Juqust 23, 1988 

Honorable Mark W. Stiles opinion No. JR-944 

Chairman 

County Affairs Committee Re: Provision of sewer 

Texas House of Representatives service by a municipality 

P. 0. Box 2910 to newly annexed territory 

Austin, Texas 78769 (RQ-1380) 

Dear Representative Stiles: 

You ask three questions with regard to the proposed 

annexation of the Commanche Hills Utility District [CHDD] by 

the City of Harker Heights. The first we address is: 

Can a city annex in one year an amount of 

area under thirty percent (30%) of its 

incorporated area as of January 1 of that 

year and then in the same year also annex a 

municipal utility district which encompasses 

an area equal to sixty percent of the city's 

incorporated area as of January 1 of that 

year? 

We assume that by 'municipal utility district" you mean 

to refer to the Commanche Hills Utility District [CHDD]. We 

do not find, however, that the CHDD is a municipal utility 

district. The law creating the district referred to it as a 

Vonservation and reclamation district." Acts 1967, 60th 

Leg., ch. 624, 5 1. Section 5 of that act provides that 

CHUD shall have the rights, powers, etc., applicable to a 

"water control and improvement district" to the extent such 

rights, powers, etc., are not inconsistent with the 

provisions of the act. 

CRUD under its creating act, appears to be a "water or 

sewer district" within the meaning of section 43.071 of the 

Local Government Code. Section 43.071, provides in part: 

(a) In this section, 'water or sewer or 

district' means a district or authority 

created under Article III, Section 52, Subsections (b)(l) and (2), or under Article 

p. 4749 
Honorable Mark W. Stiles - Page 2 (JM-944) 

XVI, Section 59, of the Texas Constitution 

that provides or proposes to provide, as its 

principal function, water services or sewer 

services or both to household users. The 

term does not include a district or authority 

the primary function of which is the wholesale distribution of water. 

(b) A municipality may not annex area in 

a water or sewer district unless it annexes 

the entire part of the district that is 

outside the municipality8s boundaries. This 

restriction does not apply to the annexation 

of area in a water or sewer district if the 

district is wholly or partly in the extraterritorial jurisdiction of more than one 

municipality. 

(c) An annexation subject to Subsection 

(b) is exempt from the provisions of this 

chapter that limit annexation authority to a 

municipality's extraterritorial jurisdiction 

if: 

(1) immediately before the annexation, 

at least one-half of the area of the water 

or sewer district is in the municipality 

or its extraterritorial jurisdiction; and 

(2) the municipality does not annex in 

the annexation proceeding.any area outside 

its extraterritorial jurisdiction except 

the part of the district that is outside 

its extraterritorial jurisdiction. 

(d) Area annexed under Subsection (b) is 

included in computing the amount of area that 

a municipality may annex under Section 43.055 

in a calendar year. If the area to be annexed 

exceeds the amount of area the municioalitv 

YO Id otherwise be able to annex. the municipayitv mav annex the area but may not annex 

additional area during the remainder of that 

calendar year, except area subject to Subsection (b) and area that is excluded 

from the computation under Section 43.055. 

(Emphasis added.) 

p. 4750 
Honorable Mark W. Stile9 - Page 3 (-914) 

Section 43.071(d) refers to the limitations on amount 

of territory which may be annexed in a year under section 

43.055. Section 43.055 reads: 

(a) In a calendar year, a municipality 

may not annex a total area greater than 10 

percent of the incorporated area of the 

municipality as of January 1 of that year, 

plus any amount of area carried over to that 

year under Subsection (b). In determining 

the total area annexed in a calendar year, an 

annexed area is not included if it is: 

(1) annexed at the request of a 

majority of the qualified voters of 

the area and the owners of at least 50 

percent of the land in the area: 

(2) owned by the municipality, a 

county, the state, or the federal government and used for a public purpose: 

(3) annexed at the request of at least 

a majority of the qualified voters of the 

area; or 

(4) annexed at the request of the 

owners of the area. 

