JIM MATTOX 

Attorney General 

Suprem cwrl SulldlnQ 

P. 0. Box 11548 

Auslln. TX. 7S71 I. 2!m 

512l4752661 

Telex 81a674.1367 

telecopier 612l476.0266 

714 Jackson. Sulle 700 

Dallas. TX. 75202ao6 

214i742+.Q44 

924 AIberIa Ave.. Sullr 160 

‘aso. TX. 76Wt279.3 

3Iol5353464 

1001 Texas. sqite 7w 

Houslon. TX. 770023111 

713i223.6666 

606 Broadway. Suite 312 

Lubbock. TX. 794014472 

6ow747-6236 

4366 N. Tenlh. Sull. S 

MCAIIen. TX. 76601-1666 

5w662-4647 

200 Mel mua. Slme UK) 

Sm Antonlo. TX. 762OW767 

512/2264161 

The Attorney General of Texas 

Lily 5, 1984 

Booorable Fred M. Ba,xker 

Parker county Attorcey 

County Courthouse 

Weatherford. Texar 76086 

opinion, no. ~~-180 

Be: Whether an auxiliary county 

courthoure 10 subject to city 

zoning ordinances 

Dear Mr. Barker: 

You ask whether Parker County’s uee of a tract of land for an 

auxiliary courthoum! within the city limits of the county seat la 

eubject to ,the city’s ‘zoning ordinancea and building codes. We 

conclude that the ccunty’a use of land for an auxiliary courthouse is 

subject ~to the munic:ipality’e zoning ordinances only tom the extent 

that nuch ordinancmt ‘do not prevent the county from reasonably 

locating its auxilicuy courthoucle within the municipal limits of the 

county seat. Addit:looally, ve conclude that the county muat comply 

with the munfcipalitp’e building and fire coder. 

Texas courte have yet to determine the acope of a municlpality’e 

zoning power over county property located within municipal llmita. We 

recently held that buildinge, structures. and laod controlled by 

federal or etate aga!c,ciem ari ixeapt from municipal ronlug. Attorney 

General Opinion m-117 (1983). Bowever. a political rubdivision’o 

property Is not l ta te property for purpoaea of resolving conflict8 

with another politiml rubdivirion. Port Arthur Independent School 

Dlatrfct v. City of Grovea. 376 S.W.2d 330, 333 (Tex. 1964); Attorney 

General Opinion lN-Gi)(1982). 

A municipal acnln8 ordinance which conflict8 vith or is 

inconsistent with e’tate legislation 1~ invalid. City of Brookside 

Village v. Comeau, liZI S.W.2d 790. 796 (Tex. 1982). However, state 

legislation In e particular field does not automatlcally preempt that 

,field from amicipal regulation; local regulation ancillary to and in 

harmony with the purpose of the state leginlation is acceptable. Id. 

Thur, whether a municipality may exercise zoning paver over a countauxiliary courthoure: located vlthln the municipality depend6 upon 

reconciliation of two different, potentially conflicting legislatively 

created powerr. 

The coumieefone:rtl court of a county ha6 the authority to provide 

auxiliary courthouse8 in the county seat. V.T.C.S. art. 1605a-5. 
Honorable Fred M. Barker - Page 2 (JM-180) 

51(a)(l); V.T.C.S. art. 23753’5, Il. Subsection l(a) (1) of article 

1605a-5 specifically authorizea the comissionera court to provide 

auxiliary courthousea 

in any part of the city, town, or village 

designated a8 the comty eeat, including a part of 

the municipality atlcled to the municipelity after 

it became the cow&p rut. but not including a 

part of the munic:ipality that la outside the 

county. (Emphasis mlded) . 

liowever. the legfrlative history does not indicate that “in any part” 

was intended to address a c:onflict with city zoning ordinances; 

rather. it wan intended to indicate that the county la not limited to 

the “town center . ” 

Additionally, counties hwe the right of eminent domain 

four the purpose of condemning and acquiring land, 

right of way or tuhaement in land, private or 

public . . . whew said laod. right of vay ‘or 

.caeement ie neceeaal)m in the construction of . . . 

courthouses . . . . 

V.T.C.S. art. 3264a. Article 6702-l. section 4.302. grants counties 

the right of eminent domain for road construction and maintenance 

purposes within the bouadazles of ounicipalltlcs and expressly 

raquircs the prior,consent of r:he municipality. No similar statutory 

requirement for a muaicirv~lity’a : consent amlies tom county 

co~dexmations pursuant to, .art&le :3264& Cf. Cir;-of fpler v. Smitir 

~County, 246 S.l?.2d.601~(Tex. 1952); El Pasoaty v. City of El Peso, 

357 &U.2d 783 (Tex.. Civ. ,App. - 81 Paeo 1962, no writ) (resolution of 

conflict over condemnation by one political subdivieion of property 

belonging to an equally empour~‘cd subdivision ultimately reste on the 

paramount use and best interests of the public). 

Zoning regulation io a recognired tool of cowaunity planning 

vhich allova a municipality, in .itm legislative dircretion, to 

restrict the use of property fc,c the protection of the general health, 

safety, and velfare of the public. City of Broobide Village v. 

