                                 The Attorney                 General         of Texas
                                                       Lily    5, 1984
JIM MATTOX
Attorney General


Suprem cwrl SulldlnQ          Booorable Fred M. Ba,xker                           opinion,   no.   ~~-180
P. 0. Box 11548
                              Parker county Attorcey
Auslln. TX. 7S71I. 2!m
512l4752661                   County Courthouse                                   Be: Whether an auxiliary   county
Telex 81a674.1367             Weatherford.  Texar    76086                        courthoure   10 subject  to city
telecopier 612l476.0266                                                           zoning ordinances

714 Jackson.Sulle 700
                              Dear Mr. Barker:
Dallas. TX. 75202ao6
214i742+.Q44                         You ask whether Parker County’s             uee of a tract       of land for an
                              auxiliary     courthoum!    within      the city    limits    of the county seat       la
                              eubject    to ,the city’s        ‘zoning    ordinancea      and building     codes.    We
924 AIberIa Ave.. Sullr 160
   ‘aso. TX. 76Wt279.3
                              conclude    that the ccunty’a       use of land for an auxiliary          courthouse   is
3Iol5353464                   subject   ~to the munic:ipality’e          zoning ordinances      only tom the extent
                              that    nuch ordinancmt       ‘do not prevent          the county      from reasonably
                              locating    its auxilicuy      courthoucle within        the municipal    limits   of the
1001Texas.sqite 7w            county seat.       Addit:looally,      ve conclude      that the county muat comply
Houslon. TX. 770023111
                              with the munfcipalitp’e         building    and fire coder.
713i223.6666

                                     Texas courte have yet to determine         the acope of a municlpality’e
606 Broadway.Suite 312        zoning power over county property        located within municipal        llmita.      We
Lubbock.TX. 794014472         recently     held  that buildinge,     structures.     and laod controlled            by
6ow747-6236
                              federal   or etate aga!c,ciem ari ixeapt      from municipal     ronlug.     Attorney
                              General    Opinion m-117     (1983).     Bowever.    a political      rubdivision’o
4366N. Tenlh. Sull. S         property     Is not lta teproperty      for purpoaea     of resolving       conflict8
MCAIIen.TX. 76601-1666        with another politiml       rubdivirion.       Port Arthur Independent           School
5w662-4647                    Dlatrfct    v. City of Grovea. 376 S.W.2d 330, 333 (Tex. 1964); Attorney
                              General Opinion lN-Gi)(1982).
200 Mel mua. Slme UK)
Sm Antonlo. TX. 762OW767              A municipal        acnln8     ordinance       which     conflict8        vith     or   is
512/2264161                   inconsistent       with e’tate legislation          1~ invalid.          City of Brookside
                              Village      v. Comeau, liZI S.W.2d 790. 796 (Tex. 1982).                     However, state
                               legislation      In e particular      field    does not automatlcally            preempt that
                              ,field    from amicipal      regulation;       local regulation        ancillary      to and in
                              harmony with the purpose of the state                 leginlation      is acceptable.         Id.
                              Thur, whether a municipality            may exercise       zoning paver over a count-
                               auxiliary      courthoure:    located     vlthln     the municipality           depend6 upon
                               reconciliation      of two different,        potentially      conflicting      legislatively
                              created powerr.

                                     The coumieefone:rtl       court of a county ha6 the authority     to provide
                              auxiliary    courthouse8         in the county    seat. V.T.C.S.    art.   1605a-5.
Honorable    Fred M. Barker      - Page 2     (JM-180)




51(a)(l);      V.T.C.S.   art.  23753’5, Il.        Subsection      l(a) (1)   of   article
1605a-5     specifically     authorizea the        comissionera        court   to   provide
auxiliary     courthousea

             in   any part     of    the   city,      town,  or village
             designated   a8 the comty eeat, including          a part of
             the municipality     atlcled to the municipelity       after
             it became the cow&p rut.             but not including       a
             part    of the munic:ipality        that    la outside    the
             county.    (Emphasis mlded) .

liowever. the legfrlative   history   does not indicate   that  “in any part”
was intended    to address    a c:onflict    with  city  zoning    ordinances;
rather.   it wan intended  to indicate    that the county la not limited       to
the “town center . ”

       Additionally,     counties    hwe    the right    of eminent     domain

              four the purpose of condemning and acquiring       land,
              right   of way or tuhaement in land,       private     or
              public   . . . whew said laod.      right   of vay ‘or
             .caeement ie neceeaal)m in the construction     of . . .
              courthouses   . . . .

