P 

Honorable George Pierce 

Chairman 

Urban Affairs Coxaaittee 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Honorable Stan Schlueter 

Chairman 

Ways and Means Committee 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Gentlemen: 

Opinion No..JM-750 

Re: Validity of incorporation 

of the city of Montgomery 

You have submitted a request for our opinion concerning the 

validity of the incorporation of the city of Montgomery, Texas, and 

the authority of the city to assess and collect taxes on property that 

is alleged to be beyond the boundaries of the city. The issues you 

have submitted involve complex questions of fact which cannot be 

resolved in an Attorney General's Opinion. We can, however, discuss 

those rules and principles which guide the courts in resolving such 

disputes. We shall begin by reviewing the information supplied to 

this office in connection with this request. 

The town of Montgomery, Texas , was established by a special act 

of the legislature in 1848. Acts 1848, 2d Leg., ch. 191. at 355. An 

attempt to incorporate it was made in 1967. The petition filed 

pursuant to the incorporation of the town of Montgomery described its 

boundaries as being 

[i]n the form of a square with its center the town 

square of the Town of Montgomery, Texas as now 

established and extending in all four directions 

from the center of such town square a distance of 

one mile. 

In 1972, two years after the town was designated a general law city 

pursuant to article 1153a, V.T.C.S., the city council passed an 

ordinance describing the boundaries of the city of Montgomery in 

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Honorable George Pierce 

Honorable Stan Schlueter 

Page 2 m-750) 

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identical terms, including therewith territory annexed to the town in 

1970. 

In 1973. the city elected to exercise its taxing authority. It 

appears, though, that only about one square mile of the city's 

territory was appraised for tax purposes. This area. we are told, 

extended one-half mile in four directions from the center of the town 

square and constituted the original 640 acre tract of land designated 

in 1848 as the town of Montgomery. In 1985, the city sought to 

include the remaining territory on the tax rolls and assess and 

collect taxes thereon for those years the territory was omitted from 

the tax rolls. 

A brief submitted on behalf of persons residing within this area 

challenges the city's authority to assess and collect taxes on their 

property. These residents allege a number of defects in the 

incorporation of the town of Montgomery in 1967 which preclude it from 

exercising taxing authority over their property. They argue that the 

boundaries described in the 1967 petition for an election on the 

question of incorporation embraced an excessive amount of territory in 

violation of articles 971 and 1134, V.T.C.S. Article 971 was 

violated, they claim, because the town did not have the number of 

inhabitants required for a town encompassing an area of four square 

miles. They contend article 1134 was violated because the territory 

outside the original square mile area forming the town of Montgomery 

was included solely for tax purposes and not for town purposes, as 

article 1134 requires. Finally, it is alleged that the residents of 

this area were not allowed to vote in the 1967 incorporation election. 

-. 

The residents seek to avoid liability for property taxes assessed 

by the city. We note, however, that a mere allegation by a taxpayer 

that a city's incorporation was accompanied by fraud is not a defense 

to the assessment and collection of ad valorem taxes owed by the 

taxpayer to the city. McDannald v. League City, 528 S.W.2d 880 (Tex. 

Civ. App. - Houston [14th Dist.] 1975, writ ref'd n.r.e.). Moreover, 

they urge that the boundaries of Montgomery should be "rolled back" to 

those designated in 1848. Apparently, they believe the town of 

Montgomery received its charter pursuant to a local or special law 

prior to the adoption of article III, section 56, of the Texas 

Constitution, and that such charter was never repealed by the 

legislature. See State ex rel. Richardson v. Larkin. 90 S.W. 912 

(Tex. Civ. App. 1905, writ ref'd) (an attempt to incorporate a city 

under the general laws is void while the special act incorporating it 

is in force). We have been supplied no authority for either of these 

propositions. Thus. we will assume that the 1967 attempt to 

incorporate the town of Montgomery was not prohibited by reason of an 

unrepealed special charter. 

p. 3494 
Honorable George Pierce 

Eonorable Stan Schlueter 

Page 3 (JM-750) 

Article 971, V.T.C.S., prescribes territorial limits for cities 

and towns seeking to incorporate under Title 28 of the civil statutes: 

No city or town in this State shall be hereafter incorporated under the provisions of the 

general charter for cities and towns contained in 

this title with a superficial area of more than 

two square miles, when such town or city has less 

than two thousand inhabitants, nor more than four 

square miles when such city or town has more than 

two thousand and less than five thousand inhabitants, nor more than nine square miles, when such 

city or town has more than five and less than ten 

thousand inhabitants. The mayor and board of 

aldermen, immediately after they qualify as such 

officers, shall pass an ordinance causing an 

actual survey of the boundaries of such town to be 

made according to the boundaries designated in the 

petition for incorporation and the field notes 

thereof recorded in the minute book of such town 

or city, and also in the record books of deeds in 

the county in which such city or town is situated. 

