My ETJ: Should I Stay or Should I Go?

With Texas Senate Bill 2038 (SB 2038)’s passing, landowners in a cities’ extraterritorial jurisdictions (ETJs) are now able to unilaterally release themselves from their ETJ through either petition or election. Now the question becomes: Should I stay in my ETJ, or should I go?

There are a few reasons you might want to stay in your city’s ETJ. First, you might incur legal fees to ensure that you complete the ETJ-removal process correctly. A petition or election must satisfy SB 2038’s detailed requirements, so you may want to pay a lawyer to guide you through the process. Second, you might actually like your city’s regulations in your ETJ. For example, your city might have a “dark skies ordinance” to regulate the brightness of ETJ residents’ lights and the kind of light fixtures that are allowed. Third, if your land is subject to restrictive covenants or county regulation that is even stricter than the city’s ETJ regulations, then removing yourself from the ETJ might not give you any relief.

But for many people (maybe most people), there are big reasons to get out of the ETJ:

First, you might be dealing with a city that’s using platting power, subdivision regulations, or utility access in an illegal or abusive way—perhaps to coerce you to agree to annex your land into the city. If you release your land from the ETJ, you would deal with county officials on platting and subdivision regulations—and county officials might be more reasonable in following the law.

Second, you may see your property value increase—by a lot. For example, ETJ residents in a small Central Texas city were dealing with a municipality that had killed over $100 million in land deals, with the city telling ETJ residents living close to a new $25-billion plant that they could not develop their land for anything other than agriculture or rural-residential purposes. Once able to remove their land from the ETJ, some of these residents saw their land values increase from a range of $30,000 to $50,000 per acre to a range of $110,000 to $315,000 per acre. That’s an increase of two to six times for some of these folks!

Third, as a matter of principle, you might believe that you should have the power to use your land as you choose as long as you are not hurting other people. You might feel that the government is already too intrusive and plays too large a role in deciding what you can and cannot do with your property.

Fourth, also on principle, you might believe that there shouldn’t be regulation without representation. If you live in an ETJ, you have no right to vote in city elections. Yet you are required to follow the rules that city officials decide to impose on your land. As Texas Senator Paul Bettencourt, an SB-2038 sponsor, said: “No government should be able to impose rules and regulations on your property when you have no say on the rules and regulations, [and] no say on who’s creating the rule and regulations.”

Your decision to stay or go depends on your personal circumstances and beliefs. But if you decide you want out, you’ll want to act quickly. If history is a guide, Texas cities will do whatever they can to reassert control over the areas surrounding their city limits, including by coming up with novel legal defenses to your removal petition and by lobbying the Legislature to claw back your current ability to leave the ETJ.

Cobb & Johns are Special Forces for Complex Property and Government Disputes.