                                 November        14, 1973


The Honorable M. D. Emerson                         Opinion No.     H-    153
County Attorney
County Courthouse                                   Re:     The legality of the incor-
Paris, Texas 75460                                          poration of the proposed
                                                            town of Sun Valley
Dear Mr.   Emerson:

      Your request for our opinion states a number of facts concerning
the proposed town of Sun Valley,asks     us to assume these facts to be
true, and then asks whether the proposed town would meet the require-
ments for incorporation   as a town or village under Title 28, Chapter 11,
Vernon’s   Texas Civil Statutes.  (Articles  1133 to 1153a).

      The facts   you ask us to assume    are:


                    “Sun Valley has a population of approximately
            23 5 people.    It is basically a mobile home park which
            was started in 1971 and by September        of 1972 had sub-
            stantially all of the space leased.      Sun Valley has its
            own sewerage      system which has been approved by all
            required State Agencies,       and it is being operated by a
            licensed operator.      Sun Valley has asphalt streets
            within the proposed corporate       city limits and a perma-
            nent Cable Television      System with an antenna approxi-
            mately 120 feet tall and the cable is provided to each
            family within the proposed City of Sun Valley.         The’
            proposed Town of Sun Valley has more than 200 and
            less than 1,000 inhabitants as provided for under
            Article   1133, Vernon’s    Annotated Civil Statutes.    The
             Town also has at least twenty residents       thereof who
            are qualified voters under the General Election Laws
            of the State of Texas and who have resided within the
            proposed town for a period in excess of six months.




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The Honorable     M.D.    Emerson,     page 2      (H-153)




               The proposed Town of Sun Valley consists      of appro-
               ximately   86 contiguous acres of which the mobile
               home parkat this time only occupies approximate,Ly
               ten acres of the total tract.   All of the mobile homes
               within the proposed Town of Sun Valley are individually
               owned.    Electricity  and running water is provided for
               all residents.

                      “School buses from two different schools run
               through Sun Valley to transport children to their
               respective   schools. ”

     Article     1133 of Vernon’s    Texas   Civil Statutes   states:


                      “When a town or village contains more than two
               hundred (200) and less than ten thousand (IO, 000) in-
               habitants,  it may be incorporated    as a town or village
               in the manner prescribed     in Chapter 11, Title 28, of
               the Revised   Civil Statutes of Texas,   1925, and all
               amendments     thereto. ” (Articles  ,1133 to ,1153a,X ZCS.)

     Article     1134 of Vernon’s    Texas   Civil Statutes   provides   in part:

                      “If the inhabitants of such town or tiNage desire
               to be so incorporated,      at least twenty residents
               thereof,   who would be qualified voters under the pro-
               visinns of this chapter,     shall file an application for
               that purpose in the office of the county judge of the
               county in which the town or village is situated,        stating
               the boundaries     of the proposed town or village,     the
               name by which it is to be known when incorporated,
               and accompany      the same with a plat of the proposed
               town or village including therein no territory        except
               that tihich is intended to be used for strictly town
               purposes.    . . .‘I

       Texas Courts have construed the term “inhabitants, ” in other statutes,
to encompass  those persons who have established  more or less permanent




                                        p.   712
The Honorable    M.D.   Emerson,    page 3      (H-153)




domiciles   in a particular.community.     Struble v. Struble,   177 S. W. 2d
279 (Tex. Civ. App.,    Amarillo,   1943, no writ): Houston Printing Co. v.
Tennant, 39 S. W. 2d 1089 (Tex. 1931).      The “inhabitants”   do not have to
be qualified electors.     Attorney General Opinion M-867     (1971).

       In Capitol Aggregates,   Inc. v. Walker,       448 S. W. 2d 830 (Tex.
Civ. App.,   Austin, 1969, error ref’d.   n. r. e.),    it was held that a judg-
ment debtor’s mobile home was sufficiently         affixed to land for the purpose
of qualifying for a homestead    exemption.     It was found that the mobile
home’s gas, water and sewage facilities     were connected to the gas, water
and sewage systems     located under the surface of the ,land. The structure
was set on cement blocks.      The court stated that the question of intention
to make the article a permanent accession        to the ,land must be ascertained
from the facts and circumstances     attendant upon p,lacing the house there,

       Here, the county judge, in determining if the popu,lation of the pro-
posed Town is permanently    residing there, must take into account all of
the factors involved.

       It has been held that the County Judge has discretionary     power to
determine whether or not the proposed town or village contains’the       suffi-
cient number of “inhabitants.   ” Reagan v. Beck, 474 S. W. 2d 935 (Tex.
Civ.App.,    Tyler, 1971, error ref’d.  n. r. e.). His ruling is final in the
absence of fraud or .abuse of discretion.     Once the County Judge has ruled
that there are over 200 “inhabitants,   ” he has no discretion  as to whether
or not to call an election.

        Article 1134 requires the applicants who sign the petition for incor-
poration to be qualified electors     and to have residences   within the area
sought to be incorporated     for at least 6 months.    As to who are qualified
electors,    see Article 1137, V. T. C. S. ; Attorney General Opinion M-867
(1971).

        According  to Article 1134, a plat of the proposed town or village
must be filed with the petition for incorporation,     and it may include no
territory   except that intended for strictly town purposes.     In Harang v.
State, exrel.,    City of West Columbia,     466 S. W. 2d 8 (Tex. Civ.App.,




                                     p.   713
The Honorable    M.   D.   Emerson,     page 4       (H-153)




Houston,   14th Dist.,  1971, no writ), it was held that to be entitled     to
incorporate,    the area of the town or village should be susceptible       of
receiving    some municipal services.

     As stated in Harang,    supra, the purposes of thenlanguage of Article
1134 in limiting the area which may be included in a proposed incorporation
of a village or town to that which is int.ended to be used for strictly town
purposes are twofold.      The first is to prevent the tow~nor village from
embracing    land for tax purposes when there is no reasonable          expectation
that it will become a residential     part of the town.     Secondly,   such a lirnit-
ation also prohibits the inclusion      of territory   simply to make up the
required population without any reasonable         expectation of furnishing to it
any of the usual services    afforded by a municipality.        In Harang there
were compact clusters     of ten to twenty houses in the area to be incorpo-
rated.    Those clusters were widely separated from each other and there-
fore did not meet the density requirements.          The proposed Town of Sun
Valley encompasses      approximately     86 contiguous acres of which the mobile
home park occupies approximately         ten acres.    Further,    the prospective
expansion of the town may be taken into account.

     In assuming as true the facts set forth in your letter, we should not
be understood as invading the province of the County Judge, who must
pass upon these facts.    That decision is for him to make, and his ruling
is final on the subject, in the absence of a showing of an abuse of that
discretion,   or fraud.

                             SUMMARY

          In order to incorporate  a new town, the County
      Judge must determine whether it has more than 200
      “inhabitants”.   The decision is within the discretion
      of the County Judge, and his ruling is final in the
      absence of fraud or an abuse thereof.

                                      Very   truly yours,




                                      Attorney     General     of Texas




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    The Honorable   M.    D.   Emerson,   page   5   (H-153)




    APPROVED:




    Opinion   Committee




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