Ending Forced Annexation in Texas: Constitutional Questions of Annexation

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Ending Forced Annexation in Texas: Hon. Jess Fields & James Quintero, TPPF, Center for Local Governance (July, 2015)


The Fiscal Implications of Involuntary Annexation

There is another issue with involuntary annexation— that of property rights.

As the result of an annexation proceeding, a municipality subjects the properties being annexed to property taxes. If, during the annexation proceeding, there is no mechanism by which the properties being annexed may approve or disapprove the annexation via a vote or petition, the property owners are being subject to taxation involuntarily. Given that property taxes subject a person’s property to an extraordinary amount of government power due to government’s ability to place a lien on a property failing to pay property taxes (which gives courts the power to seize the property), it is clear that annexation that includes the compulsion of property taxes upon newly annexed properties is, in essence, a taking. The property taxes and the ability of a local government to coerce annexed properties and ultimately to seize their properties deprive landowners of due course of law, which arguably violates Sec. 19 of the Bill of Rights, Article 1 of the Texas Constitution, because citizens have no recourse during the annexation process as it presently exists.

Sec. 19.  DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW.  No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Involuntary annexation proceedings also appear to violate Sec. 17 of the Texas Bill of Rights because the forcible collection of a property tax and the threat of property seizure via lien is tantamount to a takings without “adequate compensation being made. Sec. 17 also prohibits takings without “the consent of such person” unless the takings is for a purpose exempted within the law.

Involuntary annexation could also potentially violate the Texas Bill of Rights by acting as bills of attainder, which are specifically prohibited under Sec. 16. Bills of attainder are acts of a legislative body that single out an entity for punishment. Because the annexation process provides no recourse for property owners being annexed, it may constitute a bill of attainder against any individual or multiple property owners who are singled out to be annexed by a municipal government in Texas. Annexation proceedings do not require a reason to be given.

Protection from bills of attainder is also one of the only specific liberties that the United States Constitution protects for citizens of both the federal government and the states. The Supreme Court case Fletcher v. Peck (1810) argued that “a Bill of Attainder may affect the life of an individual, or may confiscate his property, or may do both.”42

The Heritage Guide to the Constitution notes that “Bills of attainder also required the ‘corruption of blood;’ that is, they denied the condemned’s heirs the right to inherit his estate.”43 By depriving family members (and other potential inheritors of a property) their ability to inherit through seizure of the property, annexation without vote or petition further represents a Bill of Attainder.

Individuals are made the target of an attainder by being singled out, and an annexation proceeding singles out very specifically the properties and owners to be annexed.44 It is hardly an impersonal process that represents the general welfare described in Article 1, Section 8 of the United States Constitution. James Madison wrote in Federalist 44, “Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. … The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”45