                       Juqust23, 1988




Honorable Mark W. Stiles            opinion No. JR-944
Chairman
County Affairs Committee            Re:   Provision of   sewer
Texas House of Representatives      service by a municipality
P. 0. Box 2910                      to newly annexed territory
Austin, Texas   78769               (RQ-1380)
Dear Representative Stiles:
     You ask three questions with regard to the proposed
annexation of the Commanche Hills Utility District [CHDD] by
the City of Harker Heights. The first we address is:
           Can a city annex in one year an amount of
        area under thirty percent (30%) of        its
        incorporated area as of January 1 of that
        year and then in the same year also annex a
        municipal utility district which encompasses
        an area equal to sixty percent of the city's
        incorporated area as of January 1 of that
        year?
     We assume that by 'municipal utility district" you mean
to refer to the Commanche Hills 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 reclamation district."     Acts 1967, 60th
Leg., ch. 624, 5 1. Section 5 of that act provides that
CHUD shall have the rights, powers, etc., applicable to a
"water control and improvement district" 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 the meaning of section 43.071 of the
Local Government Code. Section 43.071, provides in part:
           (a) In this section, 'water or sewer or
        district' means a district or      authority
        created under Article III, Section 52, Sub-
        sections (b)(l) and (2), or under Article



                                 p. 4749
Honorable 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
        the primary function of which is the whole-
        sale distribution of water.
           (b) A municipality may not annex area in
        a water or sewer district unless it annexes
        the entire part of the district that is
        outside the municipality8s boundaries.  This
        restriction does not apply to the annexation
        of area in a water or sewer district if the
        district is wholly or partly in the extra-
        territorial jurisdiction of more than one
        municipality.
            (c) An annexation subject to Subsection
        (b) is exempt from the provisions of this
        chapter that limit annexation authority to a
        municipality's extraterritorial jurisdiction
        if:
              (1) immediately before 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 municipality does not annex in
           the    annexation proceeding.any area 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 annex under 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 munici-
        payitv mav annex the area but may not annex
        additional area during the remainder of that
        calendar year, except area subject to Sub-
        section (b) and     area that is     excluded
        from the computation under Section 43.055.
        (Emphasis added.)




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




     Section 43.071(d) refers to the limitations on amount
of territory which 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 calendar year, 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 govern-
           ment and used for a public purpose:
              (3) annexed at the request of at least
           a majority of the qualified voters 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*-
        Pglitv mav car-   over the unused allocation
         or use in subsecuent calepdar vem .

           (Cl A municinalitv     carrvina over    an
        allocation mav not annex in a calendar vear a
        total area areater than 30 oercent of the
        uoroorated   area of the municiualitv a    Of
        Januarv 1 of that vear.1 (Emphasis added.)


     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 the provisions of the amendatory
act, however, alter the conclusions we reach here with respect
to the issues presented.




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




     Because your  question is based on the city's having
annexed "under thirty percent of its incorporated area," we
assume that the City of Harker Heights has carried over
allocations from previous years pursuant to subsections (b)
and (c) of section 43.055.       In the circumstances you
describe, the city has authority, under section 43.071(d),
to annex the territory involved.
     Your other two question are:
           (1) If a city provides 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 city recuirea to extend   lines to those
        newly annexed areas with land uses and popu-
        lation densities similar to the ones in the
        previous city limits?
           (2) If a city provides 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 city m         to extend lines to those
        newly annexed areas with land uses and popu-
        lation densities similar to the ones in the
        previous city limits? (Emphasis added.)
     We note first that we find no requirement in the
pertinent statutory provisions that a m            level of
services be provided in any.area to be annexed than are
provided in an area of the city having similar charac-
teristics 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 areas within the
existing city limits.
     Moreover,,turning to question number 1, we further
conclude that a city may in no case literally be 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 "service plan" for provision of
services to the annexed area:




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




              (a) Before the publication of the notice
           of the first hearing required under Section
           43.052, the governing body of the municipality
           municipality proposing the annexation shall
           direct its planning     department or    other
           appropriate municipal department to prepare a
           service plan that provides for the extension
           of municipal services to the area to be
           annexed. The municipality shall provide the
           services by 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) police protection:
                 (2)   fire protection;
h
                 (3) solid waste collection:
                 (4) maintenance of water and wastewater
              facilities:
                 (5) maintenance of roads and streets,
              including road and street lighting;
                 (6) maintenance of parks,      playgrounds,
              and swimming pools: and
                 (7) maintenance of any other publicly
              owned facility, building, or service.
              (c) The service plan must also include a
           program under which the municipality will
           initiate the acquisition or construction of
           capital improvements necessary for providing
           municipal services for the area.     The con-
           struction shall begin within 2 l/2 years after
           the effective date of the annexation of the
           area. The acquisition or construction of the
           facilities shall be accomplished by purchase,
           lease, or other contract or by the municipal-
           ity succeeding to the powers, duties, assets,
           and obligations of a conservation and reclam-
           ation district as authorized or required by



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




       law. Money received from the sale of bonds or
       evidenced by other instruments of indebtedness
       may not be allocated to the area for a period
       of 180 days.

