Untitled Texas Attorney General Opinion ( 2003 )

OFFICE ofthe ATTORNEY GENERAL
GREG ABBOTT
January 22,2003
The Honorable Frank Madla Opinion No. GA-00 14
Chair, Intergovernmental Relations Committee
Texas Senate Re: Effect of certain annexations on the
P. 0. Box 12068 extraterritorial jurisdiction of the City of San
Austin, Texas 787 1 l-2068 Antonio (RQ-05 80- JC)
Dear Senator Madla:
You inform us that the City of San Antonio (“the city” or “San Antonio”) is considering the
annexation of a tract of land owned by the city and located in part in Medina County.* The land in
question is known as the Mayberry tract. See Request Letter, supra note 1, at 1. As of the date of
your letter, the Mayberry tract is not contiguous with the San Antonio city limits, but separated from
the city by other parcels of land. See id. attachment (“2002 Annexation Study Areas”). Thus, if the
Mayberry Tract is annexed by the city, Mayberry’s boundaries will not connect with the city’s
present boundaries.
You ask whether the city’s extraterritorial jurisdiction (“the ETJ”) will expand if it: (1)
annexes the Mayberry tract and (2) subsequently annexes the properties that separate the Mayberry
tract from the city’s boundaries. See id. at 1. The city’s ETJ will not expand if it annexes the
Mayberry tract at a time when it is not contiguous with the city’s boundaries. If San Antonio
subsequently annexes the properties that separate the Mayberry tract from the city’s boundaries, the
boundaries will expand to include the unincorporated area within five miles of the city boundary that
encompasses the Mayberry tract. You also ask whether the December 3 1,2002, effective date of
new annexation procedures adopted by Senate Bill 89 of the 76th Texas Legislature will have an
impact on the process of annexing these properties. See id. at 2. Local Government Code section
42.0225 applies to an annexation included in a municipality’s annexation plan prepared under Local
Governrnent Code section 43.052, as amended by Senate Bill 89. SeeTEX. LOC. GOV’T CODE ANN.
05 42.0225, 43.052 (Vernon Supp. 2003).* If the area was not included in that annexation plan
during the period from December 3 1,1999 to December 3 1,2002, Local Government Code section
‘See Letter from Honorable Frank Madla, Chair, Intergovernmental Relations Committee, Texas Senate, to
Honorable John Comyn, Texas Attorney General (July 22,2002) (on file with Opinion Committee) [hereinafter Request
Letter]; see also Zeke MacCorrnack, S.A. ‘s Moves Bring Worry to Medina; The area ‘s leaders see possible annexation
as part of a bid for lake water, SAN ANTONIOEXPRESS-NEWS,May 2 1,2002, at OlB; 2002 WL 206983 16.
2See Act of May 30, 1999,76th Leg., R.S., ch. 1167, $0 1,4, 1999 Tex. Gen. Laws 4074,4075-77.
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The Honorable Frank Madla - Page 2 (GA-0014)
42.0225 will still apply to the annexation if the first hearing notice required by former section 43.052
was published on or after September 1, 1999.
We turn to your first question, which relates to the expansion of a city’s ETJ upon annexing
additional territory. “The extraterritorial jurisdiction of a municipality is the unincorporated area that
is contiguous to the corporate boundaries of the municipality and that is located . . . within five miles
of those boundaries, in the case of a municipality with 100,000 or more inhabitants.” Id. 8 42.02 l(5)
(Vernon 1999) (also setting out ETJ for cities of fewer inhabitants). San Antonio’s population
greatly exceeds 100,000 persons, and thus its ETJ extends five miles from its boundaries. See
BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE,2000 CENSUSOF POPULATION,available at
http://www.census.rzov/. A municipality may annex additional territory that is adjacent to its existing
boundaries, within its ETJ. See City of Wichita Falls v. State ex rel. Vogtsberger, 533 S.W.2d 927,
929 (Tex. 1976); see also TEX. LOC. GOV’T CODEANN. $8 43.021 (home-rule city), 43.033-43.034
(general-law city) (Vernon 1999 & Supp. 2003). “Adjacent” has been defined by the courts to mean
“‘neighboring or close by’ or ‘in the vicinity of and not necessarily contiguous or touching upon.“’
City of Waco v. City of McGregor, 523 S.W.2d 649, 653 (Tex. 1975) (quoting State ex rel. Pan
American Prod. Co. v. Texas City, 303 S.W.2d 780,784 (Tex. 1957); see also III OXFORDENGLISH
DICTIONARY 822 (2d ed. 1989) (contiguous means “touching, in actual contact, . . . meeting at a
common boundary”); Joaquin Indep. Sch. Dist. v. Fincher, 510 S.W.2d 98, 103 (Tex. Civ.
