When a Texas city annexes land along a county road, must it annex the whole road too?

Plain-English summary

When a Texas city expands its boundaries by annexing land that runs alongside a county road, state law has long required it to take the whole road, not just the strip touching the new property. Section 43.106(a) of the Local Government Code says a municipality that "proposes to annex any portion of a county road or territory that abuts a county road must also annex the entire width of the county road and the adjacent right-of-way on both sides." A Johnson County attorney asked the AG whether that rule applied when the annexation was a voluntary one, started by landowners through a petition under former section 43.028, rather than a city pushing annexation on its own. A city had taken the position that section 43.106 reached only city-initiated annexations.

The AG read the statute by its plain words. Section 43.106 does not distinguish between voluntary and involuntary annexation; it simply applies to a municipality that "proposes to annex" a county road or abutting territory. The real question was whether a landowner-initiated annexation under former section 43.028 still counts as the municipality "proposing" the annexation. The AG concluded it does. Former section 43.028 let a city annex narrow, sparsely occupied land that owners petitioned to bring in, but the same former chapter 43 defined a "Tier 1 municipality," the only kind that could use section 43.028, as one "that proposes to annex" the area. Courts read a word used throughout a statute consistently. So even under the petition route, the city is the actor that "proposes" the annexation: it hears the petition, grants it, introduces the ordinance, and adopts it. By doing that, the city declares its intention to annex. The result is that section 43.106 required a city that annexed a portion of a county road or an abutting area by granting a 43.028 petition to also annex the full width of the road and the adjacent right-of-way.

The county attorney also asked how the requirement could be enforced. The AG explained that a quo warranto action is generally the primary way to challenge an annexation, but an annexation can also be attacked by declaratory judgment when the city's governing body acted outside its statutory authority, making the annexation void. So, depending on the relief sought, a county could challenge a municipality's annexation under section 43.106 through quo warranto, declaratory judgment, or both.

The AG flagged one timing point. After the county attorney sent in the question, the Legislature passed House Bill 347 in 2019, which substantially revised chapter 43 and repealed section 43.028. That bill took effect immediately but generally applied only to annexations that were not final on its effective date, so the AG analyzed the question under the law as it stood before House Bill 347.

Currency note

This opinion was issued in 2019. 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. Note in particular that House Bill 347 (2019) substantially revised chapter 43 and repealed former section 43.028, which the opinion analyzed under prior law.

What the opinion meant for those who asked

For the Johnson County Attorney, the opinion confirmed the county's reading: section 43.106's whole-road requirement reached voluntary, owner-petitioned annexations, not just city-driven ones, so a city could not take the abutting land while leaving the county road and right-of-way out. For a city carrying out a 43.028 annexation at the time, the opinion meant the full road width and adjacent right-of-way had to come in with the property. On enforcement, the opinion told the county its options were quo warranto, declaratory judgment, or both, depending on the relief it wanted. Because House Bill 347 had since repealed section 43.028 and reworked chapter 43, the opinion's annexation-mechanics analysis applied to annexations governed by the prior law.

Common questions

Q: What does section 43.106 require?
A: That a municipality annexing any portion of a county road, or territory that abuts a county road, also annex the entire width of the road and the adjacent right-of-way on both sides.

Q: Did it matter that the landowners, not the city, started the annexation?
A: No. The AG concluded that even in an owner-petitioned annexation under former section 43.028, the city "proposes" the annexation when it grants the petition and adopts the ordinance, so section 43.106 still applied.

Q: How could a county enforce the requirement?
A: Through a quo warranto action (the usual mechanism), a declaratory judgment action (arguing the annexation is void because the city exceeded its authority), or both, depending on the relief sought.

Q: Is former section 43.028 still in effect?
A: No. House Bill 347 (2019) repealed it and substantially revised chapter 43, but it generally applied only to annexations not final on its effective date, so the AG analyzed the question under prior law.

Background and statutory framework

Section 43.106(a) of the Local Government Code requires a municipality that "proposes to annex any portion of a county road or territory that abuts a county road" to annex the entire road width and adjacent right-of-way. Former chapter 43 organized counties and municipalities into "Tier 1" and "Tier 2" categories (former sections 43.001(2)-(5)); Tier 1 municipalities could annex certain adjacent areas without voter or landowner consent, while Tier 2 municipalities generally needed consent (former sections 43.067-.069; current sections 43.0671-.0673, 43.0681-.0688, 43.0691-.0698; see also sections 43.003, 43.0115, 43.033). Former section 43.028 let a Tier 1 municipality (former section 43.0205) annex "sparsely occupied" land, half a mile or less wide and contiguous, on a landowner petition that the governing body heard, granted or refused, and implemented by ordinance (former section 43.028(a)-(e), (g), (h)). The AG construed the statute by plain meaning and as a whole (Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400 (Tex. 2016); TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68 (Tex. 2016); In re Ford Motor Co., 442 S.W.3d 265 (Tex. 2014); Tex. Gov't Code § 311.011(a)), reading "proposes to annex" consistently throughout chapter 43 (Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527 (Tex. 2016)). On remedies, the AG relied on Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656 (Tex. 1995) and City of Clute v. City of Lake Jackson, 559 S.W.2d 391 (Tex. App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.). House Bill 347 (Act of May 13, 2019, 86th Leg., R.S., ch. 155) repealed former section 43.028 and revised chapter 43 prospectively.

