May 21,1971

Honorable Clyde Slavin Opinion No. M-867 County Attorney Donley County Courthouse Re: Qualifications of annlicants Clarendon, Texas 79226 for incorporation of a new town pursuant ioArt. Dear Mr. Slavin: 1134, etc.,V.C.S. Your request for an opinion from this officepresents the following questions:

1. Do the applicants referred to in Article'1134V.A.T.S. have to reside within the boundaries of the,proposed town for 6 months prior to their becoming eligible to sign the petition seeking incorporation? 2. Does the term "inhabitants"as used in Article 1136,V.A.T.S. refer to the populace in general or does itmake reference only to the resident, qualified electors resid,ing within the territory sought to be incorporated? This opinionwill deal with these questions in the order in which they arepresented. Article 1134 states that if,,theinhabitants of a town desire to be incorporated,

. . .at least 20 residents ,thereof, who would be qualified voters under theprovisions of this chapter,
. . ."may file an applicationwith the County Judge setting forth their desire to be so incorporated. The statute states that the applicationmust be signedby 20 residentswho would be qualified to vote under Article 1137,Vernon's Civil Statutes,which specifically states that an elector is one who has attained the age of twenty-one (21)years and "whohas residedwithin the limits of the proposed town for 6 months" nextproceeding any;such election and who is otherwise qualified utider.Article 5.02 of the Election Code, Vernon's Civil Statutes. It is quite clear that at the time the application is signed -4213-Honorable Clyde Slavin,page 2, (M-867)

the applicantsmust be qualified electors,meaning among other things that they must have residedwithin the territory sought to be incorporated for at least 6 months. Article 1136 sets forth the duties of the County Judge in calling an electionwhen presentedwith a statutory petition and satisfactoryproof that the town or village contains the requisite number of inhabitants. The word "inhabitants"as used in Chapter 11, Title 28, of the Revised Civil Statutes of Texas, 1925,would appear to'have but a singlemeaning.

Article 1133: "Wherea town or village contains more than two hundred (200) habitants, itmay be incorporated ,'ia town or village

. . .' Article 1134: "If the inhabitants of such town or village desire to be so incorporated, at least twenty residents thereof,who would be qualified voters under the provisions of this chapter, shall file an application

. . .' Article 1136: "If satisfactoryproof ismade that the town or village contains the requisite number of inhabitants, the county judge shallmake an order for holding an election

. . .' The "inhabitants"of a town or villagewould appear to be thosepersons who have establishedpermanent residencies or domiciles in that oarticular communitv. Houston Printing Co. v. Tennant, Texas, 120 Tex.~539, 39 S.W.2d 3.089(1931)and would not refermerely to the "resident qualified electors" of the town or villagewho would of course be includedwithin the term "inhabitants". To hold that the judgemust be satisfied that there are more than 200 inhabitantswho are also resident qualified electorswithin a town or village before he can order
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an election for its incorporationwould be to add an additional requirement to those set out in the statutes. The only time the statutes call for one to be a qualified elector is in the case of the parties petitioning the court for such incorporationas specifically set out inArticle 1134. It would therefore seem reasonable to assume that the legislaturewould have with equal clarity included this requirement if it intended to be a part of the requisites of Articles 1133 and 1136. In considering the case of Dallas G. PerkinsV. Reed Ingalshe, 162 Tex. 456, 347 S.W.2d **pb** (1961)we must be **Careful not**  to infer from the court's language that an area cannot be incorporatedunless it conzai& 200 resident qualified electors. When the county judge is

presented with a statutorypetition, and proof satisfactory to him has been made that the territory sought to be incorporatedcontains the requisite number of resident qualified electors, then the county judgehas no discretion as to whether or not he will call the election, but he must do so . . . ." (atP. 930). A careful reading of the case shows that the Court used the words "residentqualified electors" to mean "inhabitants"when itwrote the above quote. If the area does contain 200 residentvoters, then surely the requirements of the statuteshave been met, as theywould be if itwere shown to the court that the area to be incorporated contained 200 inhabitants, 20 of which are the resident qualified electorswho signed the petition for incorporation. SUMMARY In order to incorporate a new town pursuant to Artic.le1134, et seq, Vernon's Civil Statutes, the.applicants signing the petition for incorporation must be qualified electors and must have residedwithin the area sought

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to be incorporated for at least 6 months and satisfactoryproof must be shown the County Judge that the area containsmore than 200 inhabitants. In this connection, the term "inhabitants"as used in the statutesdoes not mean "residentqualified electors", though an "inhabitant"might also be a qualified elector i/3

Prepared by Robert Assistant Attorney APPROVED: OPINION COMMITTEE B. Davis General

Kerns Taylor, Chairman W. E. Allen, Co-Chairman Austin Bray Scott Garrison Bill Corbusier Fred E. Davis MEADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WRITE First Assistant

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