Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 24,2003
The Honorable James L. Keffer Opinion No. GA-O 107
Chair, Committee on Economic Development
Texas House of Representatives Re: Whether Long Island, a spoil island directly
P.O. Box 2910 south of the City of Port Isabel, is within that
Austin, Texas 78768-2910 city’s extraterritorial jurisdiction (RQ-006 1-GA)
Dear Representative Keffer:
You ask whether Long Island, a spoil island directly south of the City of Port Isabel, Texas,
is within that city’s extraterritorial jurisdiction.
Your request is a response to a disagreement between the City of Port Isabel (the “City”) and
the Village of Long Island (the “Village”), an unincorporated area located on the spoil island called
Long Island. In 2002, officials of the Village filed with the county judge of Cameron County an
application to incorporate. The City opposes the incorporation on the ground that the Village is
within the City’s extraterritorial jurisdiction.
Section 42.021 ofthe Local Government Code provides that “[tlhe extraterritorial jurisdiction
of a municipality is the unincorporated area that is contiguous to the corporate boundaries of the
municipality and that is located: . . . within one-half mile of those boundaries, in the case of a
municipality with fewer than 5,000 inhabitants.” TEX. Lot. GOV’T CODE ANN. 9 42.021(l)
(Vernon 1999). According to the 2000 census, the City has a population of 4,865. See BUREAU
OF THE CENSUS, U.S. DEP’T OF COMMERCE, 2000 CENSUS OF POPULATION: General Population
Characteristics (population of Port Isabel: 4,865)’ available at http://www.census.gov/ (last visited
Sept. 18’2003). You indicate that the “Village is one-half mile of the southern city limits of Port
Isabel and, therefore, . . . is considered within Port Isabel’s ETJ [extraterritorial jurisdiction] .“l
Section 42.041(a) of the Local Government Code states that “[a] municipality may not be
incorporated in the extraterritorial jurisdiction of an existing municipality unless the governing body
of the existing municipality gives its written consent by ordinance or resolution.” TEX. LOC. GOV’T
CODE ANN. 9 42.041(a) (Vernon 1999). The City has not given its consent to the Village’s
incorporation.
‘Letter from Honorable James L. Keffer, Chair, House Committee on Economic Development, to Honorable
Greg Abbott, Texas Attorney General (May 21,2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable James L. Keffer - Page 2 (GA-0107)
On the other hand, section 43.902 of the Local Government Code provides, in relevant part:
(a) Land on an island bordering the Gulf of Mexico that is not
accessible by a public road or common carrier ferry facility may not
be annexed by a municipality without the consent of the owners of the
land.
(b) The extraterritorial jurisdiction of a municipality does not
include land on the island unless the owners of the land consent.
Id. 8 43.902(a)-(b). You state that “[tlhe residents of Long Island Village are claiming in part that
Long Island is ‘an island bordering on the Gulf of Mexico,’ and, therefore, they assert the area they
wish to incorporate would qualify under this aspect of the exception created by [section] 43.902 [of
the] Local Government Code.” Request letter, supra note 1, at 2. Thus, the question before us is
whether Long Island, on which the Village is located, is “an island bordering the Gulf of Mexico.”
See TEX. Lot. GOV’T CODE ANN. 8 43.902(a) (Vernon 1999).
An official map prepared by the Texas General Land Office is attached as an appendix to this
opinion. This map also indicates that “Long Island” is located in the body of water designated as the
“Laguna Madre.” The Texas Supreme Court has held that courts may take judicial notice of the
“general physiographic features” of a county. Int ‘I-Great N. R. R. Co. v. Reagan, 49 S .W.2d 4 14’4 16
(Tex. 1932). In that case, the court “concluded that the map of Robertson county, made by the land
office of the state of Texas, and the United States geological survey maps, may bring before us those
facts which we judicially know.” Id. Moreover, the Texas Supreme Court has observed that “[flacts
about well known and easily ascertainable geographical facts concerning counties are frequently
judicially noticed,” citing, as one example among many, that “[i]t was judicially known that
Matagorda County is bounded by the Gulf of Mexico, Giddings v. Day, 84 Tex. 605, 19 S.W. 682
(1892).” Barber v. Intercoast Jobbers & Brokers, 417 S.W.2d 154, 158 (Tex. 1967). We must
therefore determine whether the “Laguna Madre” is a part of the “Gulf of Mexico.” If so, then Long
Island is, under the terms of section 43.902 of the Local Government Code, “an island bordering the
Gulf of Mexico.” TEX. Lot. GOV’T CODE ANN. 5 43.902(a) (Vernon 1999).
