Untitled Texas Attorney General Opinion ( 1988 )

Juqust23, 1988
Honorable Mark W. Stiles opinion No. JR-944
Chairman
County Affairs Committee Re: Provision of sewer
Texas House of Representatives service by a municipality
P. 0. Box 2910 to newly annexed territory
Austin, Texas 78769 (RQ-1380)
Dear Representative Stiles:
You ask three questions with regard to the proposed
annexation of the Commanche Hills Utility District [CHDD] by
the City of Harker Heights. The first we address is:
Can a city annex in one year an amount of
area under thirty percent (30%) of its
incorporated area as of January 1 of that
year and then in the same year also annex a
municipal utility district which encompasses
an area equal to sixty percent of the city's
incorporated area as of January 1 of that
year?
We assume that by 'municipal utility district" you mean
to refer to the Commanche Hills Utility District [CHDD]. We
do not find, however, that the CHDD is a municipal utility
district. The law creating the district referred to it as a
Vonservation and reclamation district." Acts 1967, 60th
Leg., ch. 624, 5 1. Section 5 of that act provides that
CHUD shall have the rights, powers, etc., applicable to a
"water control and improvement district" to the extent such
rights, powers, etc., are not inconsistent with the
provisions of the act.
CRUD under its creating act, appears to be a "water or
sewer district" within the meaning of section 43.071 of the
Local Government Code. Section 43.071, provides in part:
(a) In this section, 'water or sewer or
district' means a district or authority
created under Article III, Section 52, Sub-
sections (b)(l) and (2), or under Article
p. 4749
Honorable Mark W. Stiles - Page 2 (JM-944)
XVI, Section 59, of the Texas Constitution
that provides or proposes to provide, as its
principal function, water services or sewer
services or both to household users. The
term does not include a district or authority
the primary function of which is the whole-
sale distribution of water.
(b) A municipality may not annex area in
a water or sewer district unless it annexes
the entire part of the district that is
outside the municipality8s boundaries. This
restriction does not apply to the annexation
of area in a water or sewer district if the
district is wholly or partly in the extra-
territorial jurisdiction of more than one
municipality.
(c) An annexation subject to Subsection
(b) is exempt from the provisions of this
chapter that limit annexation authority to a
municipality's extraterritorial jurisdiction
if:
(1) immediately before the annexation,
at least one-half of the area of the water
or sewer district is in the municipality
or its extraterritorial jurisdiction; and
(2) the municipality does not annex in
the annexation proceeding.any area outside
its extraterritorial jurisdiction except
the part of the district that is outside
its extraterritorial jurisdiction.
(d) Area annexed under Subsection (b) is
included in computing the amount of area that
a municipality may annex under Section 43.055
in a calendar year. If the area to be annexed
exceeds the amount of area the municioalitv
YO Id otherwise be able to annex. the munici-
payitv mav annex the area but may not annex
additional area during the remainder of that
calendar year, except area subject to Sub-
section (b) and area that is excluded
from the computation under Section 43.055.
(Emphasis added.)
p. 4750
Honorable Mark W. Stile9 - Page 3 (-914)
Section 43.071(d) refers to the limitations on amount
of territory which may be annexed in a year under section
43.055. Section 43.055 reads:
(a) In a calendar year, a municipality
may not annex a total area greater than 10
percent of the incorporated area of the
municipality as of January 1 of that year,
plus any amount of area carried over to that
year under Subsection (b). In determining
the total area annexed in a calendar year, an
annexed area is not included if it is:
(1) annexed at the request of a
majority of the qualified voters of
the area and the owners of at least 50
percent of the land in the area:
(2) owned by the municipality, a
county, the state, or the federal govern-
ment and used for a public purpose:
(3) annexed at the request of at least
a majority of the qualified voters of the
area; or
(4) annexed at the request of the
owners of the area.
0) lf a municbalitv fails to -ex in a
calendar vear the entire 10 oercent amount
permitted under Subsection (al. the municL*-
Pglitv mav car- over the unused allocation
or use in subsecuent calepdar vem .
(Cl A municinalitv carrvina over an
allocation mav not annex in a calendar vear a
total area areater than 30 oercent of the
uoroorated area of the municiualitv a Of
Januarv 1 of that vear.1 (Emphasis added.)
1. Acts 1987, 70th Leg., ch. 1077 added language to
these provisions, which takes effect as pa* of the Local
Government Code pursuant to V.T.C.A. Government Code and
section 311.031. Wone of the provisions of the amendatory
act, however, alter the conclusions we reach here with respect
to the issues presented.
p. 4751
Honorable Uark W. Stiles - Page 4 034-944)
Because your question is based on the city's having
annexed "under thirty percent of its incorporated area," we
assume that the City of Harker Heights has carried over
allocations from previous years pursuant to subsections (b)
and (c) of section 43.055. In the circumstances you
describe, the city has authority, under section 43.071(d),
to annex the territory involved.
Your other two question are:
(1) If a city provides sewer service and
has previously extended sewer lines within
its existing city limits and such city
annexes an area that has no sewer service, is
the city recuirea to extend lines to those
newly annexed areas with land uses and popu-
lation densities similar to the ones in the
previous city limits?