0) lf a municbalitv fails to -ex in a 

calendar vear the entire 10 oercent amount 

permitted under Subsection (al. the municL *- 

Pglitv mav car- over the unused allocation 

or use in subsecuent calepdar vem . 

(Cl A municinalitv carrvina over an 

allocation mav not annex in a calendar vear a 

total area areater than 30 oercent of the 

uoroorated area of the municiualitv a 

Januarv 1 of that vear.1 (Emphasis added.) 

Of 

1. Acts 1987, 70th Leg., ch. 1077 added language to 

these provisions, which takes effect as pa* of the Local 

Government Code pursuant to V.T.C.A. Government Code and 

section 311.031. Wone of the provisions of the amendatory 

act, however, alter the conclusions we reach here with respect 

to the issues presented. 

p. 4751 
Honorable Uark W. Stiles - Page 4 034-944) 

Because your question is based on the city's having 

annexed "under thirty percent of its incorporated area," we 

assume that the City of Harker Heights has carried over 

allocations from previous years pursuant to subsections (b) 

and (c) of section 43.055. In the circumstances you 

describe, the city has authority, under section 43.071(d), 

to annex the territory involved. 

Your other two question are: 

(1) If a city provides sewer service and 

has previously extended sewer lines within 

its existing city limits and such city 

annexes an area that has no sewer service, is 

the city recuirea to extend lines to those 

newly annexed areas with land uses and population densities similar to the ones in the 

previous city limits? 

(2) If a city provides sewer service but 

has not previously extended sewer lines 

within its existing city limits and such city 

annexes an area that has no sewer service, is 

the city m to extend lines to those 

newly annexed areas with land uses and population densities similar to the ones in the 

previous city limits? (Emphasis added.) 

We note first that we find no requirement in the 

pertinent statutory provisions that a m level of 

services be provided in any. area to be annexed than are 

provided in an area of the city having similar characteristics of topography, land utilization, and population 

density. Section 43.056 of the Local Government Code speaks 

only of maintenance of existing services, in subsection 

(b)(4), and uniform levels of services in subsection (d). 

Therefore, in answer to question number 2, we conclude that 

no extension of sewer services to annexed areas is required, 

either in fact or under a "service plan," where such 

services are not provided in equivalent areas within the 

existing city limits. 

Moreover,,turning to question number 1, we further 

conclude that a city may in no case literally be r-d to 

provide any given services to annexed areas. 

Section 43.056 of the Local Government Code requires an 

annexing city to develop a "service plan" for provision of 

services to the annexed area: 

p. 4752 
h 

Honorable Mark W. Stiles - Page 5 (JM-944 

(a) Before the publication of the notice 

of the first hearing required under Section 

43.052, the governing body of the municipality 

municipality proposing the annexation shall 

direct its planning department or other 

appropriate municipal department to prepare a 

service plan that provides for the extension 

of municipal services to the area to be 

annexed. The municipality shall provide the 

services by any of the methods by which it 

extends the services to any other area of the 

municipality. 

(b) The service plan must include 

program under which the municipality wilt 

provide the following services in the area 

within 60 days after the effective date of the 

annexation of the area: 

(1) police protection: 

(2) fire protection; 

(3) solid waste collection: 

(4) maintenance of water and wastewater 

facilities: 

(5) maintenance of roads and streets, 

including road and street lighting; 

(6) maintenance of parks, playgrounds, 

and swimming pools: and 

(7) maintenance of any other publicly 

owned facility, building, or service. 

(c) The service plan must also include a 

program under which the municipality will 

initiate the acquisition or construction of 

capital improvements necessary for providing 

municipal services for the area. The construction shall begin within 2 l/2 years after 

the effective date of the annexation of the 

area. The acquisition or construction of the 

facilities shall be accomplished by purchase, 

lease, or other contract or by the municipality succeeding to the powers, duties, assets, 

and obligations of a conservation and reclamation district as authorized or required by 

p. 4753 
Honorable Mark W. Stiles - Page 6 (-944) 

law. Money received from the sale of bonds or 

evidenced by other instruments of indebtedness 

may not be allocated to the area for a period 

of 180 days. 