We note initially that section 11 .013(a) of the Natural Resources Code declares that “[tlhe
gulfward boundary of each county located on the coastline of the Gulf of Mexico is the Three Marine
League line as determined by the United States Supreme Court.” TEX. NAT. RES. CODE ANN. 0
11.013(a) (Vernon 2001). “The term ‘coastline’ as used in this subsection means the line of mean
low tide along that portion of the coast which is in direct contact with the open Gulf ofMexico.” Id.
5 ll.O13(b)( em ph asis added); accord 42 U.S.C. 5 1301(c) (2000) (“the term ‘coast line’ means the
line of ordinary low water along that portion of the coast which is in direct contact with the open sea
and the line marking the seaward limit of inland waters”). Cameron County is “a county located on
the coastline,” and the entire southern portion of Cameron County includes Padre Island. See THE
DALLAS MORNING NEWS, 2000-2001 TEXAS ALMANAC 148 (Mary G. Ramos ed., 1999).
The Honorable James L. Keffer - Page 3 (GA-0107)
A number of Texas cases have distinguished the body of water known as Laguna Madre from
the Gulf of Mexico. In Kenedy Memorial Foundation v. Dewhurst, 90 S.W.3d 268 (Tex. 2002)' the
Texas Supreme Court declared:
The Laguna Madre, translated “Mother Lagoon,” whose waters
were prescribed by Spain and Mexico to mark the disputed boundary,
is a narrow estuary on the west side of Padre Island extending some
130 miles from Corpus Christi to Port Isabel. The Laguna Madre is
open to the Gulf of Mexico at both ends but sheltered from the Gulf
along its length by Padre Island. In many areas, including adjacent
the Foundation’s property, it is slightly above sea level. The presence
and depth of water in most of the Laguna Madre is governed not by
astronomic tidal forces from which it is insulated, like those exerted
by the moon and sun, but by meteorological forces to which it
remains open, like the wind and barometric air pressure. In much of
the Laguna Madre, including the area in dispute, variations in water
levels due to daily tidal forces are minuscule, masked almost entirely
by variations caused by atmospheric forces. The water does not
advance and subside daily, as one thinks of a shore facing the open
sea. The wind can actually blow water uphill so that it is sometimes
deeper at higher elevations than at lower ones. At places, the Laguna
Madre is constantly inundated with seawater several feet deep, deep
enough for waves and boats.
Id. at 27 1. The court in Kenedy Memorial Foundation thus cites numerous distinctions between the
Laguna Madre and the Gulf of Mexico, including the fact that the Laguna Madre is a “narrow
estuary,” and the fact that “[tlhe Laguna Madre is open to the Gulf of Mexico at both ends, but
sheltered from [it] along its length by Padre Island.” Id.
Other Texas cases support this view. In Butler v. Sadler, 399 S.W.2d 411 (Tex. Civ.
App.-Corpus Christi 1966, writ ref d n.r.e.), the court said:
The Laguna Madre is a continuous body of water running from
Corpus Christi Bay on the north to the Brazos-Santiago Pass on the
south and connects with the Gulf of Mexico at both ends. On the east
side of the Laguna Madre is a long strip of land called Padre Island
which runs almost the entire length of the coast between Corpus
Christi and Brownsville. The island separates the Gulf of Mexico on
the east and the Laguna Madre on the west.
Id. at 413 (emphasis added). Likewise, in Luttes v. State, 324 S.W.2d 167 (Tex. 1958)’ the Texas
Supreme Court described the Laguna Madre as a “long, narrow lagoon.” It “lies between the
mainland on the west and, on the east, the long, narrow, sandy island called Padre, the eastwardly
side of which latter is the shore of the Gulf of Mexico.” Id. at 168.
