THE ATTORNEY GENERAL 

OF TEXAS 

February 7, 1989 

Honorable George Pierce Opinion No. JM-1014 

Chairman 

Committee on Urban Affairs Re: Procedures for proTexas House of Representatives testing a proposed change 

P. 0. Box 2910 in a zoning classification 

Austin, Texas 78769 (RQ-1472) 

Dear Representative Pierce: 

you request our opinion concerning the proper interpretation of sections 211.006 and 211.007 of the Local Government Code as they relate to protests of proposed zoning 

changes. Section 211.007(c) requires written notice of 

proposed zoning changes to be sent to "each owner, as 

indicated by the most recently approved municipal tax roll, 

of real property within 200 feet of the property on which 

.the change in [zoning] classification is proposed.tt Section 

211.006(d) provides the following: 

(d) If a proposed change to a regulation 

or boundary is protested in accordance with 

this subsection, the proposed change must 

receive, in order to take effect, the affirmative vote of at least three-fourths of all 

members of the governing body. The protest 

must be written and signed by the owners of 

at least 20 percent of either: 

(1) the area of the lots or land 

covered by the proposed change: or 

, (2) the area *of the lots or land 

Jmmediatelv adioj,&lDg the area covered by 

the proposed change and extendina 200 feet 

from that area. (Emphasis added.) 

You ask whether section 211.006(d)(2) includes owners of 

property within 200 feet of the area covered by the proposed 

zoning change only if their property shares a boundary 

P. 5233 
Honorable George Pierce - Page 2 (JM-1014) 

with the property covered by the proposed change.1 If it 

requires a common boundary, YOU also ask whether the 

adjacent property would have to extend 200 feet to be 

included in the protest area. 

We conclude that section 211.006(d) of the Local 

Government Code includes an owner of property within 200 

feet of the area covered by a proposed change in zoning 

classification, whether or not the property of the protesting landowner shares a boundary with the area covered by 

the proposed change or extends a distance of 200 feet from 

such area. 

Prior to the enactment of the Local Government Code, 

the substance of section 211.006(d) was contained in article 

lolle, V.T.C.S. Article 1Olle was enacted by the 40th 

Legislature in 1927. Acts 1927, 40th Leg., ch. 283, 5 5, at 

424, 425. The predecessor of section 211.007(c), V.T.C.S. 

article lOllf, was also enacted in 1927. Id. 5 6 at 425. 

As originally enacted, article 1Olle provided for the 

submission of written protests to proposed zoning changes by 

the owners of 20 per cent or more either of 

the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof extending 200 feet 

therefrom, or of those directly opposite 

thereto extending 200 feet from the street 

frontage of such opposite lots . . . . 

Article 1Ollf required notice in terms virtually identical 

to section 211.007(c). 

1. You ask about 81standing1@ to make a zoning protest. 

It should be noted that section 211.006(d) does not grant 

standing in the sense that it precludes persons other than 

those listed in the statute from registering their objections to the proposed change in zoning classification. 

Rather, it provides that upon the submission of a written 

protest meeting the terms of the statute, the amendment to 

the zoning regulation must receive a favorable vote of 

three-fourths of all members of the legislative body of the 

municipality to become effective. 

p. 5234 
Honorable George Pierce - Page 3 (JM-1014) 

Article lolle was amended in 1971 to provide that 

written protests may be submitted by the owners of 20 

percent of either the area covered by the proposed zoning 

change or "the area of the lots or land immediately 

adjoining the same and extending 200 feet therefrom." Acts 

1971, 62d Leg., ch. 942, 5 1, at 2864. The amendment 

apparently was an attempt to simplify the language of the 

statute, but it is unclear whether the legislature intended 

to change the meaning of the statute. This language was 

preserved in section 211.006(d)(2) of the Local Government 

Code. 

A careful reading of section 211.006(d)(2) reveals that 

the phrase "immediately adjoining . . . and extending 200 

feet" describes the area from which landowners are permitted 

to sign a written zoning protest. The phrase does not 

describe the lots or land eligible to be included in the 

protest area. Thus, the appropriate reading of section 

211.006(d)(2) is that it includes owners of lots or land 

within the area "immediately adjoining the area covered by 

the proposed change and extending 200 feet from" the area 

covered by the proposed change. 