App.-Tyler 1974, writ ref’d n.r.e.) (“contiguous . . . districts must . . . touch one another [so] that all
may be included in a common boundary line, without any intervening spaces”). “Adjacency is a
question of law which must be determined in the context of the facts of each particular case.” City
of Waco, 523 S.W.2d at 653; City of Irving v. Dallas County Flood Control Dist., 383 S.W.2d 571,
576 (Tex. 1964) (“‘Adjacency,’ as between two Home Rule cities, must be tested by the facts in each
case.“).
San Antonio, as a home-rule city, see Texas River Barges v. City of San Antonio, 21 S.W.3d
347,352 (Tex. App.-San Antonio 2000, pet. denied), may “annex area adjacent to the municipality”
according to rules provided in its charter and not inconsistent with the procedural rules of Local
Government Code chapter 43. TEX. Lot. GOV’T CODE ANN. $ 43.021 (Vernon 1999). The
Mayberry tract is currently within San Antonio’s ETJ, according to San Antonio, see Request Letter,
supra note 1, at 1, but it does not have a common boundary with San Antonio.
We do not know whether the Mayberry area is “adjacent” to the City of San Antonio as
required by the annexation statutes, and, in any case, we have not been asked this question. We
assume for purposes of your request that San Antonio may annex this tract, and we consider only
whether the city’s ETJ will expand if it does so. When a city annexes an area, “the extraterritorial
jurisdiction of the municipality expands with the annexation to comprise, consistent with Section
42.021, the area around the new municipal boundaries.” See TEX. Lot. GOV’T CODE ANN. $
42.022(a) (Vernon 1999). Thus, when a city of 100,000 or more inhabitants annexes an area, its new
ETJ would generally comprise the unincorporated area contiguous to the new city boundaries within
five miles of the new boundaries. See id. Q 42.021(5).
The Honorable Frank Madla - Page 3 (GA-0014)
However, Local Government Code section 42.0225, adopted by Senate Bill 89 of the 76th
Legislature, would provide a different answer with respect to San Antonio’s annexation of the
Mayberry tract. See id. 6 42.0225 (Vernon Supp. 2003). Senate Bill 89, which adopted numerous
changes to the annexation process, took effect September 1,1999, but compliance with some of its
provisions was delayed until December 3 1,2002. See Act of May 30, 1999, 76th Leg., R.S., ch.
1167, 8 17, 1999 Tex. Gen. Laws 4074,409O (effective date and transition clause). In addressing
your first question, we consider only the effect of section 42.0225 on an annexation to which it
applies and defer considering whether it applies to a proposed annexation until we address your last
question.
Section 42.0225 applies:
only to an area owned by a municipality that is:
(1) annexed by the municipality; and
(2) not contiguous to other territory of the
municipality.
TEX. LOC. GOV’TCODEANN. 8 42.0225(a) (V emon Supp. 2003). “Notwithstanding Section 42.021,
the annexation of an area described by Subsection (a) [quoted above] does not expand the
extraterritorial jurisdiction of the municipality.” Id. 5 42.0225(b). The Mayberry tract is owned by
San Antonio and is not contiguous to other territory of the city. Pursuant to this provision, the
annexation of this tract will not expand San Antonio’s ETJ.
