 ” OFFICE    OF THE ATTORNEY   GENER.I\L . STATE OF TEXAS

   JOHN       CORNYN




                                                  June 24,2002



The Honorable Richard J. Miller                             Opinion No. JC-05 18
Bell County Attorney
Post Office Box 1127                                        Re: Whether subsections (c) and (d)(4) of Local
Belton, Texas 765 13                                        Government Code section 242.001 authorize a
                                                            county and a municipality to agree to a “hybrid”
                                                            mix of regulations related to plats and sub-
                                                            divisions of land (RQ-0492-JC)


Dear Mr. Miller:

         Subsection (c) together with subsection (d)(4) of section 242.001 of the Local Government
Code authorizes a municipality and a county to enter an “interlocal agreement” that “establishes
a consolidated and consistent set of regulations related to plats and subdivisions of land” to
be enforced in the municipality’s      extraterritorial jurisdiction. TEX. LOC. GOV’T CODE ANN.
tj 242.001(c), (d)(4) (V emon Supp. 2002); Act of May 24,2001,77th Leg., R.S., ch. 1028,§ 1,200l
Tex. Gen. Laws 2276,2277-78.      You ask whether section 242.001(d)(4) of the Local Government
Code authorizes a municipality and a county “to agree to a hybrid mix of the respective authority
granted each entity by the Local Government Code.“’ Because the term “consolidated” in section
242.00 1(d)(4) appears to contemplate such a “hybrid” arrangement, we conclude that a municipality
and a county may agree to a “hybrid mix” of their regulatory authorities. The Interlocal Cooperation
Act, chapter 791 of the Government Code, does not apply.2 See TEX. GOV’T CODE ANN. ch. 791
(Vernon 1994 & Supp. 2002).

       Before reaching this issue, we conclude that section 242.001(c) of the Local Government
Code, as adopted by Act of May 24, 2001, 77th Leg., R-S., ch. 1028, 5 1, 2001 Tex. Gen. Laws
2276,2277 (House Bill 1445), may be harmonized with section 242.001(c), as adopted by Act of
May 17,2001, 77th Leg., R.S., ch. 736, 8 2,200l Tex. Gen. Laws 1459, 1461 (Senate Bill 873).
As harmonized, section 242.001(c), as adopted by Senate Bill 873, applies when the municipality
and county have not entered an agreement. On the other hand, section 242.001(c), as adopted by
House Bill 1445, applies when the two entities have chosen to enter an agreement. See TEX. GOV’T



         ‘Letter from Honorable Richard J. Miller, Bell County Attorney, to Honorable John Comyn, Texas Attorney
General, at 1 (Jan. 9,2002) (on file with Opinion Committee) [hereinafter Request Letter].

           *Contra Letter from Arthur J. Anderson, Winstead Se&rest & Minick, to Opinion Committee,     Office of
Attorney    General (Mar. 22, 2002) (on file with Opinion Committee) [hereinafter Builders’ Briefl.
The Honorable Richard J. Miller - Page 2                (JC-05 18)




CODEANN. 8 3 11.025(b)    (V emon 1998) (directing harmonization     of two amendments    to same statute
if possible).

         At issue in this request is the unincorporated area around a municipality that is located within
a certain distance of the municipality’s corporate boundaries, which is known as the municipality’s
“extraterritorial jurisdiction.”     See TEX. Lot. GOV’T CODE ANN. 8 42.021 (Vernon 1999). The
perimeter of a particular municipality’s           extraterritorial jurisdiction is determined    by the
municipality’s size:

                        The extraterritorial jurisdiction of a municipality     is the
                unincorporated area that is contiguous to the corporate boundaries of
                the municipality and that is located:

                        (1) within one-half mile of those boundaries, in the case of a
                municipality with fewer than 5,000 inhabitants;

                        (2) within one mile of those boundaries,       in the case of a
                municipality with 5,000 to 24,999 inhabitants;

                        (3) within two miles of those boundaries,      in the case of a
                municipality with 25,000 to 49,999 inhabitants;

                        (4) within 3% miles of those boundaries, in the case of a
                municipality with 50,000 to 99,999 inhabitants; or

                        (5) within five miles of those boundaries,     in the case of a
                municipality with 100,000 or more inhabitants.

