Regulation without Representation: Living in a city’s “extraterritorial jurisdiction”

If you live or work in an area near the city limits, you might have heard of a concept called “extraterritorial jurisdiction.” Texas cities have authority to regulate certain activities in their extraterritorial jurisdiction (“ETJ”), which is the unincorporated area that is contiguous to the city’s corporate boundaries. People who live in the ETJ have to comply with those municipal ordinances, but generally can’t vote in city elections.  

What is “extraterritorial jurisdiction”?

All Texas cities, by statute, have an extraterritorial jurisdiction. ETJ is “the unincorporated area that is contiguous to the corporate boundaries of the municipality” and is located within a specified distance of those boundaries depending upon the municipality’s population. Tex. Loc. Gov’t Code § 42.021. The size of a city’s ETJ depends on the city’s population:

• Less than 5,000 inhabitants – ETJ extends .5 miles past city limits
• 5,000-24,999 inhabitants – ETJ extends 1 mile past city limits
• 25,000-49,999 inhabitants – ETJ extends 2 miles past city limits
• 50,000-99,999 inhabitants – ETJ extends 3.5 miles past city limits
• 100,000 or more inhabitants – ETJ extends 5 miles past city limits

The concept of ETJ did not exist in Texas until 1963, when the Texas Legislature enacted the Municipal Annexation Act. In designating areas as ETJ, the Legislature intended “to promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities.” Tex. Loc. Gov’t Code § 42.001.

Can cities regulate activity in their extraterritorial jurisdiction?

Yes, cities have certain regulatory authority in their extraterritorial jurisdiction, including authority to regulate things like waste disposal, signage, and water conservation. The following state statutes give cities authority to regulate in their ETJ:

Statute	Area of Regulation
Tex. Health & Safety Code § 341.0359	Fire Hydrant Flow Standards
Tex. Health & Safety Code § 364.0341	Solid Waste Disposal Services
Tex. Health & Safety Code § 713.009	Cemeteries
Tex. Loc. Gov’t Code § 212.002	Subdivision & Platting Regulations
Tex. Loc. Gov’t Code § 212.003	Access to Public Roads; Extracting and Use of Groundwater
Tex. Loc. Gov’t Code § 212.044	Plans, Rules, and Ordinances Governing Development Plats of Land in the ETJ
Tex. Loc. Gov’t Code § 215.003	Rendering Plants
Tex. Loc. Gov’t Code § 215.072	Dairies; Slaughterhouses
Tex. Loc. Gov’t Code § 216.902	Outdoor Signs
Tex. Loc. Gov’t Code § 217.042	Nuisance
Tex. Loc. Gov’t Code §§ 242.001-242.003	Subdivisions
Tex. Loc. Gov’t Code § 251.001	Eminent Domain
Tex. Loc. Gov’t Code § 273.001	Acquisition of Property for Public Purposes
Tex. Loc. Gov’t Code § 331.001	Parks, Museums, & Historic Sites
Tex. Loc. Gov’t Code § 341.903	Policing City-Owned Property
Tex. Loc. Gov’t Code § 386.002	Commercial and Industrial Development Zones
Tex. Loc. Gov’t Code § 372.003	Public Improvement Districts
Tex. Loc. Gov’t Code § 377.002	Municipal Development Districts
Tex. Loc. Gov’t Code § 380.001	Economic Development Programs
Tex. Loc. Gov’t Code § 382.109	Road Projects
Tex. Loc. Gov’t Code § 395.011	Service Area Impact Fees
Tex. Loc. Gov’t Code § 551.002	Protection of Streams and Watersheds
Tex. Loc. Gov’t Code § 551.004	Protection of Playa Lakes
Tex. Loc. Gov’t Code § 551.005	Restriction on Pumping, Extraction, or Use of Groundwater
Tex. Loc. Gov’t Code § 551.006	Irrigation Systems
Tex. Loc. Gov’t Code § 551.007	Water Conservation
Tex. Loc. Gov’t Code § 552.001	Utility Systems
Tex. Loc. Gov’t Code § 552.011	Acquisition of Interests for Drainage, Sewage, or Water Supply Purposes
Tex. Nat. Res. Code Ann. § 61.015	Beach Access and Use Plans
Tex. Tax Code § 351.0025	Hotel Occupancy Tax
Tex. Water Code § 26.177	Water Pollution Control & Abatement Programs
Tex. Rev. Civ. Stat. Ann. art. 1524e	Regulation of Loan and Brokerage Companies

On the other hand, state law prohibits a city from regulating the following matters in the city’s ETJ:

(1) the use of a building or property for business, industrial, residential, or other purposes;

(2) the bulk, height, or number of buildings constructed on a tract of land;

(3) the size of a building that can be constructed on a tract of land;

(4) the number of residential units that can be built per acre of land; or

(5) the size, type, or method of construction of a water or wastewater facility that can be constructed to serve a developed tract in certain circumstances.

Tex. Loc. Gov’t Code § 212.003(a). The Texas Supreme Court has concluded that cities do not have statutory authority to enforce its building codes within their ETJ. Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 530 (Tex. 2016). And the Dallas Court of Appeals held that a home rule city “lacks authority to require a landowner developing property in its [ETJ] to obtain City building permits, inspections and approvals, and pay related fees.” Collin Cty. v. City of McKinney, 553 S.W.3d 79 (Tex. App.— Dallas 2018).

Can I vote in city elections if I live in the city’s extraterritorial jurisdiction?

Generally, a person must reside in the city on the day of the election to be eligible to vote in a city election. Tex. Elec. Code § 11.001. In some limited circumstances, ETJ residents can vote in a city election:

• Voters in an area that has been annexed by a city for “limited purposes” may vote in city elections regarding the election or recall of members of the governing body of the city, the election or recall of an elected city controller, and the amendment of the city charter, but they cannot vote in the city’s bond elections or run for city office. Tex. Loc. Gov’t Code §§ 43.130; § 43.121. Areas annexed for limited purposes must be annexed for full purposes within three years unless this condition is waived by the landowner.

• If a city has extended to its ETJ the application of municipal ordinances governing plats and subdivisions of land and other ordinances relating to access to public roads or the pumping, extraction, and use of groundwater by persons other than retail public utilities, then it must allow all qualified voters residing in the ETJ to vote on any proposition that is submitted to the city’s voters and that involves a city ordinance, charter provision, or binding referendum that would apply to the city’s ETJ. Tex. Loc. Gov’t Code § 42.904 (this provision applies only to a municipality that has dis-annexed territory that it had previously annexed for limited purposes and that extended rules to its ETJ under Tex. Loc. Gov’t Code § 212.003).

In addition, ETJ residents have rights to vote on other matters directly affecting the ETJ, including:

• Annexation. A city that seeks to annex an area with a population of 200 people or more, where the registered voters own more than 50% of the land in the area, must hold an election in the area so the qualified voters may decide whether to approve the annexation. Tex. Loc. Gov’t Code § 43.0691.

• City sales tax. City sales taxes cannot be collected in the city’s ETJ, with one exception. The dedicated sales tax to support a municipal development district (MDD) may be collected in a city’s ETJ if the voters of the proposed MDD vote for the creation of the MDD and for the levy of the permitted tax. Tex. Loc. Gov’t Code §§ 377.002; 377.021; 377.101.

• Fire control, fire prevention, and emergency medical services districts. A city that has created a fire control, fire prevention, or emergency medical services district may include the city’s ETJ in such district only if addition of the ETJ to the district and the imposition of the tax are approved by the voters of the ETJ. Tex. Loc. Gov’t Code § 344.181.