By: Baxter (Senate Sponsor - Wentworth) H.B. No. 1204
(In the Senate - Received from the House April 25, 2003;
April 28, 2003, read first time and referred to Committee on
Intergovernmental Relations; May 23, 2003, reported adversely,
with favorable Committee Substitute by the following vote: Yeas 4,
Nays 0; May 23, 2003, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 1204 By: Wentworth
A BILL TO BE ENTITLED
AN ACT
relating to the authority of municipalities and counties to
regulate subdivisions and certain development in a municipality's
extraterritorial jurisdiction.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading of Section 242.001, Local Government
Code, is amended to read as follows:
Sec. 242.001. REGULATION OF SUBDIVISIONS IN
EXTRATERRITORIAL JURISDICTION GENERALLY.
SECTION 2. (a) Section 242.001(a), Local Government Code,
as amended by Chapters 736 and 1028, Acts of the 77th Legislature,
Regular Session, 2001, is reenacted and amended to read as follows:
(a) This section applies only to a county operating under
Sections 232.001-232.005 or Subchapter B, C, or E, Chapter 232, and
a municipality that has extraterritorial jurisdiction in that
county. Subsections (b)-(g) [(b)-(e)] do not apply:
(1) within a county that contains extraterritorial
jurisdiction of a municipality with a population of 1.9 million or
more; or
(2) within a county within 50 miles of an
international border, or to which Subchapter C, Chapter 232,
applies.
(b) This section takes effect only if House Bill No. 1197,
Acts of the 78th Legislature, Regular Session, 2003, does not
become law. If that bill becomes law, this section has no effect.
SECTION 3. (a) Section 242.001(a), Local Government Code,
as amended by Chapters 736 and 1028, Acts of the 77th Legislature,
Regular Session, 2001, is reenacted and amended to read as follows:
(a) This section applies only to a county operating under
Sections 232.001-232.005 or Subchapter B, C, or E, Chapter 232, and
a municipality that has extraterritorial jurisdiction in that
county. Subsections (b)-(g) [(b)-(e)] do not apply:
(1) within a county that contains extraterritorial
jurisdiction of a municipality with a population of 1.9 million or
more; [or]
(2) within a county within 50 miles of an
international border, or to which Subchapter C, Chapter 232,
applies; or
(3) to a tract of land subject to a development
agreement under Subchapter G, Chapter 212, or other provisions of
this code.
(b) This section takes effect only if House Bill No. 1197,
Acts of the 78th Legislature, Regular Session, 2003, becomes law.
If that bill does not become law, this section has no effect.
SECTION 4. Section 242.001, Local Government Code, is
amended by reenacting and amending Subsection (c), as amended by
Chapters 736 and 1028, Acts of the 77th Legislature, Regular
Session, 2001, and by amending Subsections (d), (f), and (g) and
adding Subsections (h) and (i) to read as follows:
(c) Except as provided by Subsections (d)(3) and (4), a
municipality and a county may not both regulate subdivisions and
approve related permits in the extraterritorial jurisdiction of a
municipality after an agreement under Subsection (d) is executed.
The municipality and the county shall enter into a written
agreement that identifies the governmental entity authorized to
regulate subdivision plats and approve related permits in the
extraterritorial jurisdiction. For a municipality in existence on
September 1, 2001, the municipality and county shall enter into a
written agreement under this subsection on or before April 1, 2002.
For a municipality incorporated after September 1, 2001, the
municipality and county shall enter into a written agreement under
this subsection not later than the 120th day after the date the
municipality incorporates. On reaching an agreement, the
municipality and county shall certify that the agreement complies
with the requirements of this chapter. The municipality and the
county shall adopt the agreement by order, ordinance, or
resolution. The agreement must be amended by the municipality and
the county if necessary to take into account an expansion or
reduction in the extraterritorial jurisdiction of the
municipality. The municipality shall notify the county of any
expansion or reduction in the municipality's extraterritorial
jurisdiction. Any expansion or reduction in the municipality's
extraterritorial jurisdiction that affects property that is
subject to a preliminary or final plat, a plat application, or an
application for a related permit filed with the municipality or the
county or that was previously approved under Section 212.009 or
Chapter 232 does not affect any rights accrued under Chapter 245.
