**P** HonorableGeorge Pierce Chairman UrbanAffairs Coxaaittee Texas House of Representatives P. 0. Box 2910 Austin, Texas 78769

Honorable Stan Schlueter Chairman Ways andMeans Committee Texas House of Representatives P. 0. Box 2910 Austin, Texas 78769

Gentlemen: OpinionNo..JM-750

Re: Validity of incorporation of the city ofMontgomery

You have submitted a request for our opinion concerning the validity of the incorporation of the city of Montgomery, Texas, and the authorityof the city to assess and collect taxes onproperty 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 connectionwith this request.

The town of Montgomery, Texas,was establishedby a special act of the legislaturein 1848. Acts 1848, 2d Leg., ch. 191. at 355. An attempt to incorporate it was made in 1967. The petition filed pursuant to the incorporationof the town of Montgomery described its boundariesas being

[i]n the form of a squarewith 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
onemile.

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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identical terms, including therewith territoryannexed 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-halfmile 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 territorywas omitted from the tax rolls.

A brief submitted on behalf of persons residingwithin this area challenges the city's authority to assess and collect taxes on their property. These residents allege a number of defects in the incorporationof the town ofMontgomery in 1967which preclude it from exercising taxing authority over theirproperty. They argue that the boundaries described in the 1967 petition for an election on the question of incorporationembracedan excessiveamount 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 areawere not allowed to vote in the 1967 incorporationelection. -.

The residents seek to avoid liability forproperty taxes assessed by the city. We note, however, that a mere allegationby a taxpayer that a city's incorporationwas accompaniedby 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 [14thDist.] 1975,writ ref'd n.r.e.). Moreover, theyurge that theboundaries ofMontgomery shouldbe "rolledback" 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 incorporatingit is in force). We have been suppliedno authority for either of these propositions. Thus. we will assume that the 1967 attempt to incorporatethe town of Montgomerywas not prohibited by reason of an unrepealed specialcharter.

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Article 971, V.T.C.S., prescribes territorial limits for cities and towns seeking to incorporateunder 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 squaremiles, when such town or city has less than two thousand inhabitants,nor more than four squaremiles when such city or townhas more than two thousand and less than five thousand inhabitants,nor more thannine squaremiles, 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 theboundaries of such town tobe made according to theboundariesdesignated 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 inwhich 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'dn.r.e.). The residentschallenging the city's recent efforts to tax their property contend that the population of the town of Montgomery in 1967 stood at approximately 400persons, far short of the limits imposedby article 971.

Article 1133,V.T.C.S., authorizesa town or village ofmore 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 orvillage and are not intendedto create a town orvillagewhere
none in fact exists. See Rogers v. Raines, 512 S.W.Zd 725, 730 (Tex. Civ.App. - Tyler 1974,it ref'dn.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 qualifiedvoters, 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 townpurposes."

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When a community seeks to incorporate pursuant to the general laws, the petition for incorporationmust describe an area sufficient to include theminimum number of inhabitantsrequiredby statute. The
area described in thepetition shouldbe susceptibleof 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 characteristicsand development,is not capable of receivingmunicipal 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 corporationsalso incorporate the cormnon-lawprohibition against a town or village includingwithin its boundaries landwhich is not intended to be used for townpurposes,but is includedonly for taxpurposes. Gray County ProductionCo. 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 servicesbeyond 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 taxpurposes and was not intended to be used for town purposes. However, they concede thatprior to 1985 no taxes were levied on theirproperty. Whether the town'sboundaries includedmore land thanwas 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 processwhich will render the incorporationof a town absolutelyvoid. They are: (1) that the act of incorporationwas eitherprohibited or unauthorizedby law; (2) that the incorporationwas attemptedpursuant to an unconstitutionalstatute;or (3) that the attempt to complywith the laws authorizing the creation of the municipalitywas so utterly lacking or defective as to render the attempted incorporationvoid. 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 communityunder such circumstancesvoid 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, ithas been held that the incorporationof 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 incorporationprocess. such as including landwithin 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'dn.r.e.). ?

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The legislature,however, has enacted a series of statuteswhich validate the incorporationof cities and towns that, for one reasonor another, do not conform to the statute authorizing incorporation. See, e.g., V.T.C.S. arts. 974d-974d-35; 11346; 1139a. Validating statutesmay cure defects in the incorporationproceedings of cities and townswhich would otherwisebe void from their inceptionbecause 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 incorporationwas flawed because of an erroneousboundary description but was done under color of statutory authority, the legislaturemay ratify the incorporationwith ,uolapse in the city's statusduring 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 expresslyprovide so. Richardsonv. State, 199 S.W.2d at 244. Theyhave no bearing onwhat constitutesa 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 constitutea city or town. State ex rel.Needhamv. Wilbanks. supra.

In 1971, the legislatureenactedarticle 974d-15,V.T.C.S.,which purported to validate the incorporationand 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, Characteristicsof thePopulation,Part 45, Texas - section 1. The legislatureevidently enacted article 974d-15 to ratify the incorporationand boundaries ofMontgomery. However,by confining the act's population classification to the 1970 federal cansus, the legislaturepermanently closed the class ofmunicipalities which could come within the classificationat any time in the future. This renders the act a local or special law, prohibited by article III, section 56, of rheTexas Constitution. SeeMorris 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 determinewhether any other validating statute accomplishesthis result.

Several residents of the territory in question, however, allege that theywere not allowed tovote in the 1967 incorporationelection. In the absence of a showingof fraudor unfairness,an electionon the question of the creation of a municipal corporation will be upheld where, despite irregularities, the result was not affected thereby. Nueces CountyWater Control and ImprovementDistrictNo. 4v. State ex rel. Wilson, 270 S.W.2d 672 (Tex. Civ. App. - San Antonio 1954,writ ref'd n.r.e.). Irregularitieswhich prevent the voters from freely and fairly exercising-theirright to suffrage are not created as mere

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

- San Antonio 19=, no writ). Because the legislaturehas the power to ratify in a validating statute only what it has the power to authorize,Perkinsv. State, supra. article 974d-15would not cure the denial of a person's right tOvote. See generallyLeach 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 circumstancesunder 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 cannotbe 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 statutewill 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 AttorneyGeneral of Texas

MART KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,Opinion Committee
Preparedby Rick Gilpin AssistantAttorneyGeneral

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