Untitled Texas Attorney General Opinion ( 1998 )

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DAN MORALES
ATTORNEY
GENERAL
November 9. 1998
The Honorable Joe Rubio Opinion No. DM-485
District Attorney
49th Judicial District Re: Whether the colonias statute, Local Gov’t
P.O. Box 1343 Code ch. 232 subch. B, applies to employee
Laredo, Texas 78042-1343 housing provided by the Webb Consolidated
Independent School District (RQ-902)
Dear Mr. Rubio:
On behalf ofthe Webb Consolidated Independent School District (the “school district”), you
ask about the application of the colonias legislation,’ codified as Local Government Code chapter
232, subchapter B (“subchapter B”), to employee housing provided by the school district.
Specifically, you ask whether subchapter B applies to the school district’s lease of manufactured
homes on school grounds to teachers. We conclude that the leases you describe are subject to
subchapter B.
Your letter sets forth the following facts: The school district operates schools in Bruni and
Oilton, communities with housing shortages. Teachers are generally hired from outside the
communities. In order to attract teachers, the school district has “traditionally provided housing for
some of its teachers in manufactured homes situated on school district property.” Teachers sign
residential lease agreements with the school district and pay a nominal rental fee to the school
district. The school district states that it “does not profit from such rental payments and deems
these quarters akin to a fringe benefit for teachers.” The school district is now making plans to place
additional manufactured homes on its property.*
‘See Act of May 28, 1995,74th Leg., RX, ch. 979, 1995 Tex. Gen. Laws 4895,4895.
*We assume, but do not decide, that an independent school district has the authority to provide employee
housing on school grounds pursuant to a lease arrangement incident to its general authority to control and manage school
property and to employ and compensate teachers. See generally Educ. Code ch. 11, subch. D (powers and duties of
board of trustees of independent school district); id. 5 13.155 (consolidated school district is an independent school
district); see also Landrum v. Centennial Rural High Sch. Disi., 146 S.W.2d 799, 802 (Tex. Civ. App.--Austin 1940,
writ dism’d) (concluding that “teacherage” is school building) (citing Adams Y. Miles, 300 SW. 211 (Tex. Civ. App.--
San Antonio, 1927, writ granted)).
The Honorable Joe Rubio - Page 2 (DM-485)
Subchapter B requires subdividers to comply with certain special conditions before
subdividing land, such as preparing a plat, with an attached description of water and sewer facilities,
see generally Local Gov’t Code § 232.023, and obtaining county approval of the plat, see id.
$5 232.024, ,028. Section 232.029 prohibits a utility providing water or sewer services, electricity
or gas from serving or connecting any subdivided land unless certain conditions are met.
Apparently, the school district has had difficulty obtaining utility services for its manufactured
homes because there is some concern that the school district is a “subdivider” subject to subchapter
B.
Local Government Code section 232.022 provides that subchapter B “applies only to land
that is subdivided into four or more lots that are intended primarily for residential use in the
jurisdiction ofan affected county.” Id. 5 232.022(a). For purposes ofthis opinion, we can break this
provision regarding the scope of subchapter B into two general requirements: For land to be subject
to subchapter B, it (1) must be located “in the jurisdiction of an affected county” and (2) must be
“subdivided into four or more lots that are intended primarily for residential use.”
With respect to the threshold, first requirement -- that the land be located “in the jurisdiction
of an affected county” -- you inform us that Webb County is an “affected county” subject to
subchapter B. See id. 5 232.021(l) (defining the term “affected county”). You have not provided
us with complete information regarding whether the land at issue is within the jurisdiction of the
county, however. For the purposes of subchapter B, land is considered to be within the jurisdiction
of a county “if the land is located in the county, outside the corporate limits of municipalities, and
outside the extraterritorial jurisdiction ofmunicipalities, as determined by”Loca1 Government Code
chapter 42. Id. 9 232.022(b). You suggest that the school district’s manufactured homes are located
on property outside the corporate limits of any municipality. We will assume that the manufactured
homes are located on property outside the extraterritorial jurisdiction of municipalities.
With respect to the second requirement -- that the land must be “subdivided into four or more
lots that are intended primarily for residential use”-- we assume that the school district contemplates
entering into four or more leases. The most crucial question for our purposes is whether the school
district is subdividing. Again, under section 232.022(a), applicability of subchapter B to the school
district’s conduct depends upon whether the land at issue “is subdivided into four or more lots.” Id.
5 232.022(a) (emphasis added). In addition, subchapter B’s platting requirements apply to “[a]
subdivider of land.” Id. § 232.023(a).
The subchapter defines the terms “lot,” “subdivide, ” “subdivider,” and “subdivision” as
follows:
(7) “Lot” means a parcel into which land that is intended for residential
use is divided.
p. 2753
The Honorable Joe Rubio - Page 3 (DM-485)
(12) “Subdivide” means to divide the surface area of land into lots
intended primarily for residential use.
(13) “Subdivider” means an individual, firm, corporation, or other legal
entity that owns any interest in land and that directly or indirectly subdivides
land into lots as part of a common promotional plan in the ordinary course of
business.
(14) “Subdivision” means an area of land that has been subdivided into
lots for sale or lease.
Id. 5 232.021. We conclude that the school district’s lease ofmanufactured homes to teachers falls
within the definition of “subdivide” and that the school district is a “subdivider,” for the following
reasons.
“Subdivide” means “to divide the surface area of land into lots intended primarily for
residential use.” Id. 5 232.021(12). Your letter contends that the school district has not divided the
surface area of land. The residential lease used by the school district, however, appears to convey
to a teacher the right to occupy a manufactured home on a distinct tract of land. See Letter from Joe
Rubio, District Attorney, 49th Judicial District, to Opinion Committee, Office of Texas Attorney
General (Jun. l&1996), Exhibit A, entitled “RESIDENTIAL LEASE, paras. 2 (referring to property
by lot, block, and subdivision), 5 (requiring tenant to limit number of vehicles parked on
property), 15 (requiring tenant to maintain “the yard including the shrubbery”). Based on the terms
of this lease, we believe that the school district is dividing the surface area of land. In addition, it
is clear from your letter that the parcels of land are leased to the teachers as residences and are thus
“intended for residential use” and constitute “lots” within the meaning of subchapter B. See Local
Gov’t Code 5 232.021(7).
In addition, the school district falls within the definition of “subdivider.” Again, the term
“subdivider” is defined as “an individual, firm, corporation, or other legal entity that owns any
interest in land and that directly or indirectly subdivides land into lots as part of a common
promotional plan in the ordinary course of business.” Id. 5 232.021(13). The school district is a
legal entity3 that owns an interest in land.4 As discussed above, it is subdividing land into lots.
)A “legal entity” is an “entity, other than a natural person, who has sufficient existence in legal contemplation
that it can function legally, be sued or sue and make decisions through agents. .” BLACK’S LAW DICTIONARY804
(5th ed. 1979). The tmstces of a consolidated independent school dishict constitute a body corporate and in the name
of the district may acquire and hold real and personal property and sue and be sued. See Educ. Code 5s 11.15 l(a)
(powers and duties of board of trustees of independent school district), 13.155 (consolidated school district is an
independent school district).
“‘All rights and titles to the school property, whether real or personal, shall be vested in the trustees and their
successors in office.” Id. 5 11.15 l(c), Your letter indicates that the manufactured homes are located on property owned
by the school district.
p. 2754
The Honorable Joe Rubio - Page 4 (DM-485)
We also believe that the school district is subdividing land into “lots as part of a common
promotional plan in the ordinary course of business.” Id. The statute defines a “common
promotional plan” as “any plan or scheme of operation undertaken by a. subdivider. to offer
for sale or lease lots when the land is contiguous or part of the same area of land.” Id.
5 232.021(3). You state that “the school district has rented out the manufactured homes as part of
a scheme to provide residential quarters for its employees.” The manufactured homes are “situated
on school district property.” Thus, the school district appears to have a “plan or scheme” to lease
lots that are “part of the same area of land.” The phrase “in the ordinary course of business” is not
defined by the statute. The phrase may merely further refine the term “common promotional plan.”
Alternatively, the language “in the ordinary course of business” may have been intended to except
certain gratuitous transfers from the scope of subchapter B. See id. 5 232.022(a) (“This subchapter
does not apply if the subdivision is incident to the conveyance of land as a gift between persons
related to each other. .“). The leases at issue are part of teachers’ compensation from the school
district and are not gratuitous.’ Furthermore, your letter states that the school district “has
traditionally provided housing for some of its teachers in manufactured homes situated on school
district property.” Given that the school district provides housing to its employees as a fringe benefit
for rent pursuant to a form residential lease agreement, we believe that the school district’s leases
are “part of a common promotional plan within the ordinary course of business,” however one
defines the latter phrase.
SUMMARY
Local Government Code chapter 232, subchapter B, applies to the Webb
Consolidated Independent School District’s lease of manufactured homes on
school grounds to teachers.
Yours very truly, /
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
‘Your letter states that teachers living in the homes pay a nominal rental fee and also describes the housing as
a fringe benefit.
p. 2755