April 13, 1987 

Eonorable Gibson D. (Gib) Lewis 

Speaker 

Texas Eouse of Representatives 

P. 0. Box 2910 

Austin. Texas 78769 

opinion No. JM-676 

Re: Whether a public street or 

alley owned in fee simple may 

be used in computing 20 percent 

of land area for purposes of 

article 1011e. V.T.C.S. 

Dear Speaker Lewis: 

As Speaker of the Texas House of Representatives, you request an 

opinion concerning article lOlle(a). V.T.C.S., which provides in 

pertinent part the following: 

(a) [Zoning] regulations, restrictions, and 

boundaries may from time to time be amended, 

supplemented, changed. modified. or repealed. In 

case, however, of a written protest against such 

change. signed by the owners of 20 per cent or 

more either of the area of the lots or land 

included in such proposed change, or of the lots 

or land immediately adjoining the same and 

extending 200 feet therefrom, such amendment shall 

not become effective except by the favorable vote 

of three-fourths of all members of the legislative 

body of such municipality. In computing the 

percentage of land area, the area of streets and 

alleys shall be included in the cmpucation. 

(Emphasis added). 

V.T.C.S. art. 1011+(a). Specifically, you ask: 

In determining under article lOlle[a] whether a 

protest has been signed by the owners of 20 

percent or more of the area of the lots or land 

included in the proposed zoning change. is d 

protesting owner allowed to count, coward the 20 

percent. the land in the area of the proposed 

change chat the owner owns in fee simple but chat 

is used as a public street or alley under an 

easement granted to the municipalicy? 

p. 3103 
Eonorable Gibson D. (Gib) Lewis - Page 2 (m-676) 

Our answer is "yes." 

Article 1Olle sets forth the procedure for amending or changing 

zoning ordinances by a city's legislature. Subsection (a) of article 

1Olle provides that if "owners of 20 percent or more either of the 

area of the lots or land included in such proposed change, or of the 

lots or land immediately adjoining the same and extending 200 feet 

therefrom" protest in writing, a three-fourths favorable vote of the 

city legislature is required before any zoning change can be effected. 

Notably, House Bill No. 1686 of the Sixty-ninth Legislature (hereinafter "the amendment" or "House Bill No. 1687") amended article 

lOlle(a) by adding the following stipulation: 

In computing the percentage of land area, the area 

of streets and alleys shall be included in the 

computation. (Emphasis added). 

kts 1985. 69th Lea.. ch. 201. $1. at 789. The word "shall" is 

generally .construed-to be mand&ory. Green v. County Attorney of 

Anderson County, 592 S.W.2d 69, 73 (Tax. Civ. App. - Tyler 1979, no 

writ); Attorney General Opinion JM-561 (1986) at 4. In this manner, 

the legislature adopted mandatory language which explicitly requires 

including the area of streets and alleys when computing the percentage 

of land owned by persons who protest a zoning change. 

The lrgislative history of the amendment reveals that House Bill 

No. 1686 was prompted by the opinion rendered in Strong v. City of 

Grand Prairie, 679 S.W.Zd 767 (Tex. Civ. App. - Fort Worth 1984, no 

writ). In Grand Prairie, the court concluded that, when written 

protests are filed in response to a zoning change, 

in determining the base area (or denominator) 

in which the protest area (or numerator) is 

20 percent, the area of streets is excluded. 

(Emphasis added). 

Id. at 770. The legislature responded to this decision by enacting 

the amendment requiring the inclusion of streets and alleys in the 

article 1011=(a) computation. 

Based upon the plain moaning of the amendment and its legislative 

history. the legislature clearly intended article lOlleta) to require 

that streets and alleys be included in computing either the area of 

lots or land included in the zoning change area, or the area of lots 

or land adjoining the proposed change area and extending 200 feet 

therefrom. See Anderson v. Penix, 161 S.W.2d 455, 459 (Tex. 1942) 

(words of a stafute are the best evidence of legislative intent); Cify 

of Irving v. Dallas County Flood Control District, 377 S.W.2d 215. 219 

(Tex. Civ. App. - Tyler), rev'd on other grounds, 383 S.W.2d 571 (Tex. 

p. 3104 

t 
Honorable Gibson D. (Gib) Lewis - Page 3 (JM-676) 

1964) (co determine legislative intent "it is proper to consider the 

history of the subject matter involved, the end to be obtained, the 

mischief to be remedied and the purpose to be accomplished"). The 

remaining issue is whether streets and alleys privately owned in fee 

simple, but dedicated to the city as public easements, constitute 

"streets and alleys" to be included in computing land area held by 

protesting land owners pursuant to article 1011=(a). 

As a preliminar; matter, incorporated cities or towns have statutory authority to open. manage, and maintain streets and alleys. See, 

s. V.T.C.S. art. 1016. Typically, a street refers to a public 

thoroughfare in a city or town. Refugio v. Strauch, 29 S.W.2d 1041, 

1043, jdmt. adopted (Tex. Coaua'n App. 1930). A public alley is 

defined as generally narrower than a street. but nonetheless governed 

by the sama legal principles applied to streets. Quanah Acme 6 P. 

Railway Co. v. Swearingen. 4 S.W.Zd 136, 139 (Tex. Civ. App. - 

Amarillo 1927, writ ref'd). 

Generally, a person owning land abutting a street or alley which 

has been dedicated to the public by plat. conveyance, or prescription 

holds the fee title to the center of the street or alley. Fort Worth 

v. Southwest Magazine, 358 S.W.2d 139, 141 (Tex. Civ. App. - Fort 

Worth 1962, writ ref'd n.r.e.). cert. denied, 372 U.S. 914 (1963); see 

also 22 I. Singer, 

1976). 

Municipal Law and Practice 5681 (Texas PractG 

The fee title is, however, subjekt to a public easement. See 

City of Mission v. Popplewell, 294 S.W.Zd 712. 715 (Tex. 1956). 

Because streets and alleys are frequently privately owned in this 

manner. it is reasonable to conclude that the legislature intended to 

include streets and alleys that are privately owned in fee simple but 

that are dedicated to the city as public easements within rhe general 

term "streets and alleys" in section (a) of article 1Olle. See also 

Johnson v. Township of Montville. 109 N.J. Super. 511. 264 A.2d 75, 78 

(NJ. 1970). Furthermore, testimony before the House Committee on 

Urban Affairs indicates chat the purpose of the requirement is that 

streets and alleys be included in the computation to simplify the 

computation. That purpose would not be served if article 1Olle were 

to differentiate between streets and alleys owned by a city in fee 

simple and privately owned streets and alleys. See Hearing and 

Testimony on H.B. No. 1686, before the iiouse Coztee on Urban 

Affairs, 69th Leg., public hearing (March 20. 1985) (tape recording 

available from House Hearing Reporter). Thus, streets and alleys held 

as public easements and privately owned in fee simple constitute 

"streets and alleys" to be included in computing the land area held by 

protesting land owners for purposes of article 1011=(a). 

SUMMARY 

Pursuant to section (a) of article 10110, 

V.T.C.S., streets and alleys held in fee simple by 

p. 3105 
Honorable Gibson D. (Gib) Lewis - Page 4 (JM-676) 

protesting land owners and dedicated for use as 

public easements are CO be included in computing the 

percentage of land area owned by the protesters. 

JIM MATTOX 

Attorney General of Texas 

JACX HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Colmnittee 

Prepared by Jeff Millstone 

Assistant Attorney General 

p. 3106