(d) A service plan may not provide fewer 

services or a lower level of services in 

the area than were in existence in the area 

immediately preceding the date of the annexation. This section does not reauire that a 

imifom level of services be m-ovided tQ 

each area of the municioalitv if different 

characteristics of tOtXmraDhV. land use, 

and wooulation densitv are considered a 

sufficient basis for vrovidina different 

levels of service . 

(e) If only a part of the area to be 

annexed is actually annexed, the governing 

body shall direct the department to prepare a 

revised service plan for that part. 

(f) The proposed service plan must be made 

available for public inspection and explained 

to the inhabitants of the area at the public 

hearings held under Section 43.052. The plan 

may be amended through negotiation at the 

hearings, but the provision of any service may 

not be deleted. On completion of the public 

hearings, the service plan shall be attached 

to the ordinance annexing the area and 

approved as part of the ordinance. 

(g) On approval by the governing body, the 

service plan is a contractual obligation that 

is not subject to amendment or repeal except 

that if the governing body determines at the 

public hearings required by this subsection 

that changed conditions or subsequent occurrences make the service plan unworkable or 

obsolete, the governing body may amend the 

service plan to conform to the changed conditions or subsequent occurrences. An amended 

service plan must provide for services that 

are comparable to or better than those established in the service plan before amendment. 

Before any amendment is adopted, the governing 

body must provide an opportunity for 

interested persons to be heard at public 

P. 4754 
Honorable Mark W. Stiles - Page 7 (JBk944) 

hearings called and held in the manner 

provided by Section 43.052. 

(h) A sentice plan is valid for 10 years. 

Renewal of the service plan is at the discretion of the municipality. 

(i) A municipality that annexes an area 

shall provide the area or cause the aree to be 

provided with services in accordance with the 

service plan for the area.2 (Emphasis added.) 

In garkins v. Citv of Denispn 683 S.W.2d 754 (Tex. 

App- - Dallas 1984, no writ), lando&ers of an area which 

was the subject of a city annexation ordinance sought 

injunctive relief from the ordinance on the grounds that the 

city "did not have, the resources necessary to implement the 

services which art. 970a (Vernon*s 1963 and Vernon Supp. 

1984) requires it to provide for newly annexed areas." & 

at 755. &2 Local Gov't Code 5 43.056 (present codification 

of article 970a). The court overruled the appellant landowners t contention in this regard and affirmed the trial 

court#s denial of injunctive relief, holding that section 

10(F) of article 970a (currently codified as section 43.141 

of the Local Government Code), provided disannexation as the 

exclusive remedy for the city's failure to meet the service 

plan if and when such failure occurs. The court also ruled 

with respect to the appellants' contentions that the 

annexation was fraudulent and/or improperly motivated as 

follows: 

It is well-settled that the determination of 

municipal boundaries is a question for 

political rather than judicial resolution. 

[Citation omitted.] Under article 970a, the 

legislature delegated its powers in this 

regard to the cities, subject to certain 

limitations. Because those limitations apply 

to the location of the annexed area rather 

than to the purposes for which annexation is 

sought, appellants may not judicially 

challenge the validity of the annexation 

ordinance on the basis that it was improperly 

motivated. 

2. a footnote 4. 

p. 4755 
Honorable Wark W. Stiles - Page 8 (JM-944) 

& at 756. Thus, despite the language of, for example, 

subsections (a) and (I) of section 43.056, to the effect 

that the municipality "shallw provide services, it would 

appear in light of m that the exclusive remedy for the 

city#s not providing such services in accordance with the 

service plan is disannexation under current section 43.141 

of the Local Government Code. 

We construe your question then as asking whether a city 

proposing to annex an area is required to provide in the 

Service vlgn required by section 43.056 for the sewer 

service extensions about which you inguire.3 

3. The City of Austin in its brief in this matter 

suggested that sewer extensiona may not be among the 

services contemplated by section 43.056. The only specific 

reference to sewer services in section 43.056 is found in 

subsection (b)(4) of that section, which requires provision 

in the service plan for "mainten 

facilities" within 60 days' oaf 

ce of water and wastewater 

the date of annexation 

(emphasis added). Subsection (a) of section 43.056, 

however, provides in part: 

[T]he governing body of the municipality proposing the annexation shall direct its planning 

department or other appropriate municipal department 

to prepare a service plan that provides for the 

dxtenslon of municipal services to the area to be 

annexed. The municipality shall provide the services 

by any of the methods by which it extends the 

services to any other area of the municipality. 