Comeau. a; see V.T.C.S. nrts., 1011a through 10113 (the zoning 

enebllng act ofzas which l u,thorixes building and zoning regulation 

by municipalities). Became a municipal roalng ordinance vhich 

conflicts with or lo inconrlrtturt with l ta te lenjslation cannot stand, 

City of Brookside Village v. Ctmeau, a , an orditica which defeata 

the legislative authorization ~~countica to ertabliah courthoueer ia 

Invalid. 
Honorable Fred M. Barker - P#ll;e 3 (JM-180) 

Texas courts dealing with conflicts .betwean municipslitiea and 

school districts employ thicl reasoning to hold that municipalities 

cannot use their zoning po!n,ra totally to exclude the reasonable 

location of achoo~.facilitic~ within municipal boundaries. Austin 

Independent School Dietrict o,, City of Sunset Valley, 502 S.W.Zd 

(Tex. 197,3); Port -Arthur Independent ,School District v. City of 

Crivea , 376 S.W.2d, .330:. (Tt;:. 1964); City of Addison v. Dallas 

Independent School, District, (132 S.W.2d 771 .(Tex. Civ. App. ‘- Dallas 

1982. .writ ref’d n.r.c.). AlLn&~g such an exclusion would defeat the 

school district’s power of end,nent domain. Austin Independent School 

District v. City of Sunset Valley, B; City of Addison v. Dallas 

Independent School District, eupra, Nor can the zoning ordinances of 

municipalities override the eminent domain powers granted by the 

legislature to other types of cntitiea. Sea Gulf, C. 6 S.P. Ry. Co. v. 

m, 281, S;W.Zd 441 (Tex. Civ. App. Dallas 1955, writ ref’d 

n.r.e.); Fort Worth 6 O.C. Ay. Co. v. Auunons. 215 S.W.Zd 407 (Tex. 

Civ. App. -. Amarillo 1948; writ ref’d 0.r.e.). 

As a practical matter, a political subdiviaion’a “immunity” from 

rC munidipal zotilng ‘is limited by a rule of reasonableneaa. For example, 

despite language ,in~ the Sunset Valle case that school districts are 

-- 4’ absolutely immune from a city s zoning power, the supreme court 

emphasized that its holding was 

not that the Sch,,l District can act with 

impunity . ~. . . ( Yhia immunity is absolute 

unless the City in #: given instance can show that 

its exercise is unreasonable or arbitrary.’ 

502 S.W.2d ,.at ,674:; (quoting ,ulth epproval from City of Nevark v. 

University of Delaware, .,3D4 -A.,:!d 347. ,349 (Del. Ch. 1973)); see City 

of Addison -v. Dallas Indepe~~lant School District, 632 S.w.?d at 

772-773. ‘. 

Similarly. in Porter v. Southwestern Public Service Co., 489 

S.W.2d 361 (Tex. Civ. App. - &rillo 1972, writ ref’d n.r.e.3. the 

r 

court held that,, absent i su&lined challenge, a city did not usurp 

--- 

the eminent domain power of a public utility by requiring it to meet 

certain standards under tit:? zoning ordinances. Therefore, ve 

conclude that Parker County’s IMC of land for an auxiliary courthouse 

is subject to the city’s zoning ordinances only to the extent that 

such ordinances do not prevent the county from reasonably locating its 

auxiliary courthouse within the municipal limits of the county seat. 

However, the county must comply with city regulations regarding 

the construction of its rcxiliary courthouse. Texas courts 

distinguish between municipal :#,ntrol over the location of buildings 

of another political subdiviair~c and control over the construction of 

such buildin8a. See, e.g., %eet Valley, m, at 673. The supreme 
Honorable Fred M. Barker - Pr,fe 4 (JM-180) 

court in Port Arthur fndeperdent School Oiatrict v. City of Groves, 

supra, held that a school district must comply with the city's 

building regulations. The legislature, .by l uthoriainS the ,achool 

district to locate a school Sacility vithin a ~nicipality. did~not 

preempt the city's police povcc to enforce necessary health and aafety 

regulatione. Port Arthur I!dependent School ~Diatrict v. City ~of 

Groves, B, et 334. ~Lo Attorney General Opiuim~M~l-508 .(1982), 

~-office ~extended~thia"~ratlonele to counties end detelrined -.thet 

couuty buildings within munic:~.palitfes are subject to municipal-fire 

codes. See al~eo Attorney Geno::al Opinion WV-218 (1957). 

Although particular "poli:e power" regulations vhich. in effect, 

prevent the location of another political subdivision's fecilitiea may 

be invalid, see. e.g., Cit of Addison v. Dallas Independent School 

. Ofstrict, supra, +- the county II authority to locate buildings in a 

municipality does not abrogc.re municipal authority to protect the 

public health, safety, and veXare. See City of Fargo, Case County v. 

~ Harwood Township, 256 N.W.2'1 694 (N.O. 1977); Lincoln County v. 

Johnson, 257 N.W.Zd 453 (S.11, 1977); Wilkinsburg-Peaa Joint Water 

Authority v. Borough of ChurclG, 417 Pa. 93, 207 A.2d 905 (1965); 

Pal-Uar Water Hanagement Oia~rict v. Martin County, 377 So.2d 752 

(Fla. Diet. Ct. App. 1979). 

&II M M A R Y 

Parker County's ure of land for sn auxiliary 

courthouse within the municipal limita of the 

county seat ,ia subject to the munlcipality'e 

zoning ordinances only to the extent that such 

ordinances do not prrrent the county from loceting 

its auxiliary courthcuae within the municipality. 

l'he county must comply vith municipal regulations 

regardinS the couw:ruction of its auxiliary 

courthouse. 

Very truly yo 8 LJ!!!k m 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney Genera,] 

DAVID IL RICHARDS 

Executive Assistant Attorney General 
. - 

Honorable Fred M. Barker - Pa&c 5 (JM-180) 

Prepared by Rick Gilpin 

Aaeiatent Attorney General 

APPROVZD: 

OPINION CQEMITTEE 

Rick Gilpin, Ghairman 

Go1111 Carl 

Susan Gerriaon 

Jim Moellinger 

Nancy Sutton