You next ask whether the city’s ETJ will expand if it subsequently annexes the properties
that separate the Mayberry tract from the boundaries of the rest of the city. We understand that
annexation of the intervening land will connect the Mayberry tract to the rest of San Antonio and
make its boundary continuous with the boundary of the main part of the city, and our answer is
premised on this understanding.
No special provision comparable to Local Government Code section 42.0225 addresses these
circumstances, and we accordingly look to Local Government Code section 42.022, the general
provision on expansion of the ETJ through annexation. When a city annexes an area, the city’s ETJ
ordinarily expands to provide anew ETJ consistent with section 42.021. See id. 4 42.022(a) (Vernon
1999); see also id. 8 42.022(c) (a city’s ETJ will not expand through annexation to include any area
in the existing ETJ of another municipality). San Antonio’s ETJ is “the unincorporated area that is
contiguous to the corporate boundaries of the municipality and that is located . . . within five miles
of those boundaries.” Id. 8 42.021(5). Thus, if San Antonio annexes the property separating the
Mayberry tract from the main part of the city, San Antonio’s ETJ will expand to include the
unincorporated area within five miles of the city boundary that encompasses the Mayberry tract.
You also state that the annexation of the properties mentioned in your letter may occur prior
to December 3 1, 2002, when new annexation provisions adopted by Senate Bill 89 of the 76th
The Honorable Frank Madla - Page 4 (GA-0014)
session will become fully applicable, and you ask whether the December 3 1,2002, date will affect
the annexation of the properties. See Request Letter, supra note 1, at 2. See also Act of May 30,
1999,76th Leg., R.S., ch. 1167, 0 17, 1999 Tex. Gen. Laws 4074,409O (effective date). We lack
sufficient information to apply the transition and effective date provisions of Senate Bill 89 to
specific properties and will accordingly deal generally with the impact of the December 3 1,2002,
date on annexations. The city will have access to the information necessary to determine how the
effective date provisions apply to a property it wishes to annex.
Senate Bill 89 changed the municipal annexation process in a number of ways, among other
things, “requiring cities to implement advance annexation planning procedures and providing for the
timely provision [of] services to the annexed areas.” S~~SENATERESEARCHCTR.,BILLANALYSIS,
Tex. S.B. 89,76th Leg., R.S. (1999) (enrolled version “Digest”). Under this enactment a city must
prepare an annexation plan specifying the annexations that it intends to implement in three years’
time. See TEX. LOC. GOV'T CODE ANN. 5 43.052 (Vernon Supp. 2003). Written notice of the
adoption or amendment of the plan must be provided to each property owner in the affected area and
to certain entities providing services there within ninety days of the time the plan is adopted or
amended. See id. 5 43.052(f). After a proposed annexation has appeared in the annexation plan for
three years, the city has thirty-one days from the end of the three-year period to complete the
annexation. See id. 8 43.052(g); see also id. 5 43.056 (annexing city would have to provide full
services to the annexed area within two and one-half years, with certain exceptions). Senate Bill 89
also adopted Local Government Code section 42.0225, the subject of your first question. See Act
of May 30, 1999,76th Leg., R.S., ch. 1167, 8 1, 1999 Tex. Gen. Laws 4074.
Senate Bill 89 took effect September 1, 1999, but compliance with its changes to the
annexation process has been phased in over a period of time ending December 3 1, 2002. See id.
8 17, at 4090. Section 17 of the bill, the effective date provision, requires each municipality to adopt
an annexation plan as required by Local Government Code section 43.052, as amended by Senate
Bill 89, on or before December 3 1, 1999, to become effective December 3 1, 1999. See id. Local
Government Code section 43.052 requires a municipality to prepare an annexation plan “that
specifically identifies annexations that may occur beginning on the third anniversary of the date the
annexation plan is adopted.” TEX. Lot. GOV'T CODE ANN. § 43.052(c) (Vernon Supp. 2003). A
municipality may annex an area identified in the plan only as provided by section 43.052. See id.
5 43.052(b). With certain exceptions, a city may not annex an area without including it in the
annexation plan. See id. $43.052(c), (h). S ee also HOUSERESEARCHORG., BILL ANALYSIS, Tex.
S.B. 89,76th Leg., R.S. (1999) at 3-5.
An area not included in the annexation plan may be annexed until December 31, 2002,
pursuant to annexation law as it was before the effective date of Senate Bill 89, unless the first public
hearing of the annexation procedure was conducted on or after September 1, 1999. See Act of May
30,1999,76th Leg., R.S., ch. 1167,s 17(c), (d), 1999 Tex. Gen. Laws 4074,409O. In the latter case,
certain changes in the law as specified in section 17(d) of the bill apply to the annexation. See id.
See also id. 5 17(e) (specifying changes in the law applicable to the annexation of an area not
required to be included in a municipal annexation plan if the first hearing notice is published on or
after September 1, 1999).
The Honorable Frank Madla - Page 5 (GA-0014)
Subsection 17(f) of Senate Bill 89 provides when Local Government Code section 42.0225,
the provision we addressed in answering your first question, will apply to annexations. Subsection
17(f) provides that the change made by section 1 of Senate Bill 89, which adopted Local Government
Code section 42.0225, applies only to:
(1) an annexation included in a municipality’s annexation plan
prepared under Section 43.052, Local Government Code, as amended
by this Act; and
(2) an annexation of an area that is not included in the
municipality’s annexation plan during the period beginning December
3 1, 1999, and ending December 3 1,2002, if the first hearing notice
required by Section 43.052, Local Government Code, as it existed
immediately before September 1, 1999, is published on or after that
date.
Id. 8 17(f).
Prior to its amendment by Senate Bill 89, Local Government Code section 43.052 required
the governing body of a municipality to conduct two public hearings preceded by notice published
in a newspaper before instituting annexation proceedings. See Act of May 1, 1987,7Oth Leg., R.S.,
ch. 149,s 1, sec. 43.052,1987 Tex. Gen. Laws 707,75 1 (nonsubstantive revision of statutes relating
to local government), amended by Act of May 30, 1999,76th Leg., R.S., ch. 1167,s 4, sec. 43.052,
1999 Tex. Gen. Laws 4074,4075. Pursuant to subsection 17(f) quoted above, Local Government
Code section 42.0225 applies to an annexation included in a municipality’s annexation plan prepared
under Local Government Code section 43.052, as amended by Senate Bill 89. If the area was not
included in the annexation plan during the period beginning December 3 1, 1999, and ending
December 3 1,2002, Local Government Code section 42.0225 will still apply to the annexation if
the first hearing notice required by former section 43.052 was published on or after September 1,
1999.
Accordingly, if San Antonio annexes land that it owns and that is not contiguous with its
boundaries before December 3 1,2002, the land will be subject to Local Government Code section
42.0225: (1) if the land is included in its annexation plan, or (2), with respect to land that is not
included in its annexation plan during the period from December 3 1, 1999, to December 3 1,2002,
if the first hearing notice required by former section 43.052 was published on or after September 1,
1999. If neither circumstance exists, the law prior to the September 1, 1999 effective date of Senate
Bill 89 applies to the annexation.
The Honorable Frank Madla - Page 6 (GA-0014)
SUMMARY
Section 42.0225 of the Local Government Code, as adopted
by Senate Bill 89 of the 76th Legislature, provides that a city’s
extraterritorial jurisdiction will not expand if it annexes an area that
it owns and that is not contiguous to other territory of the
municipality. If the city subsequently annexes the properties that
separate the noncontiguous land from its boundaries, the city’s
extraterritorial jurisdiction will expand pursuant to Local Government
Code section 42.02 1 to include, in the case of a city with a population
of 100,000 or more, the unincorporated area within five miles of the
city boundary.
If a city annexes such land before December 3 1, 2002, the
land will be subject to Local Government Code section 42.0225: (1)
if it is included in its annexation plan, or (2)’ with respect to land that
is not included in its annexation plan during the time period from
December 3 1,1999, to December 3 1,2002, if the first hearing notice
required by former section 43.052 was published on or after
September 1, 1999.
Very truly yours,
Attom&&eral of Texas
BARRY R. MCBEE
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
RICK GILPIN
Deputy Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee