                                 ATTORNEY GENERAL OF TEXAS
                                              GREG         ABBOTT




                                                December 18, 2009



The Honorable Mark Homer                                   Opinion No. GA-0750
Chair, Committee on Culture, Recreation
     and Tourism                                           Re: Authority of a city to reacquire extraterritorial
Texas House of Representatives                             jurisdiction that it previously relinquished pursuant
Post Office Box 2910                                       to chapter 42 of the Local Government Code
Austin, Texas 78768-2910                                   (RQ-0798-GA)

Dear Representative Homer:

        The Legislature has granted cities extraterritorial jurisdiction over designated amounts of
unincorporated area contiguous to the city's corporate boundaries. TEx. Lac. GOV'T CODE ANN.
§§ 42.001, .021 (Vernon 2008). You generally ask "whether [a city] can . . . re-acquire
extraterritorial jurisdiction that it previously released by amending or superseding a previous
boundary agreement." 1 Your inquiry relates specifically to a dispute regarding the purported release
and reacquisition of property in the extraterritorial jurisdiction ("ETJ") of the Town of Prosper
("Prosper"). See Request Letter at 1-2.

         You inform us that in 2002, Prosper and the City of Celina ("Celina") entered into an
ultimate boundary line agreement (the "Agreement") regarding their future common boundary lines.
See id. at 1. Pursuant to the Agreement, you explain, Prosper "released" territory that was within
its ETJ but beyond the ultimate boundary line as defined in the Agreement? ld. at 1. At issue here
is a tract ofland (the "Property") within the released ETJ territory, but not within the ETJ of Celina
or any other city. ld. In 2009, you tell us, Prosper and Celina entered into a consent agreement (the


         'Request Letter at 1 (available at http://www.texasattorneygeneral.gov).
          2 Prosper factually disputes that the property at issue was released. See Brief from Claire E. Swann, Abernathy

Roeder Boyd & Joplin P.C., on behalf of Prosper at 2 (Aug. 5,2009) [hereinafter Prosper Brief]. Prosper asserts that:
"[T]he . . . Agreement only addresses Prosper's and Celina's ultimate boundary and ETJ for that portion ofthe two cities
located in Collin County. It did not even address the boundary or ETJ for Denton County, where the Property is
located." Id. Prosper contends that "[b]oth parties mistakenly believed that Prosper had waived its ETJ (where the
Property was located) under the ... Agreement," and the "Consent Agreement was, therefore, meant to clarify that the
Property remained in Prosper's ETJ." I d. Abrief filed on behalf ofMike A. Myers Investment Holdings, L.P .("Myers"),
owner of the property at issue, refutes Prosper's assertions. See Brief from Arthur Val Perkins, Coats Rose, P.C., on
behalf of Myers at 1-2 (Oct. 12, 2009). The brief contends that Prosper released the property pursuant to a 1987
boundary adjustment agreement with Celina; and the Consent Agreement confirms that understanding with the purpose
"stated explicitly" to "undo the release." Id. at 1-2.
The Honorable Mark Homer - Page 2                     (GA-0750)



"Consent Agreement"),3 pursuant to which (1) Prosper purported to reclaim the portion of its
previously released ETJ containing the Property; (2) as a result, the Property is again included within
Prosper's ETJ; but (3) only until such time as Celina's ETJ expands to the Property. Id. at 1-2. At
that time, Prosper will again release the Property so that it is within Celina's ETJ. Id. at 2.

         In light ofthese circumstances, the first part of your question is whether it is "permissible for
a city to acquire extraterritorial jurisdiction in a manner different [from] the prescribed methods
listed in Chapter 42 of the Local Government Code." Id. at l. A city must generally comply with
the requirements of chapter 42 when acquiring ETJ. Under that chapter, a city may expand its ETJ
by an increase in its inhabitants, voluntary petition of a contiguous landowner, or extension of the
city's boundary through annexation. See TEx. Loc. GOV'T CODE ANN. §§ 42.021, .022(a)-(c)
(Vernon 2008); cf City 0/ Alton v. City 0/ Mission, 164 S.W.3d 861, 868 (Tex. App.-Corpus
Christi 2005, pet. denied) (explaining that the Legislature "allows for receipt of released ETJ only
by annexation, population growth, or request" (citing section 42.022 of the Local Government
Code».