Id.

          A municipality and the county sharing the territory within the municipality’s extraterritorial
jurisdiction have concurrent jurisdiction over plats and subdivisions of land within the municipality’s
 extraterritorial jurisdiction. See La Cour Du Roi, Inc. v. Montgomery County, 698 S.W.2d 178,186
 (Tex. App.-Beaumont          1985, writ ref d n.r.e.). A municipality generally may extend to its
 extraterritorial jurisdiction “rules governing plats and subdivisions of land,” as well as other
ordinances relating to public-road access. TEX. LOC. GOV’T CODE ANN. $8 212.002, .003 (Vernon
 1999 & Supp. 2002). A landowner in the extraterritorial jurisdiction who wishes to divide the tract
into two or more parts also must, in certain circumstances, obtain the county commissioners court’s
 approval of the plat. See id. 56 232.001, .002 (Vernon Supp. 2002); see also EZgin Bank v. Travis
 County, 906 S. W.2d 120,122 (Tex. App.-Austin 1995, writ denied) (per curiam) (stating that county
may refuse to approve plat that does not satisfy Local Government Code chapter 232).
    The Honorable   Richard J. Miller - Page 3              (JC-05 18)




             With the possible exception of a county that adopts rules under the newly adopted chapter
    232, subchapter E of the Local Government Code, municipal and county authority in the
    extraterritorial jurisdiction is not identical. See TEX. Lot. GOV’T CODE ANN. 58 232. loo-. 107
.   (Vernon Supp. 2002); Act of May 17,2001,77th           Leg., R.S., ch. 736, 5 I,2001 Tex. Gen. Laws
    1459, 1459-61; see also Elgin Bank, 906 S.W.2d at 123 (contrasting county’s power to regulate
    subdivisions with municipal powers). For example, a municipality may not require a plat for land
    that will be divided into lots larger than five acres, where each lot “has access and no public
    improvement is being dedicated.” TEX. Lot. GOV’T CODE ANN. 8 212.004(a) (Vernon 1999). By
    contrast, a county may require a plat for lots less than ten acres, but may not require a plat of a
    landowner who will divide the tract into lots that are larger than ten acres if the owner does not lay
    out streets, alleys, parks, or other areas intended to be dedicated to public use or for access. See id.
    8 232.0015(f) (V emon Supp. 2002); see also id. 8 232.001(a)(3).           Chapter 232, subchapter E,
    adopted in the most recent legislative session, grants to three types of counties authority to
    “adopt rules governing plats and subdivisions of land” that appears to be as broad as that granted
    to a municipality:        a county (A) with a population of 150,000 or more that adjoins an
    international border; (B) with a population of 700,000 or more; or (C) that adjoins and is
    within the same metropolitan statistical area as a county with a population of 700,000 or more. Id.
    $5 232.100(2), .101(a). L’1k e a municipality, which “may adopt rules governing plats and
    subdivisions of land. . . to promote” the municipality’s “health, safety, morals, or general welfare”
    and the municipality’s “safe, orderly, and healthful development,” a county operating under chapter
    232, subchapter E may “adopt rules governing plats and subdivisions of land within” the county’s
    unincorporated area to promote the county’s “health, safety, morals, or general welfare . . . and the
    safe, orderly, and healthful development of the” county’s unincorporated           area. Compare id.
    $212.002 (Vernon 1999) (municipal authority) with id. 5 232.101 (a) (Vernon Supp. 2002) (county
    authority under subchapter E). We need not determine here whether a county operating under
    chapter 232, subchapter E has exactly the same authority to regulate in an extraterritorial jurisdiction
    as a municipality does.

              Chapter 242 of the Local Government Code attempts to reconcile a county’s and a
    municipality’s overlapping jurisdiction over extraterritorial jurisdiction. Section 242.001, the section
    about which you ask, generally provides for regulating subdivisions in a municipality’s           extra-
    territorial jurisdiction:

                    Text of subset. (a) as amended by [Act of May 17, 2001, 77th Leg.,
                    R.S., ch. 736, $2,2001 Tex. Gen. Laws 1459,1461 (Senate Bill 873)J

                        (a) This section applies only to a county operating under Sections
                    232.001-232.005 or Subchapter B, C, or E, Chapter 232.

