Can a small Texas town annex a strip of roadway right-of-way next to the city limits?

TX AG Opinion GA-0478: When can a small general-law city annex roadway land?

Plain-English summary

Freestone County and District Attorney J. Keith Meredith asked the Attorney General two questions about the City of Wortham, a Type A general-law municipality of about 1,082 people. Wortham had passed an ordinance annexing territory made up of roadway rights-of-way, and nearby residents had complained about increased municipal police activity along those roads. The questions were whether the city could annex land outside its extraterritorial jurisdiction, and how to reconcile two Local Government Code sections that both deal with annexing narrow strips of land.

On the first question, the opinion started from a basic rule: a Type A general-law city has only the powers the legislature gives it. Chapter 43 of the Local Government Code lets such a city annex territory, but a city can annex land it does not own only if that land lies in the city's extraterritorial jurisdiction (ETJ). The ETJ is the unincorporated area contiguous to the city's corporate limits, and its size depends on population. For a city under 5,000 people, the ETJ reaches one-half mile out. So Wortham could annex non-owned territory only within its half-mile ETJ; to the extent its ordinance reached past the ETJ, that part went beyond the city's authority and was void.

On the second question, the opinion looked at two sections that both mention the 1,000-foot figure. Section 43.054 says a city generally may not annex an area, including a strip following a road, unless the area is at least 1,000 feet wide at its narrowest point; one exception applies when the city's boundaries are contiguous to the area on at least two sides. Section 43.0545 says a city may not annex an area that is in its ETJ only because the area is contiguous to municipal territory less than 1,000 feet wide at its narrowest point. The opinion concluded the two do not conflict. Section 43.054 limits the width of the territory being annexed; section 43.0545 limits the width of the existing city land that creates the ETJ in the first place. Whether Wortham's specific ordinance was valid depended on fact questions the opinion process cannot resolve.

Currency note

This opinion was issued in 2006. 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 significantly since 2006, including major legislative reforms to municipal annexation procedures. Anyone dealing with a current annexation question should check the present statutes rather than relying on this opinion.

Who this opinion affected (as of 2006)

Small general-law cities: The opinion told them that a Type A general-law city under 5,000 people could annex land it did not own only within its one-half mile ETJ, and that an attempt to annex beyond the ETJ was void.

Property owners and residents near city limits: The opinion explained the limits on a city's power to pull roadway strips and adjacent parcels into the city, including the requirement that an annexed narrow strip be contiguous to the city on at least two sides to qualify for the section 43.054 exception.

County and district attorneys and city officials: The opinion gave them a framework for reading sections 43.054 and 43.0545 together, but it stopped short of judging any particular ordinance because validity depended on unresolved facts.

Common questions

Can a small Texas city annex land that is outside its ETJ?
Not land it does not own. The opinion concluded that a Type A general-law city may annex non-owned territory only if the territory is within the city's extraterritorial jurisdiction, which for a city under 5,000 people extends one-half mile from the corporate limits. Annexation reaching beyond the ETJ is void.

How wide does a strip of land have to be to be annexed?
Section 43.054 generally requires the area being annexed, including a strip following a road, to be at least 1,000 feet wide at its narrowest point. One exception lets a city annex a narrower strip when the city's boundaries are contiguous to the strip on at least two sides.

Do sections 43.054 and 43.0545 contradict each other?
The opinion said no. Section 43.054 sets a size limit on the territory being annexed. Section 43.0545 sets a size limit on the slice of existing city land that creates the ETJ within which new territory is located. They address different parcels, so they serve different purposes.

Did the opinion decide whether Wortham's annexation was valid?
No. The opinion laid out the rules but said the validity of the ordinance involved fact questions the Attorney General cannot resolve in the opinion process.

Background and statutory framework

A Type A general-law municipality may exercise only the authority the legislature specifically grants it (City of Socorro v. U.S. Fireworks of Am., Inc., 842 S.W.2d 779, 780 n.1 (Tex. App.-El Paso 1992, writ denied)). Chapter 43 of the Local Government Code governs municipal annexation, and several sections authorize a Type A general-law city to annex territory (Tex. Loc. Gov't Code Ann. §§ 43.024, 43.026 (Vernon 1999); id. §§ 43.033, .034 (Vernon Supp. 2006)). Regardless of which grant applies, a city may annex territory it does not own only if that territory is in the city's ETJ (id. § 43.051 (Vernon 1999)).

