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Id. § 42.021(a).
Absent evidence of fraud, a court is required to accept a city’s determination of the number of inhabitants, rather than consider census figures, in determining the extent of the ETJ. See City of Burleson v. Bartula, 110 S.W.3d 561, 565 (Tex. App.—Waco 2003, no pet.). When asked about the exact method of measurement a city must use to determine its ETJ, the attorney general concluded that a city may choose the method by which it will ascertain the boundaries of its ETJ. See Tex. Att’y Gen. LO-94-033.
The extent of a city’s ETJ could be different than what state law provides as the result of local factors and circumstances. For instance, a city that incorporates immediately adjacent to another city may have no ETJ at all. A more common reason for a city’s ETJ to be different than the distance limits in Section 42.021 is that the city used its authority to adopt an ordinance to bring land contiguous to its ETJ into its ETJ at the request of the landowners. TEX. LOC. GOV’T CODE § 42.022(b).
It should be noted that the ETJ of a city may not expand — whether it be by an increase in the number of inhabitants, on request of a landowner, or through annexation — into another city’s ETJ without that city’s consent. Id. §§ 42.022(c), 42.023. And the ETJ of a city generally may not be reduced, unless the city council of the city gives its written consent. Id. §§ 42.022(d), 42.023.
A map of the City of Fredericksburg City Limit Boundary and 1-Mile ETJ can be found here.
A home-rule municipality may take the following actions according to rules as may be provided by the charter of the municipality and not inconsistent with the requirements prescribed by this chapter:
(1) fix the boundaries of the municipality;
(2) extend the boundaries of the municipality and annex area adjacent to the municipality; and
The City of Justin argued, among other things, that the agreement between the two cities was void and invalid because it violated the Local Government Code. Although the court refused to make any finding as to that argument, it did conclude that Section 43.021 (now Section 43.003) specifically addresses the “authority given to a home-rule municipality, i.e., a home-rule municipality may exchange area (to include its ETJ) with other municipalities” but does not “address the authority given to the receiving city” so it has “little, if any, relevance regarding [a general law city’s] authority to . . . accept or exchange ETJ.” Id. at n.22-23.
A 1997 attorney general opinion concludes that
[a]s a general rule, a city can exercise its powers only within the city’s corporate limits unless power is expressly or impliedly extended by the Texas Constitution or by statute to apply to areas outside the limits. Extraterritorial power will be implied only when such power is reasonably incident to those powers expressly granted or is essential to the object and purposes of the city. ‘[A]ny fair, reasonable, or substantial doubt as to the existence of a power will be resolved against the municipality.’
Tex. Att’y Gen. Op. LO-97-055 (1997) (citations omitted); cf. also, Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 531 (Tex. 2016); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 902 (Tex. 2000).
Water Code § 26.177 – Pollution Control and Abatement
State law prohibits a city from regulating the following in the ETJ: (1) the use of a building or property for business, industrial, residential, or other purposes; (2) the bulk, height, or number of buildings constructed on a tract of land; (3) the size of a building that can be constructed on a tract of land; (4) the number of residential units that can be built per acre of land; and (5) the size, type, or method of construction of a water or wastewater facility that can be constructed to served a developed tract in certain circumstances. TEX. LOC. GOV’T CODE § 212.003(a).
The Texas Supreme Court held that general law cities may not extend their building codes into the ETJ. See Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527 (Tex. 2016). And the Dallas Court of Appeals held that a home rule city “lacks authority to require a landowner developing property in its [extraterritorial jurisdiction] to obtain City building permits, inspections and approvals, and pay related fees.” Collin Cty. v. City of McKinney, 553 S.W.3d 79 (Tex. App.— Dallas 2018).
The inclusion of an area in the ETJ of a city does not itself authorize a city to impose a tax in the area. TEX. LOC. GOV'T CODE § 42.902. Just as with the application of a city’s ordinance, a city must identify express or implied authority to impose a tax in an area in the ETJ. For instance, state law allows a city with a population of less than 35,000 to impose its hotel occupancy tax in the ETJ so long as the combined rate of state, county, and city hotel occupancy taxes in the extraterritorial jurisdiction does not exceed 15 percent of the price paid for a room in a hotel. TEX. TAX CODE § 351.0025. State law also authorizes a municipal development district (a district created by a city) to impose its sales tax in a city’s ETJ if the voters of the entire district approve the tax, and the combined tax rate of all local sales and use taxes are not more than two percent in any location in the district. TEX. LOC. GOV’T CODE §§ 377.002, 377.021, 377.101. This is the only city sales tax that may be levied in the ETJ of a city.
Generally, to be eligible to vote in a city election a person must, among other things, reside in the city on the day of the election. TEX. ELEC. CODE § 11.001. (As used in the Election Code, the term “residence” means domicile or “legal residence” and not necessarily the actual place where a person is living for the time being. Id. § 1.015.) There are some exceptions to this general rule. For instance, a city that seeks to annex an area with a population of 200 or more must get, at an election, the approval of a majority of the qualified voters in the area. TEX. LOC. GOV’T CODE § 43.0691; see also, e.g., id. §§ 42.904, 43.130.
Another instance in which a police officer has authority to arrest a person outside of the city occurs when the officer is acting as part of a regional task force. When counties and cities form mutual aid law enforcement task forces pursuant to Local Government Chapter 362, a law enforcement officer for one entity is authorized to make arrests within the area covered by the agreement, even when the area exceeds what would be the officer’s normal geographic or territorial jurisdiction. TEX. LOC. GOV’T CODE § 362.003.
While a detailed discussion of the jurisdiction of a municipal court is beyond the scope and purpose of this publication, suffice it to say that a municipal court may sometimes hear and decide cases involving territory and persons located or residing in the ETJ. For instance, Government Code Chapter 29 provides municipal courts with jurisdiction over certain criminal cases that occur on property owned by the city but located in the ETJ. TEX. GOV’T CODE § 29.003. And Government Code Chapter 30 provides that a municipal court of record has jurisdiction over criminal cases arising under ordinances authorized by Local Government Code Sections 215.072, 217.042, 341.903, and 551.002. Id. § 30.00005. Those ordinances may be applied outside of a city’s boundaries and, thus, municipal courts of record have jurisdiction over certain criminal cases arising from ordinance violations outside city limits. See Tex. Att’y Gen. Op. JC-0025 (1999); cf. also PPC Enters., Inc. v. Texas City, 76 F.Supp.2d 750, 760, n.8 (S.D. Tex. 1999).