                    Text of subset. (a) as amended by [Act of May 24, 2001, 77th Leg.,
                    R.S., ch. 1028, $ I, 2001 Tex. Gen. Laws 2274, 2276-77 (House Bill
                    1445)]
The Honorable Richard J. Miller - Page 4              (JC-05 18)




                  (a) This section applies only to a county operating under Sections
              232.001-232.005 or Subchapter B or C, Chapter 232. Subsections
              (b)-(e) do not apply:

                     (1) within a county that contains extraterritorial jurisdiction
              of a municipality with a population of 1.9 million or more; or

                      (2) within a county within 50 miles of an international border,
              or to which Subchapter C, Chapter 232, applies.

                   (b) For an area within a municipality’s extraterritorial jurisdic-
              tion, as defined by Section 2 12.001, a plat may not be filed with the
              county clerk without the approval of the governmental             entity
              authorized under Subsection (c) or (d) to regulate subdivisions in the
              area.

              Text of subset. (c) as amended by [Senate Bill 8731

                  (c) In the extraterritorial jurisdiction of a municipality,      the
              municipality   may regulate subdivisions under Subchapter A of
              Chapter 2 12 and other statutes applicable to municipalities, and the
              county may regulate subdivisions under Sections 232.001-232.005,
              Subchapter B, C, or E, Chapter 232, and other statutes applicable to
              counties. If a municipal regulation conflicts with a county regulation,
              the more stringent provisions prevail.

              Text of subset. (c) as amended by [House Bill 14451

                   (c) Except as provided by Subsections           (d)(3) and (4), a
              municipality and a county may not both regulate subdivisions in the
              extraterritorial jurisdiction of amunicipality after an agreement under
              Subsection (d) is executed. The municipality and the county shall
              enter into a written agreement that identifies the governmental entity
              authorized to regulate subdivision plats and approve related permits
              in the extraterritorial jurisdiction. For a municipality in existence on
              September 1, 2001, the municipality and county shall enter into a
              written agreement under this subsection on or before April 1,2002.
              For a municipality        incorporated  after September 1, 2001, the
              municipality and county shall enter into a written agreement under
              this subsection not later than the 120th day after the date the
              municipality incorporates. . . .
The Honorable Richard J. Miller - Page 5                (JC-0518)




                 (d) An agreement under Subsection (c) may grant the authority to
             regulate subdivision plats and approve related pen-nits in the
             extraterritorial jurisdiction of a municipality as follows:

                      (1) the municipality may be granted exclusive jurisdiction to
             regulate subdivision plats and approve related permits in the
             extraterritorial jurisdiction and may regulate subdivisions under
             Subchapter A of Chapter 212 and other statutes applicable to
             municipalities;

                       (2) the county may be granted exclusive jurisdiction to
              regulate subdivision       plats and approve related permits in the
              extraterritorial jurisdiction and may regulate subdivisions under
              Sections 232.001-232.005, Subchapter B or C, Chapter 232, and other
              statutes applicable to counties;

                       (3) the municipality and the county may apportion the area
              within the extraterritorial jurisdiction of the municipality with the
              municipality    regulating subdivision plats and approving related
              permits in the area assigned to the municipality and the county
              regulating subdivision plats and approving related permits in the area
              assigned to the county; or

                       (4) the municipality    and the county       may enter into       an
              interlocal agreement that:

                          (A)establishes    one office that is authorized to:

                                (i) accept plat applications   for tracts of land located
              in the extraterritorial jurisdiction;

                               (ii) collect municipal and county plat application fees
              in a lump-sum    amount; and

                             (iii) provide applicants     one response          indicating
              approval or denial of the plat application; and

                          (B) establishes a consolidated and consistent set of
              regulations related to plats and subdivisions of land as authorized
              by Chapter 212, Sections 232.001-232.005, Subchapters B and C,
              Chapter 232, and other statutes applicable to municipalities         and
              counties that will be enforced in the extraterritorial jurisdiction.
The Honorable Richard J. Miller - Page 6                 (JC-05 18)




                     (e) In an unincorporated       area outside the extraterritorial
                jurisdiction of a municipality, the municipality may not regulate
                 subdivisions or approve the filing of plats, except as provided by The
                Interlocal Cooperation Act, Chapter 79 1, Government Code.