The approval of the plat, [or] any permit, a plat application, or an
application for a related permit remains effective as provided by
Chapter 245 regardless of the change in designation as
extraterritorial jurisdiction of the municipality.
(d) An agreement under Subsection (c) may grant the
authority to regulate subdivision plats and approve related permits
in the extraterritorial jurisdiction of a municipality as follows:
(1) the municipality may be granted exclusive
jurisdiction to regulate subdivision plats and approve related
permits in the extraterritorial jurisdiction and may regulate
subdivisions under Subchapter A of Chapter 212 and other statutes
applicable to municipalities;
(2) the county may be granted exclusive jurisdiction
to regulate subdivision plats and approve related permits in the
extraterritorial jurisdiction and may regulate subdivisions under
Sections 232.001-232.005, Subchapter B or C, Chapter 232, and other
statutes applicable to counties;
(3) the municipality and the county may apportion the
area within the extraterritorial jurisdiction of the municipality
with the municipality regulating subdivision plats and approving
related permits in the area assigned to the municipality and the
county regulating subdivision plats and approving related permits
in the area assigned to the county; or
(4) the municipality and the county may enter into an
interlocal agreement that:
(A) establishes one office that is authorized to:
(i) accept plat applications for tracts of
land located in the extraterritorial jurisdiction;
(ii) collect municipal and county plat
application fees in a lump-sum amount; and
(iii) provide applicants one response
indicating approval or denial of the plat application; and
(B) establishes a single set of consolidated and
consistent [set of] regulations related to plats, subdivision
construction plans, and subdivisions of land as authorized by
Chapter 212, Sections 232.001-232.005, Subchapters B and C, Chapter
232, and other statutes applicable to municipalities and counties
that will be enforced in the extraterritorial jurisdiction.
(f) If a certified agreement between a county and
municipality as required by Subsection (c) is not in effect on or
before the applicable date prescribed by Section 242.0015(a), the
municipality and the county must enter into arbitration as provided
by Section 242.0015. If the arbitrator or arbitration panel, as
applicable, has not reached a decision in the 60-day period as
provided by Section 242.0015, the arbitrator or arbitration panel,
as applicable, shall issue an interim decision regarding the
regulation of plats and subdivisions and approval of related
permits in the extraterritorial jurisdiction of the municipality.
The interim decision shall provide for a single set of regulations
and authorize a single entity to regulate plats and subdivisions.
The interim decision remains in effect only until the arbitrator or
arbitration panel reaches a final decision. [This subsection
applies until an agreement is reached under Subsection (d). For an
area in a municipality's extraterritorial jurisdiction, as defined
by Section 212.001, a plat may not be filed with the county clerk
without the approval of both the municipality and the county. If a
municipal regulation and a county regulation relating to plats and
subdivisions of land conflict, the more stringent regulation
prevails. However, if one governmental entity requires a plat to be
filed for the subdivision of a particular tract of land in the
extraterritorial jurisdiction of the municipality and the other
governmental entity does not require the filing of a plat for that
subdivision, the authority responsible for approving plats for the
governmental entity that does not require the filing shall issue on
request of the subdivider a written certification stating that a
plat is not required to be filed for that subdivision of the land.
The certification must be attached to a plat required to be filed
under this subsection.]
(g) If a regulation or agreement adopted under this section
relating to plats and subdivisions of land or subdivision
development establishes a plan for future roads that conflicts with
a proposal or plan for future roads adopted by a metropolitan
planning organization, the proposal or plan of the metropolitan
planning organization prevails [Subsection (f) applies to a county
and area to which Subsections (b)-(e) do not apply].
