Honorable Robert R. Barton Opinion No. C-459
County Attorndy
Kerr County Re: For the purpose of
Kerrville, Texas approving plats.of
subdivisions, does
Article 970s or Article
974a, Vernon's Civil
Statutes, govern the
extent of the extraterri-
torial jurisdiction of
an incorporated city,
Bear Sir: 8.na allied question.
You have requested 811opinion on the following
queetions:
"(1) For the purpose of~approvlng plats
of subaivisions, does Art. 97Oa,
V.A.C.S., or Art. 97&, V.A.C.S., ~~
govern the &tent of the extra-
territorial jurisdiction of an
incorporated city?
“(2) Under Art. g7Oa, V.A.C.S., must
the governing body of a city extent3
by ordixk%nce to the area under its~
extraterritorial jurisdiction 'the
application of such city.*8 orainance
establishing rules and regulations
governing plats ma the subdivision
of .land before the planning commie-
sion or goveming~body of such city
ha8 authority ta approve or dis-
approve a plat of a' subdlvislon
lying within the area of its extra-
t8rrltclrial jurisaiction4n
In order to answer your question, we muat look to
Article VOa, Vernon's Civil Statute8 (Act8 58th Leg., 1963#
Ch. 160, Art. l), and Article y#a, Vernon*8 Civil Sttrtutes
(Acts 40th Leg., 1927, Ch. 231; Act8 518t Leg., @kg, ch. 19,
Sec. l(1); Acts 9th Leg., lg559 Ch. 317, p. 8% Sec. 1).
HazS. Robert R, Earton,'page 2 (C-459)
Section 3A of Article 97Oa, states:
"In order to promote, ahd protect the
general health, safety, and welfare of per-
sons resQdix3g within aha adjacent to the
Cities of this State, the Legislature of
the State of Texas declare8 It to be the
policy of the State of Texas that the,uu-
incorporated area, not,a part of any other
city, which is conti uous to the co&orate'
limits of any cE&kYiie extent described
herein,phall comprise and be known as the
extjraterritorial jurieaiction of the various
population classes of c~It=-in the State and
,Sh&11 be as fOllOW8:
"(1) The extraterritorial jurlsalction
of my city having a population of le88
- five thousand (5,OOO) Inhabitants ~~
S&11 COiraSiStOf 811 the COntiguoUS ,W-
'incdrporatea area, not a art of any~other
city, within ohe .half~(1.2)
P mile of the
corporate limits of such city.
"(2) The extraterritorial jurisdiction
of any city having a populationof five
#OUScbna (5,000) 'or more *bitants, butt ~~
less than twenty-five thousand (25,000)
inhabitants shall consist of all the corn- :
tlguous un&ncorporatea area, not a part of.
any other city3 within one (1) mile of the"
corporate liPlit -of such :city.
The extraterritorlal jurisdiction
of'an~%t~ having a pu.lation of twenty-
five thousand (25,000 or more Inhabitants,
but less. than fifty thousand (9,000)
Inhabitants shall conslslt of all~the con-
tiguous unincorporated ax-e& not 8 part
of any other city, within two (2) miles of'
the corporate limlte Of -such city.
?(4)~ The extraterritorial jUdtlaiCt*on
of any city having a population of .fifty
thousand (50pOOO) or moreinhabitantS, but
lesr thamome hundred thousaM (lOO&MO)
ixWbltamte shall consist of all the con-
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Hon. Robert R. Barton~, page 3 (C-459)
tlguous unincorporated area, not a part
of any other city, within three and one
half (33) miles of the corporate limits
of such city.
e extraterritorial jurisdiction
of ani(3tyThhavin a population of one
hundred thousand 7100,000) or more inhabit-
ants shall consist of all the contiguous
unincorporated area, not a part of any
other city, within five (5) miles of the
corporate limits of such city." (Emphasis
adaed.)
Article 97Oa, Section 3C states:
II. e . In addition, the extraterri-
torial jurisdiction of the city may be
extended beyond the distance limitation8
imposed by Subsection A of this Section
to include therein any territory contiguous
to the otherwise existing extraterritorial
jurisdiction of such city, provided the
owner or owners of such contiguous territory
request 8UCh .eXpanSion. However, in no
event Shall the expansion of the extra-
territorial jurisdiction of a city, through
annexation, or upon request, or because, of
increase in population of the city, conflict
with the existing extraterritorial jurisdic-
tion of another city. The extraterrltoriel-
jurisdiction,of a city shall not be reduced
without the written consent of the governing
body of such city, except in cases of judi-
cial apportionment of overlapping extra-
territorial jUriSdiCtiOn8."