The ETJ is the unincorporated area contiguous to the city's corporate boundaries, and its size depends on population; for a city of fewer than 5,000 inhabitants, the ETJ extends one-half mile (Tex. Loc. Gov't Code Ann. § 42.021). An attempt to annex territory outside the ETJ is void (Deacon v. City of Euless, 405 S.W.2d 59, 64 (Tex. 1966); City of Port Isabel v. Pinnell, 161 S.W.3d 233, 239 (Tex. App.-Corpus Christi 2005, no pet.)).

On strip annexation, section 43.054(a) bars annexing an area narrower than 1,000 feet at its narrowest point, subject to exceptions including where the city's boundaries are contiguous to the area on at least two sides (Tex. Loc. Gov't Code Ann. § 43.054(a), (b)(1) (Vernon Supp. 2006)). A Texas court has defined "contiguous" for political-subdivision boundaries as physical contact or proximity with no intervening space (Joaquin Indep. Sch. Dist. v. Fincher, 510 S.W.2d 98, 103 (Tex. Civ. App.-Tyler 1974, writ ref'd n.r.e.)). Section 43.0545(a) separately bars annexing an area located in the ETJ only because it is contiguous to municipal territory less than 1,000 feet wide at its narrowest point (Tex. Loc. Gov't Code Ann. § 43.0545(a) (Vernon Supp. 2006)), a provision a court construed to block a city from reaching distant land through a thin connecting strip (City of Missouri City v. State ex rel. City of Alvin, 123 S.W.3d 606 (Tex. App.-Houston [14th Dist.] 2003, pet. denied)). Because validity turned on facts, the opinion declined to resolve the specific ordinance (Tex. Att'y Gen. Op. Nos. GA-0087 (2003), JM-644 (1987)).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. ch. 43 (Vernon 1999 & Supp. 2006)
• Tex. Loc. Gov't Code Ann. §§ 43.024, 43.026 (Vernon 1999); §§ 43.033, .034, 43.051 (Vernon 1999 & Supp. 2006)
• Tex. Loc. Gov't Code Ann. § 42.021
• Tex. Loc. Gov't Code Ann. §§ 43.054(a), (b)(1), 43.0545(a) (Vernon Supp. 2006)

Cases:

• City of Socorro v. U.S. Fireworks of Am., Inc., 842 S.W.2d 779, 780 n.1 (Tex. App.-El Paso 1992, writ denied)
• Deacon v. City of Euless, 405 S.W.2d 59, 64 (Tex. 1966)
• City of Port Isabel v. Pinnell, 161 S.W.3d 233, 239 (Tex. App.-Corpus Christi 2005, no pet.)
• Joaquin Indep. Sch. Dist. v. Fincher, 510 S.W.2d 98, 103 (Tex. Civ. App.-Tyler 1974, writ ref'd n.r.e.)
• City of Missouri City v. State ex rel. City of Alvin, 123 S.W.3d 606 (Tex. App.-Houston [14th Dist.] 2003, pet. denied)
• Tex. Att'y Gen. Op. Nos. GA-0087 (2003), JM-644 (1987)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0478
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0478.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

October 31, 2006

The Honorable J. Keith Meredith
Freestone County and District Attorney
118 East Commerce, Room 305
Fairfield, Texas 75840

Opinion No. GA-0478

Re: Authority of a Type A general-law municipality to annex land outside its extraterritorial jurisdiction (RQ-0480-GA)

Dear Mr. Meredith:

You ask us to construe two sections of the Local Government Code that pertain to municipal annexation. Specifically, you ask

1) Whether a Type A General-Law Municipality may annex land outside of its extraterritorial jurisdiction pursuant to [sections] 42.021 and 43.051 of the [Texas Local Government Code.]

2) Additionally, whether a Type A General-Law Municipality may engage in strip annexation of land that is less than [] 1,000 feet in width to include certain highways that run adjacent and contiguous to the Municipality pursuant to [sections] 43.054 and 43.0545 of the [Texas Local Government Code.]

Request Letter, supra note 1, at 1.

You inform us that the City of Wortham, Texas (the "City") is a Type A general-law municipality with a population of 1,082 inhabitants. See id.; see also U.S. CENSUS BUREAU, POPULATION FEWER (population of Wortham is 1,082 according to 2000 Census of Population), available at http://www.census.gov/ (last visited Sept. 22, 2006). You also inform us that the City adopted an ordinance annexing territory consisting of roadway rights-of-way and that nearby citizens have complained of increased municipal police activity along the roadways. See Request Letter, supra note 1, at 1-2. In connection with these complaints, you pose your questions. See id.

