Annexation and Right-of-Way
The annexation process in Texas is an ever-evolving landscape.
It seems as though every year or two the process undergoes significant changes as the legislature continues to fine tune state law on the subject. Legislative changes in 2019 created a perplexing situation in a fairly common scenario. The issue arose when a city was separated from a tract of land by a road or right-of-way, and the owner of the tract of land requested to be annexed. Generally speaking, in order to annex property into a city’s corporate limits, the property must already be contiguous to the city limits.
Under state law at the time, a city could only annex the tract of land if it also annexed the right-of-way along with it.
In order to annex the right-of-way; however, a city would have to receive some form of a request from not only the owner of the parcel of land, but also from the owner of the right-of-way as well. Typically, rights-of-way that are outside of city limits are owned either by the county or by the Texas Department of Transportation (“TxDOT”). As the name might suggest, county roads are typically owned by counties, and State Highways belong to TxDOT. The trouble with this system was that even if a county or TxDOT had no objection to a city annexing a portion of the right-of-way; they rarely, if ever, actually submitted any type of a request to be annexed. In fact, according to TxDOT’s legal staff at the time, TxDOT lacked the authority to ever petition a city to include a portion of a highway in the city limits.
Last year, the Texas legislature cleaned up the issue by essentially flipping the burden of the request with respect to a right-of-way.
Previously, a city could not annex a right-of-way unless the owner of that right-of-way affirmatively requested annexation. Passed in 2021, Senate Bill 374 added Sec. 43.1056 to the Texas Local Government Code.
This section provided that a city can now annex the right-of-way unless the owner of the right-of-way objects to the annexation. Essentially, it provides that if a property owner requests or petitions a city for annexation, a city can annex the property along with a road or right of way that separates the property from the city limits, unless the city receives an objection from the county or TxDOT.
Under this process, the city must provide written notice of the proposed annexation to the owner of the right of way at least 61 days before the date of annexation.
The city may then annex the right-of-way unless the owner of said right-of-way objects to the annexation in writing, within the 61-day period. Under 43.1056, the right of way must be contiguous and run parallel to the city’s corporate boundaries, and contiguous to the parcel of land requesting annexation. Sec. 43.1056 cleaned up an odd and sticky situation for cities. Cities no longer have to seek affirmative permission from the owner of a right-of-way, instead they must give the owner of the right-of-way notice of the proposed annexation, and an opportunity for the owner to object.
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