          (d)  A service plan may not provide fewer
       services or a lower level of services in
       the area than were in existence in the area
       immediately preceding the date of the annexa-
       tion. 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 service plan for that part.
          (f) The proposed service plan must be made
       available for public inspection and explained
       to the inhabitants of the area at the public
       hearings held under Section 43.052. The plan
       may be amended through negotiation at the
       hearings, but the provision of any service may
       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 approval by the governing body, the
       service plan is a contractual obligation that
       is not subject to amendment or repeal except
       that if the governing body determines at the
       public hearings required by this subsection
       that changed conditions or subsequent occur-
       rences make the service plan unworkable or
       obsolete, the governing body may amend the
       service plan to conform to the changed condi-
       tions or subsequent occurrences. An amended
       service plan must provide for services that
       are comparable to or better than those esta-
       blished in the service plan before amendment.
       Before any amendment is adopted, the governing
       body   must   provide   an   opportunity   for
       interested persons to be heard at public




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Honorable Mark W. Stiles - Page 7     (JBk944)




       hearings called and     held       in   the   manner
       provided by Section 43.052.
          (h) A sentice plan is valid for 10 years.
       Renewal of the service plan is at the dis-
       cretion of the municipality.
          (i) A municipality that annexes an area
       shall provide the area or cause the aree to be
       provided with services in accordance with the
       service plan for the area.2 (Emphasis added.)
     In garkins v. Citv of Denispn 683 S.W.2d 754 (Tex.
App- - Dallas 1984, no writ), 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 resources necessary to implement the
services which art. 970a (Vernon*s 1963 and Vernon Supp.
1984) requires it to provide for newly annexed areas."   &
at 755. &2 Local Gov't Code 5 43.056 (present codification
of article 970a). The court overruled the appellant land-
owners t contention in this regard and affirmed the trial
court#s denial of injunctive relief, holding that section
10(F) of article 970a (currently codified 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 failure occurs. The court also ruled
with respect to the appellants' contentions that         the
annexation was fraudulent and/or improperly motivated as
follows:
          It is well-settled that the determination of
          municipal boundaries is     a question    for
          political rather than judicial resolution.
          [Citation omitted.] Under article 970a, the
          legislature delegated its powers in this
          regard to the cities, subject to certain
          limitations. Because those limitations apply
          to the location of the annexed area rather
          than to the purposes for which annexation is
          sought,   appellants   may   not   judicially
          challenge the validity of the annexation
          ordinance on the basis that it was improperly
          motivated.



     2.    a   footnote 4.




                                p. 4755
Honorable 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 accordance with the
service plan is disannexation under current section 43.141
of the Local Government Code.
     We construe your question then as asking whether 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 about which you inguire.3


     3.  The City of Austin in its brief in this matter
suggested that sewer extensiona may not be among the
services contemplated by 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 service plan for "mainten ce of water and wastewater
facilities" within 60 days' oaf the date of annexation
(emphasis added).    Subsection   (a) of section    43.056,
however, provides in part:
         [T]he governing body of the municipality pro-
    posing the annexation shall direct its       planning
    department or other appropriate municipal department
    to prepare a service plan that provides for the
    dxtenslon of municipal services to the area to be
    annexed. The municipality shall provide the services
    by any of the methods by which it extends the
    services to any other area of the       municipality.
    (Emphasis added.)
Subsection (c) of that section provides in part:
         The service plan must also include a program
    under which the    municipality will initiate     the
    acquisition or construction of capital improvements
    necessary for providing municipal services for the
    area. The construction shall begin within 2 l/2 years
    after the effective date of the annexation of the
    area.



                                          (Footnote Continued)




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




         Differences in levels of service provided annexed areas
    and existing areas of the city must be based on differences,
    or reasonably contemplated differences in topography, land
    use, and population density. Section 43.056, subsection
    Cd). It is the prerogative of the city, in the first
    instance, to make determinations in the service plan about
    levels'of service in annexed areas.4    If the service plan
    adopted were itself legally defective to the extent of being
    void or voidable -- for example, if it were not adopted in
    compliance with the hearings requirements of section 43.052,
    or if it did not reflect m    consideration by the city of

    (Footnote Continued)
         We believe that the restriction of wastewater services
    to "maintenance" of existing services applies only to the
    requirement of subsection (b) that lsaintenance of such
    services be provided within 60 days of annexation, but that
    subsections (a) and (c) clearly contemplate extension, i.e.,
    improvement of such services. Therefore, sewer extensions
    are, we believe, OOmunicipalservicesI1within 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 following underlined language to
    the provision now codified as the first sentence of section
    43.056, subsection (d) of the Local Government 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 immediately preceding the annexation gr which are
       gtherwise available in other area of the citv with
             uses and oooulation densitiet similar to those
       reasonablv contemolated or Droiected in the newlv
       annexed ar ea .
         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 determination of whether topography,
    land use, and population density factors warrants provision
    of a given level of services is a political matter subject
    to the consideration given the relevant factors by the city.
    Note that this amendatory act also amended other provisions
    now codified under section 43.056, but again we do not find
    that such amendments affect the conclusions we reach here.




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




differences in topography, land use, and population density
factors -- we believe an aggrieved party might obtain relief
by way of an injunction action, or by way of a m
proceeding brought by the state.
                       SUMMARY
             If all other legal requirements are met,
        the City of Harker Heights may annex the
        Commanche Hills Utility District, even though
        the city has annexed, in the same year, other
        territory egualling up to thirty percent of
        the city's territory.
             A city may not literally be
        provide services to an annexed area.
                                         -59       2:
        city does not provide services in accordance
        with the service plan developed pursuant to
        Local Government Code section 43.056, dis-
        annexation under section     43.141 is     the
        exclusive remedy    available to     aggrieved
        persons.
             The determination of the city governing
        body whether the topography, land use, 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 service plan which is   itself
        legally defective might be subject to   relief
        other than disannexation.




                                     JIM     MATTOX
                                     Attorney General of Texas
l?!Y KELLER
First Assistant Attorney General
Lou MCcREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General




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




    RICK GILPIN
    Chairman, Opinion Committee
    Prepared by William Walker
    Assistant Attorney General




                                  p. 4759
