Extraterritorial Jurisdiction (ETJ) – Is It Constitutional?

extraterritorial jurisdictionExtraterritorial Jurisdiction (ETJ), as it refers to cities, is the legal capability of a municipality to exercise authority beyond the boundaries of its incorporated area. In the US, Texas is one of the states that by law allow cities to claim ETJ to contiguous land beyond their city limits. In Texas, cities with populations over 100,000 may extend their ETJ to five miles beyond the boundaries of the incorporated limit. The Texas Legislature enacted a comprehensive annexation bill in 1999. Should a city in Texas annex an area for “limited purposes” (i.e., residents do not pay city taxes), the ETJ of the city does not extend with the annexation.

Austin ETJ

By using ETJ, the City of Austin wields its regulatory power to neighboring land “where development can affect the quality of life within the city.” The City claims that the use of ETJ will make certain that potential subdivisions that may be annexed by Austin in the future will adhere to minimum requirements for road access, lot size and utility infrastructure.

Over the years Austin has aggressively exercised its legal right to use ETJ in numerous cases. The City has even claimed ETJ in banning the use of fireworks within the five mile area beyond its corporate boundaries. The use of this power has led many to question the constitutionality of ETJ. The National Property Rights Alliance, among others, claims that Municipal ETJs infringe upon the rights of citizens who live outside city limits and therefore cannot vote in city elections or use city services. These groups point to the Declaration of Independence which states in part, “That to secure these rights, governments are instituted among Men, deriving their just powers from the consent of the governed (emphasis added).” When municipalities expand their jurisdiction to those that do not have the right to vote in their elections, it is illegitimate because those disenfranchised are powerless to reverse the policies forced upon them by a government they did not elect into office.

However, by a 6 – 3 majority in ‘Holt Civic Club v City of Tuscaloosa (1978)’ the US Supreme Court determined that due process and equal protection were not violated by states granting cities ETJ which denied extraterritorial residents the right to vote in municipal elections.

One reason why Texas cities have not suffered from “white flight” and the consequent loss of tax base as much as other US cities is because of the state’s comprehensive annexation law. By using this protection and long-term master planning, Texas cities avoid being landlocked by suburban bedroom communities.

This post was written by Commercial real estate agency Austin Tenant Advisors

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