This provision is applicable to all cities, towns, and villages 

attempting to incorporate under Title 28 regardless of the chapter 

under which incorporation is attempted. Mallow v. State ex rel. City 

of Denton, 374 S.W.Zd 732, 736 (Tex. Civ. App. - Fort Worth 1964, writ 

ref'd n.r.e.); Richardson v. State, 199 S.W.2d 239, 244 (Tex. Civ. 

APP. - Dallas 1946, writ ref'd n.r.e.). The residents challenging the 

city's recent efforts to tax their property contend that the 

population of the town of Montgomery in 1967 stood at approximately 

400 persons, far short of the limits imposed by article 971. 

Article 1133, V.T.C.S., authorizes a town or village of more than 

200 and less than 10,000 inhabitants to incorporate as a town or 

village under chapter 11 of Title 28. The procedures for incorporation provided in chapter 11 contemplate the existence of an actual 

town or village and are not intended to create a town or village where 

none in fact exists. See Rogers v. Raines, 512 S.W.Zd 725, 730 (Tex. 

Civ. App. - Tyler 1974,it ref'd n.r.e.). 

Article 1134, V.T.C.S., sets forth the procedure whereby the 

inhabitants of a town may petition for an election on the issue of 

incorporation. The petition must include the signatures of at least 

20 qualified voters, a description of the proposed boundaries of the 

town, the proposed name of the town, and a plat of the proposed town 

"including therein no territory except that which is intended to be 

used for strictly town purposes." 

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Honorable George Pierce 

Honorable Stan Schlueter 

Page 4 (JM-750) 

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When a community seeks to incorporate pursuant to the general 

laws, the petition for incorporation must describe an area sufficient 

to include the minimum number of inhabitants required by statute. The 

area described in the petition should be susceptible of receiving some 

municipal services. Harang v. State ex rel. City of West Columbia, 

466 S.W.Zd 8, 11 (Tex. Civ. App. - Houston [14th Dist.] 1971, no 

writ). An area which, because of its geographical or population 

characteristics and development, is not capable of receiving municipal 

services on any reasonable basis does not constitute a "city" or 

"town" authorized to be incorporated. State ex rel. Needham v. 

Wilbanks, 595 S.W.Zd 849 (Tex. 1980). 

The laws authorizing the creation of municipal corporations also 

incorporate the cormnon-law prohibition against a town or village 

including within its boundaries land which is not intended to be used 

for town purposes, but is included only for tax purposes. Gray County 

Production Co. v. Christian, 231 S.W.2d 901 (Tex. Civ. App. - Amarillo 

1950, no writ). The residents of the disputed territory claim the 

city has failed to provide any municipal services beyond the original 

square mile nucleus of Montgomery. This, they contend, clearly 

establishes that their property was included in the city's corporate 

area solely for tax purposes and was not intended to be used for town 

purposes. However, they concede thatprior to 1985 no taxes were 

levied on their property. Whether the town's boundaries included more 

land than was intended to be used for town purposes is a question of 

fact for a jury to decide and is tried as any other fact issue. Ellis 

v. State, 383 S.W.Zd 635, 637 (Tex. Civ. App. - Dallas 1964. no writ). 

The courts have identified three defects in the incorporation 

process which will render the incorporation of a town absolutely void. 

They are: (1) that the act of incorporation was either prohibited or 

unauthorized by law; (2) that the incorporation was attempted pursuant 

to an unconstitutional statute; or (3) that the attempt to comply with 

the laws authorizing the creation of the municipality was so utterly 

lacking or defective as to render the attempted incorporation void. 

Durham v. Crutchfield, 578 S.W.2d 438, 441 (Tex. Civ. App. - Texarkana 

1979, writ ref'd n.r.e.). The lack of the requisite number of 

inhabitants to hold an incorporation election renders the incorporation of a community under such circumstances void as a matter of law, 

since there is no authority for groups smaller than those prescribed 

by statute to incorporate. w, Ellis v. State, w. Similarly, 

it has been held that the incorporation of a city or town in violation 

of the area and population limits of article 97i is void and illegal. 

Richardson v. State, 199 S.W.2d at 241. Other defects in the incorporation process. such as including land within the town's boundaries 

which is unsuitable or not intended to be used for town purposes, 

render the incorporation merely voidable. City of Gladewater v. 

Pelphrey. 309 S.W.2d 472, 474 (Tex. Civ. App. - Texarkana 1957, writ 

ref'd n.r.e.). 

