Can a Texas city charge fines under a limited annexation near a military base, and was San Antonio's annexation ballot valid?

Plain-English summary

A Texas state senator asked the AG three questions arising from the City of San Antonio's proposed annexation of two parcels of land next to Camp Bullis and Lackland Air Force Base. The questions grew out of changes the Legislature made to municipal annexation in 2017. Senate Bill 6 placed new restrictions on annexation by larger municipalities, so that a city in a county with a population of 500,000 or more (San Antonio qualifies) may now annex an area with 200 or more residents only with the approval of a majority of voters in the territory to be annexed.

The Legislature carved out a special rule for annexations near active military bases. For an area within five miles of an active military base, subsection 43.0117(b) does not give voters a simple yes-or-no on annexation. Instead it requires the city to put a choice on the ballot between two regulatory options: annexation, or giving the city authority to adopt and enforce an ordinance regulating land use in the area as recommended by the most recent joint land use study. Under that framework, some form of municipal regulation follows the election no matter which option wins.

The senator's first question was whether the city could impose fines and fees on land in its extraterritorial jurisdiction near a base. The AG explained that a municipality generally must have express authority to regulate land development in its extraterritorial jurisdiction, and that subsection 43.0117(b) expressly gives a city authority to adopt and enforce a land-use ordinance there. Chapter 54 of the Local Government Code lets municipalities enforce their ordinances through fines or penalties, and nothing in section 43.0117 limits that enforcement authority. So the AG concluded a court would likely hold the city may impose fines and penalties under an ordinance adopted pursuant to subsection 43.0117(b), as long as the ordinance is consistent with the most recent joint land use study. The AG cautioned that this addressed only the general authority; whether any specific fee or fine is valid would take its own analysis.

The second question was whether the city's proposed ballot language met the definiteness-and-certainty standard the Texas Supreme Court set in Reynolds Land & Cattle Co. v. McCabe and clarified in Dacus v. Parker. Under that standard a ballot must identify the measure by its chief features, showing its character and purpose, and it falls short if it either misrepresents the measure or omits a chief feature. The AG looked at San Antonio's actual two-option ballot, found that it presented the legislatively required choice between limited-purpose annexation and a land-use ordinance, and found it also identified the financial consequences of each option, including related fines and fees. On that basis the AG concluded a court would likely find the ballot sufficient.

The supplemental question concerned a line in the city's resolutions stating that leaving the ballot blank or voting for both options would be counted as a vote for Option 2. The AG concluded that counting ballots this way conflicts with Election Code section 65.009, which provides that a vote on a measure is counted only if the voter's intent is clearly ascertainable. A ballot marked for both options does not show a choice, the way a voter cannot pick both candidates in a race, and a blank ballot could mean the voter opposed both options, misunderstood the instructions, or simply skipped the question. Because neither shows a clearly ascertainable intent to vote for Option 2, the AG concluded such ballots should not be counted that way.

Currency note

This opinion was issued in 2018. 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.

What the opinion meant for those who asked

The city proposing the annexation: The AG concluded a court would likely hold that a city annexing land within five miles of a military base under subsection 43.0117(b) may impose fines and penalties to enforce an ordinance adopted under that authority, provided the ordinance tracks the most recent joint land use study. The opinion addressed only general authority, not any particular fee.

Voters and election officials in the affected area: The opinion explained that the special military-base rule gives voters a choice between annexation and a land-use ordinance rather than a yes-or-no on annexation, and that under Election Code section 65.009 a blank ballot or one marked for both options cannot be counted as a vote for Option 2 because the voter's intent is not clearly ascertainable.

City attorneys drafting the ballot: The AG found San Antonio's two-option ballot likely sufficient under Reynolds and Dacus because it stated the chief features of the choice and the financial consequences, but flagged the count-blank-as-Option-2 instruction as inconsistent with the Election Code.

Common questions

Can a Texas city impose fines on land in its extraterritorial jurisdiction near a military base?
The AG concluded a court would likely say yes, when the city acts under Local Government Code subsection 43.0117(b). That subsection expressly grants authority to adopt and enforce a land-use ordinance, and chapter 54 lets cities back their ordinances with fines, as long as the ordinance follows the most recent joint land use study.

Why did voters near the base get a two-option ballot instead of a yes-or-no?
Because of how the Legislature wrote subsection 43.0117(b). For an area within five miles of an active military base, the statute requires the choice to be between annexation and giving the city authority to regulate land use under the joint land use study, so some municipal regulation results either way.

Was San Antonio's annexation ballot language valid?
The AG concluded a court would likely find it sufficient. Under the Reynolds and Dacus standard, a ballot must show the measure's chief features and purpose, and the city's ballot presented the required choice and the financial consequences of each option.

Could the city count a blank or double-marked ballot as a vote for one option?
No, the AG concluded. Election Code section 65.009 counts a vote only if the voter's intent is clearly ascertainable, and a blank ballot or one marked for both options does not clearly show an intent to vote for Option 2.

Background and statutory framework

The questions arose from 2017's Senate Bill 6, which restricted annexation by larger municipalities. A city in a county with a population of 500,000 or more may annex an area of 200 or more residents only after a majority of voters there approve (Tex. Loc. Gov't Code §§ 43.001(2), 43.0691(1)). For an area within five miles of an active military base, subsection 43.0117(b) substitutes a two-option choice (annexation or a land-use ordinance per the most recent joint land use study) for the usual for-or-against vote used elsewhere (compare Tex. Loc. Gov't Code §§ 43.0117(b), 43.022(b)(4), and Tex. Educ. Code § 13.104(b)).

On the fines question, a municipality generally must possess express authority to regulate land development in its extraterritorial jurisdiction (Bizios v. Town of Lakewood Vill., 453 S.W.3d 598, 600-02 (Tex. 2014)), and subsection 43.0117(b) supplies that authority by its plain language (Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)). Chapter 54 authorizes municipalities to enforce ordinances by fines or penalties (Tex. Loc. Gov't Code § 54.001; City of Dallas v. TCI West End, Inc., 463 S.W.3d 53, 57 (Tex. 2015)), and section 43.0117 does not limit that authority, unlike the plat-and-subdivision penalty carve-out elsewhere (Tex. Loc. Gov't Code § 212.003(b)).

On the ballot question, the controlling standard comes from Reynolds Land & Cattle Co. v. McCabe, 12 S.W. 165, 165 (Tex. 1888), as clarified in Dacus v. Parker, 466 S.W.3d 820, 825-26 (Tex. 2015): the ballot must identify the measure by its chief features, showing its character and purpose, and is inadequate if it misrepresents the measure or omits a chief feature. On the counting question, Election Code section 65.009(c) counts a vote only if the voter's intent is clearly ascertainable, and section 64.006 requires a mark that clearly shows the voter's intent (Tex. Elec. Code §§ 65.009(c), 64.006; Tex. Att'y Gen. LO-89-61 (1989); Guerra v. Garza, 865 S.W.2d 573, 576 (Tex. App.-Corpus Christi 1993, writ dism'd w.o.j.)).

Citations

Statutory provisions:

• Tex. Loc. Gov't Code §§ 43.0117(b), 43.001(2), 43.022(b)(4), 43.0691(1), 54.001, 212.003(b)
• Tex. Educ. Code § 13.104(b)
• Tex. Elec. Code §§ 65.009(c), 64.006

Cases and Attorney General opinions:

• Reynolds Land & Cattle Co. v. McCabe, 12 S.W. 165, 165 (Tex. 1888)
• Bizios v. Town of Lakewood Vill., 453 S.W.3d 598, 600-02 (Tex. 2014)
• Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)
• City of Dallas v. TCI West End, Inc., 463 S.W.3d 53, 57 (Tex. 2015)
• Dacus v. Parker, 466 S.W.3d 820, 825-26 (Tex. 2015)
• Guerra v. Garza, 865 S.W.2d 573, 576 (Tex. App.-Corpus Christi 1993, writ dism'd w.o.j.)
• Tex. Att'y Gen. LO-89-61 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0221
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0221.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 22, 2018

The Honorable Donna Campbell, M.D. Opinion No. KP-0221
Chair, Committee on Veterans Affairs &
Border Security Re: Whether a municipality with authority to
Texas State Senate adopt and enforce land regulations near a
Post Office Box 12068 military base pursuant to section 43.0117 of the
Austin, Texas 78711-2068 Local Government Code may impose fees and
fines under that authority, and whether the City
of San Antonio's proposed annexation ballot
language meets the requirements of state law
(RQ-0246-KP)

Dear Senator Campbell:

    You initially ask two questions regarding the City of San Antonio's (the "City") proposed

annexation of two separate parcels of land adjacent to Camp Bullis and Lackland Air Force Base,
respectively. [1] You ask:

            1. Whether it is permissible for a city to impose fees and fines on an
            unincorporated area within the city's extra-territorial jurisdiction
            within five miles of a military base as part of the regulations
            suggested by a Joint Land Use Study[; and]

            2. Whether San Antonio's proposed annexation ballot language . . .
            meets the standard of definiteness and certainty set forth by the
            Texas Supreme Court in Reynolds Land & Cattle Co. v. McCabe, 12
            S.W. 165 (Tex. 1888)[.]

Request Letter at 1. In a supplemental request, you also ask whether the language-"[l]eaving the
ballot blank or voting for both Option 1 and 2 will result in the authorization of Option 2"-is
consistent with state law concerning how a ballot is counted. [2]

    Your questions stem from changes the Legislature made in 2017 to municipal annexation

authority. See id; see also Act of August 13, 2017, 85th Leg., 1st C.S., ch. 6, §§ 1-57, 2017 Tex.
Gen. Laws 4505, 4505-4526. Senate Bill 6 placed new restrictions on annexation by
municipalities of a certain size. [3] Generally, municipalities in a county with a population of 500,000
or more, including the City, may now annex property only with the approval of a majority of voters
in the territory to be annexed. See Tex. Loc. Gov't Code § 43.0691(1) (requiring such a
municipality to hold an election to annex an area with a population of 200 or more).

    The Legislature made an exception to its new rules for annexations near active military

bases. See id. § 43.0117(b). While the Legislature gave other voters the option to reject annexation
outright, for an area within five miles of an active military base, subsection 43.0117(b) gives voters
a choice between annexation or lesser municipal land regulation. See id. Subsection 43.0117(b)
specifically provides that

            [t]he annexation proposition shall be stated to allow the voters of the
            area to be annexed to choose between either annexation or providing
            the municipality with the authority to adopt and enforce an
            ordinance regulating the land use in the area in the manner
            recommended by the most recent joint land use study.

Id. [4] In so providing, subsection 43.0117(b) creates an unusual choice for voters. Compare id.
§ 43.0117(b), with id. § 43.022(b)(4) (providing annexation proposition language with a "for or
against" vote), and Tex. Educ. Code § 13.104(b) (providing ballot language for the creation of a
new school district with a "for or against" vote). Instead of calling for a yes or no vote on
annexation, subsection 43.0117(b) requires a municipality to present to the voters in the territory
around a military base a choice between two regulatory options. Under subsection 43.0117(b),
regardless of the election outcome, some form of municipal regulation will occur in the territory
after the election: either annexation or the imposition of land use regulations. Under this unique
framework, we consider your questions.

    Your first question concerns fines and fees. See Request Letter at 1. A municipality

generally must possess express authority to regulate land development in its extraterritorial
jurisdiction. See Bizios v. Town of Lakewood Vill., 453 S.W.3d 598, 600-02 (Tex. 2014). By its
plain language, subsection 43.0117(b), though dependent upon the voter's choice, expressly
"provid[es] the municipality with the authority to adopt and enforce an ordinance regulating the
land use in the area." Tex. Loc. Gov't Code § 43.0117(b); see also Lippincott v. Whisenhunt,
462 S.W.3d 507, 509 (Tex. 2015) ("Our objective in construing a statute is to give effect to the
Legislature's intent, which requires us to first look to the statute's plain language" and to interpret
the statute accordingly.). And a municipality has express authority, as a necessary component of
land use regulation, to enforce its ordinances monetarily. In chapter 54 of the Local Government
Code, the Legislature authorizes municipalities to "enforce each rule, ordinance, or police
regulation of the municipality" by fines or penalties. See Tex. Loc. Gov't Code § 54.001; see
also City of Dallas v. TCI West End, Inc., 463 S.W.3d 53, 57 (Tex. 2015) (construing provisions in
chapter 54 broadly so as to not be limited by "health and safety" limitation). No language in
section 43.0117 limits that enforcement authority within the extraterritorial jurisdiction. See Tex.
Loc. Gov't Code § 43.0117; cf. id. § 212.003(b) (providing that a fine or criminal penalty of a
plat and subdivision ordinance adopted under section 212.002 "does not apply" in the
extraterritorial jurisdiction). Accordingly, a court would likely conclude that a municipality
annexing territory within the area described by subsection 43.0117(b) may impose fines and
penalties that are adopted under and enforce an ordinance adopted pursuant to that subsection
provided the ordinance is consistent with the most recent joint land use study. [5]

    Your second question concerns the sufficiency of the City's proposed annexation ballot

language. See Request Letter at 1. You refer us to the standard established by the Texas Supreme
Court in Reynolds Land & Cattle Co. v. McCabe. See Request Letter at 1. In the Reynolds opinion,
the Texas Supreme Court concluded that, where not prescribed by statute, the "language of the
proposition submitted is not material, provided it substantially submits the question which the law
authorizes with such definiteness and certainty that the voters are not misled." Reynolds Land &
Cattle Co. v. McCabe, 12 S.W. 165, 165 (Tex. 1888). In 2015, the Texas Supreme Court clarified
the standard set forth in Reynolds. See Dacus v. Parker, 466 S.W.3d 820, 825-26 (Tex. 2015).
The court concluded in Dacus that the Reynolds standard meant that "the ballot must identify the
measure by its chief features, showing its character and purpose." Id. at 825. The court said a
ballot description could be inadequate in one of two ways: the language (1) "may affirmatively
misrepresent the measure's character and purpose or its chief features;" or (2) "it may mislead the
voters by omitting certain chief features that reflect its character and purpose." Id. at 826
(concluding, under the facts, that the ballot did not identify a central aspect of the amendment-
drainage charges-to be imposed on real property owners across the city and thus fell short of
identifying the measure as the funding mechanism and fiscal burden on property owners).
Resolutions adopted by the City on August 2, 2018, contain the following proposed ballot
language:

            CITY OF SAN ANTONIO PROPOSITION A
            OPTION 1
            YES ANNEXATION: SHALL THE CITY OF SAN ANTONIO ANNEX FOR
            LIMITED PURPOSES, WHICH INCLUDES THE AUTHORITY TO IMPOSE
            RELATED FINES, FEES AND OTHER CHARGES, CERTAIN AREAS IN THE
            CITY'S EXTRATERRITORIAL JURISDICTION WITHIN FIVE MILES OF THE
            [BOUNDARY OF THE SPECIFIED MILITARY BASE] AND WITHIN THREE
            YEARS FOLLOWING CITY COUNCIL APPROVAL ANNEX FOR FULL
            PURPOSES TO PROVIDE CITY SERVICES AND IMPOSE TAXES?

            OPTION 2
            NO ANNEXATION BUT WITH LAND USE REGULATIONS: SHALL THE
            CITY OF SAN ANTONIO BE PROVIDED WITH THE AUTHORITY TO ADOPT
            AND ENFORCE AN ORDINANCE REGULATING THE LAND USE IN THE
            CITY'S EXTRATERRITORIAL JURISDICTION WITHIN FIVE MILES OF THE
            BOUNDARY OF THE [SPECIFIED MILITARY BASES] IN THE MANNER
            RECOMMENDED BY THE MOST RECENT JOINT LAND USE STUDY, FOR
            THE PURPOSE OF PROTECTING THE MILITARY MISSIONS, INCLUDING
            THE AUTHORITY TO ADOPT AND IMPOSE RELATED FEES, FINES AND
            OTHER CHARGES?

            [ ] OPTION 1
            [ ] OPTION 2

See City of San Antonio Resolution, "Camp Bullis," #2018-08-02-0032R-A (Aug. 2, 2018) at 3-
4; City of San Antonio Resolution, "Lackland Air Force Base," #2018-08-02-0032R-B (Aug. 2,
2018) at 3-4. [6] This language presents the voters with the choice, as required by the Legislature in
Local Government Code subsection 43.0117(b), between a limited purpose annexation or a
municipal ordinance regulating the land use in the area surrounding the military bases. See Tex.
Loc. Gov't Code § 43.0117(b). The proposed ballot language does not obscure this chief feature
from the voters. Moreover, the ballot language identifies the financial consequences of each
option. As another chief feature of the annexation proposition, the ballot does not misinform or
mislead the voters of the financial consequences of their votes. Thus, a court would likely conclude
that the ballot language is sufficient under Reynolds and Dacus.

