Can a Texas city take back extraterritorial jurisdiction it gave up under a boundary agreement?

TX AG Opinion GA-0750: Can a city reacquire extraterritorial jurisdiction it previously released?

Plain-English summary

Cities in Texas have extraterritorial jurisdiction (ETJ), a band of unincorporated land next to their boundaries over which they hold certain authority. A state representative asked the Attorney General whether a city can reacquire ETJ it previously released by amending or superseding an earlier boundary agreement. The question grew out of a dispute between the Town of Prosper and the City of Celina over a tract that had been within Prosper's ETJ but sat beyond an ultimate boundary line the two cities agreed to in 2002. In 2009 the two cities entered a consent agreement under which Prosper purported to reclaim the released ETJ containing the tract, holding it until Celina's ETJ eventually expanded to reach the property.

The opinion gave the general legal rule but declined to resolve the actual dispute. In general, a city must comply with chapter 42 of the Local Government Code when acquiring ETJ, and a city expands its ETJ only by an increase in inhabitants, the voluntary petition of a contiguous landowner, or annexation that extends the city's boundary. So ETJ is not freely tradeable outside those statutory channels.

But whether Prosper complied with the law here would require applying that law to disputed facts, including the threshold dispute over whether Prosper ever actually released the property. The AG's office does not investigate or resolve disputed fact questions, or mixed questions of law and fact, in an opinion.

The second question, whether a city may hold a tract in its ETJ for the sole purpose of later relinquishing it to another city, also went unanswered. The opinion explained that, as a matter of general law, Texas courts do not look at a city's motive when judging the validity of the city's legislative acts; boundary determinations are for the political branches. And on the specific facts, whether Prosper was merely holding the land for Celina (Prosper disputed that) and whether the holding served the health, safety, and welfare of area residents were unresolved fact questions the opinion could not decide.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Chapter 42 of the Local Government Code governing extraterritorial jurisdiction may have been amended since 2009. Confirm current law before relying on anything below.

Who this opinion affected (as of 2009)

Cities negotiating boundary and ETJ agreements: The opinion described the general rule that ETJ is acquired only through the chapter 42 channels (population growth, voluntary petition, or annexation), without endorsing or condemning the particular Prosper-Celina arrangement.

Landowners in contested ETJ areas: The opinion explained that whether a specific release or reacquisition of ETJ was valid is a fact-bound question for a court, not something the AG could resolve.

Cities considering challenges based on a neighbor's motive: The opinion noted that Texas courts do not examine a city's motive to judge the validity of its legislative acts like boundary determinations.

Common questions

Can a city just reclaim ETJ it gave up in a boundary deal?
The opinion said a city must generally follow chapter 42 to acquire ETJ, which allows expansion only by population growth, voluntary petition of a contiguous landowner, or annexation. Whether a specific reacquisition was valid depends on the facts and was not something the AG could decide.

Why didn't the AG just rule on the Prosper-Celina dispute?
Because, as the opinion explained, deciding it would require resolving disputed facts (such as whether Prosper actually released the property), and the AG's office does not resolve fact questions in opinions.

Can a city hold ETJ land just to pass it to another city later?
The opinion declined to decide. It noted courts generally do not examine a city's motive when reviewing its legislative acts, and the specific question turned on unresolved facts about Prosper's purpose.

Does a city's reason for an annexation or boundary act matter to its legality?
According to the opinion, as a matter of general law, no: Texas courts do not look to the purpose or motive behind a city's boundary or annexation acts to determine their validity.

Background and statutory framework

The Legislature grants cities ETJ over designated amounts of unincorporated area contiguous to their boundaries (Tex. Loc. Gov't Code Ann. §§ 42.001, 42.021 (Vernon 2008)). A city generally must comply with chapter 42 when acquiring ETJ and may expand its ETJ by an increase in inhabitants, the voluntary petition of a contiguous landowner, or extension of the city's boundary through annexation (id. § 42.022(a)-(c); City of Alton v. City of Mission, 164 S.W.3d 861, 868 (Tex. App.-Corpus Christi 2005, pet. denied)). Whether a city complied with that law in a given instance, however, may require applying the law to disputed facts, which the AG's office cannot resolve in an opinion (Tex. Att'y Gen. Op. No. GA-0648 (2008) at 7).

