Can a Texas city annex land again after it was annexed and then disannexed by petition?

Plain-English summary

Texas law lets a smaller city (a "general-law municipality," meaning a city too small to adopt its own home-rule charter) annex neighboring land in certain situations without asking the residents, voters, or landowners first. The statute that allowed this in 1996, Local Government Code section 43.033, set conditions: the city had to have a population of at least 1,000, had to already be providing the area with water or sewer service, had to extend police and fire protection within ten days, and so on. That same statute gave the people in the annexed area a way out: between one and three years after the annexation, a majority of the landowners or registered voters could petition for disannexation, and the city then had to let the area go.

State Representative Harvey Hilderbran asked what happens next. If a city annexes an area under section 43.033, the residents vote it back out, and the city still meets all the conditions, can the city simply annex the area again? Or does the failed first round close the door?

The Attorney General answered that the door stays open. Nothing in section 43.033, and nothing elsewhere in Texas law, barred a city from reannexing land it had earlier annexed and then disannexed under that section. The office reasoned that when the Legislature wanted to block reannexation, it knew how to say so: Local Government Code section 43.141 expressly provides that an area disannexed because the city failed to provide services cannot be reannexed for five years. The absence of any similar five-year bar (or any bar at all) in section 43.033 told the office that the Legislature did not intend one there. The office also found no constitutional rule that would stop a repeat annexation. It added a practical footnote: because each annexation and disannexation changes the pool of people who vote in city elections, each step would appear to require federal preclearance under the Voting Rights Act, which at the time was codified at 42 U.S.C. section 1973c.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas annexation law has changed substantially since 1996. The Legislature overhauled municipal annexation procedures in later sessions, and the federal preclearance requirement the opinion mentions (Voting Rights Act section 5, then at 42 U.S.C. section 1973c) was effectively suspended after the U.S. Supreme Court's 2013 decision in Shelby County v. Holder struck down the coverage formula that determined which jurisdictions needed preclearance. Read this page for the office's 1996 reasoning about reannexation under section 43.033, and check the current Local Government Code and current voting-rights law before relying on any specific rule here.

What the opinion meant at the time

For general-law cities: The opinion meant that losing an annexation to a disannexation petition did not permanently surrender the city's power over that land. As long as the city still met the section 43.033 conditions (population, water or sewer service, the service-plan requirements, and the rest), it could annex the same area again. The failed first attempt did not, by itself, count against it.

For residents and landowners in an annexed area: The opinion meant that a successful disannexation petition under section 43.033(b) was not necessarily the last word. A city that continued to meet the statutory conditions could move to reannex, and section 43.033 itself gave residents no five-year breathing room like the one section 43.141 provided after a services-failure disannexation.

For municipal attorneys: The opinion is a negative-implication holding. The office read the express five-year reannexation bar in section 43.141 as evidence that the Legislature would have written a similar bar into section 43.033 had it wanted one, and concluded that the silence in 43.033 left the city's reannexation authority intact. The office also flagged Voting Rights Act preclearance as a separate federal step that each annexation and disannexation would appear to trigger.

Common questions

If residents vote an area out of the city, can the city just annex it back?
Under this 1996 opinion, yes, for annexations under Local Government Code section 43.033. The office found nothing in that section or elsewhere that barred a city from reannexing land it had earlier annexed and then disannexed, so long as the city still met the section's conditions for annexation.

Doesn't the disannexation petition protect the area for some period of time?
Not under section 43.033 itself, according to the opinion. The office noted that a different statute, section 43.141, blocks reannexation for five years after a disannexation caused by the city's failure to provide services, but it found no comparable waiting period written into section 43.033.

Why did the absence of a waiting period matter?
The office treated it as a deliberate choice by the Legislature. Because the Legislature had expressly imposed a five-year bar in section 43.141, the office concluded that if it had wanted the same restriction in the section 43.033 context, it would have said so. Finding no such language, the office declined to read one in.

Were there any federal limits the opinion mentioned?
Yes. The office noted in a footnote that each annexation and disannexation, as a change affecting voting, would appear to require preclearance from the United States Justice Department under the Voting Rights Act (then 42 U.S.C. section 1973c). That federal coverage formula was later struck down in 2013, so verify current voting-rights requirements.

Background and statutory framework

Local Government Code section 43.033, as it stood in 1996, let a general-law municipality annex adjacent territory without consent of the residents, voters, or landowners if six conditions were met: the municipality had a population of 1,000 or more and was not eligible to adopt a home-rule charter; the chapter's procedural rules were met; the municipality was providing the area with water or sewer service; the area did not include unoccupied territory in excess of one acre per service address; the service plan required police and fire protection within ten days of the annexation's effective date; and the municipality and affected landowners had not agreed to a no-annexation period. Subsection (b) let a majority of the landowners or registered voters, between one and three years after the annexing ordinance, petition for disannexation, which the municipality then had to grant immediately.

