    Honorable George Pierce                     Opinion No..JM-750
    Chairman
    Urban Affairs Coxaaittee                    Re: Validity of incorporation
    Texas House of Representatives              of the city of Montgomery
    P. 0. Box 2910
    Austin, Texas   78769

    Honorable Stan Schlueter
    Chairman
    Ways and Means Committee
    Texas House of Representatives
    P. 0. Box 2910
    Austin, Texas   78769

    Gentlemen:
P
         You have submitted a request for our opinion concerning the
    validity of the incorporation of the city of Montgomery, Texas, and
    the authority of the city to assess and collect taxes on property that
    is alleged to be beyond the boundaries of the city. The issues you
    have submitted involve complex questions of fact which cannot be
    resolved in an Attorney General's Opinion. We can, however, discuss
    those rules and principles which guide the courts in resolving such
    disputes. We shall begin by reviewing the information supplied to
    this office in connection with this request.

         The town of Montgomery, Texas , was established by a special act
    of the legislature in 1848. Acts 1848, 2d Leg., ch. 191. at 355. An
    attempt to incorporate it was made in 1967. The petition filed
    pursuant to the incorporation of the town of Montgomery described its
    boundaries as being

                 [i]n the form of a square with its center the town
                 square of the Town of Montgomery, Texas as now
                 established and extending in all four directions
                 from the center of such town square a distance of
                 one mile.

    In 1972, two years after the town was designated a general law city
    pursuant to article 1153a, V.T.C.S., the city council passed an
    ordinance describing the boundaries of the city of Montgomery in




                                      p. 3493
Honorable George Pierce                                                   .!
Honorable Stan Schlueter
Page 2 m-750)




identical terms, including therewith territory annexed to the town in
1970.

     In 1973. the city elected to exercise its taxing authority. It
appears, though, that only about one square mile of the city's
territory was appraised for tax purposes. This area. we are told,
extended one-half mile in four directions from the center of the town
square and constituted the original 640 acre tract of land designated
in 1848 as the town of Montgomery. In 1985, the city sought to
include the remaining territory on the tax rolls and assess and
collect taxes thereon for those years the territory was omitted from
the tax rolls.

     A brief submitted on behalf of persons residing within this area
challenges the city's authority to assess and collect taxes on their
property.   These residents allege a number of defects in the
incorporation of the town of Montgomery in 1967 which preclude it from
exercising taxing authority over their property. They argue that the
boundaries described in the 1967 petition for an election on the
question of incorporation embraced an excessive amount of territory in
violation of articles 971 and 1134, V.T.C.S.         Article 971 was
violated, they claim, because the town did not have the number of
inhabitants required for a town encompassing an area of four square
miles. They contend article 1134 was violated because the territory      -.
outside the original square mile area forming the town of Montgomery
was included solely for tax purposes and not for town purposes, as
article 1134 requires. Finally, it is alleged that the residents of
this area were not allowed to vote in the 1967 incorporation election.

     The residents seek to avoid liability for property taxes assessed
by the city. We note, however, that a mere allegation by a taxpayer
that a city's incorporation was accompanied by fraud is not a defense
to the assessment    and collection of ad valorem taxes owed by the
taxpayer to the city. McDannald v. League City, 528 S.W.2d 880 (Tex.
Civ. App. - Houston [14th Dist.] 1975, writ ref'd n.r.e.). Moreover,
they urge that the boundaries of Montgomery should be "rolled back" to
those designated in 1848. Apparently, they believe the town of
Montgomery received its charter pursuant to a local or special law
prior to the adoption of article III, section 56, of the Texas
Constitution, and that such charter was never repealed by the
legislature. See State ex rel. Richardson v. Larkin. 90 S.W. 912
(Tex. Civ. App.1905,    writ ref'd) (an attempt to incorporate a city
under the general laws is void while the special act incorporating it
is in force). We have been supplied no authority for either of these
propositions.     Thus. we will assume that the 1967 attempt to
incorporate the town of Montgomery was not prohibited by reason of an
unrepealed special charter.




                             p. 3494
Honorable George Pierce
Eonorable Stan Schlueter
Page 3 (JM-750)




     Article 971, V.T.C.S., prescribes territorial limits for cities
and towns seeking to incorporate under Title 28 of the civil statutes:

            No city or town in this State shall be here-
         after incorporated under the provisions of the
         general charter for cities and towns contained in
         this title with a superficial area of more than
         two square miles, when such town or city has less
         than two thousand inhabitants, nor more than four
         square miles when such city or town has more than
         two thousand and less than five thousand inhabi-
         tants, nor more than nine square miles, when such
         city or town has more than five and less than ten
         thousand inhabitants. The mayor and board of
         aldermen, immediately after they qualify as such
         officers, shall pass an ordinance causing an
         actual survey of the boundaries of such town to be
         made according to the boundaries designated in the
         petition for incorporation and the field notes
         thereof recorded in the minute book of such town
         or city, and also in the record books of deeds in
         the county in which such city or town is situated.

