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.
p. 711
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
p. 714
. .
The Honorable M. D. Emerson, page 5 (H-153)
APPROVED:
Opinion Committee
p. 715