Can a Texas city block a sexually oriented business near a church that sits just outside the city limits?

Plain-English summary

A state representative asked the Attorney General a zoning question that came out of a real dispute in the San Antonio area. A sexually oriented business sat inside the City of San Antonio, right on the city's edge. Within 1,000 feet of it, but across the line in the neighboring City of Windcrest, stood the Windcrest United Methodist Church. San Antonio had declined to enforce its sexually oriented business ordinance because the church was not inside San Antonio. The representative asked whether chapter 243 of the Local Government Code actually forbids a city from enforcing its ordinance when the protected building (here, a church) is outside the city limits.

The Attorney General answered that the statute permits enforcement. Chapter 243 lets a city regulate sexually oriented businesses by ordinance and lets it ban such a business within a set distance of "a school, regular place of religious worship, residential neighborhood, or other specified land use." A separate provision says a city's regulation "applies only inside the municipality's corporate limits." The opinion read that limit to mean the business being regulated has to be inside the city, not that the church or school used as the measuring point must also be inside. Because the business was in San Antonio, applying the ordinance to it was a wholly local act, even though the city was taking account of a church just over the line. The opinion lined this up with out-of-state decisions reaching the same result and stressed one caveat: it was only saying what the statute permits, not that San Antonio was obliged to do anything.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General 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 243 of the Local Government Code has been amended since 2002, so confirm the current text of sections 243.003 and 243.006 before relying on the boundary rule discussed here.

What the opinion meant for those who asked

Cities with a sexually oriented business ordinance (what the opinion held for them): The opinion read section 243.003(b) to let a city enforce its ordinance against a business inside its limits even when the school, church, or residential area used to measure the prohibited distance lies outside those limits. The opinion framed this as what the statute permits, not as a command to enforce.

Sexually oriented business operators (what the opinion held for them): The opinion told them that locating just inside a city's edge does not escape the city's distance rules merely because a nearby church or school happens to be across a municipal boundary; the business's own location inside the city is what triggers the ordinance.

Churches, schools, and neighbors near a city line (what the opinion held for them): The opinion treated a protected building's location outside the regulating city as no bar to the city counting it when applying its distance buffer.

Common questions

Our church is just outside the city, and an adult business opened right across the line inside the city. Can the city's distance rule still protect us?
The opinion concluded the city may apply its ordinance to that business even though the church is outside the city limits, because the ordinance is being applied to the business (which is inside the city), not to the church.

Doesn't enforcing the ordinance based on a building outside the city make it an illegal extraterritorial law?
The opinion said no. In its view the city's regulation reaches only the business within its limits; taking account of conditions just outside the line does not give the ordinance extraterritorial effect.

Does this opinion force the city to act?
No. The opinion was careful to say it addressed only what the statute permits, not whether the City of San Antonio was obliged to enforce its ordinance in this situation.

Can the neighboring city or the county regulate the business instead?
Under the statute the opinion cited, a city's ordinance reaches only businesses inside its own limits, and a county's order reaches only the unincorporated parts of the county, so neither could regulate a business sitting inside a different incorporated city.

Background and statutory framework

The authority of Texas municipalities and counties to regulate sexually oriented businesses is governed by chapter 243 of the Local Government Code. The Legislature found that "the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare." Tex. Loc. Gov't Code Ann. § 243.001(a) (Vernon 1999). To promote those interests, municipalities by ordinance and counties by commissioners court order "may adopt regulations regarding sexually oriented businesses." Id. § 243.003(a). Such regulations may include a prohibition against the businesses being located within a certain distance of "a school, regular place of religious worship, residential neighborhood, or other specified land use." Id. § 243.006(a)(2). A municipal regulation "applies only inside the municipality's corporate limits," while a county's regulation "applies only to the parts of the county outside the corporate limits of a municipality." Id. § 243.003(b), (c).

The opinion read the corporate-limits language in subsection (b) to require that the sexually oriented business be inside the city, not that the school, church, or residential neighborhood used to measure the prohibited distance also be inside the city. Applying the ordinance to a business within the city, even while accounting for a church outside the city, was therefore not an extraterritorial application. The opinion noted that courts in other jurisdictions had reached the same conclusion on similar zoning buffers. Quinton v. Edison Park Dev. Corp., 285 A.2d 5 (N.J. 1971) (township buffer between a mall and a residential area applied even though the abutting residences were across the town line); Santini v. Zoning Bd. of Appeals, 179 A.2d 621 (Conn. 1962) (city could apply a 1,500-foot separation for a package store even though the other liquor premises were outside the city). It cited the Santini court's reasoning that such a rule "does no more than to require the zoning authorities . . . to consider factors which affect land uses" within the city, "although they may arise from conditions existing beyond the city's territorial limits." Id. at 622. Compare Wende v. Bd. of Adjustment, 27 S.W.3d 162 (Tex. App.-San Antonio 2000, pet. granted) (neighboring city had standing to challenge a zoning decision because of extraterritorial effects on its property values). The opinion declined to interpret city ordinances, citing Tex. Att'y Gen. Op. No. JC-0218 (2000), so it spoke only to what chapter 243 permits.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. § 243.001(a) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 243.003(a), (b), (c)
• Tex. Loc. Gov't Code Ann. § 243.006(a)(2)

Cases:

• Quinton v. Edison Park Dev. Corp., 285 A.2d 5 (N.J. 1971)
• Santini v. Zoning Bd. of Appeals, 179 A.2d 621 (Conn. 1962)
• Wende v. Bd. of Adjustment, 27 S.W.3d 162 (Tex. App.-San Antonio 2000, pet. granted)

Texas Attorney General opinion referenced:

• Tex. Att'y Gen. Op. No. JC-0218 (2000)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0485
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0485.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

March 27, 2002

The Honorable Bill G. Carter
Chair, Committee on Urban Affairs
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0485

Re: Whether a municipality may enforce its own sexually oriented business ordinance when the entity to be protected is outside the corporate limits of the municipality (RQ-0446-JC)

Dear Representative Carter:

You ask whether a municipality may enforce a sexually oriented business ordinance when a church is within 1000 feet of the business, but is outside the corporate limits of the city. We read the language of section 243.003(b) of the Local Government Code to permit such enforcement.

As you explain the background of your question, a sexually oriented business is located within the corporate limits of the City of San Antonio, "although it is located on the boundary of the city."[1] Within 1000 feet of the sexually oriented business, but in the City of Windcrest, Texas, is the Windcrest United Methodist Church. "[T]he City of San Antonio has refused to enforce its [sexually oriented business] ordinance since the Church is not located within the City of San Antonio." Request Letter, note 1, at 1. This office does not interpret city ordinances in the opinion process. See Tex. Att'y Gen. Op. No. JC-0218 (2000) at 2. We cannot, therefore, comment on the City of San Antonio's interpretation of its sexually oriented business ordinance. However, to the extent that the city's interpretation may be based upon its reading of chapter 243 of the Local Government Code, we do not believe that the fact that the church is outside the corporate limits of the city necessarily forbids action on the city's part.

The authority of municipalities and counties to regulate sexually oriented businesses is governed by chapter 243 of the Local Government Code. Section 243.001 of the Local Government Code indicates: "The legislature finds that the unrestricted operation of certain sexually oriented businesses may be detrimental to the public health, safety, and welfare." TEX. LOC. GOV'T CODE ANN. § 243.001(a) (Vernon 1999). In order to promote the public health, safety, and welfare, municipalities by ordinance and counties by commissioners court order "may adopt regulations regarding sexually oriented businesses." Id. § 243.003(a). Such regulations may include a prohibition against such businesses being located "within a certain distance of a school, regular place of religious worship, residential neighborhood, or other specified land use the governing body of the municipality or county finds to be inconsistent with the operation of a sexually oriented business." Id. § 243.006(a)(2). A municipal regulation of a sexually oriented business "applies only inside the municipality's corporate limits," while a county's regulation "applies only to the parts of the county outside the corporate limits of a municipality." Id. § 243.003(b), (c).