The Honorable James L. Keffer - Page 4 (GA-0107)
Although the Laguna Madre has been described as “an arm of the Gulf of Mexico,” it is
clearly different from, and not a part of, the body of water known as the Gulf of Mexico. See
Humble Oil &Refining Co. v. Sun Oil Co., 191 F.2d 705, 716 (5th Cir. 1951); City of Weslaco v.
Turner, 237 S.W.2d 635, 637 (Tex. Civ. App.-Waco 1951, writ ref d n.r.e.). Moreover, Texas
statutory law distinguishes between the Gulf of Mexico and its arms and bays. Section 11.012(c)
of the Natural Resources Code, for example, declares:
The State of Texas owns the water and the beds and shores of the
Gulf of Mexico and the arms of the Gulf of Mexico within the
boundaries provided in this section, including all land which is
covered by the Gulf of Mexico and the arms of the Gulf of Mexico
either at low tide or high tide.
TEX. NAT. RES. CODE ANN. 8 11.012(c) (Vernon 2001). We conclude therefore that the body of
water known as the Laguna Madre is separate from, and not a part of, the body of water called the
Gulf of Mexico.
Moreover, on April 1,2002, John Haywood, attorney for the City, addressed a letter to Roger
L. Payne, Executive Secretary of the United States Board on Geographic Names, inquiring whether
Long Island borders the Gulf of Mexico.* The Board on Geographic Names, a division of the United
States Geological Survey, “is a Federal body created in 1890 and established in its present form by
Public Law in 1947. Comprised of representatives of Federal agencies, appointed for 2-year terms,
the Board is authorized to establish and maintain uniform geographic name usage throughout the
Federal Government .” See U.S. DEP’T OF THE INTERIOR,U.S. GEOLOGICALSURVEY, UNITED
STATES BOARD ON GEOGRAPHIC NAMES, available at http://geonames.usgs.gov/bgn.html (last
modified July 15,2003). On April 17,2002, Mr. Payne replied to Mr. Haywood as follows:
This is in response to your inquiry regarding the “identity of waters
bordering Long Island in Texas.”
The U.S. Board on Geographic Names defines Long Island as the
following: a 2.6 km (1.6 mi) long island in Cameron County, Texas
located in Laguna Madre. The island is approximately 152 m (500 ft)
south of the community of Port Isabel.3
Thus, in the view of the federal agency charged with defining geographical entities, Long Island is
located in the “Laguna Madre.”
2Letter from John Haywood, P.C., to Roger L. Payne, Executive Secretary, United States Board on Geographic
Names (Apr. 1,2002) (on file with Opinion Committee).
3Letter from Roger L. Payne, Executive Secretary, United States Board on Geographic Names, to John
Haywood, Attorney at Law (Apr. 17,2002) (on file with Opinion Committee) (emphasis added).
The Honorable James L. Keffer - Page 5 (GA-0107)
It follows that, because the Laguna Madre is separate from, and not a part of, the body of
water called the “Gulf of Mexico,” and because Long Island is an island “located in Laguna Madre,”
Long Island is not “an island bordering the Gulf of Mexico.” TEX.Lot. GOV’T CODEANN. 5 43.902
(Vernon 1999). As a result, the exception for islands bordering the Gulf of Mexico does not apply
to Long Island. Long Island is accordingly within the extraterritorial jurisdiction of the City of Port
Isabel, and Long Island Village may not incorporate without the consent of the City of Port Isabel.
The Honorable James L. Keffer - Page 6 (GA-0107)
SUMMARY
Long Island, a spoil island located directly south of the City
of Port Isabel, is located entirely within the Laguna Madre, a
saltwater lagoon that is not a part of the Gulf of Mexico. The Village
of Long Island is within the extraterritorial jurisdiction of the City of
Port Isabel, and may not incorporate without the consent of the City
of Port Isabel.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Cornmittee
Rick Gilpin
Assistant Attorney General, Opinion Committee