OFFICE ofthe ATTORNEY GENERAL 

GREG ABBOTT 

January 22,2003 

The Honorable Frank Madla Opinion No. GA-00 14 

Chair, Intergovernmental Relations Committee 

Texas Senate Re: Effect of certain annexations on the 

P. 0. Box 12068 extraterritorial jurisdiction of the City of San 

Austin, Texas 787 1 l-2068 Antonio (RQ-05 80- JC) 

Dear Senator Madla: 

You inform us that the City of San Antonio (“the city” or “San Antonio”) is considering the 

annexation of a tract of land owned by the city and located in part in Medina County.* The land in 

question is known as the Mayberry tract. See Request Letter, supra note 1, at 1. As of the date of 

your letter, the Mayberry tract is not contiguous with the San Antonio city limits, but separated from 

the city by other parcels of land. See id. attachment (“2002 Annexation Study Areas”). Thus, if the 

Mayberry Tract is annexed by the city, Mayberry’s boundaries will not connect with the city’s 

present boundaries. 

You ask whether the city’s extraterritorial jurisdiction (“the ETJ”) will expand if it: (1) 

annexes the Mayberry tract and (2) subsequently annexes the properties that separate the Mayberry 

tract from the city’s boundaries. See id. at 1. The city’s ETJ will not expand if it annexes the 

Mayberry tract at a time when it is not contiguous with the city’s boundaries. If San Antonio 

subsequently annexes the properties that separate the Mayberry tract from the city’s boundaries, the 

boundaries will expand to include the unincorporated area within five miles of the city boundary that 

encompasses the Mayberry tract. You also ask whether the December 3 1,2002, effective date of 

new annexation procedures adopted by Senate Bill 89 of the 76th Texas Legislature will have an 

impact on the process of annexing these properties. See id. at 2. Local Government Code section 

42.0225 applies to an annexation included in a municipality’s annexation plan prepared under Local 

Governrnent Code section 43.052, as amended by Senate Bill 89. SeeTEX. LOC. GOV’T CODE ANN. 

05 42.0225, 43.052 (Vernon Supp. 2003).* If the area was not included in that annexation plan 

during the period from December 3 1,1999 to December 3 1,2002, Local Government Code section 

‘See Letter from Honorable Frank Madla, Chair, Intergovernmental Relations Committee, Texas Senate, to 

Honorable John Comyn, Texas Attorney General (July 22,2002) (on file with Opinion Committee) [hereinafter Request 

Letter]; see also Zeke MacCorrnack, S.A. ‘s Moves Bring Worry to Medina; The area ‘s leaders see possible annexation 

as part of a bid for lake water, SAN ANTONIO EXPRESS-NEWS, May 2 1,2002, at OlB; 2002 WL 206983 16. 

2See Act of May 30, 1999,76th Leg., R.S., ch. 1167, $0 1,4, 1999 Tex. Gen. Laws 4074,4075-77. 

An Equal Employment Opportunity Employer . Printed on Recycled Paper 
The Honorable Frank Madla - Page 2 (GA-0014) 

42.0225 will still apply to the annexation if the first hearing notice required by former section 43.052 

was published on or after September 1, 1999. 

We turn to your first question, which relates to the expansion of a city’s ETJ upon annexing 

additional territory. “The extraterritorial jurisdiction of a municipality is the unincorporated area that 

is contiguous to the corporate boundaries of the municipality and that is located . . . within five miles 

of those boundaries, in the case of a municipality with 100,000 or more inhabitants.” Id. 8 42.02 l(5) 

(Vernon 1999) (also setting out ETJ for cities of fewer inhabitants). San Antonio’s population 

greatly exceeds 100,000 persons, and thus its ETJ extends five miles from its boundaries. See 

BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, 2000 CENSUS OF POPULATION, available at 

http://www.census.rzov/. A municipality may annex additional territory that is adjacent to its existing 

boundaries, within its ETJ. See City of Wichita Falls v. State ex rel. Vogtsberger, 533 S.W.2d 927, 

929 (Tex. 1976); see also TEX. LOC. GOV’T CODE ANN. $8 43.021 (home-rule city), 43.033-43.034 

(general-law city) (Vernon 1999 & Supp. 2003). “Adjacent” has been defined by the courts to mean 

“‘neighboring or close by’ or ‘in the vicinity of and not necessarily contiguous or touching upon.“’ 

City of Waco v. City of McGregor, 523 S.W.2d 649, 653 (Tex. 1975) (quoting State ex rel. Pan 

American Prod. Co. v. Texas City, 303 S.W.2d 780,784 (Tex. 1957); see also III OXFORD ENGLISH 

DICTIONARY 822 (2d ed. 1989) (contiguous means “touching, in actual contact, . . . meeting at a 

common boundary”); Joaquin Indep. Sch. Dist. v. Fincher, 510 S.W.2d 98, 103 (Tex. Civ. 

App.-Tyler 1974, writ ref’d n.r.e.) (“contiguous . . . districts must . . . touch one another [so] that all 

may be included in a common boundary line, without any intervening spaces”). “Adjacency is a 

question of law which must be determined in the context of the facts of each particular case.” City 

of Waco, 523 S.W.2d at 653; City of Irving v. Dallas County Flood Control Dist., 383 S.W.2d 571, 

576 (Tex. 1964) (“‘Adjacency,’ as between two Home Rule cities, must be tested by the facts in each 

case.“). 

San Antonio, as a home-rule city, see Texas River Barges v. City of San Antonio, 21 S.W.3d 

347,352 (Tex. App.-San Antonio 2000, pet. denied), may “annex area adjacent to the municipality” 

according to rules provided in its charter and not inconsistent with the procedural rules of Local 

Government Code chapter 43. TEX. Lot. GOV’T CODE ANN. $ 43.021 (Vernon 1999). The 

Mayberry tract is currently within San Antonio’s ETJ, according to San Antonio, see Request Letter, 

supra note 1, at 1, but it does not have a common boundary with San Antonio. 

We do not know whether the Mayberry area is “adjacent” to the City of San Antonio as 

required by the annexation statutes, and, in any case, we have not been asked this question. We 

assume for purposes of your request that San Antonio may annex this tract, and we consider only 

whether the city’s ETJ will expand if it does so. When a city annexes an area, “the extraterritorial 

jurisdiction of the municipality expands with the annexation to comprise, consistent with Section 

42.021, the area around the new municipal boundaries.” See TEX. Lot. GOV’T CODE ANN. $ 

42.022(a) (Vernon 1999). Thus, when a city of 100,000 or more inhabitants annexes an area, its new 

ETJ would generally comprise the unincorporated area contiguous to the new city boundaries within 

five miles of the new boundaries. See id. Q 42.021(5). 
The Honorable Frank Madla - Page 3 (GA-0014) 

However, Local Government Code section 42.0225, adopted by Senate Bill 89 of the 76th 

Legislature, would provide a different answer with respect to San Antonio’s annexation of the 

Mayberry tract. See id. 6 42.0225 (Vernon Supp. 2003). Senate Bill 89, which adopted numerous 

changes to the annexation process, took effect September 1,1999, but compliance with some of its 

provisions was delayed until December 3 1,2002. See Act of May 30, 1999, 76th Leg., R.S., ch. 

1167, 8 17, 1999 Tex. Gen. Laws 4074,409O (effective date and transition clause). In addressing 

your first question, we consider only the effect of section 42.0225 on an annexation to which it 

applies and defer considering whether it applies to a proposed annexation until we address your last 

question. 

Section 42.0225 applies: 

only to an area owned by a municipality that is: 

(1) annexed by the municipality; and 

(2) not contiguous to other territory of the 

municipality. 

TEX. LOC. GOV’TCODEANN. 8 42.0225(a) (V emon Supp. 2003). “Notwithstanding Section 42.021, 

the annexation of an area described by Subsection (a) [quoted above] does not expand the 

extraterritorial jurisdiction of the municipality.” Id. 5 42.0225(b). The Mayberry tract is owned by 

San Antonio and is not contiguous to other territory of the city. Pursuant to this provision, the 

annexation of this tract will not expand San Antonio’s ETJ. 

You next ask whether the city’s ETJ will expand if it subsequently annexes the properties 

that separate the Mayberry tract from the boundaries of the rest of the city. We understand that 

annexation of the intervening land will connect the Mayberry tract to the rest of San Antonio and 

make its boundary continuous with the boundary of the main part of the city, and our answer is 

premised on this understanding. 

No special provision comparable to Local Government Code section 42.0225 addresses these 

circumstances, and we accordingly look to Local Government Code section 42.022, the general 

provision on expansion of the ETJ through annexation. When a city annexes an area, the city’s ETJ 

ordinarily expands to provide anew ETJ consistent with section 42.021. See id. 4 42.022(a) (Vernon 

1999); see also id. 8 42.022(c) (a city’s ETJ will not expand through annexation to include any area 

in the existing ETJ of another municipality). San Antonio’s ETJ is “the unincorporated area that is 

contiguous to the corporate boundaries of the municipality and that is located . . . within five miles 

of those boundaries.” Id. 8 42.021(5). Thus, if San Antonio annexes the property separating the 

Mayberry tract from the main part of the city, San Antonio’s ETJ will expand to include the 

unincorporated area within five miles of the city boundary that encompasses the Mayberry tract. 

You also state that the annexation of the properties mentioned in your letter may occur prior 

to December 3 1, 2002, when new annexation provisions adopted by Senate Bill 89 of the 76th 
The Honorable Frank Madla - Page 4 (GA-0014) 

session will become fully applicable, and you ask whether the December 3 1,2002, date will affect 

the annexation of the properties. See Request Letter, supra note 1, at 2. See also Act of May 30, 

1999,76th Leg., R.S., ch. 1167, 0 17, 1999 Tex. Gen. Laws 4074,409O (effective date). We lack 

sufficient information to apply the transition and effective date provisions of Senate Bill 89 to 

specific properties and will accordingly deal generally with the impact of the December 3 1,2002, 

date on annexations. The city will have access to the information necessary to determine how the 

effective date provisions apply to a property it wishes to annex. 

Senate Bill 89 changed the municipal annexation process in a number of ways, among other 

things, “requiring cities to implement advance annexation planning procedures and providing for the 

timely provision [of] services to the annexed areas.” S~~SENATERESEARCHCTR.,BILLANALYSIS, 

Tex. S.B. 89,76th Leg., R.S. (1999) (enrolled version “Digest”). Under this enactment a city must 

prepare an annexation plan specifying the annexations that it intends to implement in three years’ 

time. See TEX. LOC. GOV'T CODE ANN. 5 43.052 (Vernon Supp. 2003). Written notice of the 

adoption or amendment of the plan must be provided to each property owner in the affected area and 

to certain entities providing services there within ninety days of the time the plan is adopted or 

amended. See id. 5 43.052(f). After a proposed annexation has appeared in the annexation plan for 

three years, the city has thirty-one days from the end of the three-year period to complete the 

annexation. See id. 8 43.052(g); see also id. 5 43.056 (annexing city would have to provide full 

services to the annexed area within two and one-half years, with certain exceptions). Senate Bill 89 

also adopted Local Government Code section 42.0225, the subject of your first question. See Act 

of May 30, 1999,76th Leg., R.S., ch. 1167, 8 1, 1999 Tex. Gen. Laws 4074. 

Senate Bill 89 took effect September 1, 1999, but compliance with its changes to the 

annexation process has been phased in over a period of time ending December 3 1, 2002. See id. 

8 17, at 4090. Section 17 of the bill, the effective date provision, requires each municipality to adopt 

an annexation plan as required by Local Government Code section 43.052, as amended by Senate 

Bill 89, on or before December 3 1, 1999, to become effective December 3 1, 1999. See id. Local 

Government Code section 43.052 requires a municipality to prepare an annexation plan “that 

specifically identifies annexations that may occur beginning on the third anniversary of the date the 

annexation plan is adopted.” TEX. Lot. GOV'T CODE ANN. § 43.052(c) (Vernon Supp. 2003). A 

municipality may annex an area identified in the plan only as provided by section 43.052. See id. 

5 43.052(b). With certain exceptions, a city may not annex an area without including it in the 

annexation plan. See id. $43.052(c), (h). S ee also HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. 

S.B. 89,76th Leg., R.S. (1999) at 3-5. 