    Your supplemental question involves language in the annexation resolutions stating that

"[l]eaving the ballot blank or voting for both Options 1 and 2 will result in authorization of Option
2." City of San Antonio Resolution, "Camp Bullis," #2018-08-02-0032R-A (Aug. 2, 2018) at 3;
City of San Antonio Resolution, "Lackland Air Force Base," #2018-08-02-0032R-B (Aug. 2,
2018) at 3; see also Supplemental Request at 1. Under the language at issue, it appears the City
will count a ballot containing a mark for both options as a vote for Option 2. Similarly, it appears
the City will count a ballot left blank and reflecting a no vote for either proposition as a vote for
Option 2. Counting the votes in this manner conflicts with Election Code section 65.009, which
provides that a "vote on a . . . measure shall be counted if the voter's intent is clearly ascertainable."
Tex. Elec. Code § 65.009(c); see also id. § 64.006 ("A vote on a particular measure must be
indicated by placing an 'X' or other mark that clearly shows the voter's intent."). In the instance
of a ballot with a mark for both propositions, the voter cannot vote for the two options at the same
time (much like in an election between two candidates, a voter cannot vote for both candidates).
In the instance of an unmarked or blank ballot, the voter might have intended to signal to the City
that the voter opposed either type of regulation, might have misunderstood the instructions, or
might have simply neglected to mark a choice. In either instance, it is impossible for the counting
officials to clearly ascertain the voter's intent, much less a clear intent to vote for Option 2. [7] See
generally Tex. Att'y Gen. LO-89-61 (1989) at 3. Because of a lack of a clearly ascertainable
intent, ballots left blank or with both options marked should not be counted. See Guerra v. Garza,
865 S.W.2d 573, 576 (Tex. App.-Corpus Christi 1993, writ dism'd w.o.j.) (recognizing that
where the intention cannot be ascertained, the court should not count the vote in favor of one party
or another).

                                   SUMMARY

                  A court would likely conclude that a municipality acting
          under Local Government Code subsection 43.0117(b) may impose
          fines and penalties that are adopted under and enforce an ordinance
          adopted pursuant to that subsection provided the ordinance is
          consistent with the most recent joint land use study.

                  A court would likely conclude that the ballot language
          adopted by the City of San Antonio's resolution calling the election
          under subsection 43.0117(b) is sufficient under Texas Supreme
          Court precedent.

                  Election Code section 65.009 provides that a vote for a
          measure shall be counted if the voter's intent is clearly ascertainable.
          The City's plan to count ballots voting for both propositions or left
          blank as a vote in favor of Option 2 is contrary to this provision
          because such ballots do not indicate a clearly ascertainable intent for
          Option 2.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Donna Campbell, M.D., Chair, Comm. on Veterans Affairs & Border Sec., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 27, 2018), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] See Letter from Honorable Donna Campbell, M.D., Chair, Comm. on Veterans Affairs & Border Sec., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 8, 2018), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Supplemental Request").

[3] Senate Bill 6 established two tiers of counties and municipalities based on population. See Tex. Loc. Gov't Code § 43.001(2) (defining a "tier 1 county" as "a county . . . with a population of less than 500,000"), (3) (defining a "tier 2 county" as "a county that . . . is not a tier 1 county"), (5) (defining a "tier 2 municipality" as "a municipality . . . wholly or partly located in a tier 2 county"). The City of San Antonio's 2010 census population is 1,327,407. See https://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml (last visited Oct. 18, 2018).

[4] You describe a joint land use study as "the resulting report of a cooperative planning effort conducted as a joint venture between an active military [installation] and surrounding jurisdictions." Request Letter at 1.

[5] You do not ask about a specific fee or fine, and this opinion addresses only the general authority of the City. Whether a specific fee or fine imposed is consistent with the City's authority would require independent analysis.

[6] See https://sanantonio.legistar.com/LegislationDetail.aspx?ID=3585046&GUID=BA11A4E6-E80F-458C-8896-944B55AD0CD4&Options=&Search= (attachments 14 and 15) (last visited Oct. 18, 2018).

[7] Because of the nature of the Legislature's proposition in subsection 43.0117(b), if every voter in the territory except one leaves both options blank in protest of any regulation, but that one voter votes for Option 1, Option 1 prevails. See Tex. Loc. Gov't Code § 43.0691(1) (allowing annexation only if a majority of "votes received at the election approve the annexation").