Our reading of this provision is supported by,the only 

case to construe the language of what is now section 

211.006(d)(2). In Strona v. Citv of Grand Prairie, 679 

S.W.2d 767 (Tex. App. - Fort Worth 1984, no writ), the court 

read articles 1Olle and 1Ollf in harmony, equating the class 

of landowners entitled to notice under article 1Ollf with 

the class of owners specified in article 1011e: 

The trial court also concluded as a matter of 

law that under art. 1Olle those who are 

entitled to sign zoning change protests are 

the same as those entitled to notice by art. 

1011f. Article 1Ollf requires written notice 

of all public hearings on proposed zoning 

changes before the city's zoning commission 

to owners 'of real property lying within 200 

feet of the property on which the change in 

zoning classification is proposed . . . as 

the ownership appears on the last approved 

city tax roll.' TEX.NEV.CIV.STAT.ANN. art. 

1Ollf (Vernon Supp.1984). The trial court, 

also as a matter of law, concluded that in 

determining the base area (or denominator) in 

which the protest area (or numerator) is 20%, 

the area of streets is excluded. 

p. 5235 
Honorable George Pierce - Page 4 (JM-1014) 

We hold that both of these conclusions of 

law are correct, and that a readina of art 8. 

1 0 

&&ent of the leaislature was to De& 

written DrOteStS Of DrODOSed ZOninc chancres 

pv the owrs of 'real nronertv' lvina w1thi.h 

200 feet of the Dr(2Rsirtv on which the zonincr 

ae is DrODOSed. which own- 1s determined from the last annroved citv tax roll . 

Since street right-of-way is not included 

on the tax rolls, the area of the streets was 

properly excluded. (Emphasis added and 

citations omitted.) 

679 S.W.2d at 770. The court's construction of article 

lolle places no emphasis on the conjunctive nandM in the 

phrase "immediately adjoining . . . m extending 200' feet 

therefrom" and thus means that an owner of property within 

200 feet of the area included in a proposed zoning change is 

entitled to sign a zoning protest even though his property 

does not share a boundary with the area covered by the 

proposed change or extend the entire 200 feet from the area 

covered by the proposed change. 

A statute is the creation of the legislature, and if an 

interpretation of a statute by the courts is unacceptable 

to the legislature, the simple remedy is to amend the 

statute. Warmon v. Wustana Aviation. Inc,, 430 S.W.Zd 182 

(Tex. 1968). Thus, when the legislature amends a statute, 

the courts presume that the legislature was fully aware of 

the construction given the statute by the courts at the time 

of the amendment. & Warthan v. Havnes, 288 S.W.2d 481, 

484 (Tex. 1956). The failure of the legislature to amend 

the statute to avoid a particular construction placed on a 

provision of the statute is considered significant, especiallv if the statute has been amended in other places. 

See. &.a%, Woss v. Gibbs, 370 S.W.2d 452 (Tex. 1963); San 

Antonio Union Junior Colleae Dist. v. Daniel 206 S.W.Zd 995 

(Tex. 1948). In such instances. the leaisla&ure8s inaction :----~ ~~ ~~’ indicates either legislative approval oi the construction or 

general dissatisfaction of insufficient strength to impel 

legislative action. Woss v. Gibbs, suora. 

The legislature reacted to the Strong decision by 

adding the following language to article 1011e: I1 In 

computing the percentage of land area, the area of streets 

and alleys shall be included in the computation." Acts 

p. 5236 
Honorable George Pierce - Page 5 (JM-1014) 

1985, 69th Deg., ch. 201, § 1, at 788, 789. The essence of 

this provision is now found in section 211.006(e) of the 

Local Government Code. The amendment did not disturb the 

court's holding concerning a property owner's eligibility to 

sign zoning protests, and the statute has not been 

subsequently amended to avoid that construction. We can 

therefore treat these events as constituting either the 

legislature's tacit approval of Strong in that regard or as 

an indication of insufficient legislative discontent with 

that aspect of the case to warrant legislative response. In 

either event, Strong remains the most recent and relevant 

interpretation of section 211.006(d), and for that reason we 

conclude that the provision authorizes the submission of 

written protests to proposed changes in zoning 

classifications signed by the owners of any property within 

200 feet of the area covered by the change, whether or not 

the properties of the protesting landowners share a boundary 

with or extend a distance of 200 feet from the area covered 

by the proposed change. 