On the second question, the opinion noted that Texas courts do not look at a city's motive to determine the validity of its legislative acts, treating boundary determinations as questions for the political branches (Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436 n.3 (Tex. 1991); City of Wichita Falls v. State ex rel. Vogtsberger, 533 S.W.2d 927, 929 (Tex. 1976); Superior Oil Co. v. City of Port Arthur, 628 S.W.2d 94, 97 (Tex. App.-Beaumont 1981, writ ref'd n.r.e.)). And section 42.001's policy of designating ETJs to promote and protect the health, safety, and welfare of persons residing in and adjacent to the municipalities implicates a fact question about whether the holding of the property serves that welfare, which again the opinion could not resolve (Tex. Loc. Gov't Code Ann. § 42.001 (Vernon 2008)).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 42.001, 42.021, 42.022(a)-(c) (Vernon 2008)

Cases:

• City of Alton v. City of Mission, 164 S.W.3d 861 (Tex. App.-Corpus Christi 2005, pet. denied)
• Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434 (Tex. 1991)
• City of Wichita Falls v. State ex rel. Vogtsberger, 533 S.W.2d 927 (Tex. 1976)
• Superior Oil Co. v. City of Port Arthur, 628 S.W.2d 94 (Tex. App.-Beaumont 1981, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0750
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0750.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

December 18, 2009

The Honorable Mark Homer
Chair, Committee on Culture, Recreation and Tourism
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0750

Re: Authority of a city to reacquire extraterritorial jurisdiction that it previously relinquished pursuant to chapter 42 of the Local Government Code (RQ-0798-GA)

Dear Representative Homer:

The Legislature has granted cities extraterritorial jurisdiction over designated amounts of unincorporated area contiguous to the city's corporate boundaries. TEX. LOC. GOV'T CODE ANN. §§ 42.001, .021 (Vernon 2008). You generally ask "whether [a city] can . . . re-acquire extraterritorial jurisdiction that it previously released by amending or superseding a previous boundary agreement."[1] Your inquiry relates specifically to a dispute regarding the purported release and reacquisition of property in the extraterritorial jurisdiction ("ETJ") of the Town of Prosper ("Prosper"). See Request Letter at 1-2.

You inform us that in 2002, Prosper and the City of Celina ("Celina") entered into an ultimate boundary line agreement (the "Agreement") regarding their future common boundary lines. See id. at 1. Pursuant to the Agreement, you explain, Prosper "released" territory that was within its ETJ but beyond the ultimate boundary line as defined in the Agreement.[2] Id. at 1. At issue here is a tract of land (the "Property") within the released ETJ territory, but not within the ETJ of Celina or any other city. Id. In 2009, you tell us, Prosper and Celina entered into a consent agreement (the "Consent Agreement"),[3] pursuant to which (1) Prosper purported to reclaim the portion of its previously released ETJ containing the Property; (2) as a result, the Property is again included within Prosper's ETJ; but (3) only until such time as Celina's ETJ expands to the Property. Id. at 1-2. At that time, Prosper will again release the Property so that it is within Celina's ETJ. Id. at 2.

In light of these circumstances, the first part of your question is whether it is "permissible for a city to acquire extraterritorial jurisdiction in a manner different [from] the prescribed methods listed in Chapter 42 of the Local Government Code." Id. at 1. A city must generally comply with the requirements of chapter 42 when acquiring ETJ. Under that chapter, a city may expand its ETJ by an increase in its inhabitants, voluntary petition of a contiguous landowner, or extension of the city's boundary through annexation. See TEX. LOC. GOV'T CODE ANN. §§ 42.021, .022(a)-(c) (Vernon 2008); cf. City of Alton v. City of Mission, 164 S.W.3d 861, 868 (Tex. App.-Corpus Christi 2005, pet. denied) (explaining that the Legislature "allows for receipt of released ETJ only by annexation, population growth, or request" (citing section 42.022 of the Local Government Code)).

However, a determination as to whether the city complied with relevant law in this instance would require the application of the law to a set of disputed facts. Those disputed facts include whether or not Prosper released the Property from its ETJ. See supra note 2. This office cannot, in an attorney general opinion, investigate and resolve disputed questions of fact or mixed questions of law and fact. Tex. Att'y Gen. Op. No. GA-0648 (2008) at 7.

The second part of your question is whether a city may "hold a particular tract of land within its extraterritorial jurisdiction solely for the purpose of relinquishing it to another city once its jurisdiction lawfully extends to the tract." Request Letter at 2. Your question suggests that this is an improper purpose or inconsistent with chapter 42. See id. (citing to section 42.001 of the Local Government Code); see also TEX. LOC. GOV'T CODE ANN. § 42.001 (Vernon 2008) (declaring that it is "the policy of the state" to designate certain areas as the ETJs of municipalities "to promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities"). We cannot resolve your question in an attorney general opinion.

