if it intended to be a part of
the requisites of Articles 1133 and 1136.
In considering the case of Dallas G. Perkins V. Reed
Ingalshe, 162 Tex. 456, 347 S.W.2d pb (1961) we must be
Careful not to infer from the court's language that an
area cannot be incorporated unless it conzai& 200 resident
qualified electors.
When the county judge is
presented with a statutory petition,
and proof satisfactory to him has been
made that the territory sought to be
incorporated contains the requisite
number of resident qualified electors,
then the county judge has no discretion
as to whether or not he will call the
election, but he must do so . . . ."
(at P. 930).
A careful reading of the case shows that the Court
used the words "resident qualified electors" to mean
"inhabitants" when it wrote the above quote.
If the area does contain 200 resident voters, then
surely the requirements of the statutes have been met,
as they would be if it were shown to the court that the
area to be incorporated contained 200 inhabitants, 20
of which are the resident qualified electors who signed
the petition for incorporation.
SUMMARY
In order to incorporate a new
town pursuant to Artic.le1134, et seq,
Vernon's Civil Statutes, the.applicants
signing the petition for incorporation
must be qualified electors and must
have resided within the area sought
-4215-
Honorable Clyde Slavin, page 4, (M-867)
to be incorporated for at least
6 months and satisfactory proof
must be shown the County Judge
that the area contains more than
200 inhabitants. In this connection,
the term "inhabitants" as used
in the statutes does not mean
"resident qualified electors",
though an "inhabitant" might also
be a qualified elector
i/3
Prepared by Robert B. Davis
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Austin Bray
Scott Garrison
Bill Corbusier
Fred E. Davis
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
-4216-