I. Extraterritorial Jurisdiction Limits on Annexation

As a Type A general-law municipality, the City may exercise only the authority specifically given to it by the legislature. See City of Socorro v. U.S. Fireworks of Am., Inc., 842 S.W.2d 779, 780 n.1 (Tex. App.-El Paso 1992, writ denied). Chapter 43 of the Texas Local Government Code governs municipal annexation. See generally TEX. LOC. GOV'T CODE ANN. ch. 43 (Vernon 1999 & Supp. 2006). Many sections of chapter 43 authorize a Type A general-law municipality to annex territory. See id. §§ 43.024 (Vernon 1999) (authorizing annexation on request of area voters), 43.026 (authorizing annexation of territory owned by municipality); see also id. §§ 43.033, .034 (Vernon Supp. 2006). Irrespective of which specific grant of authority a municipality operates under, a municipality, including a Type A general-law municipality, is authorized to annex territory it does not own only if the territory is in the municipality's extraterritorial jurisdiction. Id. § 43.051 (Vernon 1999).

Extraterritorial jurisdiction ("ETJ") is the "unincorporated area that is contiguous to the corporate boundaries of the municipality." Id. § 42.021. The size of the ETJ depends on the municipality's population. See id. The ETJ of a city with a population of "fewer than 5,000 inhabitants," such as the City, extends within one-half mile of the boundaries of the municipality. Id. Thus, under sections 42.021 and 43.051, the City is authorized to annex only territory currently in its one-half mile ETJ. To the extent the City's annexation ordinance attempts to annex territory outside its ETJ, the ordinance goes beyond the City's authority and is void. See Deacon v. City of Euless, 405 S.W.2d 59, 64 (Tex. 1966) (instructing the trial court on remand that annexation of territory exceeding the statutory size limitations is void); see also City of Port Isabel v. Pinnell, 161 S.W.3d 233, 239 (Tex. App.-Corpus Christi 2005, no pet.) (recognizing allegation that city's annexation of territory outside the city's ETJ, if true, would render annexation void).

II. Limitations on Strip Annexation

You inform us that the territory annexed by the City is narrower than 1,000 feet and inquire about the limitations on strip annexation in sections 43.054 and 43.0545 of the Local Government Code. See Request Letter, supra note 1, at 3. You suggest that aspects of the two sections are in conflict and ask us to reconcile them. See id.

Section 43.054 provides that a municipality "may not annex a publicly or privately owned area, including a strip of area following the course of a road, highway, river, stream, or creek, unless the width of the area at its narrowest point is at least 1,000 feet." TEX. LOC. GOV'T CODE ANN. § 43.054(a) (Vernon Supp. 2006). This prohibition does not apply if:

(1) the boundaries of the municipality are contiguous to the area on at least two sides;

(2) the annexation is initiated on the written petition of the owners or of a majority of the qualified voters of the area; or

(3) the area abuts or is contiguous to another jurisdictional boundary.

Id. § 43.054(b). You suggest that subsection 43.054(b)(1) excepts the City from the prohibition. See Request Letter, supra note 1, at 3. Section 43.0545 provides in pertinent part that a municipality "may not annex an area that is located in the extraterritorial jurisdiction of the municipality only because the area is contiguous to municipal territory that is less than 1,000 feet in width at its narrowest point." TEX. LOC. GOV'T CODE ANN. § 43.0545(a) (Vernon Supp. 2006); see also Request Letter, supra note 1, at 3 (stating that remaining subsections of 43.0545 do not apply). You state that "in trying to ascertain whether the City is allowed to engage in strip annexation it appears that [section] 43.0545 counteracts the language in [section] 43.054(b)(1) which provides an apparent exception for the City." Request Letter, supra note 1, at 3.

Section 43.054 prohibits annexation of territory that is less than 1,000 feet wide at its narrowest point. See TEX. LOC. GOV'T CODE ANN. § 43.054(a) (Vernon Supp. 2006). The exception in section 43.054(b)(1) allows for the annexation of a narrow territory where the territory is contiguous to the municipality on at least two sides. See id. § 43.054(b)(1). The term "contiguous" is not defined by this statute, but it has been defined with respect to political subdivision boundaries by a Texas court. See Joaquin Indep. Sch. Dist. v. Fincher, 510 S.W.2d 98 (Tex. Civ. App.-Tyler 1974, writ ref'd n.r.e.) (considering school district boundaries). In Fincher, the court defined "contiguous" to mean boundaries in "such physical contact or proximity that no intervening space exists between [the] touching boundaries." Id. at 103. Thus, under this definition of the term "contiguous," the exception in section 43.054(b)(1) applies only when the narrow territory otherwise prohibited from being annexed is physically next to, or touching, the municipal boundaries on at least two sides. See TEX. LOC. GOV'T CODE ANN. § 43.054(b)(1) (Vernon Supp. 2006). The municipal boundary is the corporate limit of the municipality and not the area comprising the ETJ. See id. § 42.021 (defining ETJ as the "unincorporated area that is contiguous to the corporate boundaries of the municipality").