An area not included in the annexation plan may be annexed until December 31, 2002, 

pursuant to annexation law as it was before the effective date of Senate Bill 89, unless the first public 

hearing of the annexation procedure was conducted on or after September 1, 1999. See Act of May 

30,1999,76th Leg., R.S., ch. 1167,s 17(c), (d), 1999 Tex. Gen. Laws 4074,409O. In the latter case, 

certain changes in the law as specified in section 17(d) of the bill apply to the annexation. See id. 

See also id. 5 17(e) (specifying changes in the law applicable to the annexation of an area not 

required to be included in a municipal annexation plan if the first hearing notice is published on or 

after September 1, 1999). 
The Honorable Frank Madla - Page 5 (GA-0014) 

Subsection 17(f) of Senate Bill 89 provides when Local Government Code section 42.0225, 

the provision we addressed in answering your first question, will apply to annexations. Subsection 

17(f) provides that the change made by section 1 of Senate Bill 89, which adopted Local Government 

Code section 42.0225, applies only to: 

(1) an annexation included in a municipality’s annexation plan 

prepared under Section 43.052, Local Government Code, as amended 

by this Act; and 

(2) an annexation of an area that is not included in the 

municipality’s annexation plan during the period beginning December 

3 1, 1999, and ending December 3 1,2002, if the first hearing notice 

required by Section 43.052, Local Government Code, as it existed 

immediately before September 1, 1999, is published on or after that 

date. 

Id. 8 17(f). 

Prior to its amendment by Senate Bill 89, Local Government Code section 43.052 required 

the governing body of a municipality to conduct two public hearings preceded by notice published 

in a newspaper before instituting annexation proceedings. See Act of May 1, 1987,7Oth Leg., R.S., 

ch. 149,s 1, sec. 43.052,1987 Tex. Gen. Laws 707,75 1 (nonsubstantive revision of statutes relating 

to local government), amended by Act of May 30, 1999,76th Leg., R.S., ch. 1167,s 4, sec. 43.052, 

1999 Tex. Gen. Laws 4074,4075. Pursuant to subsection 17(f) quoted above, Local Government 

Code section 42.0225 applies to an annexation included in a municipality’s annexation plan prepared 

under Local Government Code section 43.052, as amended by Senate Bill 89. If the area was not 

included in the annexation plan during the period beginning December 3 1, 1999, and ending 

December 3 1,2002, Local Government Code section 42.0225 will still apply to the annexation if 

the first hearing notice required by former section 43.052 was published on or after September 1, 

1999. 

Accordingly, if San Antonio annexes land that it owns and that is not contiguous with its 

boundaries before December 3 1,2002, the land will be subject to Local Government Code section 

42.0225: (1) if the land is included in its annexation plan, or (2), with respect to land that is not 

included in its annexation plan during the period from December 3 1, 1999, to December 3 1,2002, 

if the first hearing notice required by former section 43.052 was published on or after September 1, 

1999. If neither circumstance exists, the law prior to the September 1, 1999 effective date of Senate 

Bill 89 applies to the annexation. 
The Honorable Frank Madla - Page 6 (GA-0014) 

SUMMARY 

Section 42.0225 of the Local Government Code, as adopted 

by Senate Bill 89 of the 76th Legislature, provides that a city’s 

extraterritorial jurisdiction will not expand if it annexes an area that 

it owns and that is not contiguous to other territory of the 

municipality. If the city subsequently annexes the properties that 

separate the noncontiguous land from its boundaries, the city’s 

extraterritorial jurisdiction will expand pursuant to Local Government 

Code section 42.02 1 to include, in the case of a city with a population 

of 100,000 or more, the unincorporated area within five miles of the 

city boundary. 

If a city annexes such land before December 3 1, 2002, the 

land will be subject to Local Government Code section 42.0225: (1) 

if it is included in its annexation plan, or (2)’ with respect to land that 

is not included in its annexation plan during the time period from 

December 3 1,1999, to December 3 1,2002, if the first hearing notice 

required by former section 43.052 was published on or after 

September 1, 1999. 

Very truly yours, 

Attom&&eral of Texas 

BARRY R. MCBEE 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

RICK GILPIN 

Deputy Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee