DAN MORALES

ATTORXEY GENERAL 

## QBffice of tip !i%tornep @enerat .&t&e of lICexa$ January 19,1996 TheHonorable Harvey Hilderbran Chair Committee on Human Services Texas House ofRepresentatives P.O. Box 2910 Austin, Texas 78768-2910
Dear Representative HiJderbran: Opinion No. DM-373
Re: Whether a city is restricted from reannexing an area previously annexed and then disannexed under Local Government Code section 43.033 (RQ-805)

Local Government Code section 43.033 provides: (a) A general-law municipality may annex adjacent territory without the consent of any ofthe residents or voters of the area and without the consent ofany ofthe owners ofland inthe area provided that the following conditions sre met: (1) the municipality has a population of 1,000 or more and isnot eligible to adopt ahome-rule charter; (2) the procedural rules prescriied by this chapter are met; (3) the municipality must be providing the area with water or sewer service; (4) the area does not include unoccupied territory in excess of one acre for each service address for water and sewer service; (5) the service plan requires that poke and tire protection at a level consistent with protection provided within the municipality must be provided to the area within 10 days atIer the effective date ofthe annexation; and (6) the municipahty and the affected landowners have not entered an agreement to not annex the area for a certain time period. (b) It; after one year but before three years from the passage of an ordinance annexing an area under this section, a majority of the landowners or registered voters inthe area vote by petition’submitted to the municipality for disannexation, the municipality shah immediately disamtex the area If the municipality disannexes theThe Honorable Harvey Hilderbran - Page 2 (DM-373)

area under this subsection, the municipality may discontinue providing the area with water and sewer service.’ We understand you to ask what legal restrictions; if any, prevent a city, after an area has been annexed under subsection (a) of section 43.033 but subsequently disannexed pursuant to voter or landowner vote under subsection (b), from simply annexing the area again under the subsection (a) provisions without the consent of the area’s residents, voters, or landowners. In answer to your question, so long as the conditions for annexation set out in subsection (a) are met, we tind nothing in section 43.033 or elsewhere that legally restricts the city from reannexing the area. The fact that the area had already been annexed under those provisions and subsequently disannexed under subsection (b) does not, in our opinion, initselflimit the city’s authority to annex the area againunder subsection (a).
We note that the legislature, in other contexts, has expressly imposed restrictions on a city’s reannexing an area after its disannexation. Section 43.141 of the Local Govermnent Code specifically provides that an area d&annexed under that section because of the city’s failure to provide services may not be reannexed within five years. We can only conclude that had it intended to impose such restrictions in the section 43.033 context it would have specifically so indicated. We find no such restrictions. Nor do we find any constitutional limitations as a matter of law on a city’s annexing an area under section 43.033 that had already been annexed andthen disannexed under that section.2

‘Theprovisions

ofsection 43.033 werefirstaddedin 1991. AU ofMay 26,1991.12d Leg., RS., ch 904, 1991 Tex Gen. Laws 3239. Subsection (a)(3) was amended in 1993 to read“water or sewer saviee” instead of =watexand - service.” Act of May 3, 1993,73d Leg., RS., ch 208, 1993 Tex. Gen laws 395.
The bill analysis to UKbill adding section 43.033 indicates thatthe “procedural rolespresxkd bythis chapter”which must,under subsection (a)(Z),be metin section 43.033 aMexations, arcthose set out in subchapter C of chapter 43, and include notice and hearing requkmentq Local Gov’t code $543.052 (rcq

uirements for preparationof serviceplan forprovision of sexvices to annexed area), .055 (--Of annexation eachyear), .056 (limitations on areaannexed eachyear). House Comm. onUrbanAffairs Bill Analysis, HB. 985.72d Leg.,RS. l(l991).
2We.note, however, thateach annexation and diwmexation would, as a change affectingvoting, appearto also require prcdearance from the United States JusticeDepartrmt mder the VotingFlights Act,42U.S.C 5 1973~

p. 2028The Honorable Harvey Hilderbran - Page 3 (DM-3 73)

SUMMARY The fact that an area adjacent to a city has already been annexed and then, pursuant to landowner or voter petition, disannexed under the provisions of Local Government Code section 43.033, does not in itself limit the city’s authority to annex the area again under that section. The city may reannex the area so long asthe conditions for annexation setout inthe section are met.

DAN MORALES Attorney General of Texas JORGE VEGA First Assistant Attorney General SARAH J. SHUUEY Chair, Opinion Committee Prepared byWilliam Walker Assistant Attorney General

P- 2029