Section 43.0545(a) prohibits a municipality from annexing an "area that is located in the extraterritorial jurisdiction of the municipality only because the area is contiguous to municipal territory that is less than 1,000 feet in width at its narrowest point." Id. § 43.0545(a). This provision was recently construed by a Texas court. See City of Missouri City v. State ex rel. City of Alvin, 123 S.W.3d 606 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). In the case, Missouri City had purported to annex an L-shaped strip of land that was 1,000 feet wide. Id. at 608. The L-shaped strip was in Missouri City's ETJ solely because it touched a strip of Missouri City that was only twenty-five feet wide. See id. at 614. The issue for the court with respect to section 43.0545 was whether the phrase "because the area is contiguous to municipal territory that is less than 1,000 feet wide in width at its narrowest point" modified "annex" or "is located." Id. at 614. Missouri City argued the phrase modified "annex" and that because its annexation had been motivated by reasons other than the fact that the strip was "contiguous to municipal territory that is less than 1,000 feet" wide, section 43.0545 was not violated. See id. The State argued the phrase modified "is located" and that Missouri City's annexation violated section 43.0545 because the strip to be annexed extended from a strip of land only twenty-five feet wide at its narrowest point. Id. The court considered the plain language of section 43.0545 and also examined its legislative history. See id. at 615-16. In its examination of the legislative history, the court noted that the legislature's concern in enacting section 43.0545 had been cities annexing "areas located a considerable distance from the principal area of the city, so long as the area is connected at some point to the city limits." Id. at 616 (quoting SENATE INTERIM COMM. ON ANNEXATION, INTERIM REPORT, 75th Leg. 35 (Sept. 3, 1998), and stating that report is "available from the Legislative Reference Library of Texas: www.lrl.state.tx.us"). The court also noted a concern about cities "abus[ing] the privilege of developing the ETJ by using strips that extended the ETJ twenty or more miles from the 'real city.'" Id. The court concluded the phrase modified "is located" so that section 43.0545 operated to prohibit "exactly the kind of annexation" Missouri City had attempted. Id. The court said that section 43.0545 prohibited the annexation of territory "that lies within the municipality's extraterritorial jurisdiction solely by virtue of the fact the land is 'contiguous to municipal territory that is less than 1,000 feet in width at its narrowest point.'" Id. To put the court's holding another way, the piece of the city to which territory to be annexed is connected must be at least 1,000 feet wide.

Though both sections address parcels of land narrower than 1,000 feet, we do not see that they conflict with each other. Rather, we believe the two sections serve different purposes. Section 43.054 requires that the territory to be annexed must be at least 1,000 feet wide, while section 43.0545 requires that the ETJ within which territory is to be annexed must be contiguous to municipal territory that is at least 1,000 feet wide. Accordingly, to the extent that you inquire about the validity of the City's annexation under these two sections, the City's annexation of territory that is less than 1,000 feet wide only falls within the section 43.054(b)(1) exception if the territory is contiguous to the corporate boundaries of the City on at least two sides. And the section 43.0545(a) prohibition would not apply unless the portion of the municipal territory to which the annexed territory is connected is less than 1,000 feet wide. Nevertheless, the validity of the City's annexation ordinance involves fact questions that we cannot resolve in the opinion process. See Tex. Att'y Gen. Op. No. GA-0087 (2003) at 1 (opinion process cannot resolve fact questions); see also Tex. Att'y Gen. Op. No. JM-644 (1987) at 2 (same).

SUMMARY

Under sections 42.021 and 43.051 of the Local Government Code, a Type A general-law city with fewer than 5,000 inhabitants is authorized to annex territory it does not own only if the territory is in the city's one-half mile extraterritorial jurisdiction.

Sections 43.054(b)(1) and 43.0545(a) of the Local Government Code do not conflict but instead serve different purposes. Section 43.054 imposes size restrictions on the territory to be annexed, while section 43.0545 imposes size restrictions on the portion of the municipal territory that establishes the extraterritorial jurisdiction in which the territory to be annexed is located.

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from Honorable J. Keith Meredith, Freestone County and District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Apr. 13, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. Available at http://www.lrl.state.tx.us/scanned/interim/75/an76.pdf (last visited Oct. 16, 2006).