V.T.C.S.   art.    3264a.   Article    6702-l.    section     4.302.     grants    counties
the right     of eminent    domain for road construction                and maintenance
purposes     within     the  bouadazles      of    ounicipalltlcs          and expressly
raquircs   the prior,consent       of r:he municipality.          No similar      statutory
requirement       for     a muaicirv~lity’a     : consent         amlies        tom county
co~dexmations      pursuant  to, .art&le   :3264&      Cf. Cir;-of        fpler    v. Smitir
~County, 246 S.l?.2d.601~(Tex.       1952); El Pasoaty             v. City of El Peso,
357 &U.2d 783 (Tex.. Civ. ,App. - 81 Paeo 1962, no writ) (resolution                        of
conflict    over condemnation       by one political        subdivieion       of property
belonging    to an equally     empour~‘cd subdivision       ultimately       reste on the
paramount use and best interests         of the public).

        Zoning regulation        io a recognired       tool    of cowaunity planning
vhich     allova    a municipality,         in .itm legislative        dircretion,       to
restrict      the use of property      fc,c the protection     of the general health,
safety,      and velfare      of the public.        City of Broobide         Village     v.
Comeau. a;            see V.T.C.S.       nrts., 1011a through       10113 (the zoning
enebllng      act ofzas        which lu,thorixes    building     and zoning regulation
by municipalities).             Became     a municipal       roalng   ordinance      vhich
conflicts      with or lo inconrlrtturt       with lta te lenjslation     cannot stand,
City of Brookside        Village v. Ctmeau, a           , an orditica     which defeata
the legislative       authorization      ~~countica      to ertabliah    courthoueer     ia
Invalid.
     Honorable    Fred M. Barker - P#ll;e 3         (JM-180)




            Texas courts       dealing     with conflicts       .betwean municipslitiea        and
     school     districts     employ thicl reasoning           to hold that municipalities
     cannot     use their       zoning    po!n,ra totally        to exclude      the reasonable
     location      of achoo~.facilitic~           within    municipal      boundaries.     Austin
     Independent       School Dietrict       o,, City of Sunset Valley,          502 S.W.Zd
     (Tex.     197,3); Port -Arthur          Independent      ,School District       v. City    of
     Crivea , 376 S.W.2d, .330:. (Tt;:.             1964);     City    of Addison      v.  Dallas
     Independent       School, District,       (132 S.W.2d 771 .(Tex. Civ. App. ‘- Dallas
     1982. .writ ref’d n.r.c.).            AlLn&~g such an exclusion           would defeat the
     school district’s         power of end,nent domain.            Austin Independent School
     District      v. City of Sunset Valley, B;                   City of Addison v. Dallas
     Independent       School District,       eupra,      Nor can the zoning ordinances         of
     municipalities        override      the    eminent domain powers granted             by the
     legislature       to other types of cntitiea.           Sea Gulf, C. 6 S.P. Ry. Co. v.
     m,         281, S;W.Zd 441 (Tex. Civ.               App.       Dallas    1955, writ    ref’d
     n.r.e.);      Fort Worth 6 O.C. Ay. Co. v. Auunons. 215 S.W.Zd 407 (Tex.
     Civ. App. -. Amarillo         1948; writ ref’d 0.r.e.).

            As a practical     matter,   a political   subdiviaion’a    “immunity” from
rC   munidipal    zotilng ‘is limited   by a rule of reasonableneaa.       For example,
     despite    language ,in~ the -- Sunset Valle    case that school districts      are
     absolutely      immune from a city 4’ s zoning       power,     the supreme court
     emphasized that its holding was

                  not    that    the   Sch,,l   District     can    act    with
                  impunity    . ~. . .    (Yhia   immunity      is    absolute
                  unless   the City in #: given instance       can show that
                   its exercise is unreasonable      or arbitrary.’

