ATTORNEY GENERAL ISSUES FAVORABLE ANNEXATION OPINION

On September 3, the Texas attorney general issued opinion GA-737. The opinion interpreted, among other things, the “100-tracts exemption” to the municipal annexation plan requirement in the Municipal Annexation Act (Chapter 43 of the Local Government Code). It did so in a way that confirms a long-held opinion of city attorneys around the state: it concludes that 1999 legislative changes that apply a complicated, three-year process to annexations of populated areas do not apply to the annexation of sparsely-populated areas.

The issue goes back to the 1999 legislative session, which featured aggressive attacks on municipal annexation authority. Cities were committed to finding some workable solution. League staff met with “annexation reformers” throughout that legislative session because the League was convinced there was a very real risk of losing significant authority to annex if a compromise could not be reached.

Senate Bill 89, which was the compromise enacted that year, was a massive rewrite of Texas annexation laws. League staff and city officials testified numerous times, offered amendments, and worked to eliminate or modify the more onerous provisions. Although the bill changed annexation laws significantly, it included several key provisions that mitigated the more onerous requirements.

One of the key components was that the bill did not apply its more complicated procedures to areas that are not densely populated. Under the bill, every city in Texas was required to adopt an “annexation plan” by December 1, 1999. The plan must identify areas with 100 or more homes that will be annexed by the city, and must provide for a three-year process to complete the annexation. The purpose of the plan is to ensure that built-out areas do not experience a reduction in services after annexation.

Section 17 of S.B. 89, which is codified as statutory notes that follow various sections of Chapter 43 of the Local Government Code, provides that most of the changes made by the bill apply only to “plan” annexations. Certain types of areas are exempt from the plan requirement. For example, if an area contains “fewer than 100 separate tracts of land on which one or more residential dwellings are located on each tract,” that area need not be included in an annexation plan. That language is often referred to as the “100-tracts exemption.” (Note that many cities will have a one-page plan stating that they do not intend to annex any area for which an annexation plan is required. GA-737 concluded that the failure to adopt a plan at all is not fatal to an annexation that is made outside of the plan requirement.)

In the request for GA-737, a county attorney questioned the application of the 100-tracts exemption. He argued that, for the exemption to apply, every lot in an area must contain a dwelling. The attorney general rejected that argument, stating that “while the statute would benefit from legislative clarification, we conclude that Section 43.052(h)(1) of the Local Government Code does not require that a residence be located on each tract of the area proposed for annexation.”

The opinion supports the proposition that a city may annex an area so long as there are fewer than 100 homes in the area. Because of the exemption, it is probably fair to say that most annexations will still not be required to be in an annexation plan. Of course, the 100-tracts exemption is generally relevant only to home rule cities that annex sparsely-populated land unilaterally.

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