                              ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                                 April 29,2005



The Honorable F. C. Schneider                            Opinion No. GA-03 19
Caldwell County Criminal District Attorney
Post Office Box 869                                      Re: Application of Transportation Code chapter
Lockhart, Texas 78644                                    253 to a subdivision road located partially within
                                                         a city’s boundaries and partially within the city’s
                                                         extraterritorial jurisdiction (RQ-0290-GA)


Dear Mr. Schneider:

        You ask about Transportation Code chapter 253, which authorizes a county commissioners
court to improve roads in a subdivision in the unincorporated area of a county under certain
conditions. See TEX. TRANSP. CODE ANN. § 253.003 (Vernon Supp. 2004-05). In particular, you
inquire about its application to a Caldwell County subdivision located partly within a city’s
boundaries and partly within the city’s extraterritorial jurisdiction (“ETJ”).’

         You write that the subdivision, known as Skyview Subdivision, and the road are both located
partially within the City of Martindale’s city limits and partially within the city’s ETJ. Request
Letter, supra note 1, at 1. The City of Martindale (“the City” or “Martindale”) is an incorporated
Type A city within Caldwell County. Id. See TEX. Lot. GOV’T CODE ANN. 3 5.001(a) (Vernon
1999) (defining Type A general-law municipality); id. ch. 6, subch. A. (Vernon 1999 & Supp. 2004-
05) (incorporation as Type A general-law municipality). The City has a population of 953,2 and its
ETJ thus comprises the unincorporated area contiguous to its corporate boundaries that is located
“within one-half mile of those boundaries.”           Id. 5 42.021(l) (Vemotr 1999) (ETJ based on
municipality’s population). Martindale has no street department and has entered into an interlocal
agreement with Caldwell County whereby it pays the county to maintain specific streets within city
limits. Request Letter, supra note 1, at 1; Interlocal Agreement Between the County of Caldwell and
the City of Martindale, April 26, 1993 (attached to Request Letter).




          ‘Letter fkm~ Honorable F. C. Schneider, Criminal District Attorney, Caldwell County, to Honorable Greg
Abbott, Texas Attorney General (Nov. 4,2004) (on tile with Opinion Committee, also available arhttp:liwww.oag.state
.tx.us) [hereinafter Request Letter].

         *TEXAS STATE LIBRARY AND ARCHIVES COMMISSION           WEB Sm, About Texas, 2000 Census: Population of
Texas Cities Arranged in Alphabetical Order, at hap://www.tsl.state.tx.us/~ef/abouttx/popci~l2OOO.h~ (last visited
Mar. 30,2005).
The Honorable F. C. Schneider     - Page 2          (GA-0319)




        A group of citizens residing in the Skyview Subdivision has requested Caldwell County to
improve the road in the subdivision to bring it up to county specifications, to assume responsibility
to maintain the road in the future, and to assess the cost of improving the road against the various
property owners in the subdivision. In connection with this request, you raise the following legal
issues:

                        1. Is Transportation     Code   chapter   253 mandatory      or
               permissive?

                       2. Does chapter 253 apply to a road in a subdivision that is
               situated partly within the boundaries of a city and partly within the
               city’s ETJ?

                      3. Does chapter 253 apply where the county has an interlocal
               agreement with the city to maintain its streets?

See Request Letter, supra note 1, at 3.

        We first consider whether chapter 253 of the Transportation           Code is mandatory     or
permissive. Section 253.003 provides as follows:

                        If the commissioners   court of a county determines that the
               improvement of a road in a subdivision or of an access road to a
               subdivision is necessary for the public health, safety, or welfare of the
               residents of the county, the commissioners court nray propose to:

                                (1) improve the road to comply with county standards
               for roads; and

                              (2) assess all or part of the costs of the improvement
               pro rata against the record owners of the real property of the
               subdivision or a defined part of the subdivision.

TEX. TRANSP.     CODE ANN. 4 253.003 (Vernon Supp. 2004-05) (emphasis added).             See also id.
$253.001 (Vernon 1999) (chapter 253 applies only in an unincorporated area of a county). If the
commissioners court makes the determination required by section 253.003 and proposes to improve
the road and assess the costs according to section 253.003(2), it must publish notice of the proposed
improvement and assessment, hold a public hearing to consider the proposal, and send a ballot on
the proposal by certified mail to each record owner of real property in the subdivision or part of the
subdivision to be assessed. See id. $5 253.004, ,005, ,006 (Vernon 1999 & Supp. 2004-05). “If a
majority of returned ballots are in favor of the improvement and assessment, the commissioners
court shall orderthe improvements and assess the costs ofthe improvements against the real property
owners of the subdivision or part of the subdivision.” Id. 5 253.007(b) (Vernon Supp. 2004-05).
A road improved under chapter 253 is a county road, which “[tlhe county shall maintain
according to county road standards.” Id. 5 253.011 (Vernon 1999).
The Honorable F. C. Schneider     - Page 3          (GA-0319)




         Section 253.003 states that the commissioners court, if it determines that improving certain
subdivision roads is necessary for the public health, safety, or welfare of county residents, “may
propose” to improve the roads to comply with county standards and assess the costs against property
owners of the subdivision. The term “‘[m]ay’ creates discretionary authority or grants permission
or a power,” while “‘[s]hall’ imposes a duty.” TEX. GOV’T CODE ANN. 5 3 11,016(l)-(2) (Vernon
2005). See Wright v. Ector County Zndep. Sch. Dist., 867 S.W.2d 863, 868 (Tex. App.-El Paso
1993, no writ) (“ordinary meaning of ‘may’ is merely permissive in nature”). Section 253.003 is
permissive, not mandatory. Chapter 253 authorizes but does not require the commissioners court
to propose improving subdivision roads in an unincorporated area of the county and assessing the
costs against property owners.

