Texas Attorney General Opinion: JC-142 Page: 1 of 9
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OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
November 10, 1999
The Honorable Bill G. Carter Opinion No. JC-0142
Chair, Committee on Urban Affairs
State of Texas House of Representatives Re: Whether a home-rule municipality may limit
P.O. Box 2910, GW. 16 the number of building permits it will issue in the
Austin, Texas 78768-2910 absence of an emergency, and related question
(RQ-0061-JC)
Dear Representative Carter:
You question the authority of a home-rule municipality to limit the number of building
permits it will issue in the absence of an emergency. See Letter from Honorable Bill G. Carter,
Chair, Committee on Urban Affairs, Texas House of Representatives, to Honorable John Comyn,
Attorney General of Texas (Apr. 26, 1999) (on file with Opinion Committee) [hereinafter "Request
Letter"]; Brief accompanying Request Letter, supra, at 1. You also ask whether a home-rule
municipality may limit the number of residential building permits issued in a given time period while
not limiting the number of nonresidential building permits. Subject to various caveats, we conclude
first that nothing in federal or Texas law precludes a home-rule municipality from limiting the
number of building permits it will issue, even in the absence of an emergency, in a given time
period. We conclude second that a home-rule municipality may impose limits on residential
building permits and not nonresidential building permits, subject to the equal protection clauses of
the federal and State constitutions.
In January 1999 the Town of Flower Mound (the "Town"), a home-rule municipality,
resolved to adopt a SMART Growth program in response to higher than expected rates of population
growth in recent years. See Brief accompanying Request Letter, supra, at I. ("SMART Growth"
stands for "Strategically Managed And Responsible Town Growth." See Brief from Terrence S.
Welch, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P., on behalf of Town of Flower
Mound, attachment 2 (June 16, 1999) [hereinafter "Town brief']; Brief from Arthur J. Anderson,
Winstead Sechrest & Minick P.C., on behalf of Home & Apartment Builders Association of Greater
Dallas, to John Cornyn, Esq., Attorney General, exhibit "C" at 24 (June 4, 1999) [hereinafter "Home
& Apartment Builders Brief']). Expecting that the population growth would overload the Town's
water, wastewater, and transportation systems and would adversely affect the Town's "character and
quality," see Brief accompanying Request Letter, supra, at 1, the Town council intends the SMARTGrowth program to "manage both the rate and character of residential growth in Flower Mound."
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-142, text, November 10, 1999; (https://texashistory.unt.edu/ark:/67531/metapth274451/m1/1/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.