(h) This subsection applies only to a county to which
Subsections (b)-(g) do not apply, except that this subsection does
not apply to a county subject to Section 242.002. For an area in a
municipality's extraterritorial jurisdiction, as defined by
Section 212.001, a plat may not be filed with the county clerk
without the approval of both the municipality and the county. If a
municipal regulation and a county regulation relating to plats and
subdivisions of land conflict, the more stringent regulation
prevails. However, if one governmental entity requires a plat to be
filed for the subdivision of a particular tract of land in the
extraterritorial jurisdiction of the municipality and the other
governmental entity does not require the filing of a plat for that
subdivision, the authority responsible for approving plats for the
governmental entity that does not require the filing shall issue on
request of the subdivider a written certification stating that a
plat is not required to be filed for that subdivision of the land.
The certification must be attached to a plat required to be filed
under this subsection.
(i) Property subject to pending approval of a preliminary or
final plat application filed after September 1, 2002, that is
released from the extraterritorial jurisdiction of a municipality
shall be subject only to county approval of the plat application and
related permits and county regulation of that plat. This subsection
does not apply to the simultaneous exchange of extraterritorial
jurisdiction between two or more municipalities or an exchange of
extraterritorial jurisdiction that is contingent on the subsequent
approval by the releasing municipality.
SECTION 5. Chapter 242, Local Government Code, is amended
by adding Section 242.0015 to read as follows:
Sec. 242.0015. ARBITRATION REGARDING SUBDIVISION
REGULATION AGREEMENT. (a) This section applies only to a county
and a municipality that are required to make an agreement as
described under Section 242.001(f). If a certified agreement
between a county and a municipality with an extraterritorial
jurisdiction that extends 3.5 miles or more from the corporate
boundaries of the municipality is not in effect on or before January
1, 2004, the parties must arbitrate the disputed issues. If a
certified agreement between a county and a municipality with an
extraterritorial jurisdiction that extends less than 3.5 miles from
the corporate boundaries of the municipality is not in effect on or
before January 1, 2006, the parties must arbitrate the disputed
issues. A party may not refuse to participate in arbitration
requested under this section. An arbitration decision under this
section is binding on the parties.
(b) The county and the municipality must agree on an
individual to serve as arbitrator. If the county and the
municipality cannot agree on an individual to serve as arbitrator,
the county and the municipality shall each select an arbitrator and
the arbitrators selected shall select a third arbitrator.
(c) The third arbitrator selected under Subsection (b)
presides over the arbitration panel.
(d) Not later than the 30th day after the date the county and
the municipality are required to have an agreement in effect under
Section 242.001(f), the arbitrator or arbitration panel, as
applicable, must be selected.
(e) The authority of the arbitrator or arbitration panel is
limited to issuing a decision relating only to the disputed issues
between the county and the municipality regarding the authority of
the county or municipality to regulate plats, subdivisions, or
development plans.
(f) Each party is equally liable for the costs of an
arbitration conducted under this section.
(g) The arbitrator or arbitration panel, as applicable,
shall render a decision under this section not later than the 60th
day after the date the arbitrator or arbitration panel is selected.
If after a good faith effort the arbitrator or panel has not reached
a decision as provided under this subsection, the arbitrator or
panel shall continue to arbitrate the matter until the arbitrator
or panel reaches a decision.
(h) A municipality and a county may not arbitrate the
subdivision of an individual plat under this section.
SECTION 6. Subchapter A, Chapter 212, Local Government
Code, is amended by adding Section 212.0025 to read as follows:
Sec. 212.0025. CHAPTER-WIDE PROVISION RELATING TO
REGULATION OF PLATS AND SUBDIVISIONS IN EXTRATERRITORIAL
JURISDICTION. The authority of a municipality under this chapter
relating to the regulation of plats or subdivisions in the
municipality's extraterritorial jurisdiction is subject to any
applicable limitation prescribed by an agreement under Section
242.001.
SECTION 7. The heading of Chapter 232, Local Government
Code, is amended to read as follows:
CHAPTER 232. COUNTY REGULATION OF SUBDIVISIONS AND PROPERTY
DEVELOPMENT
SECTION 8. Subchapter A, Chapter 232, Local Government
Code, is amended by adding Section 232.0013 to read as follows:
Sec. 232.0013. CHAPTER-WIDE PROVISION RELATING TO
REGULATION OF PLATS AND SUBDIVISIONS IN EXTRATERRITORIAL
JURISDICTION. The authority of a county under this chapter
relating to the regulation of plats or subdivisions in the
extraterritorial jurisdiction of a municipality is subject to any
applicable limitation prescribed by an agreement under Section
242.001 or by Section 242.002.