Your next question concerns the language added to 

article 1Olle following Strong. It is prompted by the 

following statement in Attorney General Opinion JM-676 

(1987): 

[T]he legislature clearly intended article 

lOlle(a) [now section 211.006(e) of the Local 

Government Code] 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. 

Your question is 

whether a city may allocate one-half of the 

area of any adjacent street or alley to a 

property eligible to participate in a zoning 

protest for purposes of determining who 

controls the streets and alleys with regard 

to such a protest. 

We will assume for the purposes of this opinion that your 

question refers to property within a zoning protest area 

that abuts a street or alley. See Black's Law Dictionary 11 

(5th ed. 1979) ("abutt means,%ter alia, to touch, join 

p. 5237 
Honorable George Pierce - Page 6 (JM-1014) 

at a border, or border on: "abutting" implies a closer 

proximity than lladjacent,l' b, no intervening land). 

The issue in Attorney General opinion JM-676 was 

whether the amendment to article 1Olle created a distinction 

between (1) streets and alleys held in fee simple by 

protesting landowners and dedicated for use as public 

easements and (2) streets and alleys owned by a city in fee 

simple. The concern was that the statute excluded privately 

owned streets and alleys from the computation of land area 

required by article 1011e. The opinion cited several 

authorities for the general rule that, unless otherwise 

declared in the conveyance, an owner of land abutting a 

street or alley which has been dedicated to the public holds 

the fee title to the center of the street or alley, subject 

to a public easement. See also 43 Tex. Jur. 3d, Biahwavs 

and Streets 5 116. Municipalities may also acquire fee 

simple to streets and alleys, either through grant, 

purchase, or condemnation. &9 & The purpose of the 

amendment to article lolle, we noted, was to simplify the 

computation of the percentage of land area, a task made more 

difficult and costly as a result of the Stronq case. We 

therefore concluded the legislature intended no further 

complications by excluding privately owned streets and 

alleys from the computation. 

Your inquiry is answered by the language of subsections 

(d) and (e) of section 211.006 of the Local Government Code 

and by Attorney General Opinion JM-676. Subsection (d) is 

quite clear in its requirement that a written zoning protest 

be signed by the owners of at least 20 percent of either of 

the areas specified in the provision. Subsection (e) requires streets and alleys to be included in the computation 

of the percentage of land area under subsection (d). Subsection (d) thus authorizes the owners of streets and alleys 

in the protest area, including cities, to sign the zoning 

protest. See Geary, Davenport, and Minick, Annual Survev of 

Texas Law: Local Government Law, 40 Sw.L.J. 727, 732-733 

(1986). 

Attorney General Opinion JW-676 makes it clear that, as 

a general matter, an owner of land abutting a street or 

alley holds fee title to the center of the street or alley, 

unless otherwise provided in the conveyance to the landowner. By including the area of streets and alleys in the 

section 211.006(d) computation, the legislature expressed 

its intention not only to simplify the computation, but to 

give the owners of land supporting streets and alleys in 

p. 5238 
Honorable George Pierce - Page 7 (JM-1014) 

the protest area greater say in the rezoning process. 

Accordingly, we conclude that section 211.006 of the Local 

Government Code authorizes a municipality to allocate the 

area of a street or alley in the manner you describe only 

when the adjacent landowner holds fee title to the center of 

the street or alley and only if the allocation conforms to 

the demarcation of the center line of the street or alley. 

SUMMARY 

An owner of property within 200 feet of 

the area covered by a proposed change in zoning 

classification is entitled to sign a written 

zoning protest under section 211.006(d) of the 

Local Government Code, whether or not the 

property of the protesting landowner shares a 

boundary with the area covered by the proposed 

change or extends a distance of 200 feet from 

such area. Section 211.006 authorizes a municipality to allocate one-half of the area of a 

street or alley to abutting property i;;luf;z 

within the zoning protest area only 

owner of the abutting property holds fee title 

to the center of the street or alley and if the 

allocation conforms to the demarcation of the 

center line of the street or alley. 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

IOU MCCRKARY~ 

Executive Assistant Attorney General 

JUDGE ZOLLIE STKAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Steve Aragon 

Assistant Attorney General 

p. 5239