Article 9748, provide8 in pert:
"Section i. Hereafter every owner of
any tract of iana Situated within the corpo-
rate limits, or within five miles of the
corporate limits of any city in the State
-fZne
0 exas,
in two or more parts for the purpose of laying
out any subdivision of any tract of land
or any addition to any town or city, or for
laying out suburban lots OP building lots,
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. .
Hon. Robert R. Barton, p a ge 4 (C-459)
,
or any lots, ana streets, alleys or perks or
other portion8 intended for public use, or
the use of purchasers or owners of lots
fronting thereon or adjacent thereto, shall
cause a plat to be made thereof which shall
accurately describe all of Said subdivision
or addition by metes ana bounds . . .
"Section 2. That every such plat shall be
duly 8cknowledged by owhers or proprietors
of the land, or by some duly authorized
agent of said Owner8 or proprietor8, in the
manner required for the acknowledgment of
deeds; ana the said plat, subject to the
provi8ions contained in this.Act,l Shall be
filed for record and be recorded in the
office of the County Clerk of the County in
which the land lies.
Qection 3. That it Shall‘be Unlawful
for the County Clerk,of any county in which
such ma lies to receive or record any such
plan, plat or replet, unless and until the
same shell have been approved by the City
Planning Commis8ion of any city effected by
this Act,l if said city h88 a City Planning
c0plmiSS1Oll and if It has no City Plamiing
commiS8i0~1, UWleSS.?SId Until the 88id plan,
plat, or replet shall hav8 been approved by
the governing body of such city. If such
lend lies outside of and within five (5)
miles of mre than one (1) city affected .by.
this Act, then the requisite approval shall
be by the City Planning Cox8ission or govern-
bg body, es the case Bay be, Of SUCh Of said
cities having the largest population; - . .
"Section 4.If such plan or plat, or
replet shell conform to the general plan of
ssia city..ua its etreets,~'olleya, parks, play-
: ground8 and public utility facilities, including
those which have been or may be laid out, and
to the geneP81 pl811 for the .eXteneiOn Of 8Ucb
\ city and of its roads,~ etree$s and public
. hi8 erticle~~ Vernon18 Am.P.C., Art. 427b.
.
Hon. Robert R. Barton, page 5 (C-459)
highways Within said city ana Within five miles
of the corporate ~limits thereof, regard being
haa for access to ana extension of sewer ana
water mains and the instrumentalities of public
utilities, and if same shall conform to SUCh
general rules ana regulations, if any, govern-
ing plats ana subdivisions of land falling
within its jurisdiction as the governing body
of such city may adopt and promulgate to
promote the health, safety, morals or general
welfare of the community, . . ."
You will note that Sec. 3A of Art. 970a states:
II. . . The Legislature of the State of Texas
declares it to be the policy of the State of Texas
that the unincorporated area, not a part of any
other city, which is contiguous to the corporate
limits of any city, to the extent described
herein, shall co rise and bye known as the
(extreterritoriel7 juri8dlction of the various
population classes of cities in the State and
shall be as follows: . . ." (hnphaSi8 added.)
Generally speaking where public policy has been
declared by the Legislature acting within its constitutional
powered, courts are bound thereby. Wehw.arten, Inc. v. Sanchez,
:Z Siy;'d 303 ,(Tex.Civ.App. 1950). 53 Tex.Jur.2d 175, Statutes,
. . ~
As the courts have not construed Art. 97Oa, th8liouse
Journal of 1963 was checked for historical background an this
Article.
It was found that the bill as originally passed by
the HOUSe (H.B. #13 in '1963; contained therein practically
verbatim Article 97 2, (same being Sec. 3 of B.B. No. 13 entitled:
Authority Yithin Extreterritoriel Area) withthe exception’that
the extraterritorial area was set out as distance limitations
instead of "or within 5 miles ofthe corporate 11m1t8" 88 set
out In Art. g748.
Sec. 35 of the original bill provided:
."The plXWiSiOn8 of this Sec. 3 era cumule-
tlve of.the'provisiona of Art. g@a, R.C.S. of
Texas, but the PrOViSiOnS of this-act Shall control
in event of conflict."
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Hon. Robert R. Barton, page 6 (C-459) ...
The bill was thereafter sent to the Senate, amand&@,
.and thereafter passed by the Lbuee ia ii.8 present form; whlcb
kticbi (9708) Omit8 &Co 3 of the or&ghal Bill. House
Jimmel, 1963'.
"Review of Historical background of Statute CM
be important at arriving et Legislative intent", State v.
.Aransee Dock & Channel Company, 365 s.w.2a 220, (%X.CAV.
Xpp* 1963, error ref.)
Acts 58th Leg. 1963, ch:U%;p. 447$ enecting the
Municipal Annexation Act (Art. 970s) prOtide ti Art. III
of the Act that it ehell not repeal Acts 40th Legislature,
1927, Ch. 231 88 amended (Art. 9748 8nd Vernon's Annotated
F’enal Code Art. 427b), UQh?SS expressly iuconeistent with
the act, and then only to the extent of such lncoasistency.
