Does a Texas home-rule city need 225,000 residents to annex land for limited purposes when all the landowners agree?

Plain-English summary

Representative Allan Ritter, then chair of the Texas House Committee on Natural Resources, asked the Attorney General about limited-purpose annexation. The City of Orange, a home-rule city of about 18,595 people, had received a petition in which all of the affected landowners asked to be annexed for limited purposes. Limited-purpose annexation lets a city apply some of its ordinances (planning, zoning, health, and safety) to an area without fully annexing it. The wrinkle: one part of the statute, section 43.121(a) of the Local Government Code, lets only home-rule cities with more than 225,000 inhabitants annex for limited purposes. A different part, section 43.129, lets "the municipality" annex land for limited purposes whenever a landowner consents in writing, and says nothing about population. Ritter asked whether a smaller city like Orange still has to clear the 225,000 bar to use the consent route.

The AG did not resolve the question. He explained that the words of the statute pointed in both directions. On one hand, section 43.129 uses the phrase "the municipality," and the surrounding sections all describe the city that qualifies under section 43.121, so a court could read "the municipality" as meaning the over-225,000 city that section 43.121 first authorized. That reading would keep smaller cities out. On the other hand, section 43.129 grants a different kind of authority, consensual annexation, which is not the same as the unilateral annexation section 43.121 allows. The Legislature could have written in a population limit or a cross-reference, and it did not. Texas courts do not read limiting words into a statute unless the legislative intent is clear, so a court might decline to attach the 225,000 requirement to the consent route.

With no court decision on the question and the text cutting both ways, the AG concluded he could not reliably predict the answer. He observed that the issue was unlikely to be tested in this instance, because every landowner had consented and consensual annexation is by definition non-adversarial, so there would probably be no one to challenge the City of Orange's decision.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Representative Ritter and the House Natural Resources Committee (as the opinion described it): The opinion treated the question as genuinely unsettled. The AG laid out both readings of the statute and declined to predict which one a court would adopt, pointing to the absence of any court decision and the ambiguous statutory text.

Home-rule cities considering consensual limited-purpose annexation (as the opinion described it): The opinion described section 43.129 as allowing "the municipality" to annex a consenting landowner's property for limited purposes, but flagged that whether a city of 225,000 or fewer could use that authority was unresolved. It did not tell smaller cities they could or could not proceed; it said the law did not supply a reliable answer.

The City of Orange (as the opinion described it): Because all of the landowners had consented, the opinion described a court challenge as unlikely, noting that consensual annexation is non-adversarial. The AG did not bless or condemn the City's proposed annexation; he described the practical likelihood that no one would contest it.

Landowners who petitioned for annexation (as the opinion described it): The opinion described the consent route under section 43.129 as the basis for the petition, while leaving open whether the city's population affected its authority to grant it.

Common questions

What is a limited-purpose annexation in Texas?
The opinion described it as a city extending some of its ordinances (planning, zoning, health, and safety) to an area without fully annexing it. Subchapter F of Chapter 43 of the Local Government Code governs it.

Did the AG say a small home-rule city can annex by consent?
No. The AG declined to give a definitive answer. He explained that the statute could be read to require the 225,000-population threshold or to allow consensual annexation without it, and that he could not reliably predict which way a court would rule.

Why couldn't the AG just answer the question?
He explained that the statutory text cut both ways and no court had decided the issue. Reading a population limit into section 43.129, or refusing to, would each require a judgment about legislative intent that the words did not clearly settle.

Does the 225,000-population rule appear in the consent statute?
No. The population requirement is in section 43.121(a). Section 43.129, the consent provision, does not mention population. The dispute was whether the requirement in 43.121(a) carries over to 43.129.

Was the City of Orange's annexation likely to be challenged?
The opinion said probably not. Because every landowner had consented, and consensual annexation is non-adversarial, the AG observed there would likely be no one with an incentive to sue.

Background and statutory framework

Subchapter F of Chapter 43 of the Local Government Code sets up the scheme for limited-purpose annexation (Tex. Loc. Gov't Code Ann. §§ 43.121-.136 (West 2008)). It opens with section 43.121(a), which lets "[t]he governing body of a home-rule municipality with more than 225,000 inhabitants" annex an area "for the limited purposes of applying its planning, zoning, health, and safety ordinances." The next several sections, 43.123 through 43.128, set planning and public-hearing requirements for the cities exercising that authority. Section 43.129, titled "Consensual Annexation," then provides that "[t]he municipality may annex for limited purposes any land for which the landowner requests annexation" and gives written consent before the annexation takes effect.

The interpretive problem was the word "the" in section 43.129. The AG noted that the Legislature's intent is found in the words it chose and in the statute read as a whole, not in isolated provisions (City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008); Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012)). Reading the chain of sections together, "the municipality" in 43.129 could refer back to the over-225,000 city that section 43.121 first authorized, which would bar smaller cities. But the AG also noted that consensual annexation is a distinct kind of authority, and that Texas courts read words into a statute "only to effect clear legislative intent" (Laidlaw Waste Sys. Inc. v. City of Wilmer, 904 S.W.2d 656 (Tex. 1995)). Use of "a" instead of "the," or an express cross-reference to 43.121(a), would have made the Legislature's intent clear in either direction; neither was present.