Representative Hilderbran's question was whether a city could repeat the process: annex under subsection (a), lose the area to a subsection (b) petition, and then annex it again. The office answered that subsection (a)'s conditions, if still satisfied, were all that the statute required, and the prior annex-and-disannex cycle imposed no additional obstacle. The office supported this by comparing section 43.141, which expressly bars reannexation for five years when an area is disannexed for the city's failure to provide services. The presence of that express bar in one section, and its absence in section 43.033, led the office to conclude that the Legislature did not intend a reannexation restriction under section 43.033. The office found no constitutional limit either, and noted that section 43.033 had first been added in 1991 and amended in 1993. Finally, the office observed that Voting Rights Act preclearance under 42 U.S.C. section 1973c would appear to apply to each annexation and disannexation as a change affecting voting.

Citations

Statutes and authorities discussed:

• Local Government Code section 43.033 (general-law municipality annexation without consent; subsection (a) conditions; subsection (b) disannexation by petition)
• Local Government Code section 43.141 (five-year bar on reannexing an area disannexed for the city's failure to provide services)
• 42 U.S.C. § 1973c (Voting Rights Act preclearance for changes affecting voting)
• Act of May 26, 1991, 72d Leg., R.S., ch. 904, 1991 Tex. Gen. Laws 3239 (added section 43.033); Act of May 3, 1993, 73d Leg., R.S., ch. 208, 1993 Tex. Gen. Laws 395 (amended subsection (a)(3))

No cases were cited in this opinion.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0373
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0373.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

January 19, 1996

The Honorable Harvey Hilderbran
Chair
Committee on Human Services
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-373

Re: Whether a city is restricted from reannexing an area previously annexed and then disannexed under Local Government Code section 43.033 (RQ-805)

Dear Representative Hilderbran:

Local Government Code section 43.033 provides:

(a) A general-law municipality may annex adjacent territory without the consent of any of the residents or voters of the area and without the consent of any of the owners of land in the area provided that the following conditions are met:

(1) the municipality has a population of 1,000 or more and is not eligible to adopt a home-rule charter;

(2) the procedural rules prescribed by this chapter are met;

(3) the municipality must be providing the area with water or sewer service;

(4) the area does not include unoccupied territory in excess of one acre for each service address for water and sewer service;

(5) the service plan requires that police and fire protection at a level consistent with protection provided within the municipality must be provided to the area within 10 days after the effective date of the annexation; and

(6) the municipality and the affected landowners have not entered an agreement to not annex the area for a certain time period.

(b) If, after one year but before three years from the passage of an ordinance annexing an area under this section, a majority of the landowners or registered voters in the area vote by petition submitted to the municipality for disannexation, the municipality shall immediately disannex the area. If the municipality disannexes the area under this subsection, the municipality may discontinue providing the area with water and sewer service.[1]

We understand you to ask what legal restrictions, if any, prevent a city, after an area has been annexed under subsection (a) of section 43.033 but subsequently disannexed pursuant to voter or landowner vote under subsection (b), from simply annexing the area again under the subsection (a) provisions without the consent of the area's residents, voters, or landowners. In answer to your question, so long as the conditions for annexation set out in subsection (a) are met, we find nothing in section 43.033 or elsewhere that legally restricts the city from reannexing the area. The fact that the area had already been annexed under those provisions and subsequently disannexed under subsection (b) does not, in our opinion, in itself limit the city's authority to annex the area again under subsection (a).

We note that the legislature, in other contexts, has expressly imposed restrictions on a city's reannexing an area after its disannexation. Section 43.141 of the Local Government Code specifically provides that an area disannexed under that section because of the city's failure to provide services may not be reannexed within five years. We can only conclude that had it intended to impose such restrictions in the section 43.033 context it would have specifically so indicated. We find no such restrictions. Nor do we find any constitutional limitations as a matter of law on a city's annexing an area under section 43.033 that had already been annexed and then disannexed under that section.[2]

[1] The provisions of section 43.033 were first added in 1991. Act of May 26, 1991, 72d Leg., R.S., ch. 904, 1991 Tex. Gen. Laws 3239. Subsection (a)(3) was amended in 1993 to read "water or sewer service" instead of "water and sewer service." Act of May 3, 1993, 73d Leg., R.S., ch. 208, 1993 Tex. Gen. Laws 395.

The bill analysis to the bill adding section 43.033 indicates that the "procedural rules prescribed by this chapter" which must, under subsection (a)(2), be met in section 43.033 annexations, are those set out in subchapter C of chapter 43, and include notice and hearing requirements. Local Gov't Code §§ 43.052 (requirements for preparation of service plan for provision of services to annexed area), .055 (… annexation each year), .056 (limitations on area annexed each year). House Comm. on Urban Affairs Bill Analysis, H.B. 985, 72d Leg., R.S. (1991).

[2] We note, however, that each annexation and disannexation would, as a change affecting voting, appear to also require preclearance from the United States Justice Department under the Voting Rights Act, 42 U.S.C. § 1973c.

SUMMARY

The fact that an area adjacent to a city has already been annexed and then, pursuant to landowner or voter petition, disannexed under the provisions of Local Government Code section 43.033, does not in itself limit the city's authority to annex the area again under that section. The city may reannex the area so long as the conditions for annexation set out in the section are met.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General