November 14, 1973
The Honorable M. D. Emerson County Attorney County **Courthouse** Paris, Texas 75460 Opinion No. H- 153 Re: The legality of the incorporation ofthe proposed town ofSun Valley Dear Mr. Emerson: Your request for our opinion states a number offacts concerning the proposed town ofSun Valley,asks us toassume these facts to be true, and then asks whether the proposed town would meet the requirements for incorporation as a town or village under Title 28, Chapter 11, Vernon’s Texas Civil Statutes. (Articles 1133to 1153a). The facts you ask us to assume **are:**

“Sun Valley has apopulation ofapproximately 235people. Itis basically a mobile home park which was started in 1971and by September of 1972 had substantially all ofthe space leased. Sun Valley has its own sewerage system which has been approved by all required State Agencies, and it is being operated by a licensed operator. Sun Valley has asphalt streets within the proposed corporate city limits and apermanent Cable Television System with an antenna approximately 120feet tall and the cable is provided to each family within the proposed City ofSun Valley. The’ proposed Town ofSun Valley has more than 200 and less than 1,000 inhabitants as provided for under Article 1133, Vernon’s Annotated Civil Statutes. The Town also has at least twenty residents thereof who are qualified voters under the General Election **Laws** of the State of Texas and who have resided within the proposed town for a period in excess of six months.

p. 711The Honorable M.D. Emerson, page 2 (H-153)

The proposed Town of Sun Valley consists ofapproximately 86 contiguous acres ofwhich the mobile home parkat this time only occupies approximate,Ly ten acres of the total tract. All of the mobile homes within the proposed Town ofSun Valley are individually owned. Electricity and running water is provided for all residents.

“School buses from two different schools run through Sun Valley to transport children to their respective schools. ” Article 1133ofVernon’s Texas Civil **Statutes states:** 

“When a town or village contains more than two hundred (200) and less than ten thousand (IO,000) inhabitants, it may be incorporated as a town or village in the manner prescribed in Chapter 11, Title 28, of **the** Revised Civil **Statutes** of Texas, 1925, and all amendments thereto. ” (Articles ,1133to ,1153a,X ZCS.) Article 1134of Vernon’s Texas Civil Statutes provides in part:

“If the inhabitants of such town ortiNage desire to be so incorporated, at least twenty residents thereof, who would be qualified voters under the provisinns of this chapter, shall file an application for that purpose in the office ofthe county judge of the county in which the town or village is situated, stating the boundaries ofthe proposed town or village, the name by which it is to be known when incorporated, and accompany the same with a plat of the proposed town or village including therein no territory except that tihich is intended to be used for strictly town purposes. . . .‘I Texas Courts have construed the term “inhabitants, ” in other statutes, to encompass those persons who have established more or less permanent

p. 712The Honorable M.D. Emerson, page 3 (H-153)

domiciles in a particular.community. Struble v. Struble, 177S.W. 2d 279 (Tex. Civ. App., Amarillo, 1943, no writ): Houston Printing Co. v. Tennant, 39 S.W. 2d 1089 (Tex. 1931). The “inhabitants” do not have to be qualified electors. Attorney General Opinion M-867 (1971). InCapitol Aggregates, Inc. v. Walker, 448 S.W. 2d 830 (Tex. Civ. App., Austin, 1969, error ref’d. n.r.e.), it was held that ajudgment debtor’s mobile home was sufficiently affixed to land for the purpose of qualifying for ahomestead exemption. Itwas found that the mobile home’s gas, water and sewage facilities were connected to the gas, water and sewage systems located under the surface ofthe ,land. The structure was set on cement blocks. The court stated that the question of intention to make the article a permanent accession tothe ,landmust be ascertained from the facts and circumstances attendant upon p,lacing the house there, Here, the county judge, in determining if the popu,lation ofthe proposed Town is permanently residing there, must take into account all of the factors involved. Ithas been held that the County Judge has discretionary power to determine whether or not the proposed town or village contains’the sufficient number of “inhabitants. ” Reagan v. Beck, 474 S.W. 2d 935 (Tex. Civ.App., Tyler, 1971, error ref’d. n.r. e.). His ruling is final in the absence offraud or.abuse of discretion. Once the County Judge has ruled that there are over 200 “inhabitants, ” he has no discretion as to whether or not to call an election. Article 1134requires the applicants who sign the petition for incorporation to be qualified electors and tohave residences within the area sought to be incorporated for at least 6months. As towho are qualified electors, see Article 1137, V. T. C.S. ;Attorney General Opinion M-867 (1971).According toArticle 1134, a plat ofthe proposed town or village must be filed with the petition for incorporation, and it may include no territory except that intended for strictly town purposes. InHarang v. State, exrel., City ofWest Columbia, 466 S.W. 2d 8 (Tex. Civ.App.,

p. 713The Honorable M. D. Emerson, page 4 (H-153)

Houston, 14th Dist., 1971, nowrit), itwas held that to be entitled to incorporate, the area of the town or village should be susceptible of receiving some municipal services. As stated inHarang, supra, the purposes of thenlanguage ofArticle 1134 inlimiting the area which may be included in aproposed incorporation of avillage or town to that which is int.ended to be used for strictly town purposes are twofold. The first is to prevent the tow~nor village from embracing land for tax purposes when there is no reasonable expectation that itwill become a residential part of the town. Secondly, such a lirnitation also prohibits the inclusion ofterritory simply to make upthe required population without any reasonable expectation offurnishing to it any of the usual services afforded by a municipality. InHarang there were compact clusters of ten to twenty houses inthe area tobe incorporated. Those clusters were widely separated from each other and therefore did not meet the density requirements. The proposed Town of Sun Valley encompasses approximately 86 contiguous acres ofwhich the mobile home park occupies approximately ten acres. Further, the prospective expansion of the town may be taken into account. Inassuming as true the facts set forth inyour letter, weshould not be understood as invading the province of the County Judge, who must pass upon these facts. That decision is for him to make, and his ruling is final on the subject, inthe absence of a showing of an abuse of that discretion, or fraud. SUMMARY

Inorder to incorporate a new town, the County Judge must determine whether ithas more than 200

“inhabitants”
. The decision is within the discretion ofthe County Judge, and his ruling is final inthe absence offraud or an abuse thereof. Very truly yours,

Attorney General of Texas

p. 714. .

The Honorable M. D. Emerson, page 5 (H-153)

APPROVED:

Opinion Committee

p. 715