In the instant case, while the Windcrest United Methodist Church is a "regular place of religious worship" within a fixed distance of which a city may prohibit a sexually oriented business from being located, see id. § 243.006(a)(2), it is, as you inform us, not in the City of San Antonio, see Request Letter, supra note 1, at 1. Section 243.003(b) by its terms limits the applicability of a sexually oriented business ordinance to the corporate limits of a city. It might, therefore, be argued that the City of San Antonio cannot enforce its sexually oriented business ordinance in this instance because doing so would constitute an extraterritorial application of it. We disagree with this reading of the language of section 243.003(b).

In our view, it is the sexually oriented business, which is located in San Antonio, rather than the church, to which the city would be applying its ordinance. Under the terms of section 243.003(b) the City of Windcrest's sexually oriented business ordinance cannot be applied to a business located outside its corporate limits, and Bexar County's ordinance cannot under section 243.003(c) be applied to a business located inside the corporate limits of any incorporated city in the county, such as San Antonio. But we are not persuaded that the statute bars San Antonio from enforcing its ordinance. Nothing in the language of section 243.006(a)(2) requires the "school, regular place of religious worship, residential neighborhood, or other specified land use" concerned to be within the city's corporate limits.

Arguments that municipal zoning ordinances may be applied to businesses in the relevant municipalities, even though the other affected entity is outside the city limits, have prevailed in other jurisdictions. In Quinton v. Edison Park Development Corp., the New Jersey Supreme Court held that a township ordinance requiring a 100-foot buffer zone between a shopping mall and a residential area was applicable to a mall in the town in question even though the residences that directly abutted the mall area were across the town line. See Quinton v. Edison Park Dev. Corp., 285 A.2d 5 (N.J. 1971). Similarly, in Santini v. Zoning Board of Appeals, the Connecticut Supreme Court of Errors held that a city could apply a zoning regulation prohibiting a package store from being located within 1500 feet of other premises used for liquor sales, even though those other premises were outside the city limits. See Santini v. Zoning Bd. of Appeals, 179 A.2d 621 (Conn. 1962). The Santini court's analysis of the issue is, in our view, particularly apposite here:

The plaintiff claims that this interpretation gives to the regulation an extraterritorial effect which it cannot have under the legislation authorizing municipalities to adopt zoning regulations. The regulation does not purport to regulate property uses beyond the Bridgeport city limits. It does no more than to require the zoning authorities of Bridgeport, in the administration of the zoning regulations, to consider factors which affect land uses in Bridgeport, although they may arise from conditions existing beyond the city's territorial limits.

Id. at 622 (citation omitted). Cf. Wende v. Bd. of Adjustment, 27 S.W.3d 162 (Tex. App.-San Antonio 2000, pet. granted) (City of Shavano Park had standing to challenge a San Antonio Board of Adjustment decision to permit a quarry to operate in San Antonio as a nonconforming use because of extraterritorial effects of San Antonio's decision on property values in Shavano Park.)

In interpreting the language of section 243.003(b) of the Local Government Code, we read the requirement that a municipality apply its ordinance within its corporate limits to require that the sexually oriented business be within those limits, but do not read it to require that a school, church, or residential neighborhood within a prohibited distance be within those limits. Such application does not give the ordinance extraterritorial effect. Its effect is wholly within the relevant city, even if it takes account of conditions outside the city's corporate limits. Of course, this interpretation only concerns what the statute permits. We do not suggest that the statute obliges the City of San Antonio to take any particular action.

SUMMARY

A city may apply a municipal ordinance to prohibit a sexually oriented business within a specified distance of a school, church, or other entity covered by section 243.006(a)(2) of the Local Government Code even though that entity is not within the corporate limits of the city in question, so long as the sexually oriented business is within those limits. Such application does not violate the statutory requirement that the ordinance apply only in the city's corporate limits.

                              JOHN CORNYN
                              Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Bill G. Carter, Chair, House Committee on Urban Affairs, Texas House of Representatives, to Honorable John Cornyn, Texas Attorney General, at 1 (Oct. 8, 2001) (on file with Opinion Committee) [hereinafter Request Letter].