Juqust23,1988

HonorableMark W. Stiles opinion No. JR-944 Chairman CountyAffairs Committee Re: Provision **of** sewer Texas House of Representatives serviceby a municipality P. 0. Box 2910 to newly annexed territory Austin, Texas 78769 (RQ-1380)
DearRepresentative Stiles:
You ask three questions with regard to the proposed annexation of the CommancheHills Utility District [CHDD]by the City of Harker Heights. The firstwe address is:

Can a city annex in oneyear an amount of area under thirty percent (30%) of its incorporated area as of January 1 of that year and then in the sameyear also annex a municipal utility districtwhich encompasses an area equal to sixtypercent of the city's incorporatedarea as of January 1 of that year?
We assume that by 'municipalutility district" you mean to refer to the CommancheHills 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 reclamationdistrict." Acts 1967, 60th Leg., ch. 624, 5 1. Section 5 of that act provides that CHUD shallhave the rights,powers, etc., applicable to a "water control and improvementdistrict" 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 themeaning of section 43.071 of the Local Government Code. Section 43.071,provides in part:

(a) In this section, 'wateror sewer or district' means a district or authority created under Article III, Section 52, Subsections (b)(l) and (2),or under Article

p.4749Honorable **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 theprimary function of which is the wholesale distribution of water. (b) A municipality **may**not annex area in a water or sewer districtunless it annexes the entire part of the district that is outside the municipality8sboundaries. This restrictiondoes not apply to the annexation of area in a water or sewer district if the district iswholly orpartly in the extraterritorial jurisdiction of more than one municipality. (c) An annexation subject to Subsection (b)is exempt from theprovisions of this chapter that limit annexationauthority to a municipality's extraterritorial jurisdiction if: (1) immediatelybefore 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 municipalitydoes not annex in the annexation proceeding.anyarea 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 annexunder 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 municipayitvmav annex the areabutmay not annex additional area during the remainder of that calendaryear, except area subject to Subsection (b) and area that is excluded from the computation under Section 43.055. (Emphasisadded.)

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

Section 43.071(d) refers to the limitationson amount of territorywhich 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 calendaryear, 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 publicpurpose: (3) annexed at the request of at least amajority of the qualifiedvoters 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 *- Pglitvmav car- over the unused allocation or use in subsecuent calepdarvem . (Cl A municinalitv carrvina over an allocationmav not annex in a calendarvear a total area areater than 30 oercent of the uoroorated area of themuniciualitv a Januarv 1 of that vear.1 (Emphasisadded.) **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 theprovisions of the amendatory act, however, alter the conclusionswe reachhere with respect to the issuespresented.

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

Because **your** question is based on the city's having annexed "under thirtypercent of its incorporatedarea," we assume that the City of Harker Heights has carried over allocations frompreviousyears pursuant to subsections (b) and (c) of section 43.055. In the circumstances you describe, the cityhas authority, under section 43.071(d), to annex the territory involved.
Your other two questionare: (1) If a cityprovides 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 cityrecuirea to **extend** lines to those newly annexed areas with land uses and populationdensities similar to the ones in the previous city limits? (2) If a cityprovides **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 citym to extend lines to those newly annexed areaswith landuses and populationdensities similar to the ones in the previous city limits? (Emphasisadded.)
We note first that we find no requirement in the pertinent statutory provisions that a m level of servicesbe 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 areaswithin the existing city limits. Moreover,,turning to question number 1, we further conclude that a citymay inno case literallybe 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 "serviceplan" forprovision of services to the annexed area:

p.4752h Honorable Mark W. Stiles - Page 5 (JM-944

(a) Before the publication of the notice of the firsthearing required under Section 43.052, the governing body of the municipality municipalityproposing the annexation shall direct its planning department or other appropriatemunicipal department to prepare a serviceplan that provides for the extension of municipal services to the area to be annexed. Themunicipality shall provide the servicesby 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) policeprotection: (2) fireprotection; (3) solidwaste collection: (4) maintenance of water and wastewater facilities: (5) maintenance of roads and streets, includingroad and street lighting; (6) maintenance of parks, playgrounds, and swimmingpools: and (7) maintenance of any other publicly owned facility,building, or service. (c) The serviceplan must also include a program under which the municipality will initiatethe acquisition or construction of capital improvements necessary for providing municipal services for the area. The construction shallbegin within 2 l/2years after the effectivedate of the annexation of the area. The acquisitionor construction of the facilitiesshallbe accomplished by purchase, lease, or other contract or by the municipality succeedingto the powers, duties, assets, and obligations of a conservation and reclamation district as authorized or required by

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

law. Money received from the sale of bonds or evidencedby other instrumentsof indebtedness may not be allocated to the area for **a** period **of** 180days. **(d) A**  serviceplan may not provide **fewer** services or a lower level of services in the area than were in existence in the area immediatelypreceding 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 serviceplan for thatpart. (f) The proposed serviceplan must be made available forpublic inspection and explained to the inhabitantsof the area at the public hearings held under Section 43.052. The plan may be amended through negotiation at the hearings, but theprovision of any servicemay 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 approvalby the governing body, the serviceplan is a contractual obligation that is not subject to amendment or repeal except that if the governing body determines at the public hearings requiredby this subsection that changed conditions or subsequent occurrencesmake the serviceplan unworkable or obsolete, the governing body may amend the serviceplan to conform to the changed conditions or subsequent occurrences. An amended serviceplan must provide for services that are comparable to or better than those established in the serviceplan before amendment. Before any amendment is adopted, the governing body must provide an opportunity for interested persons to be heard at public