SECTION 9. Section 232.0015(b), Local Government Code, is
amended to read as follows:
(b) Except as provided by Section 232.0013, this [This]
subchapter does not apply to a subdivision of land to which
Subchapter B applies.
SECTION 10. Section 232.022(a), Local Government Code, is
amended to read as follows:
(a) This subchapter applies only to:
(1) a county any part of which is located within 50
miles of an international border; or
(2) a county in which an election has been held under
Section 232.0221 on the question of whether the county shall
operate under this subchapter and the majority of the votes cast in
the election were in the affirmative.
SECTION 11. Subchapter B, Chapter 232, Local Government
Code, is amended by adding Section 232.0221 to read as follows:
Sec. 232.0221. ELECTION. (a) The commissioners court of a
county may order and hold an election in the county on the question
of granting the commissioners court the authority to regulate the
subdivision of land under this subchapter.
(b) For an election under this section, the ballot shall be
prepared to permit voting for or against the proposition:
"Granting (name of county) the authority to regulate the
subdivision of land in the unincorporated area of the county."
SECTION 12. Subchapter B, Chapter 232, Local Government
Code, is amended by adding Section 232.0225 to read as follows:
Sec. 232.0225. MINIMUM STATE STANDARDS. (a) To the extent
this subchapter refers to minimum state standards or refers to the
application of a provision of Chapter 16, Water Code, the
references apply to all counties regardless of any limitation
established by Chapter 16, Water Code, including the limitation
established by Section 16.343(f), Water Code.
(b) This section and the other provisions of this subchapter
do not authorize a county to participate in any financial
assistance program or any other program authorized by Chapter 15,
16, or 17, Water Code, unless the county qualifies under the Water
Code.
SECTION 13. Section 232.025, Local Government Code, is
amended to read as follows:
Sec. 232.025. SUBDIVISION REQUIREMENTS. By an order
adopted and entered in the minutes of the commissioners court, and
after a notice is published in English and Spanish in a newspaper of
general circulation in the county, the commissioners court shall
for each subdivision:
(1) require a right-of-way on a street or road that
functions as a main artery in a subdivision, of a width of not less
than 50 feet or more than 100 feet;
(2) require a right-of-way on any other street or road
in a subdivision of not less than 40 feet or more than 70 feet;
(3) require that the shoulder-to-shoulder width on
collectors or main arteries within the right-of-way be not less
than 32 feet or more than 56 feet, and that the shoulder-to-shoulder
width on any other street or road be not less than 25 feet or more
than 35 feet;
(4) adopt, based on the amount and kind of travel over
each street or road in a subdivision, reasonable specifications
relating to the construction of each street or road;
(5) adopt reasonable specifications to provide
adequate drainage for each street or road in a subdivision in
accordance with standard engineering practices;
(6) require that each purchase contract made between a
subdivider and a purchaser of land in the subdivision contain a
statement describing how and when water, sewer, electricity, and
gas services will be made available to the subdivision; [and]
(7) require that the subdivider of the tract execute a
bond in the manner provided by Section 232.027;
(8) adopt reasonable specifications that provide for
drainage in the subdivision to:
(A) efficiently manage the flow of stormwater
runoff in the subdivision; and
(B) coordinate subdivision drainage with the
general storm drainage pattern for the area; and
(9) require lot and block monumentation to be set by a
registered professional surveyor before recordation of the plat.
SECTION 14. Subchapter B, Chapter 232, Local Government
Code, is amended by adding Sections 232.0255 and 232.0256 to read as
follows:
Sec. 232.0255. STANDARD FOR ROADS IN SUBDIVISION. A county
may not impose under Section 232.025 a higher standard for streets
or roads in a subdivision than the county imposes on itself for the
construction of streets or roads with a similar type and amount of
traffic.
