Issue
Texas cities have the authority to regulate land use, structures, and platting and subdividing land. They also provide and regulate water, sewer, and other utility services to residential property.
The extraterritorial jurisdiction (ETJ) is an “unincorporated area that is contiguous to the corporate boundaries” of a municipality, as outlined in the Local Government Code. The size of a municipality’s ETJ generally depends on its population, and a city’s ETJ can only expand as a result of annexation, landowner request, or an increase in the city’s number of inhabitants.
The Texas Legislature created the concept of ETJs in 1963 to “promote and protect the general health, safety, and welfare of persons residing in and adjacent to” cities.
Municipal regulatory authority over ETJs in Texas has a variety of purposes, but arguably the most significant has historically been related to planning, development, and future annexation.
With the elimination of forced municipal annexation in 2019, the time has come to thoroughly examine the merits of and needs for municipal regulatory authority in ETJs.
Meanwhile, Texas counties must be specifically granted powers by the Legislature. Some county governments seek to increase their authority and burden the process with unnecessary regulations.
Texas is experiencing a growth in population across the state, increasingly in rural and farming communities as new residents seek opportunities to own Texas real estate.
However, this growth makes it increasingly important for property owners to be aware of their rights and protections granted to property owners under the Right to Farm statute, which protects property owners who consistently use their property for agricultural operations from nuisance lawsuits.
What does this mean for the real estate industry?
At the county level, giving counties more development regulation powers will restrict growth and limit the state’s potential for prosperity.
At the municipal level, many Texans purchase property outside of city limits to avoid the regulations and taxes imposed by city government. However, residents of a city’s ETJ may still be subject to regulations and fees, which can increase the cost of owning real estate and can price owners out of their property.
This can also limit a buyer’s options if they avoid purchasing property near cities because the property is potentially subject to city regulations despite being out of city limits.
Landowners who are complying with laws and regulations deserve to use their property how they see fit. Many municipalities are unaware of property rights protections such as Right to Farm laws, and they may try to unjustly enforce regulations on agricultural operators within their boundaries or their extra-territorial jurisdictions. This could result in timeconsuming and costly negotiations for the property owner who is seeking to defend their rights.
Texas REALTORS® position
Texas REALTORS® understands the objective to “preserve the general health, safety and welfare of persons residing in or adjacent to” municipalities, but that interest must not be seen as permission for any wholesale expansion of municipal rulemaking authority within those jurisdictions.
Texas REALTORS® supports the enforcement of laws designed to protect the property rights of landowners within ETJs or who consistently use their property for agricultural operations, such as Right-to-Farm laws.
Our association believes property owners should be given clear information regarding their rights in these circumstances, as well as swift and simple pathways to recourse if those rights are violated.
Legislative outlook
Lawmakers may file legislation to reform municipal regulatory authority in ETJs and legislation to increase county regulatory authority. However, the Texas Legislature has denied such requests in the past.
Our association also expects the Texas Legislature to continue supporting private-property rights by addressing the need for enforcement of Right to Farm laws.
Historical perspective
The Texas Legislature has consistently affirmed its unwillingness to give county governments the same regulatory authority as home-rule cities. However, the Legislature has given county governments some ability to regulate land use, structures, platting and subdivision of land, as well as provide and regulate water, sewer, and other utility services to residential property.
In 2019, a new law ended forced municipal annexation statewide, giving property owners a say in whether they are annexed. With that monumental policy change, municipal interest in ETJs has shifted focus and will have reduced consideration for long-term municipal expansion.
In 1981, the Texas Legislature enacted the Texas Right to Farm Act, which demonstrates the state’s commitment to the agricultural industry.
The act applies to all agricultural operations, including cultivating the soil; producing crops for human food, animal feed, planting seed, or fiber; floriculture; viticulture; horticulture; silviculture; wildlife management; raising or keeping livestock or poultry; and planting cover crops or leaving land idle for the purpose of participating in any governmental program or normal crop or livestock rotation procedure.