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

hearings called and held in the manner provided by Section 43.052. (h) **A** senticeplan isvalid for 10 years. Renewal of the service plan is at the discretion of themunicipality. (i) A municipality that annexes an area shall provide the area or cause the aree to be provided with services in accordancewith the serviceplan for the area.2 (Emphasisadded.)
In garkins v. Citv of Denispn 683 S.W.2d 754 (Tex. App- - Dallas 1984, nowrit), 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 resourcesnecessary to implement the serviceswhich art. 970a (Vernon*s1963 andVernon Supp. 1984) requires it to provide fornewly annexed areas." & at 755. &2 Local Gov't Code 5 43.056 (presentcodification **of** article 970a). The court overruled the appellant landownerstcontention in this regard and affirmed the trial court#s denial of injunctiverelief, holding that section 10(F) of article 970a (currentlycodified 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 failureoccurs. The court also ruled with respect to the appellants' contentions that the annexationwas fraudulent and/or improperly motivated as follows:
It iswell-settled that the determination of

municipal boundaries is a question for political rather than judicial resolution. [Citationomitted.] Under article 970a, the legislature delegated its powers in this regard to the cities, subject to certain limitations. Becausethose limitationsapply to the location of the annexed area rather than to the purposes forwhich annexation is sought, appellants may not judicially challenge the validity of the annexation ordinance on the basis that itwas improperly motivated.

2. a footnote 4.

p.4755Honorable 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 accordancewith the serviceplan is disannexation under current section 43.141 of the Local Government Code.
We construe your question then as askingwhether 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 aboutwhich you inguire.3

3. The City ofAustin in its brief in this matter suggested that sewer extensiona may not **be** among the services contemplatedby 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 serviceplan for "mainten facilities" within 60 days' oafce of water and wastewater the date of annexation (emphasis added). Subsection (a) of section 43.056, however,provides inpart:

[T]hegoverning body of the municipality proposing the annexation shall direct its planning department or other appropriatemunicipal department to prepare a service plan that provides for the dxtenslon of municipal services to the area to be annexed. The municipality shallprovide the services by any of the methods by which it extends the services to any other area of the municipality. (Emphasisadded.) Subsection (c)of that sectionprovides inpart:

The service plan must also include a program under which the municipality will initiate the acquisition or constructionof capital improvements necessary for providing municipal services for the area. The construction shallbegin within 2 l/2years after the effective date of the annexation of the area.

(FootnoteContinued)

p.4756. Honorable Mark W. Stiles - Page 9 (JM-944)

Differences in levels of serviceprovided annexed areas and existing areas of the citymust be based on differences, **or** reasonably contemplated differences in topography, land use, and population density. Section 43.056, subsection Cd). It is theprerogative of the city, in the first instance, to make determinations in the serviceplan about levels'of service in annexed areas.4 If the service plan adoptedwere itself legallydefective to the extent of being void or voidable -- for example, if itwere not adopted in compliancewith the hearings requirementsof section 43.052, or if itdid not reflectm consideration by the city of

(FootnoteContinued)
We believe that the restrictionof wastewater services to "maintenance"of existing services applies only to the requirementof subsection (b) that lsaintenance of such servicesbe providedwithin 60 days of annexation,but that subsections (a)and (c)clearly contemplateextension, i.e., improvementof such services. Therefore, sewer extensions are,we believe, OOmunicipal servicesI1

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 followingunderlined language to theprovision now codified as the first sentence of section 43.056, subsection (d)of the LocalGovernment 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 immediatelypreceding the annexationgr which are gtherwise available in other area of the citv with uses and oooulationdensitiet similar to those reasonablv contemolated or Droiected in the newlv annexed ar a

e . 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 determinationof whether topography, landuse, andpopulation density factorswarrants provision of a given level of services is a politicalmatter subject to the consideration given the relevant factorsby the city. Note that this amendatory act also amended other provisions now codifiedunder section 43.056,but againwe do not find that such amendments affect the conclusionswe reach here.

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

differences in topography, land use, and population density factors -- we believe an aggrievedpartymight obtain relief by way of an injunctionaction, or by way of am proceedingbrought by the state. SUMMARY If all other legal requirementsare met, the City of Harker Heights may annex the Commanche HillsUtility District,even though the city has annexed, in the sameyear, other territory eguallingup to thirtypercent of the city's territory.
A citymay not literallybe -59 2: provide services to an annexed **area.** city does notprovide services in accordance with the service plan developedpursuant 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, landuse, 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 serviceplanwhich is itself legally defectivemight be subjectto relief other than disannexation.

JIM MATTOX Attorney General of Texas l?!Y KELLER FirstAssistant Attorney General
Lou MCcREARY ExecutiveAssistant Attorney General
JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General

p.4758- Honorable Mark W. Stiles - Page 11 (JE944 )

RICK GILPIN Chairman, Opinion Committee Prepared by William Walker AssistantAttorney General

p.4759