(2) If a city provides sewer service but
has not previously extended sewer lines
within its existing city limits and such city
annexes an area that has no sewer service, is
the city m to extend lines to those
newly annexed areas with land uses and popu-
lation densities similar to the ones in the
previous city limits? (Emphasis added.)
We note first that we find no requirement in the
pertinent statutory provisions that a m level of
services be provided in any.area to be annexed than are
provided in an area of the city having similar charac-
teristics of topography, land utilization, and population
density. Section 43.056 of the Local Government Code speaks
only of maintenance of existing services, in subsection
(b)(4), and uniform levels of services in subsection (d).
Therefore, in answer to question number 2, we conclude that
no extension of sewer services to annexed areas is required,
either in fact or under a "service plan," where such
services are not provided in equivalent areas within the
existing city limits.
Moreover,,turning to question number 1, we further
conclude that a city may in no case literally be r-d to
provide any given services to annexed areas.
Section 43.056 of the Local Government Code requires an
annexing city to develop a "service plan" for provision of
services to the annexed area:
p. 4752
Honorable Mark W. Stiles - Page 5 (JM-944
(a) Before the publication of the notice
of the first hearing required under Section
43.052, the governing body of the municipality
municipality proposing the annexation shall
direct its planning department or other
appropriate municipal department to prepare a
service plan that provides for the extension
of municipal services to the area to be
annexed. The municipality shall provide the
services by any of the methods by which it
extends the services to any other area of the
municipality.
(b) The service plan must include
program under which the municipality wilt
provide the following services in the area
within 60 days after the effective date of the
annexation of the area:
(1) police protection:
(2) fire protection;
h
(3) solid waste collection:
(4) maintenance of water and wastewater
facilities:
(5) maintenance of roads and streets,
including road and street lighting;
(6) maintenance of parks, playgrounds,
and swimming pools: and
(7) maintenance of any other publicly
owned facility, building, or service.
(c) The service plan must also include a
program under which the municipality will
initiate the acquisition or construction of
capital improvements necessary for providing
municipal services for the area. The con-
struction shall begin within 2 l/2 years after
the effective date of the annexation of the
area. The acquisition or construction of the
facilities shall be accomplished by purchase,
lease, or other contract or by the municipal-
ity succeeding to the powers, duties, assets,
and obligations of a conservation and reclam-
ation district as authorized or required by
p. 4753
Honorable Mark W. Stiles - Page 6 (-944)
law. Money received from the sale of bonds or
evidenced by other instruments of indebtedness
may not be allocated to the area for a period
of 180 days.
(d) A service plan may not provide fewer
services or a lower level of services in
the area than were in existence in the area
immediately preceding the date of the annexa-
tion. This section does not reauire that a
imifom level of services be m-ovided tQ
each area of the municioalitv if different
characteristics of tOtXmraDhV. land use,
and wooulation densitv are considered a
sufficient basis for vrovidina different
levels of service .
(e) If only a part of the area to be
annexed is actually annexed, the governing
body shall direct the department to prepare a
revised service plan for that part.
(f) The proposed service plan must be made
available for public inspection and explained
to the inhabitants of the area at the public
hearings held under Section 43.052. The plan
may be amended through negotiation at the
hearings, but the provision of any service may
not be deleted. On completion of the public
hearings, the service plan shall be attached
to the ordinance annexing the area and
approved as part of the ordinance.
(g) On approval by the governing body, the
service plan is a contractual obligation that
is not subject to amendment or repeal except
that if the governing body determines at the
public hearings required by this subsection
that changed conditions or subsequent occur-
rences make the service plan unworkable or
obsolete, the governing body may amend the
service plan to conform to the changed condi-
tions or subsequent occurrences. An amended
service plan must provide for services that
are comparable to or better than those esta-
blished in the service plan before amendment.
Before any amendment is adopted, the governing
body must provide an opportunity for
interested persons to be heard at public
P. 4754
Honorable Mark W. Stiles - Page 7 (JBk944)
hearings called and held in the manner
provided by Section 43.052.
(h) A sentice plan is valid for 10 years.
Renewal of the service plan is at the dis-
cretion of the municipality.
(i) A municipality that annexes an area
shall provide the area or cause the aree to be
provided with services in accordance with the
service plan for the area.2 (Emphasis added.)
In garkins v. Citv of Denispn 683 S.W.2d 754 (Tex.
App- - Dallas 1984, no writ), lando&ers of an area which
was the subject of a city annexation ordinance sought
injunctive relief from the ordinance on the grounds that the
city "did not have,the resources necessary to implement the
services which art. 970a (Vernon*s 1963 and Vernon Supp.
1984) requires it to provide for newly annexed areas." &
at 755. &2 Local Gov't Code 5 43.056 (present codification
of article 970a). The court overruled the appellant land-
owners t contention in this regard and affirmed the trial
court#s denial of injunctive relief, holding that section
10(F) of article 970a (currently codified as section 43.141
of the Local Government Code), provided disannexation as the
exclusive remedy for the city's failure to meet the service
plan if and when such failure occurs. The court also ruled
with respect to the appellants' contentions that the
annexation was fraudulent and/or improperly motivated as
follows:
It is well-settled that the determination of
municipal boundaries is a question for
political rather than judicial resolution.
