Honorable Robert R. Barton 

County Attorndy 

Kerr County 

Kerrville, Texas 

Bear Sir: 

Opinion No. C-459 

Re: For the purpose of 

approving plats.of 

subdivisions, does 

Article 970s or Article 

974a, Vernon's Civil 

Statutes, govern the 

extent of the extraterritorial jurisdiction of 

an incorporated city, 

8.na allied question. 

You have requested 811 opinion on the following 

queetions: 

"(1) 

“(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 commiesion or goveming~body of such city 

ha8 authority ta approve or disapprove a plat of a' subdlvislon 

lying within the area of its extrat8rrltclrial 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). 

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 extraterritorial jurisdiction of an 

incorporated city? 
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 persons 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, uuincorporated 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 COiraSiSt Of 811 the COntiguoUS ,W- 

'incdrporatea area, not a 

city, within ohe .half~ (1.2) P mile of the 

art of any~other 

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 corntlguous un&ncorporatea area, not a part of. 

any other city3 within one (1) mile of the" 

corporate liPlit -of such :city. 

of'an~%t~ having a 

The extraterritorlal jurisdiction 

five thousand (25,000 

pu.lation of twentyor more Inhabitants, 

but less. than fifty thousand (9,000) 

Inhabitants shall conslslt of all~the contiguous 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- 

-2885- 

: 
. 

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. 

of ani(3tyThhavin 

e extraterritorial jurisdiction 

hundred thousand 7 

a population of one 

100,000) or more inhabitants 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." 

adaed.) 

(Emphasis 

Article 97Oa, Section 3C states: 

II 

. e . In addition, the extraterritorial 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 extraterritorial jurisdiction of a city, through 

annexation, or upon request, or because, of 

increase in population of the city, conflict 

with the existing extraterritorial jurisdiction of another city. The extraterrltorieljurisdiction,of a city shall not be reduced 

without the written consent of the governing 

body of such city, except in cases of judicial apportionment of overlapping extraterritorial jUriSdiCtiOn8." 

Article 9748, provide8 in pert: 

"Section i. Hereafter every owner of 

any tract of iana Situated within the corporate 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, 

-2186- 
. . 

Hon. Robert R. Barton, p a g e 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 governbg 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, governing 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 

(extreterritoriel 7 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 cumuletlve of.the'provisiona of Art. g@a, R.C.S. of 

Texas, but the PrOViSiOnS of this-act Shall control 

in event of conflict." 

-2188- 
. . 

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 

WOa, eSt@bbliSheS the extraterritorial jurisdiction of any 

:r 

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 whether e,clty ma& 

axtend by ordinance ~tothe area uuder extraterritorial 

jurlsdictiou the application of such city's ordiuance 

estAblishlngrule8 and Psguletione go~mingplate sndsubdltisions oflagdbefore theplauuiug cosmissicmorgoverniag 

body of such city has authority to epprove or direpprove a 

plat of i subdtviaion lying withig the wea Of its exkrterrltorlal 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 governing plats and the subdivision of land; 

provided, that any vloletion of any provision 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 governing plats and the Subdivision of land to 

the area under its extraterritorial jUZ'iS- 

-on in the distr& court tos&)~~ 

diction shall have the lght to in it t 

the violation of any provision of such 

ordinance in such extraterfltorial jUriSdiction, 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 purpose 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 - 

, . 

-2290- 

. 

. 
,. . 

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 extraterrltorial.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 goveming .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 

.:. 

. 

-2r92- 

/; 

., ..’