                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                 May 27, 2008



The Honorable Kevin Bailey                                 Opinion No. GA-0630
Chair, Committee on Urban Affairs
Texas House of Representatives                             Re: Eligibility of particular owners to sign a
Post Office Box 2910                                       zoning change protest under section 211.006(d),
Austin, Texas 78768-2910                                   Local Government Code (RQ-0654-GA)

Dear Representative Bailey:

        You ask the following questions regarding municipal zoning change protests under section
211. 006(d), Local Government Code:

                      (1) Are all persons who own land immediately adjoining the
                 area covered by a proposed zoning change and extending 200 feet
                 from that area eligible to make a protest under Section 211.006(d)(2),
                 Local Government Code?

                      (2) More specifically, is [a] city required to count as eligible for
                 a protest under Section 211.006(d) the signatures from landowners in
                 an area that is not in the corporate limits ofthe city but is annexed for
                 limited purposes by that city?

                     (3) What about the signatures of owners of land that is not in
                 the corporate limits of the city and is not annexed for limited
                 purposes?'

I.      Factual Background

        You explain that your questions arise as the result of a recent zoning change undertaken by
the City of Austin ("City"). Request Letter, supra note 1, at 1. You tell us that the City, prior to
changing the "zoning on a tract ofland located at the edge ofthe [City's] corporate limits[,] ... gave
notice of the proposed zoning change to landowners in at least two neighborhoods adjoining the
tract: Westminster Glen and the River Place Municipal Utility District." ld. You indicate that



         1See Letter from Honorable Kevin Bailey, Chair, Committee on Urban Affairs, Texas House ofRepresentatives,

to Honorable Greg Abbott, Attorney General of Texas, at 2 (Dec. 17,2007) (on file with the Opinion Committee, also
available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
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"[I]andowners in Westminster Glen, which was not located in the corporate limits ofthe [Clitybut
was located in an area annexed by the [Clity for limited purposes, were counted for the purposes of
a protest petition under Section 211.006(d)(2)." !d. at 1-2. However, "[I]andowners in the River
Place MUD neighborhood, which was not located in the corporate limits of the [Clity and had not
been annexed for limited purposes, were not counted by the [Clity for purposes of the protest
petition." ld. at 2.

II.      Analysis

         Section 211.006(d), Local Government Code, provides that

                   [i]f 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:

                         (I) the area of the lots or land covered by the proposed
                   change; or

                         (2) the area ofthe lots or land immediately adjoining the area
                   covered by the proposed change and extending 200 feet from that
                   area.

TEX. Loc. GOV'T CODE ANN. § 211.006(d)(2) (Vernon 2008) (emphasis added).

       You ask whether "all persons who own land immediately adjoining the area covered by a
proposed zoning change and extending 200 feet from that area [are] eligible2 to make a protest"
under section 211.006(d)(2). Request Letter, supra note 1, at 2 (emphasis and footnote added). You
are specifically interested in discerning whether two categories oflandowners are eligible to protest
under section 211.006(d)(2): (1) those "in an area that is not in the corporate limits 3 ofthe city but


          'You ask about "eligibility" to make a zouing protest and for ease of reference we utilize the same term
recogniziug that it does not precisely characterize the impact ofsection 21!.006(d). Section 21!.006(d) does not result
in eligibility in the sense that it precludes persons other than those listed in the statnte from registering their objections
to a proposed zouing change with a city. Rather, as noted in a previous attorney general opinion, section 21!.006(d)
provides that upon the submission ofa written protest meeting the terms ofthe statnte, a proposed change in a regulation
or boundary must receive a favorable vote of at least three-fourths of all members of the governing body of the city in
order to become effective. See TEX. Loc. GOy'T CODEANN. § 211.006(d) (Vernon 2008); Tex. Att'y Gen. Op. No. JM-
1014 (1989) at 2 n.!.

          3A municipality's boundaries can be described as consisting of three areas: (I) full purpose boundaries, (2)
limited purpose boundaries, and (3) extraterritorial jurisdiction area. See generally TEX. Loc. GOy'T CODE ANN. title
2, subtitle C (Vernon 2008) ("Municipal Boundaries & Annexation"); id. §§ 42.001-.904 (extraterritorialjurisdiction);
43.121 (annexation for limited purposes); 43.127 (annexation for full purposes); City ofAustin v. City ofeedar Park,
953 S.W.2d 424, 432-33 & n.11 (Tex. App.-Austin 1997, no writ). We understand your use of the term "corporate
limits" to mean a city's full purpose boundaries. See generally TEX. WATER CODE ANN. § 26.179(c) (Vernon 2008)
                                                                                                         (continued...)
The Honorable Kevin Bailey - Page 3                       GA-0630



is annexed for limited purposes by that city" and (2) those who own "land that is not in the corporate
limits of the city and is not annexed for limited purposes." Id.

         We believe your questions are answered by the court of appeals in Strong v. City ofGrand
Prairie, 679 S.W.2d 767 (Tex. App.-Fort Worth 1984, no writ); see also Tex. Att'y Gen. Op. Nos.
DM-167 (1992) at 2-3 (discussing Strong), JM-1014 (1989) at 3-5 (discussing Strong). In Strong,
the trial court concluded, in relevant part, that

                   under art. 101le [predecessor to section 211.006(d)] those who are
                   entitled to sign zoning change protests are the same as those entitled
                   to notice by art. 1011f [predecessor to section 211. 007(c)}. Article
                   101U 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 classification is proposed ... as the ownership appears on
                   the last approved city tax roll."

Strong, 679 S.W.2d at 770 (emphasis added and citation omitted) (quoting language offormer article
101U of the Revised Civil Statutes, now found at Local Government Code section 211.007(c)).

        The appellate court found this conclusion oflaw to be correct, holding that "the intent ofthe
legislature was to permit written protests of proposed zoning changes by the owners of 'real
property' lying within 200 feet of the property on which the zoning change is propos(;d, which
ownership is to be determinedfrom the last approved city tax roll." !d. (emphasis added); see TEx.
Lac. GOV'T CODE ANN. § 211.007(c) (Vernon 2008). Pursuant to the holding in Strong, it is only
those who ownreal property within the specified geographic limits and whose ownership is indicated
on the most recently approved city tax roll who are eligible to protest under section 211.006(d)(2).

        You note that section 211.006(d)(2) does not, by its terms, exclude anyparticular landowners
based on the governmental jurisdiction in which their property is located or the governmental entity
to which they pay taxes. Request Letter, supra note I, at I. And you contend that the facts presented
here are different from those in Strong in that the properties at issue are "located on the edge of the
city" and the properties in Strong "were located in the corporate limits of the city." Id. at 2. You
argue that application ofthe holding in Strong to the property owners at issue here denies the owners
"a voice on zoning decisions and ignorers] the plain and unambiguous application of the statute to
all adjacent land." Id.

        Your arguments appear to grow out of your understanding that the two categories of
landowners about which you are concerned are not generally subject to municipal taxation, and thus,
will likely be- ineligible to protest a zoning change under Strong's construction of section


          '(...continued)
("extraterritorial jurisdiction [is] outside the full purpose, corporate limits ofa municipality"); Joseph W. Geary, et aI.,
Annual Survey ofTex. Law. Part III: Public Law, Local Gov't Law, 40 SWLJ 727, 744 (1986) (indicating a 1985 Travis
County district court held that "state laws prohibiting services by counties in areas within a city's corporate limits apply
only to those areas within a city's full purpose boundaries").
The Honorable Kevin Bailey - Page 4                       GA-0630



211.006(d)(2), regardless of their land's proximity to a proposed zoning change" See TEX. Loc.
GOV'T CODE ANN. §§ 42.902 (Vernon 2008) ("The inclusion of an area in the extraterritorial
jurisdiction of a municipality does not by itself authorize the municipality to impose a tax in the
area."), 43.130(c) ("[AJ municipality may not impose a tax on any property in an area annexed for
limited purposes or on any resident of the area for an activity occurring in the area."); City of
Galveston v. Am. Nat'lIns. Co., 14 S.W.2d 897,899 (Tex. Civ. App.-Galveston 1929, writ ref d)
(quoting with approval the appellee's statement that a city cannot tax real property located outside
the city); see also TEX. Loc. GOV'T CODE ANN. § 43.0751(k) (Vernon 2008) (providing that a city
that has annexed all or part of certain special districts for limited purposes under section 43.0751
may impose a sales and use tax within the limited purpose boundaries).

