Can a Texas city's weaker adult-business zoning replace a county's stricter rules when it annexes the land?

Plain-English summary

Texas counties and cities both get to regulate sexually oriented businesses, but in different territory. Under section 243.003 of the Local Government Code, a county's regulation reaches only the part of the county outside any city's limits, and a city's regulation reaches only inside its own limits. So when a city annexes land, the county rules that used to apply there switch off and the city rules switch on.

That switch is what prompted this opinion. The City of Houston annexed territory in Harris County. The county ordinance kept sexually oriented businesses at least 1,500 feet from schools, churches, child care facilities, hospitals, public buildings, and public parks. Houston's ordinance was looser in places: 750 feet from a school, church, or licensed day care, 1,000 feet from other permitted enterprises in mostly residential areas, and no buffer at all from hospitals, public parks, or public buildings. After annexation, a business that the county would have barred near a public park could open right next to one. Senator Don Henderson, chairing the Senate Jurisprudence Committee, asked whether that result made the annexation statutes unconstitutional under article I, section 19 of the Texas Constitution, the state's "due course of law" guarantee.

The Attorney General said no. The argument against the statute assumed that a property owner has a vested right in the continued application of a particular land use ordinance. Texas law is the other way. The office quoted the Texas Supreme Court's decision in City of University Park v. Benners for the rule that property owners "do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classifications once made," because otherwise a city could never lawfully change its zoning. The same is true of county ordinances. To win a due-course-of-law challenge to a zoning ordinance as a taking, a challenger carries the "extraordinary burden" of showing the government acted outside its police power, and the office saw no reason a court would treat a sexually oriented business ordinance as an unlawful exercise of police power just because it started applying through annexation.

The office also noted that the owners here were not complaining that the city ordinance restricted their own land. They objected to what it allowed on other people's land. The office said such owners would carry at least the same heavy burden, and pointed out that the annexation chapter itself gives notice and two public hearings before annexation, so affected owners have a chance to be heard. The conclusion: chapter 43 and section 243.003 do not violate article I, section 19 when annexation subjects territory to a city's less restrictive sexually oriented business ordinance.

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.

This opinion construed chapter 43 (annexation) and section 243.003 (sexually oriented business regulation) of the Local Government Code, along with article I, section 19 of the Texas Constitution. Annexation law in particular has changed substantially since 1996, including major rewrites of the municipal annexation chapter. Read this page for the office's 1996 reasoning on vested rights and due course of law, and verify the current Local Government Code before relying on any specific provision or procedure.

What the opinion meant at the time

For cities annexing territory: The opinion meant a city's own sexually oriented business ordinance applied to newly annexed land even if it was less restrictive than the county rule that had applied there, and that this result did not make the annexation statutes unconstitutional.

For counties: The opinion meant a county's regulation lost its reach over territory once a city annexed it, because section 243.003(c) limits county regulation to the area outside city limits.

For property owners and sexually oriented business operators: The opinion meant owners had no vested right in keeping the county's stricter buffers in place, and that an owner objecting to what a city ordinance permitted on a neighbor's land faced the same "extraordinary burden" of proving an unlawful exercise of the police power.

For lawyers: The office grounded the answer in the vested-rights line of Texas cases (Benners, MJR's Fare, Stearman, Ham, Smith) holding there is no protected interest in the continuity of a zoning classification, and treated the challenge as a takings/police-power question carrying a heavy burden of proof, while noting the procedural notice and hearing rights in section 43.052.

Common questions

When a Texas city annexes county land, do the county's adult-business rules still apply?
Under this opinion, no. Section 243.003 limits a county's regulation to territory outside city limits and a city's regulation to inside its limits. Once the city annexes the land, the county rules stop applying there and the city rules take over.

Is it unconstitutional if the city's rules are weaker than the county's were?
The office concluded it is not. Article I, section 19's due-course-of-law guarantee protects vested rights, and the opinion held that no one has a vested right in a particular land use ordinance staying in place. So replacing stricter county buffers with looser city buffers through annexation did not violate the constitution.

Can a neighbor object that the city ordinance lets an adult business open too close?
The opinion said a neighbor could object but would carry a heavy burden. To challenge a zoning ordinance as a taking, a party has the "extraordinary burden" of showing the city exercised its police power unlawfully, with no facts supporting it, and an owner objecting to what an ordinance permits on someone else's property faces at least that same burden.

Did property owners get any say before annexation?
Yes. The office pointed to section 43.052 of the Local Government Code, which requires a city to give notice and hold two public hearings before annexation. That gives owners concerned about the effect on land use ordinances an opportunity to be heard.

Background and statutory framework

The question reached the office as a constitutional challenge framed around a real annexation. Houston annexed land in Harris County, and after annexation the city's sexually oriented business ordinance, which was less protective of public parks, hospitals, and public buildings than the county's, governed the annexed territory. The premise of the challenge was that the annexation statutes, by allowing this swap without requiring the city to match the county's restrictions, deprived nearby owners of property without due course of law under article I, section 19.

