Texas Supreme Court holds general law city cannot extend building codes into ETJ

Town of Lakewood Village v Bizios, 15-0106 (Tex. May 27, 2016)

This is an interlocutory appeal from a temporary-injunction order regarding whether a Type A general-law municipality has authority to enforce its building codes and building-permit requirements within its extraterritorial jurisdiction (“ETJ”). The Texas Supreme Court held it could not.

The Town’s ETJ encompasses part of the Sunrise Bay subdivision (the “Subdivision”). Harry Bizios purchased a lot in the Subdivision which is located entirely within the Town’s ETJ. The Town’s ordinances adopt building codes and make them enforceable within its ETJ. Bizios obtained all permits from the County and all other entities except the Town. The Town filed this suit after Bizios ignored its orders to stop construction. The trial court granted the Town’s injunction but the Court of Appeals reversed holding the Town did not have the legal authority to enforce its building codes in the ETJ.

The Texas Supreme Court first determined it had jurisdiction to hear the case since the Town presented an inconsistent opinion and split in the courts of appeals on the subject.  Next the Court went into an analysis of the differences between a general law and home-rule municipality. The Court held without statutory authority, a general law municipality cannot extend its building codes into the ETJ. Texas Government Code §§212.002 and 212.003 allow the extension of certain ordinances in to the ETJ that deal with plats and subdivisions. However, after a lengthy discussion of statutory construction principles, the Court held “building codes” do not relate to plats and subdivisions so cannot be part of that extension. The Court went through several other statutory references and determined none provide authority for a general law city to extent building codes into the ETJ. Additionally, the Court rejected the Towns’ argument that it had implied authority to extend such codes. Finally, the Court discounted the public policy arguments by holding “[w]e cannot judicially confer authority on general law municipalities, even if we believe there are compelling public policy reasons for doing so. We must leave that choice to the policymaking branch of government.” As a result, the Town cannot legally extend building codes into the ETJ.

Justice Boyd delivered the opinion of the Court.  The docket page with attorney information can be found here.