Why Did the City Cross the Road? – To Annex the Other Side
Texas annexation laws underwent a major overhaul in 2019, a subject our firm addressed in a prior blog post. Often, the full ramifications of new legislation are not immediately apparent, until the new laws are put into practice. As with any new innovation, sometimes there are some bugs to work out. Over the past few months, a rather interesting quirk has become a major hassle for some Texas cities.
As discussed in our prior blog, HB 347 eliminated involuntary annexations in Texas, and cities cannot annex property without either a request from the property owner, or a petition from more than 50% of the property owners or voters in the area. Additionally, in order for property to be annexed into a City, the property must be in the City’s Extraterritorial Jurisdiction (ETJ) and must actually border the existing City limits. This seems simple enough. If you’re a property owner in a city’s ETJ, and your property borders the City limits, then you can request that your property be annexed, if you so choose.
An interesting situation arises, however, when the city limits end at a roadway or highway. If the City is on one side of the road, and the property to be annexed is on the other side, then the two do not share a border. There is a literal roadblock between the two. A City would be unable to reach the property across the street without annexing the roadway as well. That’s where an interesting problem can arise. With unilateral annexations being a thing of the past, a city is unable to annex a road or right-of-way unless it receives a request from the owner of the road, or from the governing body of the political subdivision that maintains the road.
Notwithstanding any other law, a municipality may by ordinance annex a road or the right-of-way of a road on request of the owner of the road or right-of-way or the governing body of the political subdivision that maintains the road or right-of-way under the procedures prescribed by Subchapter C-1.
Tex. Loc. Gov’t Code Sec. 43.1055.
So who owns the road? That depends, as we have previously noted. Unsurprisingly, County roads are owned by Counties. For County roads, the County commissioners could request that a City annex the road, allowing the City to potentially reach property on the other side of the county road. Where the new problem really comes into play, is with regard to State Highways. The Texas Transportation Commission oversees the state highway system, and according to the Texas Department of Transportation’s (TxDOT) legal staff, the Transportation Commission doesn’t have the authority to petition a city to include a state highway in its boundaries. This would seem to prevent the voluntary annexation of any real property that lies across the highway from the City limits, even if the property owner wanted to be annexed. Texas Municipal League staff met with TxDOT in December of 2019 to confirm TxDOT’s findings.
This actually gives rise to a second question. Under Texas annexation laws, some sections of the Local Government Code require that a City receive a “petition” from voters or landowners prior to annexation, while in other sections require only a “request” from a landowner in order to annex the property. Is a petition a request, and if so, is a request a petition? It seems apparent that a petition for annexation, which requests that the City annex the property, is in fact, a request for annexation. Conversely, a request is not necessarily a petition for annexation. A petition is a formal writing, signed by the property owners or registered voters in the area with certain other requirements laid out in Chapter 43 of the Texas Local Government Code. This situation is analogous to the old adage that a square is a rectangle, but a rectangle is not a square. While TxDOT states that they do not have the authority to petition a city for annexation, does that mean they lack the authority to request annexation? Sec. 43.1055 makes no mention of a petition for annexation, it requires only a request. If the legislature intended to require that all requests be made by petition, they simply could have used the word petition in this section. For now, it’s somewhat of an open question whether TxDOT has the authority to request that a city annex a highway. It’s something that will need to be addressed by the legislature in the future.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.