[Citation omitted.] Under article 970a, the
legislature delegated its powers in this
regard to the cities, subject to certain
limitations. Because those limitations apply
to the location of the annexed area rather
than to the purposes for which annexation is
sought, appellants may not judicially
challenge the validity of the annexation
ordinance on the basis that it was improperly
motivated.
2. a footnote 4.
p. 4755
Honorable Wark W. Stiles - Page 8 (JM-944)
& at 756. Thus, despite the language of, for example,
subsections (a) and (I) of section 43.056, to the effect
that the municipality "shallw provide services, it would
appear in light of m that the exclusive remedy for the
city#s not providing such services in accordance with the
service plan is disannexation under current section 43.141
of the Local Government Code.
We construe your question then as asking whether a city
proposing to annex an area is required to provide in the
Service vlgn required by section 43.056 for the sewer
service extensions about which you inguire.3
3. The City of Austin in its brief in this matter
suggested that sewer extensiona may not be among the
services contemplated by section 43.056. The only specific
reference to sewer services in section 43.056 is found in
subsection (b)(4) of that section, which requires provision
in the service plan for "mainten ce of water and wastewater
facilities" within 60 days' oaf the date of annexation
(emphasis added). Subsection (a) of section 43.056,
however, provides in part:
[T]he governing body of the municipality pro-
posing the annexation shall direct its planning
department or other appropriate municipal department
to prepare a service plan that provides for the
dxtenslon of municipal services to the area to be
annexed. The municipality shall provide the services
by any of the methods by which it extends the
services to any other area of the municipality.
(Emphasis added.)
Subsection (c) of that section provides in part:
The service plan must also include a program
under which the municipality will initiate the
acquisition or construction of capital improvements
necessary for providing municipal services for the
area. The construction shall begin within 2 l/2 years
after the effective date of the annexation of the
area.
(Footnote Continued)
p. 4756
.
Honorable Mark W. Stiles - Page 9 (JM-944)
Differences in levels of service provided annexed areas
and existing areas of the city must be based on differences,
or reasonably contemplated differences in topography, land
use, and population density. Section 43.056, subsection
Cd). It is the prerogative of the city, in the first
instance, to make determinations in the service plan about
levels'of service in annexed areas.4 If the service plan
adopted were itself legally defective to the extent of being
void or voidable -- for example, if it were not adopted in
compliance with the hearings requirements of section 43.052,
or if it did not reflect m consideration by the city of
(Footnote Continued)
We believe that the restriction of wastewater services
to "maintenance" of existing services applies only to the
requirement of subsection (b) that lsaintenance of such
services be provided within 60 days of annexation, but that
subsections (a) and (c) clearly contemplate extension, i.e.,
improvement of such services. Therefore, sewer extensions
are, we believe, OOmunicipalservicesI1within the meaning of
section 43.056.
4. Acts 1987, 70th Leg., ch. 1077 amended section 10
of article 970a, now codified in the Local Government Code,
by, inter alia, adding the following underlined language to
the provision now codified as the first sentence of section
43.056, subsection (d) of the Local Government Code.
In no event shall a service plan provide fewer
services or a lower level of services in the area to
be annexed than were in existence in that area at the
time immediately preceding the annexation gr which are
gtherwise available in other area of the citv with
uses and oooulation densitiet similar to those
reasonablv contemolated or Droiected in the newlv
annexed ar ea .
Pursuant to Government Code section 311.031(c) the
amendment takes effect as part of the Local Government Code.
However, a reading of this amendment does not alter our
conclusion that the determination of whether topography,
land use, and population density factors warrants provision
of a given level of services is a political matter subject
to the consideration given the relevant factors by the city.
Note that this amendatory act also amended other provisions
now codified under section 43.056, but again we do not find
that such amendments affect the conclusions we reach here.
P. 4757
Honorable Mark W. Stiles - Page 10 (JR-944)
differences in topography, land use, and population density
factors -- we believe an aggrieved party might obtain relief
by way of an injunction action, or by way of a m
proceeding brought by the state.
SUMMARY
If all other legal requirements are met,
the City of Harker Heights may annex the
Commanche Hills Utility District, even though
the city has annexed, in the same year, other
territory egualling up to thirty percent of
the city's territory.
A city may not literally be
provide services to an annexed area.
-59 2:
city does not provide services in accordance
with the service plan developed pursuant to
Local Government Code section 43.056, dis-
annexation under section 43.141 is the
exclusive remedy available to aggrieved
persons.
The determination of the city governing
body whether the topography, land use, and
population density factors are a sufficient
basis for providing a given level of services
under section 43.056, subsection (d), is in
the first instance the prerogative of the
annexing city.
However, a service plan which is itself
legally defective might be subject to relief
other than disannexation.
JIM MATTOX
Attorney General of Texas
l?!Y KELLER
First Assistant Attorney General
Lou MCcREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
p. 4758
-
Honorable Mark W. Stiles - Page 11 (JE944)
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 4759