Citations and references

Statutory provisions:

• Tex. Loc. Gov't Code § 43.106; ch. 43 (current §§ 43.003, 43.0115, 43.0671-.0673, 43.0681-.0688, 43.0691-.0698)
• Former Local Gov't Code ch. 43 §§ 43.001(2)-(5), 43.0205, 43.028, 43.033, 43.067-.069
• Tex. Gov't Code § 311.011
• H.B. 347, 86th Leg., R.S., ch. 155 (2019)

Cases:

• Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404 (Tex. 2016)
• TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016)
• In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex. 2014)
• Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 532 (Tex. 2016)
• Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 658 (Tex. 1995)
• City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 394 (Tex. App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0276
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0276.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 21, 2019

The Honorable Bill Moore
Johnson County Attorney
Guinn Justice Center
204 South Buffalo Avenue, Suite 410
Cleburne, Texas 76033-5404

Opinion No. KP-0276

Re: Whether section 43.106 of the Local Government Code, requiring municipal annexation of county roads adjacent to annexed property, applies to voluntary annexations initiated pursuant to former section 43.028 of the Local Government Code (RQ-0289-KP)

Dear Mr. Moore:

You ask whether section 43.106 of the Local Government Code, requiring municipal annexation of county roads adjacent to annexed property, applies to voluntary annexations initiated pursuant to former section 43.028 of the Local Government Code.[1] After you submitted your question, the Legislature enacted House Bill 347, substantially revising chapter 43 and repealing section 43.028. See Act of May 13, 2019, 86th Leg., R.S., ch. 155, art. 1, § 1.01(3), 2019 Tex. Sess. Law Serv. 278 ("H.B. 347") (repealing subchapter B of chapter 43, including section 43.028). The bill took effect immediately upon passage but generally applies only to annexations that were not final on the effective date. See H.B. 347, art. 4, §§ 4.01-.02. Thus, we will address your question under the law as it existed prior to the adoption of H.B. 347.[2] For background, the major organizing principle of former chapter 43 is its division of counties and municipalities into two categories—"Tier 1" and "Tier 2." See Former Chapter 43 § 43.001(2)-(5).[3] Generally, a Tier 1 county is a county with a population of less than 500,000, and a Tier 2 county is a county that either does not qualify as a Tier 1 county or votes to be treated as a Tier 2 county. Id. § 43.001(2), (3). A Tier 1 municipality is a municipality that is located in one or more Tier 1 counties and that proposes to annex an area located in one or more Tier 1 counties. Id. § 43.001(4). A Tier 2 municipality is a municipality that is located wholly or partly in a Tier 2 county or proposes to annex area in a Tier 2 county. Id. § 43.001(5). Under former chapter 43, a Tier 1 municipality could annex adjacent areas without the consent of voters or landowners of the area in certain circumstances. See, e.g., id. § 43.033[4] (certain general-law municipalities); TEX. LOC. GOV'T CODE §§ 43.003 (home-rule municipality by its charter), 43.0115 (certain municipalities annexing enclaves). A Tier 2 municipality, on the other hand, generally could annex an area only with the consent of voters or landowners in the area. Former Chapter 43 §§ 43.067, .068, .069;[5] TEX. LOC. GOV'T CODE §§ 43.0671-.0673, 43.0681-.0688, 43.0691-.0698.

Section 43.106(a) of the Local Government Code provides:

A municipality that proposes to annex any portion of a county road or territory that abuts a county road must also annex the entire width of the county road and the adjacent right-of-way on both sides of the county road.

TEX. LOC. GOV'T CODE § 43.106(a). You assert that section 43.106 requires any municipality annexing property that abuts a county road to annex the entire width of the road and the adjacent right-of-way. Request Letter at 1. You inform us, however, that a city contends that the section does not apply to voluntary annexations initiated by landowners under section 43.106. Id. at 2.

Courts construing a statute attempt to ascertain the Legislature's intent from the plain meaning of the statute's words. Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404 (Tex. 2016). They "consider the statute as a whole, giving effect to each provision so that none is rendered meaningless or mere surplusage." TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). A statute's words and phrases are "read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE § 311.011(a). Courts "presume that a definition of a common word accords with and does not conflict with the ordinary meaning unless the language clearly indicates otherwise." In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex. 2014).

