Untitled Texas Attorney General Opinion ( 2006 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 3 1.2006
The Honorable J. Keith Meredith Opinion No. GA-0478
Freestone County and District Attorney
118 East Commerce, Room 305 Re: Authority of a Type A general-law
Fairfield, Texas 75840 municipality to annex land outside its
extraterritorialjurisdiction (RQ-0480-GA)
Dear Mr. Meredith:
You ask us to construe two sections of the Local Government Code that pertain to municipal
annexati0n.r Specifically, you ask
1) Whether a Type A General-Law Municipality may annex land
outsideofits extraterritorialjurisdictionpursuant to [sections] 42.021
and 43.051of the [Texas Local Government Code.]
2) Additionally, whether a Type A General-Law Municipality may
engage in strip annexation of land that is less than [] 1,000 feet m
width to include certain highways that run adjacent and contiguous to
the Municipality pursuant to [sections] 43.054 and 43.0545 of the
[Texas Local Government Code.]
Request Letter, supra note 1, at 1,
You inform us that the City of Wortham, Texas (the “City”) is a Type A general-law
municipality with a population of 1,082 inhabitants. See id.; see also U. S. CENSUS BUREAU,
POPULATION FEWER (population of Wortham is 1,082 according to 2000 Census of Population),
available at http://wv.w.census.gov/ (last visited Sept. 22., 2006). You also inform us that the City
adopted an ordinance annexing territory consisting ofroadwayrights-of-way and that nearby citizens
have complained of increased municipal police activity along the roadways. See Request Letter,
supra note 1, at l-2. In connection with these complaints, ‘you pose your questions. See id.
‘Letter from Honorable J. Keith Meredith, Freestone County and District Attorney, to Honorable Greg Abbott,
Attorney General of Texas (Apr. 13,2006) (on file with the Opinion Committee, also available at http://www.oag
.state.k.us) [hereinafter Request Letter].
The Honorable J. Keith Meredith - Page 2 (GA-0478)
I. Extraterritorial Jurisdiction Limits on Annexation
As a Type A general-law municipality, the City may exercise only the authority specifically
given to it by the legislature. See City ofSoccor~o v. U.S. Fireworks ofAm., Inc., 842 S.W.2d 779,
780 n.1 (Tex. App.-El Paso 1992, writ denied). Chapter 43 oftheTexas Locai Government Code
governs municipal annexation. See generally TEX. LOC. GOV’T CODE ANN. ch. 43 (Vernon 1999
& Supp. 2006). Many sections of chapter 43 authorize a Type A general-law municipality to annex
territory. See id. 5 5 43.024 (Vernon 1999) (authorizing annexation on request of area voters), 43.026
(authorizing annexation of territory owned by municipality); see also id. $5 43.033, .034 (Vernon
Supp. 2006). Irrespective of which specific grant of authority a municipality operates under, a
municipality, including a Type A general-law municipality, is authorized to annex territory it does
not own only ifthe territory is in the municipality’s extraterritorial jurisdiction. Id. 5 43.05 1 (Vernon
1999).
Extraterritorial jurisdiction (“ETJ”) is the “unincorporated area that is contiguous to the
corporate boundaries of the municipality.” Id. 5 42.021. The size of the ETJ depends on the
municipality’s population. See id. The ETJ~ of a city with a population of “fewer than 5,000
inhabitants,” such as the City, extends within one-half mile of the boundaries of the municipality.
Id. Thus,~under sections 42.021 and 43.05 1, the City is authorized to annex only territory currently
in its one-half mile ETJ. To the extent the City’s annexation ordinance attempts to annex territory
outside its ETJ, the ordinance goes beyond the City’s authority and is void. See Deacon v. City of
Euless, 405 S.W.2d 59, 64 (Tex. 1966) (instructing the trial court on remand that annexation of
territory exceeding the statutory size limitations is void); see also City of Port Isabel v. Pinnell, 161
S.W.3d 233, 239 (Tex. App.-Corpus Christi 2005, no pet.) (recognizing allegation that city’s
annexation of territory outside the city’s ETJ, if true, would render annexation void).