        While the application of Strong under the facts you present raises a policy concern,s it is one
for the Legislature to address or for the Texas Supreme Court to consider. 6 The Legislature did, in
fact, react to the Strong decision by adding the provision now found in section 211.006(e) of the
Local Government Code which requires streets and alleys to be included in computing the percentage
ofland area under section 211.006(d). Act ofMay 9,1985, 69th Leg., R.S., ch. 201, § I, 1985 Tex.
Gen. Laws 788, 788-89 (amending article lOlle); TEX. Loc. GOV'T CODE ANN. § 211.006(e)
(Vernon 2008). That amendment did not, however, disturb the court's holding concerning a property
owner's eligibility to sign a zoning protest. Legislation has subsequently been introduced, but not
passed, to respond to the Strong holding as to zoning protests. City Letter, supra note 4, at 1
(asserting that House Bill 3768 introduced, but not passed, during the last legislative session "would
have directly removed the municipal tax roll requirement"); see also Tex. H.B. 3768, 80th Leg., R.S.
(2007).

        "The attorney general's constitutional duty to render legal advice ... does not include the
authority to legislate or to establish binding judicial precedent." Tex. Att'y Gen. Op. No. GA-0279
(2004) at 4. We may advise only about our understanding of the current status of the law. We



          'The City explains that it considered the protests received from the Westminster Glen neighborhood because
"[t]he Austin City Council has chosen in its discretion to adopt a zoning regulation that grants owners ofland annexed
for limited purposes the right to file a zoning protest." See Letter from Tom Nuckols, Assistant City Attorney, City of
Austin, to Nancy S. Fuller, Chair, Opinion Committee, Office ofthe Attorney General, at 2 (Feb. 27, 2008) (on file with
the Opinion Committee) [hereinafter City Letter].

         'We note that owners of such properties may still receive notice of and participate in any public hearing
regarding the zoning change. See TEX. Loc. GOV'TCODEANN. § 211.006(a) (Vernon 2008) ("A regulation or boundary
is not effective until after a public hearing on the matter at which parties in interest and citizens have an opportunity to
be heard. Before the 15th day before the date of the hearing, notice of the time and place of the hearing must be
published in an official newspaper or a newspaper ofgeneral circulation in the municipality.") (emphasis added).

          6 A"no writ" notation, such as that in the Strong case, denotes that no writ was applied for by the parties in the

case and thus, the Texas Supreme Court did not have the opportunity to decide the propriety ofthe holding by the court
of appeals. See Hon. Joe Greenhill, UNIFORM CITATIONS FORBRlEFS: WITH OBSERVATIONS ON THE MEANINGS OF THE
STAMPS OR MARKINGS USED IN DENYING WRITS OF ERROR, 27 TEX. B.J. 323, 386-87 (May 1964) (explaining that "[i]f
the writ of error table shows that no action was taken on awrit oferror (indicating that no writ was applied for), that fact
should be shown" by adding the subsequent notations, "no writ," "no writ history," or "no writ hist."); TEX. RULES OF
FORM §§ 6.4-.5 (5th ed. 1983) (explaining that "the writ of-error history show[s] the Texas Supreme Court's disposition
of a particular case" and "[a] case having no writ history should be cited using the "no writ" notation").
The Honorable Kevin Bailey - Page 5           GA-0630



conclude that Strong addresses your questions and that a landowner is eligible to protest a proposed
zoning change under section 211.006(d)(2), Local Government Code, ifthe area ofthe lot or land
is within the specified geographic limits and ownership is indicated on the most recently approved
city tax roll.
The Honorable Kevin Bailey - Page 6           GA-0630




                                      SUMMARY

                       A landowner is eligible to sign a protest to a proposed zoning
              change under section 2ll.006(d)(2), Local Government Code, ifthe
              lot or land is within the specified geographic limits and ownership is
              indicated on the most recently approved city tax roll.




KENT C. SULLlVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee
