                            QBfficeof tty 9lttornep Qhneral
                                         &ate of PCexae
DAN MORALES
 ATTORNE1
       GENERAL                               June 13, 1996

     The Honorable Don Henderson                  Opinion No. DM-399
     Chair
     Senate Jurisprudence Committee               Re: Whether chapter 43 and section 243.003
     Texas State Senate                           of the Local Government Code violate article
     P.O. Box 12068                               I, section 19 of the Texas Constitution when
     Austin, Texas 7871 l-2068                    municipal annexation causes territory to be
                                                  subject to a municipal ordiice      regulating
                                                  sexually oriented businesses that is less
                                                  restrictive than that imposed by the county
                                                  prior to annexation (RQ-858)

     Dear Senator Henderson:

             You ask if section 43.056 of the Local Government Code is unconstitutional
     because it does not require a municipality to impose as restrictive an ordinance regulating
     sexually oriented businesses as that imposed by the county prior to annexation. A brief
     submitted with your request describes the following situation: The City of Houston (the
     “city”) annexed certain territory pursuant to chapter 43 of the Local Government Code.
     The brief states that under a Harris County ordinance, sexually oriented businesses may
     not be located within 1,500 feet of schools, churches, child care facilities, hospitals, public
     buildings, and public parks. The brief also states that the city ordiice        “prohibits the
     location of such businesses within 750 feet of any school, church, or licensed day care
     center, or within 1,000 feet of any other enterprise for which there is a permit, if 75% or
     more of the tracts within a circular area with a radius of 1,000 feet are residential in
     character. The City’s ordinance contains no distance requirements between sexually
     oriented businesses and hospitals, public parks, or public buildings.” The brief points out
     that under the county ordinance, a sexually oriented business could not be located within
     1,500 feet of a public park, whereas under the city ordinance such a business could be
     located adjacent to a public park.

             Section 243.003 of the Local Government Code provides that both municipalities
     and counties may adopt regulations regarding sexually oriented businesses. A regulation
     adopted by a municipality applies only inside the municipality’s corporate limits, Local
     Gov’t Code § 243.003(b), and a regulation adopted by a county applies only to the part of
     the county outside the corporate limits of a municipality, id. 8 243.003(c).
The Honorable Don Henderson - Page 2           @MS399)




        Chapter 43 of the Local Government Code governs annexation. Section 43.056 of
the Local Government Code, about which you inquire, requires a municipality proposing
annexation to prepare a service plan, providing for the extension of full municipal services
to the area to be annexed, prior to the publication of the notice of the first hearing on
annexation. The services delineated in section 43.056 include police and fire protection,
solid waste collection, and maintenance of water facilities, roads, streets, parks,
playgrounds and swimming pools. Section 43.056 does not require a municipality to
provide as restrictive an ordinance regulating sexually oriented businesses as that imposed
by the county prior to annexation or even to address the effect of annexation on
ordinances regulating sexually oriented businesses.

        The brief submitted with your letter suggests that the fact that section 43.056 does
not require a municipality to address the effect of annexation on ordinances regulating
sexually oriented businesses renders that statute unconstitutional under article I, section 19
of the Texas Constitution; Again, the purpose of section 43.056 is to force a municipality
that annexes territory to develop a plan regarding municipal services. It is not intended to
force a municipality to consider any other consequences of annexation. We do not believe
section 43.056 is constitutionally defective for failing to require municipalities to address
issues beyond its scope. The import of your query is that chapter 43 and section 243.003
of the Local Government Code, see supru, violate article I, section 19 when they cause
annexed territory to be subject to a municipal ordinance regulating sexually oriented
businesses that is less restrictive than that imposed by the county prior to annexation. This
is the question we address.

          Article I, section 19 provides that “[n]o citizen of this State shall be deprived of
life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by
the due course of the law of the land.” In order to be entitled to due process under
section 19, a person must first establish that a statute afl’ects a vested right. As one court
has noted, “Due process of a property right presupposes the existence of a protected right
or interest.         Property interests are not determined by the Constitution. They are
created and defined by state law.“’ The brief submitted with your query assumes that
property owners have a vested right in the continued application of an ordinance
governing land use. It is well established, however, that a property owner has no vested
interest in the continued application of a municipal land use ordinance. “[p]roperty
owners do not acquire a constitutionally protected vested right in property uses once
commenced or in zoning classifications once made. Otherwise, a lawful exercise of the


        lAIrno Carriage Y. Ctry of San Antonio, 768 S.W.Zd 937, 940 (Tex. App.-San Antonio 1989,
*o wit) (citationsomitted).




                                               p.   2191
The Honorable Don Henderson - Page 3                 (Dg-399)




poke power by the governing body of the City would be precluded.“2 This is equally true
of county ordinances.3

         In general, a party who wishes to challenge a zoning ordinance as a taking of his or
her property “‘has the extraordinary burden of showing that the city unlawfuhy exercised
its police power and that no facts or conditions exist in support of that exercise of the
police power.“4 Here, the property owners object to the municipal ordinance not because
it limits the use of their property but rather because of the uses it permits on others’
property. We believe, however, that property owners who object to a municipal land use
ordinance, which applies to territory as a result of annexation, on the basis of the uses it
permits on others’ property would have, at the very minimum, the same burden.5 We do
not believe that a court would conclude that a sexually oriented business ordinance’s
application to certain territory is an unlawful exercise of municipal police power merely
because it applies as a result of annexation. This result is clearly contemplated by section
243.003 of the Local Government Code in providing that a regulation regarding sexually
oriented businesses adopted by a county applies only to the part of the county outside the
corporate limits of a municipahty, Local Gov’t Code § 243.003(c). Furthermore, although
property in an annexed area was not part of the municipality at the time a particular land
use ordinance was adopted, section 43.052 of the Local Government Code requires a
municipality, prior to instituting annexation proceedings, to give notice and to conduct
two public hearings. This section provides property owners who are concerned about the
possible effects of annexation on the application of land use ordinances with an
opportunity to be heard.

        %3ry of Universiry Park v. Benners, 485 S.W.Zd 773, 778 flex. 1972); see also UIR ‘s Fare of
Dallas V.Ci@ o/DrrNos,792 S.W.Zd569,574 flex. App.-Dallas 1990,tit denied)(citing Benners, 485
S.W.Zd 773,178); Stearman v. Ciry of Famws Branch, 355 S.W.Zd 541, 543 (TX. Civ. App.-Dallas
1962, writ refd n.r.e.) (nei&boringpropertyowuersobjectingto specialuse permit had no vestedinter&
in the continuity of zoning ordinance);Ham v. Weaver, 227 S.W.Zd 286, 292 (Tex. Civ. App.-El PasO
1949), rm’don other grounds, 232 S.W.Zd704 (Tex 1950)(“Noresidentor ownerof propertyacquiresa
vested interestunder a zoning ordinance.. It seemsright to considerthe position of these who have
built up and improvedthe zone in reliance upon a restrictiveordinana. Of course one improving his
propertyin a zoned6istrictacquiresno vestedright.“).

        3Smith v. Cap/and,   787 S.W.Zd 420, 422 (l’ex. App.-San An&o         1990, no writ) (citing
Benners, 485 S.W.2d 773,778) (property owners do not acquire connitutionally protected vested right in
wunty zoning clauitication once made).

        ‘MJR ‘s Fare   ofDallas, 792 S.W.Zd at 574

        %ee, e.g., Steaman, 355 S.W.Zd at 543 (requiring residential pmperty owners who objected to
specialpermitgrantedto neighboringpropertyownerto build medicalcenter10makesimilar showing).




                                                     p. 2192
The Honorable Don Henderson - Page 4        (DM-399)




        We conclude that chapter 43 and section 243.003 of the Local Government Code
do not violate article I, section 19 of the Texas Constitution when municipal annexation
causes territory to be subject to a municipal ordinance regulating sexually oriented
businesses that is less restrictive than that imposed by the county prior to annexation.

                                 SUMMARY

                Chapter 43 and section 243.003 of the Local Government Code
          do not violate article I, section 19 of the Texas Constitution when
          municipal annexation causes territory to be subject to a municipal
          ordinance regulating sexually oriented businesses that is less
          restrictive than that imposed by the county prior to annexation.




                                                       DAN MORALES
                                                       Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Grouter
Assistant Attorney General




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