 I    .




                                EY     GENERAL

                                 XAS




Hon. Nolan Queen               Opinion No. M-226
County Attorney
Parker County Courthouse       Re:   Whether the Clerk of Parker
Weatherford, Texas 76086             County may accept a city sub-
                                     division plat of property for
                                     recording where the property
                                     lies within an area which is
                                     "overlapped" by the extra-
                                     territorial jurisdiction of
                                     two cities in the county, in
                                     the absence of apportionment
                                     between them by agreement or
                                     court action, and related
Dear Mr. Queen:                      question.

          In your letter of March 28, 1968, you requested the
opinion of this office as to whether the County Clerk of Parker
County may accept a city subdivision plat of property for re-
cording where the property lies within an area which is "over-
lapped" by the extraterritorial jurisdiction of two cities in the
county, in the absence of apportionment between these cities by
agreement or by court action, under Article 974a, Vernon's Civil
Statutes, and Article 970a, Vernon's Civil Statutes.

          Article 974a, Vernon's Civil Statutes, reads, in part,
as follows:

            "Sec. 3. That it shall be unlawful for
      the County Clerk of any county in which such
      land lies to receive or record any such plan,
      plat or replat, unless and until the same
      shall have been approved by the City Planning
      Commission of any city affected by this Act,
      if said city has a City Planning Commission
      and if it has no City Planning Commission,
      unless and until the said plan, plat, or re-
      plat shall have been approved by the govern-
     'ing body of such city. If such land lies
      outside of and within five (5) miles of
      more than one (1) city affected by this Act,
      then the requisite approval shall be by h
      City Planning Commission or governing boiy:'
      as the case may be, of such of said cities
      having the largest population; . . . ."
       (Emphasis added.)
                            - 1085-
Hon. Nolan Queen, page 2   (m-226)



          Article 970a, Vernon's Civil Statutes, provides, in
part, as follows:

         “Sec. 3.  A. In order to promote and
    protect the general health, safety, and wel-
    fare of persons residing within and adjacent
    to the cities of this State, the Legislature
    of the State of Texas declares it to be the
    policy of the State of Texas that the unin-
    corporated area, not a part of any other city,
    which is contiguous to the corporate limits
    of any city, to the extent described herein,
    shall comprise and be known as the extra-
    territorial jurisdiction of the various popu-
    lation classes of cities in the State and
    shall be as follows:

          "(1) The extraterritorial jurisdiction
     of any city having a population of less than
     five thousand (5,000) inhabitants shall con-
     sist of all the contiguous unincorporated
     area, not a part of any other city, within
     one half (l/2) mile of the corporate limits
     of such city.

         "(2) The extraterritorial jurisdiction
    of any city having a population of five thou-
    sand (5,000) or more inhabitants, but less
    than twenty-five thousand (25,000) inhabitants
    shall consist of all the contiguous unin-
    corporated area, not a part of any other city,
    within one (1) mile of the corporate limits of
    such city.

          "(3) The extraterritorial jurisdiction
    of any city having a population of twenty-
    five thousand (25,000) or more inhabitants,
    but less than fifty thousand (50,000) in-
    habitants shall consist of all the contiguous
    unincorporated area, not a part of any city,
    within two (2) miles of the corporate limits
    of such city.

          "(4) The extraterritorial jurisdiction
     of any city having a population of fifty
     thousand (50,000) or more inhabitants, but
     less than one hundred thousand (100,000) in-
     habitants shall consist of all the contiguous
     unincorporated area, not a part of any other
     city, within three and one half (3-l/2) miles
     of the corporate limits of such city.
                            -1086-
     .    1




    Hon. Nolan Queen, page 3 (M-226)



               "(5) The extraterritorial jurisdiction
         of any city having a population of one hundred
         thousand (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.

              "B . In the event that on the effective
         date of this Act the area under the extra-
         territorial jurisdiction of a city overlaps
         an area under the extraterritorial jurisdiction
         of one or more other cities, such overlapped
         area may be apportioned by mutual agreement
         of the governing bodies of the cities concerned.
         Such agreement shall be in writing and shall
         be approved by an ordinance or resolution adopted
         by such governing bodies."

              These two statutes were construed in Attorney General's
    Opinion C-459 (19651, wherein it was held that Article 970a of
    Vernon's Civil Statutes controls the limits of the extraterritorial
    jurisdiction of a city. In reaching this conclusion it was ob-
    served that House Bill 13 (Article 970a, Vernon's Civil Statutes)
    contained practically verbatim the provisions of Article 974a,
    Vernon's Civil Statutes.  Section 3J of that original bill pro-
    vided:

              "The provisions of this Sec. 3 are cumu-
         lative of the provisions of Art. 974a, R.C.S.
         of Texas, but the provisions of this act
         shall control in event of conflict."

    When this bill was sent to the Senate and amended, this section was
    omitted.
,
              The opinion further concluded:

              "Acts 58th Leg. 1963, Ch. 160, p. 447,
         enacting the Municipal Annexation Act (Art.
         970a) provides in Art. III of the Act that
         it shall not repeal Acts 40th Legislature,
         1927, Ch. 231 as amended (Art. 974a and
         Vernon's Annotated Penal Code Art. 427131,
         unless expressly inconsistent with the act,
         and then only to the extent of such incon-
         sistency."

              In reaching the conclusion that Article 970a, Vernon's
    Civil Statutes, establishes the extraterritorial jurisdiction of
    any city, Attorney General's Opinion C-459. (1965) found that the
                                -1087-
Hon. Nolan Queen, page 4   (M-226)



only inconsistency between Article 970a, Vernon's Civil Statutes,
and Article 974a, Vernon's Civil Statutes, is the distance limita-
tions imposed upon incorporated cities according to population
brackets with regard to extraterritorial jurisdiction.  After a
careful review of Article 970a, and Article 974a, and after a re-
view of the foregoing Attorney General's Opinion, it is the opinion
of this office that there is no conflict between any provision of
Article 97Oa, V.C.S., and Section 3 of Article 974a, V.C.S., with
regard to the recordation of subdivision plats. As previously
stated, this section of Article 974a provides that in the event
that the subdivision in question falls "within five (5) miles of
more than one (1) city affected by this Act, then the requisite
approval shall be by the City Planning Commission or governing
body, as the case may be, of such of said cities having the
largest population; . . . .'I (Emphasis added.)

          It is, therefore, the opinion of this office that the
County Clerk of Parker County, Texas, may accept for filing a
city subdivision plat of property which lies within an area over-
lapped by the extraterritorial jurisdiction of two cities in the
county, when such plat bears approval by the City Planning Com-
mission or governing body of Weatherford, Texas, the city having
the largest population.

          In view of this holding, it is not necessary for this
office to rule on the related question contained in your request.

                           SUMMARY

         The County Clerk of Parker County, Texas,
    may accept for filing a city subdivision plat
    of property which lies within an area over-
    lapped by the extraterritorial jurisdiction of
    two cities in the county, when such plat bears
    approval by the Citv Plannins Commission or
    governing body of the city having the largest
    population.
                                                /7
                                         Ve      truly yo2rs,
                                          Jr/



                                                        C. MARTIN
                                                     ey General of Texas

Prepared by Brock-Jones, Jr.
Assistant Attorney General
                            _   1088 -
   .    I




 Hon. Nolan Queen, page 5 (M-226)



 APPROVED:
 OPINION COMMITTEE

  Hawthorne Phillips, Chairman
__r
  Kerns Taylor, Co-Chairman
  W. V. Ceppert
  2. T. Fortescue
  Alan Minter
  Arthur Sandlin

 A. J. CARUBBI, JR.
 Executive Assistant




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