c 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin, TX. 76711. 2546 

5121475-2501 

Telex 9101674-1367 

Telecopier 512/475-0266 

714 Jackson, Suite 700 

Dallas, TX. 75202.4506 

2141742-6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79905-2793 

9151533.3464 

P 

#Jl Texas. Suite 700 

Houston, TX. 77002.3111 

7131223-5666 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

&M/747-5236 

4309 N. Tenth, Suite 6 

McAllen, TX. 76501-1665 

5121662.4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 76205-2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of ,Texas 

December 30, 1983 

Honorable Wilhelmina Delco 

Chairman 

Committee on Higher Education 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. JM-117 

RS: Whether chapter 764 of the 

Sixty-eighth Legislature exempts 

buildings, structures, and land 

under the control of a state 

agency from zoning by cities 

Dear Representative Delco: 

You ask our opinion aa to whether all buildings, structures, and 

land under the control of federal and state agencies are exempt from 

municipal zoning or whether only places and areas of architectural 

significance are so exempt. We do not believe that the exemption in 

section 2 of chapter 764 of the Sixty-eighth Legislature is limited to 

only places and areas of architectural significance. 

The building and zoning ordinances of cities are an exercise of 

police power delegated to cities by the state for protection of 

health, safety, comfort, and welfare of the public. Cities possess no 

inherent Dower of aoninn and are limited to the Dower conferred on 

them by statute. Fort Wirth & D.C. Railway Co. v.'Ammons, 215 S.W.2d 

407, 409 (Tex. Civ. App. - Amarillo 1948, writ ref'd n.r.e.). 

Articles lOlla through lOllj, V.T.C.S., enacted by chapter 283, 

Acts of the Fortieth Legislature in 1927, constitute the general 

zoning enabling act of this state and authorize build#ng and zoning 

ordinances by all cities, including home rule cities. See city of 

Bellaire V. Lamkin, 317 S.W.2d 43, 44 (Tex. 1958); Porter 

Southwestern Publl 4pp. - 

Amarillo 1972, writ re 

Ammons. 215 S.W.2d 407. 410 

FService Co., 489 S.W.2d 361, 364 (Tex. CG.- 

f'd n.r.e.); Fort Worth & D.C. Railway Co. v. 

1 (Tex. Civ. App. 

ref'd h.r.e.); 63 Tex. -Jur. 2d Zoning, 

- Amarillo 1948, writ 

Q5 at 744; cf. V.T.C.S. art. - 

1175. subdivision 26. 

1. Chapter 283, Acts of the 40th Legislature, 1927, is not a 

part of chapter 4, Title 28, Revised Civil Statutes of Texas, 1925, 

but instead was enacted as non-amendatory law and codified by Vernons 

as Articles lOlla-1011j. Cf. Wooldrige V. Folsom. 564 S.W.2d 471 

(Tex. Civ. App. - Dallas 1978,no writ). 

p. 494 
Honorable Wilhelmina Delco - Page 2 (JM-117) 

\ 

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Section 1 of chapter 764 of the Sixty-eighth Legislature, 

re-enacted and amended section 1 of chapter 283, codified as article 

lOlla, to read as follows: 

Sec. 1. For the purpose of promoting health, 

safety, morals, and for the protection and 

preservation of places and areas of historical, 

cultural, or architectural importance and 

significance, or the general welfare of the 

community, the legislative body of cities and 

incorporated villages is hereby empowered to 

regulate and restrict the height, number of 

stories, and size of buildings, and other 

structures, the percentage of lot that may be 

occupied, the size of the yard, courts, and other 

open spaces, the density of population, and the 

location and use of buildings, structures, and 

land for trade, industry, residence, or other 

purpose; and, in the case of designated places and 

areas of historic, cultural, or architectural 

importance and significance, to regulate and 

restrict the construction, alteration, 

reconstruction, or razing of buildings and other 

structures. 

The only change to article lOlla as re-enacted by chapter 764 IS 

the addition of places and areas of architectural significance to the 

enumerated places and areas where construction, alteration, 

reconstruction, or razing of buildings may be regulated. 

Section 2 of chapter 764 provides that the "provisions of this 

Act shall not apply to buildings, structures, or land under the 

control, administration, or jurisdiction of any Federal or State 

Agency. " 

It is fundamental that construction of a statute must be 

consistent with legislative intent, and a statute's language is the 

best evidence of that intent. Also, in determining legislative 

intent, it is presumed that legislation is enacted with knowledge of 

existing common law and statutes. Railroad Commission of Texas V. 