(Emphasis added.) 

Subsection (c) of that section provides in part: 

The service plan must also include a program 

under which the municipality will initiate the 

acquisition or construction of capital improvements 

necessary for providing municipal services for the 

area. The construction shall begin within 2 l/2 years 

after the effective date of the annexation of the 

area. 

(Footnote Continued) 

p. 4756 
. 

Honorable Mark W. Stiles - Page 9 (JM-944) 

Differences in levels of service provided annexed areas 

and existing areas of the city must be based on differences, 

or reasonably contemplated differences in topography, land 

use, and population density. Section 43.056, subsection 

Cd). It is the prerogative of the city, in the first 

instance, to make determinations in the service plan about 

levels'of service in annexed areas.4 If the service plan 

adopted were itself legally defective to the extent of being 

void or voidable -- for example, if it were not adopted in 

compliance with the hearings requirements of section 43.052, 

or if it did not reflect m consideration by the city of 

(Footnote Continued) 

We believe that the restriction of wastewater services 

to "maintenance" of existing services applies only to the 

requirement of subsection (b) that lsaintenance of such 

services be provided within 60 days of annexation, but that 

subsections (a) and (c) clearly contemplate extension, i.e., 

improvement of such services. Therefore, sewer extensions 

are, we believe, OOmunicipal services I1 within the meaning of 

section 43.056. 

4. Acts 1987, 70th Leg., ch. 1077 amended section 10 

of article 970a, now codified in the Local Government Code, 

by, inter alia, adding the following underlined language to 

the provision now codified as the first sentence of section 

43.056, subsection (d) of the Local Government Code. 

In no event shall a service plan provide fewer 

services or a lower level of services in the area to 

be annexed than were in existence in that area at the 

time immediately preceding the annexation gr which are 

gtherwise available in other area of the citv with 

uses and oooulation densitiet similar to those 

reasonablv contemolated or Droiected in the newlv 

annexed ar e a . 

Pursuant to Government Code section 311.031(c) the 

amendment takes effect as part of the Local Government Code. 

However, a reading of this amendment does not alter our 

conclusion that the determination of whether topography, 

land use, and population density factors warrants provision 

of a given level of services is a political matter subject 

to the consideration given the relevant factors by the city. 

Note that this amendatory act also amended other provisions 

now codified under section 43.056, but again we do not find 

that such amendments affect the conclusions we reach here. 

P. 4757 
Honorable Mark W. Stiles - Page 10 (JR-944) 

differences in topography, land use, and population density 

factors -- we believe an aggrieved party might obtain relief 

by way of an injunction action, or by way of a m 

proceeding brought by the state. 

SUMMARY 

If all other legal requirements are met, 

the City of Harker Heights may annex the 

Commanche Hills Utility District, even though 

the city has annexed, in the same year, other 

territory egualling up to thirty percent of 

the city's territory. 

A city may not literally be 

provide services to an annexed area. -59 2: 

city does not provide services in accordance 

with the service plan developed pursuant to 

Local Government Code section 43.056, disannexation under section 43.141 is the 

exclusive remedy available to aggrieved 

persons. 

The determination of the city governing 

body whether the topography, land use, and 

population density factors are a sufficient 

basis for providing a given level of services 

under section 43.056, subsection (d), is in 

the first instance the prerogative of the 

annexing city. 

However, a service plan which is itself 

legally defective might be subject to relief 

other than disannexation. 

JIM MATTOX 

Attorney General of Texas 

l?!Y KELLER 

First Assistant Attorney General 

Lou MCcREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

p. 4758 
- 

Honorable Mark W. Stiles - Page 11 (JE944 ) 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 4759