First, as a matter of general law, Texas courts do not look at a city's motive to determine the validity of the city's legislative acts: "The determination of boundaries is a question for the political branches of government rather than judicial. Consequently, the court may not substitute its judgment for that of the municipality." Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434, 436 n.3 (Tex. 1991) (considering a challenge to annexation proceedings based on the purpose of the annexation (citing City of Wichita Falls v. State ex rel. Vogtsberger, 533 S.W.2d 927, 929 (Tex.), cert. denied, 429 U.S. 908 (1976))); see also Superior Oil Co. v. City of Port Arthur, 628 S.W.2d 94, 97 (Tex. App.-Beaumont 1981, writ ref'd n.r.e.) ("Texas courts have consistently held that they will not look to the purposes of an annexation to determine its validity."), appeal dism'd, 459 U.S. 802 (1982).

Second, in this particular instance, the resolution of the issue raised by your question involves unresolved issues of fact. As a threshold matter, Prosper disputes that it is holding the Property for the benefit of Celina.[4] Moreover, section 42.001, to the extent applicable here, by its plain language implicates a question of fact or a mixed question of fact and law: Whether the acquisition or holding of the Property does or does not relate to the protection of the health, safety, and welfare of persons residing in and adjacent to the two cities. See TEX. LOC. GOV'T CODE ANN. § 42.001 (Vernon 2008) (designating ETJs "to promote and protect the ... welfare of persons residing in and adjacent to the municipalities"). Again, this office cannot investigate and resolve disputed questions of fact or mixed questions of law and fact in an attorney general opinion. Tex. Att'y Gen. Op. No. GA-0648 (2008) at 7.

SUMMARY

While a city must generally comply with the requirements of chapter 42 of the Local Government Code when acquiring extraterritorial jurisdiction ("ETJ"), a determination as to whether a city complied with relevant law in the situation about which you inquire would require the application of law to a set of disputed facts. This office cannot, in an attorney general opinion, investigate and resolve disputed questions of fact or mixed questions of law and fact.

Further, this office cannot determine in an attorney general opinion, under the circumstances of your request, whether a city may validly hold ETJ property for the purpose of relinquishing it to another city once its jurisdiction lawfully extends to the tract. First, as a matter of general law, Texas courts do not look at a city's motive to determine the validity of the city's legislative acts. Second, in the particular instance about which you inquire, the resolution of the legal issues raised involve unresolved factual issues.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: Prosper factually disputes that the property at issue was released. See Brief from Claire E. Swann, Abernathy Roeder Boyd & Joplin P.C., on behalf of Prosper at 2 (Aug. 5, 2009) [hereinafter Prosper Brief]. Prosper asserts that: "[T]he . . . Agreement only addresses Prosper's and Celina's ultimate boundary and ETJ for that portion of the two cities located in Collin County. It did not even address the boundary or ETJ for Denton County, where the Property is located." Id. Prosper contends that "[b]oth parties mistakenly believed that Prosper had waived its ETJ (where the Property was located) under the ... Agreement," and the "Consent Agreement was, therefore, meant to clarify that the Property remained in Prosper's ETJ." Id. A brief filed on behalf of Mike A. Myers Investment Holdings, L.P. ("Myers"), owner of the property at issue, refutes Prosper's assertions. See Brief from Arthur Val Perkins, Coats Rose, P.C., on behalf of Myers at 1-2 (Oct. 12, 2009). The brief contends that Prosper released the property pursuant to a 1987 boundary adjustment agreement with Celina; and the Consent Agreement confirms that understanding with the purpose "stated explicitly" to "undo the release." Id. at 1-2.]

[Footnote 3: See Consent Agreement between Town of Prosper and City of Celina (Apr. 14, 2009) (attachment to Request Letter).]

[Footnote 4: Prosper contends that it "is committed to making certain that development in its ETJ occur[s] in an orderly fashion. A perfect example of Prosper's public purpose for holding its ETJ is that Prosper would want to have a voice in the creation of a [municipal utility district]. Prosper's desire to object to the creation of the MUD is evidence that Prosper is not merely 'holding land solely for the purpose of giving it to Celina in the future.' Instead, Prosper is holding its ETJ to better protect its citizens and the current and future residents living in the ETJ." Prosper Brief at 4.]