This provision is applicable to all cities, towns, and villages
attempting to incorporate under Title 28 regardless of the chapter
under which incorporation is attempted. Mallow v. State ex rel. City
of Denton, 374 S.W.Zd 732, 736 (Tex. Civ. App. - Fort Worth 1964, writ
ref'd n.r.e.); Richardson v. State, 199 S.W.2d 239, 244 (Tex. Civ.
APP. - Dallas 1946, writ ref'd n.r.e.). The residents challenging the
city's  recent efforts to tax their property contend that the
population of the town of Montgomery in 1967 stood at approximately
400 persons, far short of the limits imposed by article 971.

     Article 1133, V.T.C.S., authorizes a town or village of more than
200 and less than 10,000 inhabitants to incorporate as a town or
village under chapter 11 of Title 28. The procedures for incorpora-
tion provided in chapter 11 contemplate the existence    of an actual
town or village and are not intended to create a town or village where
none in fact exists. See Rogers v. Raines, 512 S.W.Zd 725, 730 (Tex.
Civ. App. - Tyler 1974,it    ref'd n.r.e.).

     Article 1134, V.T.C.S., sets forth the procedure whereby the
inhabitants of a town may petition for an election on the issue of
incorporation. The petition must include the signatures of at least
20 qualified voters, a description of the proposed boundaries of the
town, the proposed name of the town, and a plat of the proposed town
"including therein no territory except that which is intended to be
used for strictly town purposes."




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Honorable George Pierce
Honorable Stan Schlueter
Page 4 (JM-750)

                                                                         -.


     When a community seeks to incorporate pursuant to the general
laws, the petition for incorporation must describe an area sufficient
to include the minimum number of inhabitants required by statute. The
area described in the petition should be susceptible of receiving some
municipal services. Harang v. State ex rel. City of West Columbia,
466 S.W.Zd 8, 11 (Tex. Civ. App. - Houston [14th Dist.] 1971, no
writ). An area which, because of its geographical or population
characteristics and development, is not capable of receiving municipal
services on any reasonable basis does not constitute a "city" or
"town" authorized to be incorporated. State ex rel. Needham v.
Wilbanks, 595 S.W.Zd 849 (Tex. 1980).

     The laws authorizing the creation of municipal corporations also
incorporate the cormnon-law prohibition against a town or village
including within its boundaries land which is not intended to be used
for town purposes, but is included only for tax purposes. Gray County
Production Co. v. Christian, 231 S.W.2d 901 (Tex. Civ. App. - Amarillo
1950, no writ). The residents of the disputed territory claim the
city has failed to provide any municipal services beyond the original
square mile nucleus of Montgomery.      This, they contend, clearly
establishes that their property was included in the city's corporate
area solely for tax purposes and was not intended to be used for town
purposes. However, they concede thatprior      to 1985 no taxes were
levied on their property. Whether the town's boundaries included more    ?
land than was intended to be used for town purposes is a question of
fact for a jury to decide and is tried as any other fact issue. Ellis
v. State, 383 S.W.Zd 635, 637 (Tex. Civ. App. - Dallas 1964. no writ).

     The courts have identified three defects in the incorporation
process which will render the incorporation of a town absolutely void.
They are: (1) that the act of incorporation was either prohibited or
unauthorized by law; (2) that the incorporation was attempted pursuant
to an unconstitutional statute; or (3) that the attempt to comply with
the laws authorizing the creation of the municipality was so utterly
lacking or defective as to render the attempted incorporation void.
Durham v. Crutchfield, 578 S.W.2d 438, 441 (Tex. Civ. App. - Texarkana
1979, writ ref'd n.r.e.). The lack of the requisite number of
inhabitants to hold an incorporation election renders the incorpora-
tion of a community under such circumstances void as a matter of law,
since there is no authority for groups smaller than those prescribed
by statute to incorporate. w,      Ellis v. State, w.       Similarly,
it has been held that the incorporation of a city or town in violation
of the area and population limits of article 97i is void and illegal.
Richardson v. State, 199 S.W.2d at 241. Other defects in the incor-
poration process. such as including land within the town's boundaries
which is unsuitable or not intended to be used for town purposes,
render the incorporation merely voidable. City of Gladewater v.
Pelphrey. 309 S.W.2d 472, 474 (Tex. Civ. App. - Texarkana 1957, writ
ref'd n.r.e.).