? 

p. 3496 
Ronorable George Pierce 

Honorable Stan Schlueter 

Page 5 (.TM-750) 

The legislature, however, has enacted a series of statutes which 

validate the incorporation of cities and towns that, for one reason or 

another, do not conform to the statute authorizing incorporation. 

See, e.g., V.T.C.S. arts. 974d-974d-35; 11346; 1139a. Validating 

statutes may cure defects in the incorporation proceedings of cities 

and towns which would otherwise be void from their inception because 

of either an absence or an unwarranted exercise of power. Perkins v. 

State, 367 S.W.2d 140, 145 (Tex. 1964). For example, where the act of 

incorporation was flawed because of an erroneous boundary description 

but was done under color of statutory authority, the legislature may 

ratify the incorporation with ,uo lapse in the city's status during the 

period ic was defectively incorporated. See, e.g., Universal City v. 

City of Selma, 514 S.W.2d 64 (Tex. Civ. App. - Waco 1974, writ ref'd 

n.r.e.). These statutes will not, however, validate boundary lines 

unless they expressly provide so. Richardson v. State, 199 S.W.2d at 

244. They have no bearing on what constitutes a city or town. Rogers 

.v. Raines, 512 S.W.Zd 725 (Tex. Civ. App. - Tyler 1974, writ ref'd 

n.r.e.1. Thus, a validating statute will not cure an attempt to 

incorporate a community where the facts reveal that it does not 

constitute a city or town. State ex rel. Needham v. Wilbanks. supra. 

In 1971, the legislature enacted article 974d-15, V.T.C.S., which 

purported to validate the incorporation and boundaries of cities and 

towns having a population of not less than 215 nor more than 217 

according to the 1970 federal census. The population of the town of. 

Montgomery in 1970 was 216. U.S. Bureau of the Census, Census of 

Population: 1970, vol. 1, Characteristics of the Population, Part 45, 

Texas - section 1. The legislature evidently enacted article 974d-15 

to ratify the incorporationand boundaries of Montgomery. However, by 

confining the act's population classification to the 1970 federal 

cansus, the legislature permanently closed the class of municipalities 

which could come within the classification at any time in the future. 

This renders the act a local or special law, prohibited by article 

III, section 56, of rhe Texas Constitution. See Morris v. City of San 

Antonio, 572 S.W.2d 831 (Tex. Civ. App. -Austin 1978, no writ); 

Attornev General Oninion MW-183 (1980). It does not. therefore, 

validate the original incorporation and boundaries of the town of 

Montgomery. We do not determine whether any other validating statute 

accomplishes this result. 

Several residents of the territory in question, however, allege 

that they were not allowed to vote in the 1967 incorporation election. 

In the absence of a showing of fraud or unfairness, an election on the 

question of the creation of a municipal corporation will be upheld 

where, despite irregularities, the result was not affected thereby. 

Nueces County Water Control and Improvement District No. 4 v. State ex 

rel. Wilson, 270 S.W.2d 672 (Tex. Civ. App. - San Antonio 1954, writ 

ref'd n.r.e.). Irregularities which prevent the voters from freely 

and fairly exercising-their right to suffrage are not created as mere 

p. 3497 
Honorable George Pierce 

Honorable Stan Schlueter 

Page 6 (JM-750) 

informalities. See Branaum v. Patrick. 643 S.W.2d 745, 750 (Tex. App. 

- San Antonio 19=, no writ). Because the legislature has the power 

to ratify in a validating statute only what it has the power to 

authorize, Perkins v. State, supra. article 974d-15 would not cure the 

denial of a person's right tOvote. See generally Leach v. City of 

North Richland Hills, 627 S.W.2d 854 (Tex. App. - Fort Worth 1982, no 

writ) (validatinn statutes cannot cure constitutional defects). 

Beyond the affir&tions of these residents, we have been provided no 

other information concerning the circumstances under which the denial 

of their right to vote allegedly occurred. Whether any person 

qualified to vote in the 1967 election was unlawfully denied this 

right cannot be determined in this opinion. 

SUMMARY 

Deteminiag the validity of the 1967 

incorporation of Montgomery, Texas, involves 

questions of fact which cannot be resolved in aa 

Attorney General's Opinion. Article 974d-15, 

V.T.C.S., which purported to validate the 

incorporation and boundaries of the city of 

Montgomery, is invalid under article III, section 

56. of the Texas Constitution as a local or 

special law. A validating statute will not cure a 

defect in the incorporation of a city or town 

resulting from the denial of a person's right to 

vote. 

JIM MATTOX 

Attorney General of Texas 

MART KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 3498