                     (f) This subsection applies until an agreement is reached under
                Subsection (d). For an area in a municipality’s extraterritorial juris-
                diction, . . . , a plat may not be filed with the county clerk without the
                approval of both the municipality and the county. If a municipal
                regulation and a county regulation relating to plats and subdivisions
                of land conflict, the more stringent regulation prevails. . . .

                   (g) Subsection (f) applies to a county           and area to which
                Subsections (b)-(e) do not apply.

TEX.   Lot. GOV’T CODE ANN. 9 242.001 (Vernon Supp. 2002) (emphasis added).

         Before we reach your question concerning the meaning of the term “consolidated” in section
242.001 (d)(4)(B), we must consider whether the two versions of subsection (c) can be harmonized
or whether one prevails over the other. Subsection (d) was part of the legislation that adopted
the second version of subsection (c), which we are referring to as “House Bill 1445.” See Act of
May 24,2001,77th      Leg., R.S., ch. 1028,§ 1,200l Tex. Gen. Laws 2276,2277-78.      Moreover, the
version of subsection (c) adopted in House Bill 1445 and subsection (d) refer to each other, and
subsection (d) makes little sense without House Bill 1445’s version of subsection (c). Thus, our
resolution of this preliminary issue may affect whether subsection (d) has any meaning at all.

         House Bill 1445’s version of subsection (c) may be harmonized with the first version, which
was adopted by legislation we refer to as “Senate Bill 873.” See Act of May 17,2001, 77th Leg.,
R.S., ch. 736,§ 2,200l Tex. Gen. Laws 1459,146l. The Seventy-seventh Legislature adopted both
of these chapters, within days of each other: Senate Bill 873 was adopted on May 17, 2001, and
House Bill 1445 was adopted on May 24,200 1. In general, “if amendments to the same statute are
enacted at the same session of the legislature, one amendment without reference to another, the
amendments shall be harrnonized, if possible, so that effect may be given to each. If the
amendments are irreconcilable, the latest in date of enactment prevails.” TEX. GOV’T CODE ANN. 5
3 11.025(b) (Vernon 1998). House Bill 1445’s subsection (c) governs the relationship between a
municipality and a county “after an agreement under Subsection (d) is executed.” Senate Bill 873’s
subsection (c), on the other hand, governs the relationship between a municipality and a county in
the absence of an agreement under subsection (d). Thus, for those municipalities and counties that
enter an agreement under subsection (d), we must consider the issue you raise concerning subsection
ww

         You suggest that subsection (d)(4)(B)‘s language, which permits a county and a municipality
to “establish[] a consolidated and consistent set of regulations,” may “be interpreted in two different
The Honorable Richard J. Miller - Page 7                     (JC-05 18)




ways.” TEX. LOC. GOV’TCODEANN.       8 242.001(d)(4)(B) (V emon Supp. 2002); Request Letter, supra
note 1, at 1. You believe that it may be construed, on the one hand, to “authorize an interlocal
contract [to adopt] a hybrid combination of county and city authority.” Id. On the other hand, you
continue, it may be construed to mean “that neither city [n]or county statutory authority can be
revised, depending upon which subdivision regulation is adopted; it must be either the city’s
statutory authority, without change, or it must be the county’s statutory authority, without change.”
Id. Two briefs we have received, each arguing for a different resolution of this issue, further explain
the confusion. The first, prepared on behalf of the Texas Association of Builders, contends that a
municipality cannot exercise authority granted to a county, and vice versa:

                          When applying the principles of the Interlocal Cooperation
                 Act, one must construe [subsection (4)] to simply provide a single
                 entity to perform the existing powers of municipalities and counties.
                 [Thus, subsection (4)] allows the establishment of a single entity to
                 perform those powers granted and held by cities and counties in a
                 manner consistent with [subsections (1) through (3)]. [In this way,]
                 one set of regulations applies to each subdivision plat, and a single
                 office will administer subdivision submittal and approval.3

By contrast, the Texas Municipal League and the Texas Conference of Urban Counties assert in a
joint brief that “cities and counties may agree to a consolidated set of regulations that apply a
combination of city and county authorities”:

                 TML and CUC assert that for cities and counties that select
                 [subsection (4)], the legislature intended to allow them to administer
                 a set of rules that combined, or consolidated, the authority of both
                 cities and counties, and could not have intended that the cities and
                 counties could [] agree to utilize the authority of [only] one, to the
                 exclusion of the other. To decide otherwise renders 6 242.001 (d)(4)
                 meaningless, as it would simply be a restatement of 5 242.001(d)( 1)
                 and 9 242.001(d)(2) . . . .4



         3Builders’ Brief supra note 2; see also Letter from Andrew C. Erben, Director of Government Relations,
KB Home, to Susan Gusky, Chair, Opinion Committee, Attorney General’s Office, at 3 (Mar. 11,2002) (on file with
Opinion Committee); Letter from Andrew Martin, Law Office of Andrew Martin, to Susan D. Gusky, Chair, Opinion
Committee, Attorney General’s Oftice, at 5-6 (Mar. 4, 2002) ( on file with Opinion Committee);      Letter from
Tom Nuckols, Assistant Travis County Attorney, to Susan Denmon Gusky, Chair, Opinion Committee, Attorney
General’s Office, at 3-5 (Feb. 22,2002) (on tile with Opinion Committee).

          4Letter from Monte Akers, Director of Legal Services, Texas Municipal League, and John B. Dahill, General
Counsel, Texas Conference of Urban Counties, to Susan D. Gusky, Chair, Opinion Committee, Attorney General’s
Office, at 3 (Feb. 22, 2002) (on file with Opinion Committee) [hereinafter TML/CUC Briefj; see also Letter from
James M. Nias, Jackson Walker, L.L.P., to Susan Denmon Gusky, Chair, Opinion Committee, Attorney General’s
Office, at 1 (Feb. 19,2002) (on file with Opinion Committee).
The Honorable Richard J. Miller - Page 8                (JC-05 18)




         Subsections (c) and (d) of section 242.001 of the Local Government Code, as adopted by
House Bill 1445, provide a municipality and a county with means to reconcile their overlapping
authority over the municipality’s extraterritorial jurisdiction. Subsection (c) restricts a county’s and
a municipality’s authority to exercise concurrent jurisdiction over platting and subdivisions within
the municipality’s extraterritorial jurisdiction and permits the county and the municipality to enter
a written agreement that identifies the governmental body that has jurisdiction “to regulate
subdivision plats and [to] approve related permits.” TEX. Lot. GOV’T CODE ANN. 9 242.001(c)
(Vernon Supp. 2002). Subsection (d) then provides four options as to how the municipality and
county may allocate jurisdiction in the written agreement executed under subsection (c). Option
(d)( 1) authorizes the municipality and county to agree that the municipality has exclusive jurisdiction
under chapter 212, subchapter A of the Local Government Code. See id. 8 242.001(d)( 1). Option
(d)(2) authorizes the municipality and county to agree that the county has exclusive jurisdiction
under sections 232.001-.005, or chapter 232, subchapter B or C ofthe Local Government Code. See
id. 8 242.001(d)(2). Option (d)(3) authorizes the municipality and the county to agree to divide the
area within the extraterritorial jurisdiction so that the municipality regulates a geographic portion
of the area and the county regulates the other geographic portion. See id. 5 242.001 (d)(3). Finally,
option (d)(4) authorizes the municipality and county to agree to “a consolidated and consistent set
of regulations . . . as authorized by Chapter 212, Sections 232.001-232.005, Subchapters B and C,
Chapter 232.” Id. 4 242.001 (d)(4)(B).

         Construed in accordance with the typical definitions of the terms “consolidated” and
“consistent,” subsection (d)(4) permits a municipality and a county to agree to one set of regulations
that combines the municipal and county regulations and that eliminates any conflicts between the
two-a “hybrid” set of regulations, to adopt your phrase. Neither the term “consolidated” nor the
term “consistent” is defined in section 242.001. We accordingly apply the terms’ “common usage.”
See TEX. GOV’T CODE ANN. 8 3 11 .Ol 1(a) (Vernon 1998) (“Words . . . shall be read in context and
construed according to . . . common usage.“). In this context, the term “consolidated” means
“combine[d] . . . into one mass, body, or connected whole.” III OXFORDENGLISHDICTIONARY777
(2d ed. 1989) ( sense 3); accord BLACK’S LAWDICTIONARY 303 (7th ed. 1999). The tern-i “consistent”
means “[algreeing or according in substance or form; congruous, compatible.” III OXFORDENGLISH
DICTIONARY 773 (2d ed. 1989) (sense 6). Our plain-language         construction effectuates all four
options allowed a municipality and county under subsection (d), whereas the construction you
propose would duplicate subsection (d)( 1) or (d)(2). See TEX. Lot. GOV’T CODE ANN. 8
242.001(d)(l), (2) (Vernon Supp. 2002).

        Briefs we have received suggest that our construction of section 242.001(d)(4) must be
considered in light of chapter 79 1 of the Government Code, the Interlocal Cooperation Act. See TEX.
GOV’T CODE ANN. ch. 791 (Vernon 1994 & Supp. 2002); Builders’ Brief, supra note 2, at 4-5;
TML/CUC Brief, supra note 3, at 5-6. We disagree. The Interlocal Cooperation Act permits a
local government to contract with another local government to perform “governmental functions
and services” that “each party to the contract is authorized to perform individually.”   TEX. GOV’T
CODE ANN. § 791.01 l(a), (c) (Vernon Supp. 2002). The Interlocal Cooperation           Act is one of
several statutes that permit different local governmental bodies to contract with each other. See 35
The Honorable Richard J. Miller - Page 9            (JC-05 18)




DAVID B. BROOKS, TEXAS PRACTICE:COUNTY& SPECIALDISTRICTLAW 8           5.14 (1989 & Supp. 2001).
Section 242.001 (d)(4) of the Local Government Code provides contracting authority independent
of the Interlocal Cooperation Act and provides counties and municipalities        with additional
contracting authority. Furthermore, section 242.001 (d)(4) p rovides independent authority for a
municipality   and a county to enforce consolidated     and consistent regulations within the
municipality’s extraterritorial jurisdiction.
The Honorable Richard J. Miller - Page     10         (JC-0518)




                                       SUMMARY

                        Section 242.00 1(c) of the Local Government Code, as adopted
               by Act of May 24,2001, 77th Leg., RX, ch. 1028, 9 1,200l Tex.
               Gen. Laws 2276,2277 (House Bill 1445), can be harmonized with
               section 242.001(c), as adopted by Act of May 17, 2001, 77th Leg.,
               R.S., ch. 736, 8 2, 2001 Tex. Gen. Laws 1459, 1461 (Senate Bill
               873), so that the subsection (c) adopted by Senate Bill 873 applies
               before a municipality        and a county enter an agreement under
               subsection (d), while the subsection (c) adopted by House Bill 1445
               applies “after an agreement under Subsection (d) is executed.”
               TEX.LOC.GOV’TCODEANN.4 242.001(c), asamendedby Act ofMay
               24,2001,77th     Leg., R.S., ch. 1028,§ 1,200l Tex. Gen. Laws 2276,
               2277. Under section 242.001(d)(4)(B), a municipality and a county
               may enter a contract adopting a unified “set of regulations related to
               plats and subdivisions          of land” within the municipality’s
               extraterritorial jurisdiction that combines the municipal and county
               regulations and that eliminates any conflicts between the two. See
               TEX. Lot. GOV’T CODE ANN. 5 242.001(d)(4)(B)           (Vernon Supp.
               2002).




                                                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

Kyrnberly K. Oltrogge
Assistant Attorney General, Opinion Committee