Sec. 232.0256. ADDITIONAL REQUIREMENTS: USE OF
GROUNDWATER. (a) If a person submits a plat for the subdivision of
a tract of land for which the source of the water supply intended
for the subdivision is groundwater under that land, the
commissioners court of a county by order may require the plat
application to have attached to it a statement that:
(1) is prepared by an engineer licensed to practice in
this state or a geoscientist licensed to practice in this state; and
(2) certifies that adequate groundwater is available
for the subdivision.
(b) The Texas Commission on Environmental Quality by rule
shall establish the appropriate form and content of a certification
to be attached to a plat application under this section.
SECTION 15. Section 232.038, Local Government Code, is
amended to read as follows:
Sec. 232.038. SUIT BY PRIVATE PERSON [IN ECONOMICALLY
DISTRESSED AREA]. (a) This section applies only to:
(1) a [A] person who has purchased or is purchasing
from a subdivider a lot after July 1, 1995, in a subdivision for
residential purposes that does not have water and sewer services as
required by this subchapter and is located in an economically
distressed area, as defined by Section 17.921, Water Code; or
(2) a person who has purchased or is purchasing from a
subdivider a lot after September 1, 2003, in a subdivision for
residential purposes that does not have water and sewer services as
required by this subchapter.
(b) A person described by Subsection (a)[, from a
subdivider,] may bring suit in the district court in which the
property is located [or in a district court in Travis County] to:
(1) declare the sale of the property void and require
the subdivider to return the purchase price of the property; and
(2) recover from the subdivider:
(A) the market value of any permanent
improvements the person placed on the property;
(B) actual expenses incurred as a direct result
of the failure to provide adequate water and sewer facilities;
(C) court costs; and
(D) reasonable attorney's fees.
SECTION 16. Chapter 232, Local Government Code, is amended
by adding Subchapter F to read as follows:
SUBCHAPTER F. REGULATION OF LAND DEVELOPMENT
Sec. 232.151. SCOPE OF REGULATORY AUTHORITY. The
commissioners court of a county that is granted authority in
accordance with this subchapter may regulate, by order, land
development in the unincorporated area of the county by:
(1) requiring a subdivision to use a central water or
wastewater system under standards adopted by the county;
(2) requiring that a subdivision have a minimum fire
suppression system, including the use of fire hydrants, storage
tanks, or ponds;
(3) requiring improvements to roadways serving a
subdivision;
(4) requiring a minimum amount of open space or
imposing a limit on the amount of impervious cover for recharge and
runoff purposes;
(5) imposing impact fees under Chapter 395; or
(6) adopting any other regulation necessary to
regulate or manage land development.
Sec. 232.152. COMPLIANCE WITH CERTAIN LAWS. A county
adopting a regulation under this subchapter relating to the
location, design, construction, installation, size, or extension
of an on-site sewage disposal system:
(1) must be an authorized agent as defined by Section
366.002, Health and Safety Code; and
(2) must adopt regulations in accordance with Chapter
366, Health and Safety Code.
Sec. 232.153. ELECTION TO GRANT REGULATORY AUTHORITY. The
commissioners court of a county may order and hold an election in
the unincorporated area of the county on the question of granting
the commissioners court the authority to regulate land development
in the unincorporated area of the county. Only voters who reside in
the unincorporated area of the county are eligible to vote in an
election held under this subchapter.
Sec. 232.154. BALLOT PROPOSITION. For an election under
this subchapter, the ballot shall be prepared to permit voting for
or against the proposition: "Granting (name of county) the
authority to regulate land development in the unincorporated area
of the county."
Sec. 232.155. EFFECT OF ELECTION. If a majority of the
votes received on the question at the election approve the grant of
authority, the commissioners court of the county may adopt a
regulation under this subchapter.
SECTION 17. Section 395.001(7), Local Government Code, is
amended to read as follows:
(7) "Political subdivision" means:
(A) a municipality;
(B) [,] a district or authority created under
Article III, Section 52, or Article XVI, Section 59, of the Texas
Constitution;
(C) [, or,] for the purposes set forth by Section
395.079, certain counties described by that section; or
(D) a county authorized to regulate land
development under Subchapter F, Chapter 232.
SECTION 18. Section 395.011(b), Local Government Code, is
amended to read as follows:
(b) Political subdivisions may enact or impose impact fees
on land within their [corporate] boundaries or extraterritorial
jurisdictions only by complying with this chapter, except that
impact fees may not be enacted or imposed in the extraterritorial
jurisdiction for roadway facilities.
SECTION 19. Sections 395.016(c) and (d), Local Government
Code, are amended to read as follows:
(c) This subsection applies only to impact fees adopted
after June 20, 1987. For new development which is platted in
accordance with Subchapter A, Chapter 212, or Subchapter A or B,
Chapter 232, or the subdivision or platting procedures of any other
[a] political subdivision before the adoption of an impact fee, an
impact fee may not be collected on any service unit for which a
valid building permit is issued within one year after the date of
adoption of the impact fee.
(d) This subsection applies only to land platted in
accordance with Subchapter A, Chapter 212, or Subchapter A or B,
Chapter 232, or the subdivision or platting procedures of any other
[a] political subdivision after adoption of an impact fee adopted
after June 20, 1987. The political subdivision shall assess the
impact fees before or at the time of recordation of a subdivision
plat or other plat under Subchapter A, Chapter 212, or Subchapter A
or B, Chapter 232, or the subdivision or platting ordinance or
procedures of any other political subdivision in the official
records of the county clerk of the county in which the tract is
located. Except as provided by Section 395.019, if the political
subdivision has water and wastewater capacity available:
(1) the political subdivision shall collect the fees
at the time the political subdivision issues a building permit;
(2) for land platted outside the corporate boundaries
of a municipality, the municipality shall collect the fees at the
time an application for an individual meter connection to the
municipality's water or wastewater system is filed; or
(3) a political subdivision that lacks authority to
issue building permits in the area where the impact fee applies
shall collect the fees at the time an application is filed for an
individual meter connection to the political subdivision's water or
wastewater system.
SECTION 20. Section 13.002(26), Water Code, is amended to
read as follows:
(26) "Affected county" is a county any part of which is
located within 50 miles of an international border [to which
Subchapter B, Chapter 232, Local Government Code, applies].
SECTION 21. Section 13.2501, Water Code, is amended to read
as follows:
Sec. 13.2501. CONDITIONS REQUIRING REFUSAL OF SERVICE. The
holder of a certificate of public convenience and necessity shall
refuse to serve a customer within its certified area if the holder
of the certificate is prohibited from providing the service under
Section 212.012 or 232.029 [232.0047], Local Government Code.
SECTION 22. Section 26.001(26), Water Code, as added by
Section 24, Chapter 979, Acts of the 74th Legislature, Regular
Session, 1995, is amended to read as follows:
(26) "Affected county" is a county any part of which is
located within 50 miles of an international border [to which
Subchapter B, Chapter 232, Local Government Code, applies].
SECTION 23. If any provision of this Act or its application
to any county, municipality, or circumstance is held invalid, the
invalidity does not affect other provisions or applications of this
Act that can be given effect without the invalid provision or
application, and to this end the provisions of this Act are declared
to be severable.
SECTION 24. Except as provided by Section 242.001(i), Local
Government Code, as added by this Act, the changes in law made by
this Act to Chapters 212, 232, and 242, Local Government Code, apply
only to a development agreement or subdivision plat that is filed on
or after the effective date of this Act, and to the subdivision
covered by the plat. A development agreement or subdivision plat
that is filed before the effective date of this Act, and the
subdivision covered by the plat, are governed by the law in effect
immediately preceding that date, and the former law is continued in
effect for that purpose.
SECTION 25. The changes in law made by this Act to Chapter
232, Local Government Code, and other statutes apply only to a tract
of land subdivided on or after September 1, 2003. A tract of land
subdivided before that date is governed by the law in effect
immediately before that date, and the former law is continued in
effect for that purpose.
SECTION 26. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2003.
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