                                 p. 3496
Ronorable George Pierce
Honorable Stan Schlueter
Page 5 (.TM-750)




      The legislature, however, has enacted a series of statutes which
 validate the incorporation of cities and towns that, for one reason or
 another, do not conform to the statute authorizing incorporation.
 See, e.g., V.T.C.S. arts. 974d-974d-35; 11346; 1139a. Validating
 statutes may cure defects in the incorporation proceedings of cities
 and towns which would otherwise be void from their inception because
 of either an absence or an unwarranted exercise of power. Perkins v.
 State, 367 S.W.2d 140, 145 (Tex. 1964). For example, where the act of
 incorporation was flawed because of an erroneous boundary description
 but was done under color of statutory authority, the legislature may
 ratify the incorporation with ,uo lapse in the city's status during the
 period ic was defectively incorporated. See, e.g., Universal City v.
 City of Selma, 514 S.W.2d 64 (Tex. Civ. App. - Waco 1974, writ ref'd
 n.r.e.). These statutes will not, however, validate boundary lines
 unless they expressly provide so. Richardson v. State, 199 S.W.2d at
 244. They have no bearing on what constitutes a city or town. Rogers
.v. Raines, 512 S.W.Zd 725 (Tex. Civ. App. - Tyler 1974, writ ref'd
 n.r.e.1. Thus, a validating statute will not cure an attempt to
 incorporate a community where the facts reveal that it does not
 constitute a city or town. State ex rel. Needham v. Wilbanks. supra.

     In 1971, the legislature enacted article 974d-15, V.T.C.S., which
purported to validate the incorporation and boundaries of cities and
towns having a population of not less than 215 nor more than 217
according to the 1970 federal census. The population of the town of.
Montgomery in 1970 was 216. U.S. Bureau of the Census, Census of
Population: 1970, vol. 1, Characteristics of the Population, Part 45,
Texas - section 1. The legislature evidently enacted article 974d-15
to ratify the incorporationand boundaries of Montgomery. However, by
confining the act's population classification to the 1970 federal
cansus, the legislature permanently closed the class of municipalities
which could come within the classification at any time in the future.
This renders the act a local or special law, prohibited by article
III, section 56, of rhe Texas Constitution. See Morris v. City of San
Antonio, 572 S.W.2d 831 (Tex. Civ. App. -Austin       1978, no writ);
Attornev General Oninion MW-183 (1980). It does not. therefore,
validate the original incorporation and boundaries of the town of
Montgomery. We do not determine whether any other validating statute
accomplishes this result.

     Several residents of the territory in question, however, allege
that they were not allowed to vote in the 1967 incorporation election.
In the absence of a showing of fraud or unfairness, an election on the
question of the creation of a municipal corporation will be upheld
where, despite irregularities, the result was not affected thereby.
Nueces County Water Control and Improvement District No. 4 v. State ex
rel. Wilson, 270 S.W.2d 672 (Tex. Civ. App. - San Antonio 1954, writ
ref'd n.r.e.). Irregularities which prevent the voters from freely
and fairly exercising-their right to suffrage are not created as mere




                                 p. 3497
Honorable George Pierce
Honorable Stan Schlueter
Page 6   (JM-750)




informalities. See Branaum v. Patrick. 643 S.W.2d 745, 750 (Tex. App.
- San Antonio 19=, no writ). Because the legislature has the power
to ratify in a validating statute only what it has the power to
authorize, Perkins v. State, supra. article 974d-15 would not cure the
denial of a person's right tOvote.     See generally Leach v. City of
North Richland Hills, 627 S.W.2d 854 (Tex. App. - Fort Worth 1982, no
writ) (validatinn statutes cannot cure constitutional defects).
Beyond the affir&tions of these residents, we have been provided no
other information concerning the circumstances under which the denial
of their right to vote allegedly occurred.        Whether any person
qualified to vote in the 1967 election was unlawfully denied this
right cannot be determined in this opinion.

                              SUMMARY

              Deteminiag   the   validity   of  the   1967
         incorporation of Montgomery, Texas, involves
         questions of fact which cannot be resolved in aa
         Attorney General's Opinion.     Article 974d-15,
         V.T.C.S., which    purported   to validate    the
         incorporation and boundaries of the city of
         Montgomery, is invalid under article III, section
         56.  of the Texas Constitution as a local or
         special law. A validating statute will not cure a
         defect in the incorporation of a city or town
         resulting from the denial of a person's right to
         vote.




                                         JIM     MATTOX
                                         Attorney General of Texas

MART KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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