Section 43.106 does not specifically distinguish between voluntary and involuntary annexation. TEX. LOC. GOV'T CODE § 43.106(a). The statute restricts its application to a proposed annexation of a "portion of a county road or territory that abuts a county road." Id. The word "propose" commonly means "to form or declare a plan or intention" or "to offer for consideration, discussion, acceptance, or adoption." WEBSTER'S THIRD NEW INT'L DICTIONARY 1819 (2002). Thus, the issue is whether the phrase "municipality that proposes to annex" includes only municipality-initiated annexation and excludes owner-initiated annexation under former section 43.028.

Former section 43.028 authorizes a municipality to annex "sparsely occupied" land that is (1) a half mile or less wide, (2) contiguous to the annexing municipality, and (3) vacant or on which fewer than three voters reside.[6] Former Chapter 43 § 43.028(a). Under that section, owners of the area initiate annexation by written petition to the governing body of the municipality. Id. § 43.028(b), (c). The governing body must hear the petition and either grant or refuse the petition. Id. § 43.028(d). If granted, the governing body must then enact an annexation ordinance, and the area becomes a part of the municipality on the ordinance's effective date. Id. § 43.028(e).

While the owners may initiate annexation under former section 43.028, that does not resolve whether a municipality proposes the annexation under section 43.106. Former section 43.028 is located in former subchapter B, which grants annexation authority only to Tier 1 municipalities. Id. § 43.0205.[7] But former chapter 43 defines a "Tier 1 municipality" as "a municipality wholly located in one or more tier 1 counties that proposes to annex an area wholly located in one or more tier 1 counties." Id. § 43.001(4) (emphasis added). Courts generally construe a word used throughout a statute to have consistent meaning. Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 532 (Tex. 2016). Thus, a municipality may annex under former section 43.028 only if it is a Tier 1 municipality that, in some sense, "proposes to annex" the designated area. Former Chapter 43 §§ 43.001(4), .0205, .028(a). When a municipality approves a petition under former section 43.028, introduces an ordinance for annexation, and adopts the ordinance, it declares its intention to proceed with annexation; therefore, it proposes the annexation for purposes of section 43.106. See id. § 43.028(b); TEX. LOC. GOV'T CODE § 43.106. Thus, section 43.106 requires a municipality that annexes any portion of a county road or an area abutting a county road by granting a petition under former section 43.028 to also annex the full width of the road and adjacent right-of-way.

You also ask about remedies to enforce section 43.106 against a municipality that has annexed under former section 43.028. Request Letter at 1. Generally, an action in quo warranto is the primary mechanism for challenging annexation. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 658 (Tex. 1995). However, an annexation may be challenged in a declaratory judgment action on the grounds that the annexation is void because the governing body acted outside of its statutory authority. Id. at 657-58; see also City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 394 (Tex. App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.). Thus, depending on the relief sought, a county could challenge a municipality's annexation under section 43.106 in an action in quo warranto, declaratory judgment, or both.

SUMMARY

Section 43.106 of the Local Government Code requires a municipality that annexed any portion of a county road or an area abutting a county road by granting a petition under former section 43.028 to also annex the full width of the road and adjacent right-of-way.

Depending on the relief sought, a county could challenge a municipality's annexation under section 43.106 of the Local Government Code in an action in quo warranto, declaratory judgment, or both.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Bill Moore, Johnson Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 13, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Applicable sections repealed by H.B. 347 are cited as "Former Chapter 43." References to applicable sections that H.B. 347 did not repeal are cited to the current Local Government Code.

[3] See Act of Aug. 13, 2017, 85th Leg., 1st C.S., ch. 6, §§ 1-43, 2017 Tex. Gen. Laws 4505, 4504-21, repealed by H.B. 347, art. 1, § 1.01(1).

[4] See Act of May 26, 1991, 72d Leg., R.S., ch. 904, § 1, sec. 43.033, 1991 Tex. Gen. Laws 3239, 3239-40 (amended 1993, 2005, 2015), repealed by H.B. 347, art. 1, § 1.01(3).

[5] See Act of Aug. 13, 2017, 85th Leg., 1st C.S., ch. 6, § 26, 2017 Tex. Gen. Laws 4505, 4512-13, 4515 repealed by H.B. 347, art. 1, § 1.01(14)-(16).

[6] The contiguity requirement may be satisfied if a public right-of-way of a road or highway designated by the municipality located entirely in the municipality's extraterritorial jurisdiction, when added to the area, makes the area contiguous. Former Chapter 43 § 43.028(g), (h). In that instance, area including the right-of-way may be annexed regardless of whether the owners of the right-of-way sought annexation. Id. § 43.028(h).

[7] See Act of Aug. 13, 2017, 85th Leg., 1st C.S., ch. 6, § 12, 2017 Tex. Gen. Laws 4505, 4508, repealed by H.B. 347, art. 1, § 1.01(3).