II. Limitations on Strip Annexation
You inform us that the territory annexed by the City is narrower than 1,000 feet and inquire
about the limitations on strip annexation in sections 43.054 and 43.0545 of the Local Government
Code. See Request Letter, supra note 1, at 3. You suggest that aspects of the two sections are in
conflict and ask us to reconcile them. See id.
Section 43.054 provides that a municipality “may not annex a publicly or privately owned
area, including a strip of area following the course of a road, highway, river, stream, or creek, unless
the width of the area at its narrowest point is at least 1,000 feet.” TEX. LOC. GOV’T CODE ANN.
§ 43.054(a) (Vernon Supp. 2006). This prohibition does not apply if:
(1) the boundaries of the municipality are contiguous to the area on
at least two sides;
(2) the annexation is initiated on the written petition of the owners
or of a majority of the qualified voters of the area; or
The Honorable J. Keith Meredith - Page 3 (GA-0478)
(3) the area abuts or is contiguous to another jurisdictional boundary.
Id. 5 43.054(b). You suggest that subsection 43.054(b)(l) excepts the City from the prohibition.
See Request Letter, supra note 1, at 3. Section 43.0545 provides in pertinent part that amunicipality
“may not annex an area that is located in the extraterritorial jurisdiction of the municipality only
because the area is contiguous to municipal territory that is less than 1,000 feet in width at its
narrowestpoint.” Tnx. Lot. GOV’TCODEANN. § 43.0545(a) (Vernon Supp. 2006); see also Request
Letter, supru note 1, at 3 (stating that remaining subsections of43.0545 do not apply). You state that
“in trying to ascertain whether the City is allowed to engage in strip annexation it appears that
[section] 43.0545 counteracts the language in [section] 43.054(b)(l) which provides an apparent
exception for the City.” Request Letter, supra note 1, at 3.
Section 43.054 prohibits annexation of territory that is less than 1,000 feet wide at its
narrowestpoint. See TEX. Lot. GOV’TCODEANN. 5 43.054(a) (V ernon Supp. 2006). The exception
in section 43.054(b)(l) allows for the annexation of a narrow territory where the territory is
contiguous to the municipality on at least two sides. See id. 5 43.054(b)(l). The term “contiguous”
is not defined by this statute, but it has been defined with respect to political subdivision boundaries
by a Texas court. See Joaquin Indep. Sch. Dist. v. Fincher, 5 10 S.W.2d 98 (Tex. Civ. App.-Tyler
1974, writ ref d n.r.e.) (considering school district boundaries). In Fincher, the court defined
“contiguous” to mean boundaries in “such physical contact or proximity that no intervening space
exists between [the] touching boundaries.” Id. at 103. Thus, under this definition of the term
“contignous,“the exceptionin section43.054(b)(l) appliesonlywhenthenarrowterritoryotherwise
prohibited from being annexed is physically next to, or touching, the municipal boundaries on at
least two sides. See TEX. Lot. GOV’T CODE ANN. 5 43.054(b)(l) (Vernon Supp. 2006). The
municipal boundary is the corporate limit of the municipality and not the area comprising the ETJ.
See id. 5 42.021 (defining ETJ as the “unincorporated area that is contiguous to the corporate
boundaries of the municipality”).