     502 S.W.2d ,.at ,674:; (quoting   ,ulth epproval  from City of Nevark v.
     University of Delaware, .,3D4 -A.,:!d 347. ,349 (Del. Ch. 1973)); see City
     of Addison -v.    Dallas   Indepe~~lant School District,    632 S.w.?d   at
     772-773.          ‘.

            Similarly.     in Porter v. Southwestern          Public    Service     Co., 489
     S.W.2d 361 (Tex. Civ. App. - &rillo              1972, writ ref’d n.r.e.3.           the
     court held that,, absent i ---   su&lined     challenge,      a city did not usurp
     the eminent domain power of a public utility                by requiring    it to meet
     certain     standards    under   tit:?   zoning     ordinances.        Therefore,      ve
     conclude that Parker County’s IMC of land for an auxiliary                   courthouse
     is subject      to the city’s   zoning ordinances         only to the extent        that
     such ordinances     do not prevent the county from reasonably             locating    its
     auxiliary    courthouse   within the municipal       limits    of the county seat.

 r          However,    the county must comply with city           regulations     regarding
     the     construction     of     its   rcxiliary      courthouse.        Texas     courts
     distinguish     between municipal       :#,ntrol over the location        of buildings
     of another political       subdiviair~c    and control    over the construction        of
     such buildin8a.       See,  e.g.,   %eet     Valley,  m,        at  673.   The   supreme
   Honorable     Fred M. Barker - Pr,fe 4         (JM-180)




   court in Port Arthur fndeperdent               School Oiatrict     v. City of Groves,
   supra,    held     that    a school      district     must comply with the city's
   building      regulations.        The legislature,       .by l uthoriainS    the ,achool
   district     to locate      a school    Sacility    vithin    a ~nicipality. did~not
   preempt the city's         police   povcc to enforce necessary        health and aafety
   regulatione.         Port Arthur I!dependent            School ~Diatrict    v. City ~of
   Groves, B,           et 334. ~Lo Attorney General Opiuim~M~l-508.(1982),
   ~-office       ~extended~thia"~ratlonele       to counties   end detelrined     -.thet
    couuty buildings    within   munic:~.palitfes   are subject    to municipal-fire
    codes.  See al~eo Attorney Geno::al Opinion WV-218 (1957).

          Although particular        "poli:e   power" regulations       vhich.     in effect,
   prevent the location         of another political     subdivision's       fecilitiea     may
   be invalid,      see. e.g.,     Cit     of Addison v. Dallas        Independent      School
.  Ofstrict,     supra,            +-
                             the county    II authority    to locate       buildings      in a
   municipality      does not abrogc.re municipal           authority      to protect       the
   public health,       safety,   and veXare.       See City of Fargo, Case County            v.
 ~ Harwood Township,           256 N.W.2'1 694 (N.O.        1977);     Lincoln      County v.
   Johnson,     257 N.W.Zd 453 (S.11, 1977);            Wilkinsburg-Peaa        Joint    Water
   Authority     v. Borough of ChurclG,            417 Pa. 93, 207 A.2d 905 (1965);
   Pal-Uar Water Hanagement Oia~rict              v. Martin County,          377 So.2d 752
   (Fla. Diet. Ct. App. 1979).

                                          &II M M A R Y

                     Parker County's          ure of land for sn auxiliary
                 courthouse      within      the municipal       limita    of the
                 county    seat      ,ia subject      to the munlcipality'e
                 zoning ordinances          only to the extent          that    such
                 ordinances     do not prrrent the county from loceting
                 its auxiliary        courthcuae    within    the municipality.
                 l'he county must comply vith municipal               regulations
                 regardinS       the     couw:ruction      of     its    auxiliary
                 courthouse.




                                                     LJ!!!k
                                                        Very truly



                                                        JIM
                                                              m


                                                                 MATTOX
                                                                       yo   8




                                                        Attorney General of Texas

    TOMGREEN
    First Assistant      Attorney    Genera,]

    DAVID IL RICHARDS
    Executive Assistant Attorney General
.   -


        Honorable    Fred M. Barker - Pa&c 5   (JM-180)




        Prepared    by Rick Gilpin
        Aaeiatent    Attorney General

        APPROVZD:
        OPINIONCQEMITTEE

        Rick Gilpin,   Ghairman
        Go1111 Carl
        Susan Gerriaon
        Jim Moellinger
        Nancy Sutton
