Honorable Robert R. Barton             Opinion   No. C-459
County Attorndy
Kerr County                            Re:   For the purpose of
Kerrville, Texas                             approving plats.of
                                             subdivisions, does
                                             Article 970s or Article
                                             974a, Vernon's Civil
                                             Statutes, govern the
                                             extent  of the extraterri-
                                             torial jurisdiction of
                                             an incorporated city,
Bear Sir:                                    8.na allied question.

             You have requested 811opinion on the following
queetions:

             "(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 extra-
                    territorial jurisdiction of an
                    incorporated city?

             “(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 commie-
                    sion or goveming~body   of such city
                    ha8 authority ta approve or dis-
                    approve a plat of a' subdlvislon
                    lying within the area of its extra-
                    t8rrltclrial 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).
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 per-
     sons 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,uu-
    incorporated 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 COiraSiStOf 811 the COntiguoUS  ,W-
   'incdrporatea area, not a art of any~other
    city, within ohe .half~(1.2)
                             P   mile of the
    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 corn-             :
    tlguous un&ncorporatea area, not a part of.
    any other city3 within one (1) mile of the"
    corporate liPlit -of such :city.

                The extraterritorlal jurisdiction
    of'an~%t~    having a   pu.lation of twenty-
    five thousand (25,000 or more Inhabitants,
    but less. than fifty thousand (9,000)
    Inhabitants shall conslslt of all~the con-
    tiguous 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-



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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.

                     e extraterritorial jurisdiction
       of ani(3tyThhavin   a population of one
       hundred thousand 7100,000) or more inhabit-
       ants 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." (Emphasis
       adaed.)

            Article 97Oa, Section 3C states:
            II. e . In addition, the extraterri-
       torial 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 extra-
       territorial jurisdiction of a city, through
       annexation, or upon request, or because, of
       increase in population of the city, conflict
       with the existing extraterritorial jurisdic-
       tion of another city. The extraterrltoriel-
       jurisdiction,of a city shall not be reduced
       without the written consent of the governing
       body of such city, except in cases of judi-
       cial apportionment of overlapping extra-
       territorial jUriSdiCtiOn8."

            Article 9748, provide8 in pert:

             "Section i. Hereafter every owner of
       any tract of iana Situated within the corpo-
       rate 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,

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    Hon. Robert R. Barton, p a ge           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 govern-
            bg 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, govern-
           ing 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
       (extreterritoriel7 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 cumule-
           tlve of.the'provisiona of Art. g@a, R.C.S. of
           Texas, but the PrOViSiOnS of this-act Shall control
           in event of conflict."

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     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                                   :r
     WOa, eSt@bbliSheS the extraterritorial jurisdiction of any
     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 whethere,clty ma&
     axtend by ordinance ~tothe area uuder extraterritorial
     jurlsdictiou the application of such city's ordiuance
     estAblishlngrule8  and Psguletione go~mingplate        sndsub-
     dltisions oflagdbefore    theplauuiug  cosmissicmorgoverniag
     body    of   such   city   has   authority        to   epprove   or   direpprove       a
     plat of i   subdtviaion lying                withig    the wea   Of its exkr-
     terrltorlal   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 govern-
    ing plats and the subdivision of land;
    provided, that any vloletion of any provi-
    sion 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 govern-
    ing plats and the Subdivision of land to
    the area under its extraterritorial jUZ'iS-
    diction shall have the lght to in it t
    -on       in the distr&   court tos&)~~
    the violation of any provision of such
    ordinance in such extraterfltorial jUriS-
    diction, 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 pur-
    pose 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 -
       ,     .




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                           .
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             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 extra-
             terrltorial.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 govem-
                  ing .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




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