The office located the regulatory structure in section 243.003 of the Local Government Code, which authorizes both cities and counties to regulate sexually oriented businesses but splits the territory between them: a city's regulation applies only inside its corporate limits and a county's only outside any city's limits. It then turned to chapter 43, the annexation chapter, and to section 43.056, which requires a city to prepare a service plan for extending municipal services to annexed land. The office read section 43.056 narrowly: its job is to force planning for municipal services, not to make a city address every consequence of annexation, so the statute was not defective for failing to require cities to carry over county sexually oriented business rules.

On the constitutional question, the office applied the settled Texas rule that due-course-of-law protection presupposes a vested right, and that property owners have no vested right in the continued application of a land use ordinance. The Texas Supreme Court stated the rule in City of University Park v. Benners, and intermediate courts had applied it to both city and county zoning (MJR's Fare of Dallas v. City of Dallas, Stearman v. City of Farmers Branch, Ham v. Weaver, Smith v. Copeland). A challenger attacking a zoning ordinance as a taking bears the "extraordinary burden" of showing an unlawful exercise of the police power (Alamo Carriage Service, Inc. v. City of San Antonio; MJR's Fare). Because the owners here objected to uses permitted on others' property, the office said they would bear at least the same burden, and it found no basis for a court to treat the ordinance's application as unlawful merely because it followed from annexation. The office closed by noting that section 43.052 already supplies pre-annexation notice and two hearings, giving affected owners a chance to raise their concerns.

Citations

Constitutional and statutory provisions discussed:

• Tex. Const. art. I, § 19 (due course of law)
• Local Government Code § 243.003, including subsection (b) (city regulation applies inside corporate limits) and subsection (c) (county regulation applies outside corporate limits)
• Local Government Code ch. 43 (annexation), § 43.056 (service plan), and § 43.052 (notice and two public hearings before annexation)

Cases cited:

• City of University Park v. Benners, 485 S.W.2d 773 (Tex. 1972) (no vested right in zoning classification once made)
• Alamo Carriage Service, Inc. v. City of San Antonio, 768 S.W.2d 937 (Tex. App.-San Antonio 1989, no writ) (extraordinary burden to show unlawful exercise of police power)
• MJR's Fare of Dallas, Inc. v. City of Dallas, 792 S.W.2d 569 (Tex. App.-Dallas 1990, writ denied)
• Stearman v. City of Farmers Branch, 355 S.W.2d 541 (Tex. Civ. App.-Dallas 1962, writ ref'd n.r.e.) (neighbor objecting to special use permit had no vested interest)
• Ham v. Weaver, 227 S.W.2d 286 (Tex. Civ. App.-El Paso 1949), rev'd on other grounds, 232 S.W.2d 704 (Tex. 1950)
• Smith v. Copeland, 787 S.W.2d 420 (Tex. App.-San Antonio 1990, no writ) (no vested right in county zoning classification once made)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0399
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0399.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 13, 1996

The Honorable Don Henderson
Chair
Senate Jurisprudence Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. DM-399

Re: Whether chapter 43 and section 243.003 of the Local Government Code violate article I, section 19 of the Texas Constitution when municipal annexation causes territory to be subject to a municipal ordinance regulating sexually oriented businesses that is less restrictive than that imposed by the county prior to annexation (RQ-858)

Dear Senator Henderson:

You ask if section 43.056 of the Local Government Code is unconstitutional because it does not require a municipality to impose as restrictive an ordinance regulating sexually oriented businesses as that imposed by the county prior to annexation. A brief submitted with your request describes the following situation: The City of Houston (the "city") annexed certain territory pursuant to chapter 43 of the Local Government Code. The brief states that under a Harris County ordinance, sexually oriented businesses may not be located within 1,500 feet of schools, churches, child care facilities, hospitals, public buildings, and public parks. The brief also states that the city ordinance "prohibits the location of such businesses within 750 feet of any school, church, or licensed day care center, or within 1,000 feet of any other enterprise for which there is a permit, if 75% or more of the tracts within a circular area with a radius of 1,000 feet are residential in character. The City's ordinance contains no distance requirements between sexually oriented businesses and hospitals, public parks, or public buildings." The brief points out that under the county ordinance, a sexually oriented business could not be located within 1,500 feet of a public park, whereas under the city ordinance such a business could be located adjacent to a public park.

Section 243.003 of the Local Government Code provides that both municipalities and counties may adopt regulations regarding sexually oriented businesses. A regulation adopted by a municipality applies only inside the municipality's corporate limits, Local Gov't Code § 243.003(b), and a regulation adopted by a county applies only to the part of the county outside the corporate limits of a municipality, id. § 243.003(c).

Chapter 43 of the Local Government Code governs annexation. Section 43.056 of the Local Government Code, about which you inquire, requires a municipality proposing annexation to prepare a service plan, providing for the extension of full municipal services to the area to be annexed, prior to the publication of the notice of the first hearing on annexation. The services delineated in section 43.056 include police and fire protection, solid waste collection, and maintenance of water facilities, roads, streets, parks, playgrounds and swimming pools. Section 43.056 does not require a municipality to provide as restrictive an ordinance regulating sexually oriented businesses as that imposed by the county prior to annexation or even to address the effect of annexation on ordinances regulating sexually oriented businesses.

The brief submitted with your letter suggests that the fact that section 43.056 does not require a municipality to address the effect of annexation on ordinances regulating sexually oriented businesses renders that statute unconstitutional under article I, section 19 of the Texas Constitution. Again, the purpose of section 43.056 is to force a municipality that annexes territory to develop a plan regarding municipal services. It is not intended to force a municipality to consider any other consequences of annexation. We do not believe section 43.056 is constitutionally defective for failing to require municipalities to address issues beyond its scope. The import of your query is that chapter 43 and section 243.003 of the Local Government Code, see supra, violate article I, section 19 when they cause annexed territory to be subject to a municipal ordinance regulating sexually oriented businesses that is less restrictive than that imposed by the county prior to annexation. This is the question we address.

Article I, section 19 provides that "[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land." In order to be entitled to due process under section 19, a person must first establish that a statute affects a vested right. As one court has noted, "Due process of a property right presupposes the existence of a protected right or interest. . . . Property interests are not determined by the Constitution. They are created and defined by state law."[1] The brief submitted with your query assumes that property owners have a vested right in the continued application of an ordinance governing land use. It is well established, however, that a property owner has no vested interest in the continued application of a municipal land use ordinance. "[P]roperty owners do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classifications once made. Otherwise, a lawful exercise of the police power by the governing body of the City would be precluded."[2] This is equally true of county ordinances.[3]

In general, a party who wishes to challenge a zoning ordinance as a taking of his or her property "has the extraordinary burden of showing that the city unlawfully exercised its police power and that no facts or conditions exist in support of that exercise of the police power."[4] Here, the property owners object to the municipal ordinance not because it limits the use of their property but rather because of the uses it permits on others' property. We believe, however, that property owners who object to a municipal land use ordinance, which applies to territory as a result of annexation, on the basis of the uses it permits on others' property would have, at the very minimum, the same burden.[5] We do not believe that a court would conclude that a sexually oriented business ordinance's application to certain territory is an unlawful exercise of municipal police power merely because it applies as a result of annexation. This result is clearly contemplated by section 243.003 of the Local Government Code in providing that a regulation regarding sexually oriented businesses adopted by a county applies only to the part of the county outside the corporate limits of a municipality, Local Gov't Code § 243.003(c). Furthermore, although property in an annexed area was not part of the municipality at the time a particular land use ordinance was adopted, section 43.052 of the Local Government Code requires a municipality, prior to instituting annexation proceedings, to give notice and to conduct two public hearings. This section provides property owners who are concerned about the possible effects of annexation on the application of land use ordinances with an opportunity to be heard.

We conclude that chapter 43 and section 243.003 of the Local Government Code do not violate article I, section 19 of the Texas Constitution when municipal annexation causes territory to be subject to a municipal ordinance regulating sexually oriented businesses that is less restrictive than that imposed by the county prior to annexation.

SUMMARY

Chapter 43 and section 243.003 of the Local Government Code do not violate article I, section 19 of the Texas Constitution when municipal annexation causes territory to be subject to a municipal ordinance regulating sexually oriented businesses that is less restrictive than that imposed by the county prior to annexation.

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

Footnotes:

[1] Alamo Carriage Service, Inc. v. City of San Antonio, 768 S.W.2d 937, 940 (Tex. App.-San Antonio 1989, no writ) (citations omitted).

[2] City of University Park v. Benners, 485 S.W.2d 773, 778 (Tex. 1972); see also MJR's Fare of Dallas v. City of Dallas, 792 S.W.2d 569, 574 (Tex. App.-Dallas 1990, writ denied) (citing Benners, 485 S.W.2d 773, 778); Stearman v. City of Farmers Branch, 355 S.W.2d 541, 543 (Tex. Civ. App.-Dallas 1962, writ ref'd n.r.e.) (neighboring property owners objecting to special use permit had no vested interest in the continuity of zoning ordinance); Ham v. Weaver, 227 S.W.2d 286, 292 (Tex. Civ. App.-El Paso 1949), rev'd on other grounds, 232 S.W.2d 704 (Tex. 1950) ("No resident or owner of property acquires a vested interest under a zoning ordinance. . . . It seems right to consider the position of those who have built up and improved the zone in reliance upon a restrictive ordinance. Of course one improving his property in a zoned district acquires no vested right.").

[3] Smith v. Copeland, 787 S.W.2d 420, 422 (Tex. App.-San Antonio 1990, no writ) (citing Benners, 485 S.W.2d 773, 778) (property owners do not acquire constitutionally protected vested right in county zoning classification once made).

[4] MJR's Fare of Dallas, 792 S.W.2d at 574.

[5] See, e.g., Stearman, 355 S.W.2d at 543 (requiring residential property owners who objected to special permit granted to neighboring property owner to build medical center to make similar showing).