Upon 8 careful~reeding of Arts. flOa 8nd #J8 the
only inconsietency we can find in the two Articles erethe
distance limitations imposed upon incorporated cities
accordiug to popuJAt&ion brackets, insofar es extraterritorial
jurisdiction is concerued.
It is our opinion from the foregoing, that Article :r
WOa, eSt@bbliSheS the extraterritorial jurisdiction of any
city es set out in Section 3Ar Subparsgraphs 1, 2, 3, 4, end 5,
according to population'breckete, and Sec. 3C, which provides
for the extensiouof extraterritorial jurisdiction provided
the owner or owners of contiguous territom request au
aXp8QSibQ Oft 8BBe.
Your second quest- pertelris to the intarpretatlon
of Be&ion 4.of Article 9708, es to whethere,clty ma&
axtend by ordinance ~tothe area uuder extraterritorial
jurlsdictiou the application of such city's ordiuance
estAblishlngrule8 and Psguletione go~mingplate sndsub-
dltisions oflagdbefore theplauuiug cosmissicmorgoverniag
body of such city has authority to epprove or direpprove a
plat of i subdtviaion lying withig the wea Of its exkr-
terrltorlal jurisdiction.
Article ~Or,.V.b;r,&..@ec: 4:&CUds a8, ftillot?st
“The governing body of any city x
eatex)d by ordinauce to ,8ll of the areaunder :
itr extreterritorS.al jur~edictioar t&O
application of Such Cfty~S.oEdiusuCe
'.
.
lion..Robert R. Barton, page 7 (C-459)
establishing rules and XegulatiOnS govern-
ing plats and the subdivision of land;
provided, that any vloletion of any provi-
sion of any such ordinance outside the
corporate limlts of the city, but within
Such city's extreterritorlal jurisdiction,
shall not constitute 8 misdemeanor under
such ordinance nor shall any, fine provided
for in such ordinance be applicable to a
violation within 8UCh eXtr8territmi81
jUri8diCtiou. However, any city which ex-'
tend8 the application of its orainance~
eStabliShinn rules ana regulation8 govern-
ing plats and the Subdivision of land to
the area under its extraterritorial jUZ'iS-
diction shall have the lght to in it t
-on in the distr& court tos&)~~
the violation of any provision of such
ordinance in such extraterfltorial jUriS-
diction, and the district court 8halL have
the power $0 grant any gr all typs of
injunctive relief in suoh cases.. (Emphasis
added.)
n . . ..Where the word *may' occur8 in
the statute, It is to be construed~as.merely
permissive, and not 88 mandatory, except
for the purpose of suetelning or enforcing
8 right--either public or pr&vate--but ~3.8
never~construed as maudatory for the pur-
pose of creating a right. 26~ Words &
Phrases, May-In Statutes, and authorities
cited; San An
Tex. 2l3, 216, 30 S.W.
William (TeX.C&v.
Witchell v.
1% S.W. 694, 700;
Kleck v. Zoning Board of Ad.lustment of City
o&m4$$onio-(Tex.Civ.App:) 319 S.W.2d -
, .
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.
.
,. .
Eon. Robert R. Barton, page 8 (C-459)
It Is therefore our opinion that under Sec..4 of
Article WCs, it is not Wndatory that the governing body
of a city extend by ordinance’ to the 8re8 under it8 extra-
terrltorial.jurisdiction the application of such cityls
ordinance establishing rules and regulations governing
plats and the subdivisions of- Land before the planning
commission or governing body of such city has authority to
. approve or disapprove a plat of a subdivision lying within
the are8 of its extraterritorial jurisdiction.
SUMMARY
(1) For the purposes of approving plats
of subdivisions, Article VCa, V.C.S., governs
the extent of the extritemltorial jurisdiction
of any ini\orporsted city.
(2) Under Article 9708, Section 4, V.C.S.,
It is not mandatory for the. governing body of
a city to extend by ordinance to the area under
Its extrsterrltorirl jurisdiction then, application
of such city’s ordinance establishing rules and
regulat,ions.governing plats, and the subdivieions
of land before. the planning conrmission or govem-
ing .body of such city h8e suthority to spprove
/ or disapprove the plat ,of a subdivls$on lying
within the are8 of this extraterritorlal jWie-
.dictlon.
Yours very truly,
APPRoviEDn
OPIUIOM coI@!I!iTlU3
w. v. Ueppert, Chairman
M5.l.ton
Richardson
Arthur Sandlln
Hon. Robert R. Barton8 PaSe 9 (c-k@)
APlWNEDF'ORTHEAT"MRI9EPQ~ERAL
BY0 T. 8. Wright
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