Section 43.0545(a) prohibits a municipality from annexing an “area that is located in the
extraterritorial jurisdiction of the municipality only because the area is contiguous to municipal
territory that is less than 1,000 feet in width at its narrowest point.” Id. 3 43.0545(a). This provision
was recently construed by a Texas court. See City ofMissouri City v. State ex rel. City ofAlvin, 123
S.W.3d 606 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). In the case, Missouri City had
purported to annex an L-shaped strip of land that was 1,000 feet wide. Id. at 608. The L-shaped
strip was in Missouri City’s ETJ solely because it touched a strip of Missouri City that was only
twenty-five feet wide. See id. at 614. The issue for the court with respect to section 43.0545 was
whether the phrase “because the area is contiguous to municipal territory that is less than 1,000 feet
wide inwidth at its narrowest point” modified “annex” or “is located.” Id. at 614. Missouri City
argued the phrase modified “annex” and that because its annexation had been motivated by reasons
other than the fact that the strip was “contiguous to municipal territory that is less than 1,000 feet”
wide, section 43.0545 was not violated. See id. The State argued the phrase modified “is located”
and that Missouri City’s annexation violated section 43.0545 because the strip to be annexed
extended from a strip of land only twenty-five feet wide at its narrowest point. Id. The court
considered the plain language of section 43.0545 and also examined its legislative history. See id.
The Honorable J. Keith Meredith - Page 4 (GA-0478)
at 615-16. In its examination ofthe legislative history, the court noted that the legislature’s concern
in enacting section 43.0545 had been cities annexing “areas located a considerable distance from the
principal area of the city, so long as the area is coIlnected at some point to the city limits.” Id. at 616
(quoting SENAT~INTE~WCOMM. ONANNEXATION,~NTERII&EPORT,75thLeg. 35 (Sept. 3., 1998),
and stating that report is “available from the Legislative Reference Library of Texas:
www.lrl.state.tx.us”).* The court also noted a concern about cities “abus[ing] the privilege of
developing the ETJ by using strips that extended the ETJ twenty or more miles from the ‘real city.“’
Id. The court concluded the phrase modified “is located” sothat section 43.0545 operated to prohibit
“exactly the kind of annexation” Missouri City had attempted. Id. The court said that section
43.0545 prohibited the annexation of territory “that lies within the municipality’sextraterritorial
jurisdiction solely by virtue ofthe fact the land is ‘contiguous to municipal territory that is less than
1,000 feet in width at its narrowest point.“’ Id. To put the court’s holding another way, the piece
of the city to which territory to be annexed is connected must be at least 1,000 feet wide.
Though both sections address parcels of land narrower than 1,000 feet, we do not see that
they conflict with each other. Rather, we believe the two sections serve different purposes. Section
43.054 requires that the territory to be annexed must be at least 1,000 feet wide, while section
43.0545 requires that the ETJ within which territory is to be annexed must be contiguous to
municipal territory that is at least 1,000 feet wide. Accordingly, to the extent that you inquire about
the validity of the City’s annexation under these two sections, the City’s annexation of territory that
is less than 1,000 feet wide only falls within the section 43.054(b)(l) exception if the territory is
contiguous to the corporate boundaries of the City on at least two sides. And the section 43.0545(a)
prohibition would not apply unless the portion of the municipal territory to which the annexed
territory is connected is less than 1,000 feet wide. Nevertheless, the validity of the City’s annexation
ordinance involves fact questions that we cannot resolve in the opinion process. See Tex. Att’y Gen.
Op. No. GA-0087 (2003) at 1 (opinion process cannot resolve fact questions); see also Tex. Att’y
Gen. Op. No. JM-644 (1987) at 2 (same).
ZAvailable af http://www.lrl.state.tx.usiscanned/interim/75/an76.pdf (last visited Oct. 16, 2006).
The Honorable J. Keith Meredith - Page 5 (GA-0478)
SUMMARY
Under sections 42.021 and 43.051 of the Local Government
Code, a Type A general-law city with fewer than 5,000 inhabitants is
authorized to annex territory it does not own only if the territory is in
the city’s one-half mile extraterritorial jurisdiction.
Sections 43.054(b)(l) and 43.0545(a) of the Local
Government Code do not conflict but instead serve different
purposes. Section 43.054 imposes size restrictions on the territory to
be annexed, while section 43.0545 imposes size restrictions on the
portion of the municipal territory that establishes the extraterritorial
jurisdiction in which the territory to be annexed is located.
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee