Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 23, 2014

The Honorable Allan B. Ritter Opinion No. GA-1096
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether municipalities must meet the
Post Office Box 2910 population requirement in section 43.121 of the
Austin, Texas 78768-2910 Local Government Code to annex property under
section 43.129 (RQ-1210-GA)

Dear Representative Ritter:

You have requested an opinion concerning "the authority of Texas municipalities to engage in
'Limited Purpose Annexations"' pursuant to section 43.129 of the Local Government Code. 1 You
explain that the City of Orange ("the City") has received a petition from landowners for limited
purpose annexation. See Request Letter. You tell us that "[ o]ne hundred percent of the landowners of
the property that is proposed to be annexed have requested the annexation." Id. The City has a
population of 18,595. 2 Noting that a "concern has been raised regarding the population requirements
for a home-rule municipality to engage in a limited purpose annexation," you ask whether the
population requirement in section 43.121(a) of the Local Government Code applies to annexation by
consent authorized under section 43.129. Id.

Chapter 43, subchapter F of the Local Government Code relates to "Limited Purpose
Annexation." TEX. Loe. Gov'T CODE ANN. §§ 43.121-.136 (West 2008). Section 43.129 of that
subchapter states, in relevant part, that "[t]he municipality may annex for limited purposes any land for
which the landowner requests annexation and provides to the municipality before the effective date of
the annexation the landowner's written consent to annexation for limited purposes." Id. § 43.129
(titled "Consensual Annexation"). No language within section 43.129 limits its application to

1
Letter from Honorable Allan B. Ritter, Chair, House Comm. on Natural Res., to Honorable Greg Abbott, Tex.
Att'y Gen. (received July 11, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter").

2
See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 2010 CENSUS OF POPULATION: TEXAS QUICK FACTS,
http://quickfacts.census.gov.
The Honorable Allan B. Ritter - Page 2 (GA-1096)

municipalities of a certain size. See id. The first section in subchapter F, however, places a population
requirement on annexation authorized under that section:

The governing body of a home-rule municipality with more than 225, 000
inhabitants by ordinance may annex an area for the limited purposes of
applying its planning, zoning, health, and safety ordinances in the area.

Id. § 43.121(a) (emphasis added). You question whether home-rule municipalities exercising the
authority granted under section 43.129 must also meet the 225,000 population requirement in
subsection 43.121(a). See Request Letter.

The primary objective in construing statutes is to determine the Legislature' s intent, which is
ascertained through the words that the Legislature selected. City of Rockwall v. Hughes, 246 S.W.3d
621, 625 (Tex. 2008). The Legislature's intent is derived from the statute as a whole, not by reading
individual provisions in isolation. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 454 (Tex. 2012).

A plain reading of section 43.129 in the context of subchapter F does not provide a definitive
answer to your question. The provisions in subchapter F operate together as a scheme for limited
purpose annexation. See TEX. Loe. Gov'T CODE ANN. §§ 43.121-.136 (West 2008). Section 43.121
authorizes "a home-rule municipality" meeting the population requirement to annex for limited
purposes. Id. § 43 .121 (emphasis added). Subsequent provisions establish planning and public hearing
requirements for "the" municipalities exercising authority granted by section 43.121. Id. §§ 43 .123-
.128. Section 43.129 then authorizes "[t]he municipality" to annex property for limited purposes by
consent. Id.§ 43.129 (emphasis added). Use of the article "a," as opposed to "the," would have more
clearly signified intent for section 43 .129 to apply broadly to all home-rule municipalities. Thus, a
court could construe the word "the" as referring to the municipality that has authority under section
43.121 to annex for limited purposes, thereby preventing municipalities with a population of 225,000
or less from exercising the authority granted by section 43.129.

Conversely, section 43.129 grants consensual annexation authority, which is distinguishable
from the unilateral annexation authority granted by section 43.121. See id. Use of language similar to
that in subsection 43.12l(a) or a reference back to that subsection would have more clearly signified
intent for section 43.129 to be limited by a population threshold. See id. § 43.12l(a). Courts
construing section 43.129 might be unwilling to read limiting language into that section without clearer
evidence that the Legislature intended to limit the section's applicability. Laidlaw Waste Sys. Inc. v.
City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) (explaining that words will be read into a statute
only to effect clear legislative intent).

We find no court decisions addressing the question yo u raise. Given that all landowners f the
prope1iy in question bave consented to limited purpose annexation, it is unlikely that a decision by the
City of Orange to exercise authority under section 43.129 in this instance would be chall enged in court
be ause cohsensual am1e, atio n is by defini tion non-adversarial. Without further guidance from the
courts or the Legislature, however, it is not possible to reliably predict whether a court would require a
municipality to meet the 225,000 population requirement in subsection 43.121(a) in order to annex for
limited purposes by consent under the authority granted by section 43.129.
The Honorable Allan B. Ritter - Page 3 (GA-1096)

SUMMARY

Without further guidance from the courts or the Legislature, it is
not possible to reliably predict whether a court would require a
municipality to meet the 225,000 population requirement in subsection
43.12l(a) of the Local Government Code in order to annex for limited
purposes by consent under the authority granted by section 43.129.

Very truly yours,

Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee