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BASTROP — Cit y Council last week once again tabled a petition for disannexation of two acres of land from the town’s extraterritorial jurisdiction, taking a wait-and-see stance on the upcoming legislative session or court action.
The petition for release under Senate Bill 2038 originally was heard at the Aug. 27 meeting and again at the Sept. 10 session and was postponed both times.
Assistant to the City Manager Vivianna Andres and City Attorney Alan Bojorquez both counseled against releasing the property, since SB 2038 provides for automatic disannexation within a set time if the council takes no action.
Bojorquez said if the bill loses the current legal challenges against it, a city may be able to reclaim ETJ proper t y if counci l members did not approve a disannexation.
“There’s a chance the statute is going to be overturned, and if so, if you vote to release property from the ETJ, it’s gone,” Bojorquez said. “My suggestion would be to either deny (the petition), in which case they are going to be released by operation of law, or do nothing, in which case they are going to be released by operation of law. Then if the statute is struck down, they’re back in our ETJ again.” The Legislature convenes Jan. 14 and the 89th session runs until June 25. During the last legislative session, SB 2038 amended a section of the Texas Loca l Government Code, allowing the release of property from a municipality's extraterritorial jurisdiction through a petition or election, provided the application is valid.
The petition under consideration is for land owned by O. Allen Cassel at 1285 W. Texas 71, Unit A, but the discussion focused on how the council would handle any requests received before the state Supreme Court concludes its hearing on the bill’s legality.
“The lawsuits that are challenging the constitutionality of SB 2038 are legit. They point out bonafide defects with the legislation, including where it conf licts with other statutes and where it usurps a city council’s legislative discretion on whether to release land from the ETJ or not,” Boroquez said.
Andres said staff concurred with this course of action based on a seminar they attended, which was hosted by Denton Navarro Rodriguez Bernal Santee & Zech P.C. in Schertz.
Information there recommended city staff verify that petitions meet the requirements of SB 2038, but instead of taking action at the dais, they advised city leaders to “remain silent” and allow for the parcel to be released by legal routes.
“The rationale is that i f the legislat ion is found to be unconstitutional, there will be no record of action where the council agreed to release a parcel from the ETJ,” Andres wrote in a briefing to the council. “Conversely, if the legislation is found to be constitutional, there will be no record of action where the council agreed to deny the release of a parcel from the ETJ,” The advice was met with appreciation by some members of the council.
“I like the idea of preserving the existence of the ETJ if the court were to overturn the law,” said Mayor Pro Tem John Kirkland.
Mayor Lyle Nelson echoed the sentiment.
“I’m going to not motion that we do something. I do not have a motion to act upon this. Therefore, I do not have a second,” said Nelson, who was joined by the other council members in remaining silent on the issue.