Finding no court decision on the point and a statute that could be read both ways, the AG concluded the answer could not be reliably predicted, while observing that the consensual posture of the City of Orange's petition made a court test unlikely.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. §§ 43.121-.136 (West 2008) (subchapter F, limited-purpose annexation)
• Tex. Loc. Gov't Code Ann. § 43.121(a) (225,000-inhabitant requirement for unilateral limited-purpose annexation)
• Tex. Loc. Gov't Code Ann. §§ 43.123-.128 (planning and public-hearing requirements)
• Tex. Loc. Gov't Code Ann. § 43.129 (consensual annexation)

Cases:

• City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008)
• Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 454 (Tex. 2012)
• Laidlaw Waste Sys. Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1096
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1096.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 23, 2014

The Honorable Allan B. Ritter Opinion No. GA-1096
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether municipalities must meet the
Post Office Box 2910 population requirement in section 43.121 of the
Austin, Texas 78768-2910 Local Government Code to annex property under
section 43.129 (RQ-1210-GA)

Dear Representative Ritter:

You have requested an opinion concerning "the authority of Texas municipalities to engage in 'Limited Purpose Annexations'" pursuant to section 43.129 of the Local Government Code.[1] You explain that the City of Orange ("the City") has received a petition from landowners for limited purpose annexation. See Request Letter. You tell us that "[o]ne hundred percent of the landowners of the property that is proposed to be annexed have requested the annexation." Id. The City has a population of 18,595.[2] Noting that a "concern has been raised regarding the population requirements for a home-rule municipality to engage in a limited purpose annexation," you ask whether the population requirement in section 43.121(a) of the Local Government Code applies to annexation by consent authorized under section 43.129. Id.

Chapter 43, subchapter F of the Local Government Code relates to "Limited Purpose Annexation." TEX. LOC. GOV'T CODE ANN. §§ 43.121-.136 (West 2008). Section 43.129 of that subchapter states, in relevant part, that "[t]he municipality may annex for limited purposes any land for which the landowner requests annexation and provides to the municipality before the effective date of the annexation the landowner's written consent to annexation for limited purposes." Id. § 43.129 (titled "Consensual Annexation"). No language within section 43.129 limits its application to municipalities of a certain size. See id.

The first section in subchapter F, however, places a population requirement on annexation authorized under that section:

The governing body of a home-rule municipality with more than 225,000 inhabitants by ordinance may annex an area for the limited purposes of applying its planning, zoning, health, and safety ordinances in the area.

Id. § 43.121(a) (emphasis added). You question whether home-rule municipalities exercising the authority granted under section 43.129 must also meet the 225,000 population requirement in subsection 43.121(a). See Request Letter.

The primary objective in construing statutes is to determine the Legislature's intent, which is ascertained through the words that the Legislature selected. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). The Legislature's intent is derived from the statute as a whole, not by reading individual provisions in isolation. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 454 (Tex. 2012).

A plain reading of section 43.129 in the context of subchapter F does not provide a definitive answer to your question. The provisions in subchapter F operate together as a scheme for limited purpose annexation. See TEX. LOC. GOV'T CODE ANN. §§ 43.121-.136 (West 2008). Section 43.121 authorizes "a home-rule municipality" meeting the population requirement to annex for limited purposes. Id. § 43.121 (emphasis added). Subsequent provisions establish planning and public hearing requirements for "the" municipalities exercising authority granted by section 43.121. Id. §§ 43.123-.128. Section 43.129 then authorizes "[t]he municipality" to annex property for limited purposes by consent. Id. § 43.129 (emphasis added). Use of the article "a," as opposed to "the," would have more clearly signified intent for section 43.129 to apply broadly to all home-rule municipalities. Thus, a court could construe the word "the" as referring to the municipality that has authority under section 43.121 to annex for limited purposes, thereby preventing municipalities with a population of 225,000 or less from exercising the authority granted by section 43.129.

Conversely, section 43.129 grants consensual annexation authority, which is distinguishable from the unilateral annexation authority granted by section 43.121. See id. Use of language similar to that in subsection 43.121(a) or a reference back to that subsection would have more clearly signified intent for section 43.129 to be limited by a population threshold. See id. § 43.121(a). Courts construing section 43.129 might be unwilling to read limiting language into that section without clearer evidence that the Legislature intended to limit the section's applicability. Laidlaw Waste Sys. Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) (explaining that words will be read into a statute only to effect clear legislative intent).

We find no court decisions addressing the question you raise. Given that all landowners of the property in question have consented to limited purpose annexation, it is unlikely that a decision by the City of Orange to exercise authority under section 43.129 in this instance would be challenged in court because consensual annexation is by definition non-adversarial. Without further guidance from the courts or the Legislature, however, it is not possible to reliably predict whether a court would require a municipality to meet the 225,000 population requirement in subsection 43.121(a) in order to annex for limited purposes by consent under the authority granted by section 43.129.

SUMMARY

Without further guidance from the courts or the Legislature, it is not possible to reliably predict whether a court would require a municipality to meet the 225,000 population requirement in subsection 43.121(a) of the Local Government Code in order to annex for limited purposes by consent under the authority granted by section 43.129.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] Letter from Honorable Allan B. Ritter, Chair, House Comm. on Natural Res., to Honorable Greg Abbott, Tex. Att'y Gen. (received July 11, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] See U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 2010 CENSUS OF POPULATION: TEXAS QUICK FACTS, http://quickfacts.census.gov.