Miller, 434 S.W.2d 670, 672 (Tex. 1968); State v. Anderson, 26 S.W.2d 

174, 178 (Tex. 1930); Sabine Pilots Association v. Lykes Brothers 

Steamship, Inc., 346 S.W.2d 166, 169 (Tex. Civ. App. - Austin 1961, no 

writ). 

We believe that a majority of decisions in this and other 

jurisdictions hold that a state agency is exempt from all local zoning 

ordinances. In exercising the police powers delegated to it by zoning 

statutes, a city exercises the powers of the state government within 

? 

p. 495 
, 

Konorable Wilhelmina Delco - Page 3 (JM-117) 

the city. A legislative grant of police power to a city is not 

considered a surrender of the legislature's right to regulate the 

state's own property which may be located within a city, unless the 

statutes clearly show that the legislature intended to waive state 

immunity from local regulation. See Port Arthur Independent School 

District v. City of Groves, 376 S.%d 330, 332 (Tex. 1964); Comment, 

The Applicability of Zoning Ordinances to Government Land Use, 39 Tex. 

L. Rev. 316, 325 (1961). Cf. Attorney General Opinions MW-508 (1982); 

M-182 (1968); C-690 (1966);-301 (1964); V-977 (1949). See generally 

2 Anderson, American Law of Zoning (2nd ed.), 912.06; 8 McQuillin, 

Municipal Corporations 37 (3rd ed. 1976 rev.), 525.15. But cf. Austin 

Independent School District v. City of Sunset Valley, 502 S.W.2d 670, 

672 (Tex. 1973). 

Further, it is a well recognized principle of Texas law that 

charters and ordinances of home rule cities must conform to the 

constitution and general laws of this state. Article XI, section 5, 

of the Texas Constitution, and article 1165, V.T.C.S., provide that no 

charter or ordinance of such cities may contain any provision 

inconsistent with the constitution and general laws enacted by the 

legislature. McCutcheon v. Wozencraft, 294 S.W. 1105 (Tex. 1927); 

City of Beaumont v. Gulf States Utilities Co., 163 S.W.Zd 426, 429 

(Tex. Civ. App. - Beaumont 1942, writ ref'd w.o.m.). Since the Texas 

Constitution,prohibits home rule city regulation which conflicts with 

programs and activities of the state and its agencies that are 

undertaken under constitutional or statutory authority, a state agency 

delegated by law the responsibility for regulation and control of 

state property is not subject to the police power of such a city. See 

City of Dallas v. Southwest Airlines Co., 494 F.2d 773, 777 (5th Cir. 

1974); Beverly v. City of Dallas, 292 S.W.2d 172, 176 (Tex. Civ. App. 

- El Paso 1956, writ ref'd n.r.e.): Attorney General Opinions M-182 

(1968); C-690 (i966); V-977 (1949). 

The doctrine of federal supremacy generally immunizes federal 

land from local regulations. Under clause 2 of article VI, of the 

United States Constitution, a city ordinance, even if based on the 

valid oolice oowers of the state. must vield when it is in conflict 

with federal law. United States ;. City of Chester, 144 F.2d 415, 420 

(3rd Clr. 1944); Town of Groton v. Laird, 353 F.Supp. 344, 350 (Conn. 

1972). See generally Ellickson 8 Tarlock, Land Use Controls, ch. 9, 

p. 905 (1981). 

Section 2 of chapter 764 does not amend chapter 283 of the 

Fortieth Legislature. although the language submitted to the 

legislature is underlined as if it were intended to be new language 

added to existing law. There is a question whether the words 

"provisions of this Act" in section 2 are intended to apply to chapter 

283 of the Fortieth Legislature (codified as article lOlla-1011j) or 

to chapter 764. Either way, section 2 is law, and we believe it 

p. 496 
Honorable Wilhelmina Delco - Page 4 (JM-117) 

cannot apply to less than the re-enactment of article lOlla by chapter 

764, which is a re-enactment of the grant of zoning power to the 

cities. 

Accordingly, we conclude that the plain language of section 2 

incorporates into statutory law the fact that the zoning power of the 

cities does not apply to buildings, structures, or land under the 

control, administration, or jurisdiction of any federal or state 

agency. 

SUMMARY 

Chapter 764 of the Sixty-eighth Legislature 

exempts all buildings, structures, and land under 

the control of federal or state agencies from 

municipal zoning. 

I 

JIM MATTOX I 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Nancy Sutton 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin. Chairman 

Jon Bible 

David Brooks 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

Bruce Youngblood 

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p. 497