         We next consider whether chapter 253 applies to a road in a subdivision that is situated partly
within the boundaries of a city and partly within the city’s ETJ. Chapter 253 “applies only to a
subdivision, part of a subdivision, or an access road in an unincorporated area of a county.” TEX.
TRANSP. CODE ANN. 5 253.001 (Vernon 1999). Thus, it does not apply in the part ofthe subdivision
located within Martindale’s boundaries.

        A city’s ETJ is, however, an “unincorporated area that is contiguous to the corporate
boundaries” to a certain distance. Thus, on its face, chapter 253 applies to the part of a road that is
within the city’s ETJ. Chapter 253 moreover applies to “part of a subdivision                    in an
unincorporated area of a county.” Id. (emphasis added). The commissioners court may propose to
“assess all or part of the costs of the improvement pro rata against the record owners of the real
property of. . a definedpart ofthe subdivision.” Id. 5 253.003 (Vernon Supp. 2004-05) (emphasis
added). Chapter 253 thus would allow a county to improve the part of the road that is within the
unincorporated area of the county, even though it is within a city’s ETJ.

         A difficulty arises, however, when the city in question has adopted a subdivision ordinance
and extended it to its ETJ. Chapter 253 authorizes the county to improve subdivision roads “to
comply with county standards for roads.” Id. (emphasis added). A road improved under chapter 253
“is a county road” and “[tlhe county shall maintain the road according to county road standards.”
Id. 5 253.01 l(a)-(b) (Vernon 1999) (emphasis added). County road maintenance standards clearly
apply to subdivision roads maintained under Transportation Code chapter 253. Cities are, however,
authorized to adopt rules governing plats and subdivisions within their boundaries and to extend
these rules to the ETJ. See TEX. Lot. GOV’T CODE ANN. $5 212.002 (Vernon 1999), 212.003(a)
(VemonSupp. 2004-05). TheCityofMartindale          hasdoneso. S~~MARTWDALE,TEX.,SUBDIVISION
ORDINANCE $ 13 (1984) (on file with Opinion Committee).             To the extent that Martindale’s
subdivision ordinance establishes road standards that are inconsistent with Caldwell County road
standards, the county may not improve the subdivision roads pursuant to chapter 253 of the
Transportation Code.

         We note that section 242.001 of the Local Government Code requires a county that regulates
subdivisions and a municipality within the county’s boundaries to execute an interlocal agreement
identifying whether the county or the municipality has authority to regulate subdivision plats and
The Honorable F. C. Schneider           - Page 4             (GA-0319)




approve related permits for subdivisions within the city’s ETJ.3 See TEX.LOC.GOV’TCODEANN.
5 242.001(b)-(d) (Vernon Supp. 2004-05). Seegenerally Tex. Att’y Gen. Op. No. GA-0230 (2004)
at 3-4 (discussing Local Government Code chapter 242). Caldwell County and Martindale could
agree today, pursuant to section 242.001, which entity’s road regulations would apply in
Martindale’s ETJ. Pursuant to section 242.0015(a), cities with an ETJ of less than 3.5 miles are
required to execute the agreement by January 1, 2006, or the parties must arbitrate the disputed
issues. See TEX. Lot. GOV’T CODE ANN. 5 242,0015(a) (Vernon Supp. 2004-05). See also Tex.
Att’y Gen. Op. No. GA-0230 (2004) at 4 (determining deadlines under section 242.0015).

         We finally consider whether Caldwell County’s interlocal agreement with Martindale to
maintain specific city streets affects the application of Transportation Code chapter 253. Chapter
253 applies only to a road in an unincorporated area of a county. See TEX. TRANSP. CODE ANN.
9 253.001 (Vernon 1999). You inform us that the interlocal agreement provides for maintaining
“certain designated roads within the city limits of the City of Martindale.” Request Letter, sup-a
note 1, at 2. Thus, the interlocal agreement between Caldwell County and Martindale applies to
roads that are not subject to chapter 253 of the Transportation Code, and it does not affect the
application of chapter 253 to subdivision roads in the unincorporated part of Caldwell County.




         ‘Subsections 242.001(b)-(g) d o not apply to certain categories of counties.   See TEX. Lot. GOV’T CODE ANN.
5 242.001(a) (Vernon Supp. 2004-05).
The Honorable F. C. Schneider      - Page 5        (GA-0319)




                                        SUMMARY

                        Chapter 253 of the Transportation Code permits, but does
               not require a county to improve roads in a subdivision in the
               unincorporated       area of the county and to assess the costs against
               property owners of the subdivision. Chapter 253 applies to the part
               of a road situated in the county’s unincorporated area, even though
               the remainder of the road is situated within the boundaries of a city.
               Chapter 253 authorizes the county to improve subdivision roads
               to county standards.          If the road is partly located within the
               extraterritorialjurisdictionofamunicipalitythathas       extendeditsroad
               construction standards into its extraterritorial jurisdiction, the county
               may not maintain the road to the extent that city road construction
               standards are inconsistent with county standards.

                        A county’s interlocal agreement to maintain streets within
               a city’s limits does not affect the application of chapter 253 to
               subdivision roads in the unincorporated part of the county.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