        However, a determination as to whether the city complied with relevant law in this instance
would require the application of the law to a set of disputed facts. Those disputed facts include
whether or not Prosper released the Property from its ETJ. See supra note 2. This office cannot, in
an attorney general opinion, investigate and resolve disputed questions of fact or mixed questions
oflaw and fact. Tex. Att'y Gen. Op. No. GA-0648 (2008) at 7.

         The second part of your question is whether a city may "hold a particular tract ofland within
its extraterritorial jurisdiction solely for the purpose of relinquishing it to another city once its
jurisdiction lawfully extends to the tract." Request Letter at 2. Your question suggests that this is
an improper purpose or inconsistent with chapter 42. See id. (citing to section 42.001 of the Local
Government Code); see also TEx. Loc. GOV'T CODE ANN. § 42.001 (Vernon 2008) (declaring that
it is "the policy of the state" to designate certain areas as the ETJs of municipalities "to promote and
protect the general health, safety, and welfare of persons residing in and adjacent to the
municipalities"). We cannot resolve your question in an attorney general opinion.

        First, as a matter of general law, Texas courts do not look at a city's motive to determine the
validity of the city's legislative acts: "The determination of boundaries is a question for the political
branches of government rather than judicial. Consequently, the court may not substitute its judgment
for that of the municipality." Alexander Oil Co. v. City o/Seguin, 825 S.W.2d 434, 436 n.3 (Tex.
1991) (considering a challenge to annexation proceedings based on the purpose of the annexation
(citing City o/Wichita Falls v. State ex reI. Vostsberger, 533 S.W.2d 927,929 (Tex.), cert. denied,
429 U.S. 908 (1976»); see also Superior Oil Co. v. City o/Port Arthur, 628 S.W.2d 94,97 (Tex.
App.-Beaumont 1981, writ ref d n.r .e.) ("Texas courts have consistently held that they will not look
to the purposes of an annexation to determine its validity."), appeal dism'd, 459 U.S. 802 (1982).



           3See Consent Agreement between Town of Prosper and City of Celina (Apr. 14,2009) (attachment to Request
Letter).
The Honorable Mark Homer - Page 3                       (GA-0750)




        Second, in this particular instance, the resolution ofthe issue raised by your question involves
unresolved issues offact. As a threshold matter, Prosper disputes that it is holding the Property for
the benefit of Celina. 4 Moreover, section 42.001, to the extent applicable here, by its plain language
implicates a question of fact or a mixed question of fact and law: Whether the acquisition or holding
of the Property does or does not relate to the protection of the health, safety, and welfare of persons
residing in and adjacent to the two cities. See TEx. Loc. GOV'T CODE ANN. § 42.001 (Vernon 2008)
(designating ETJs "to promote and protect the ... welfare of persons residing in and adjacent to the
municipalities"). Again, this office cannot investigate and resolve disputed questions of fact or
mixed questions oflawand fact in an attorney general opinion. Tex. Att'y Gen. Op. No: GA-0648
(2008) at 7.




         4Prosper contends that it

                  is committed to making certain that development in its ETJ occur[s] in an orderly
                  fashion. A perfect example of Prosper's public purpose for holding its ETJ is that
                  Prosper would want to have a voice in the creation of a [municipal utility district].
                  Prosper's desire to objectto the creation of the MUD is evidence that Prosper is not
                  merely "holding land solely for the purpose of giving it to Celina in the future."
                  Instead, Prosper is holding its ETJ to better protect its citizens and the current and
                  future residents living in the ETJ.

Prosper Brief at 4.
The Honorable Mark Homer - Page 4             (GA-0750)



                                       SUMMARY

                       While a city must generally comply with the requirements of
               chapter 42 of the Local Government Code when acquiring
               extraterritorial jurisdiction ("ETJ"), a determination as to whether a
               city complied with relevant law in the situation about which you
               inquire would require the application oflaw to a set of disputed facts.
               This office cannot, in an attorney general opinion, investigate and
               resolve disputed questions of fact or :mixed questions oflaw and fact.

                      Further, this office cannot determine in an attorney general
              opinion, under the circumstances of your request, whether a city may
              validly hold ETJ property for the purpose of relinquishing it to
              another city once its jurisdiction lawfully extends to the tract. First,
              as a matter of general law, Texas courts do not look at a city's motive
              to determine the validity of the city's legislative acts. Second, in the
              particular instance about which you inquire, the resolution ofthe legal
              issues raised involve unresolved factual issues.




ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

SheelaRai
Assistant Attorney General, Opinion Committee
