Ending Forced Annexation in Texas: Creation Home Rule Annexation

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


The Creation of Home Rule Annexation Authority

Municipal annexation has a storied history in Texas.

Under the original Republic of Texas and then the state, cities were required to pass a bill through the Legislature in order to annex property. Indeed, cities themselves were created, not by local incorporation, but by state law. In 1858, Texas began allowing for local incorporation and general law annexation via petition.Then in 1912, the Home Rule Amendment to the Texas Constitution allowed cities of 5,000 in population to adopt, through election, home rule charters that gave them significant power to make decisions locally.To be more specific, home rule charters gave cities the authority not prohibited them by the state, including the authority to annex territory outside existing municipal boundaries.

To understand why home rule charters were created in the first place, one must understand the background of something called Dillon’s Rule. Dillon’s Rule is a legal theory that localities should wield no more authority than that specifically delegated to them by state statutes. With the exception of home rule charter cities, Texas is, to a great extent, a Dillon’s Rule state. For instance, general law cities have limited statutory authority compared to home rule cities.

To understand why most states adopted Dillon’s Rule, one must consider Justice John Forrest Dillon, for whom it was named, and the problem he was trying to address. Dillon was a famous Iowa State Supreme Court Justice in the 1860s who was elevated by President Ulysses S. Grant to the Eighth Circuit Court of Appeals in 1869.During this period, many large American cities were rife with special interest influence and outright corruption. It was during this time that New York City was infamously run by the corrupt “Boss” Tweed and his political machine known as Tammany Hall, which stole millions from the city.7

Because of such problems, Dillon did not trust local government, calling it “unwise and extravagant.” His 1868 ruling in Clinton v. Cedar Rapids and the Missouri River Railroad found that: “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature.”8 This laid the foundation for his theory, which he delineated further in Commentaries on the Law of Municipal Corporations.

Nearly simultaneously, however, Justice Thomas Cooley of the Michigan Supreme Court was arguing the exact opposite. In 1871’s People v. Hurlburt, Cooley wrote that “local government is a matter of absolute right; and the state cannot take it away.”9

These two legal theories competed for years, but Dillon’s Rule largely won as the 1870s came to a close. States began to become involved in many matters of largely local concern, and cities in states that adopted Dillon’s Rule were drastically limited in the authority they could exercise.

The backlash over Dillon’s Rule led to the movement toward home rule cities, whereby localities could establish charters that served as a sort of local constitution. Missouri was the first to adopt a constitutional home rule provision in 1875, but Texas was not far behind with its 1912 law.

After 1912, there was virtually no limit whatsoever on the authority wielded by cities to annex, as long as they qualified to adopt home rule charters. Many did, and it was not long before municipal annexation authority was regularly—and dramatically—being exercised throughout the state.