Don Allee, County Attorney of Kendall County, asked for this information to be disseminated to interested members. Please direct any questions to Don via email at "don.allee[at]co.kendall.tx.us"


Recently, Comal County Criminal District Attorney Geoffrey I. Barr, requested an AG opinion that brings into question the validity of Kendall County subdivision development rules and regulations that regulate lot size and density of development. The Comal County request arose out of a dispute between Comal County and the City of Bulverde concerning regulation of subdivision platting in the ETJ of Bulverde. Apparently, the agreement required by Chapter 242, Local Government Code, placed that authority with Bulverde. Without getting into the details of the disagreement between the two entities, the County sought to take back that authority and an issue arose about the authority of cities under Chapter 212, Local Government Code and the authority of counties under Chapter 232, Local Government Code to regulate lot size and density. The opinion request asks the AG to determine whether the City of Bulverde can regulate density in it's ETJ and whether Comal County through an interlocal agreement with Bulverde can enforce the Bulverde regulations regulating density.

The answer to those questions would appear to resolve the issues in question between Comal County and Bulverde. However, the opinion request then shifts gears and brings up the Kendall County regulations which regulate lot size and density in new subdivisions in the unincorporated area of Kendall County. After discussing Kendall County regulations and attaching a copy of the Kendall County Development Rules and Regulations to the request, Comal County then asks: "Applying Section 232.101 and the Texas Supreme Court's reasoning in Quick v. Austin, does this regulation pass the muster?" Section 232.101 referred to in the inquiry is contained in Subchapter E, Chapter 232, Local Government Code, the "Urban Counties" subchapter, which until the last legislative session, only applied to counties with a population of 150,000 or more and was adjacent to an international border, counties with a population of 700,000 or more and counties, like Kendall and Comal, adjacent to counties with a population of 700,000 and either in the same MSA or with a 40%population increase between 1990 and 2000. Effective September 1, 2007, the "Applicability" section was repealed, thus making Subchapter E applicable to all Texas counties. Under Section 232.101, counties now have the identical authority to adopt "rules governing plats and subdivisions of land ... to promote the health, safety, morals, or general welfare of the county and the safe, orderly and healthful development of the unincorporated area of the county" that cities have in their ETJ. The opinion request cites Medina County Commissioners Court v. Integrity Group as possible authority for the AG to consider, but this case, decided under 1990's era fact and law, only dealt with a county's limited authority under Subchapter A, Chapter 232, Local Government Code. It did not address the expanded authority given to counties to regulate growth under Subchapter E. Since, so far as I can determine, there are no court decisions or AG opinions that address a county's authority under Subchapter E, cases relevant to the AG opinion should concern a city's authority to regulate in it's ETJ, not those cases that address the limited authority granted to counties by Subchapter A like Medina County.

Having fought with developers and their attorneys who come to Kendall County citing "Medina County" as their authority that "counties can't tell me what to do" for over 5 years, I am concerned that an AG opinion which merely follows the reasoning of that opinion and does not address the expanded authority granted to Texas counties under Subchapter E will have a drastic and adverse impact on the ability of counties to control growth.

The request, assigned number RQ-0664, has a stated brief response date of February 25, 2008. I have contacted the AG's office and obtained an extension to March 31, 2008 to file a brief. I was advised that an opinion should be issued around July 12, 2008 and that any brief submitted would be considered, even if submitted after the stated due date. I plan to submit a brief and urge all other interested parties to do likewise.

If anyone would like a copy of the brief Don Allee submitted on this issue, email me.