Untitled Texas Attorney General Opinion ( 1987 )

.
RE &l-l-O EY GEXERAL
OF EXAS
September 1, 1987
Honorable George Pierce Opinion No. JM-781
Chairman
Texas Committee on Urban Affairs Re: Whether an individual may
House of Representatives divide and sell a tract of land
P. 0. Box 2910 which is located on an existing
Austin, Texas 78769 county road without complying
with plat approval requirements
and related questions
Dear Representative Pierce:
You ask the following questions:
1. Can an individual divide a tract into two
or more parcels and sell same without complying
with plat approval requirements where such lands
are located on an existing county road and no
roads are contemplated within the land to be sub-
divided?
2. Can an individual who divides a tract into
two or more tracts sell such lands by metes and
bounds with the creation of a private road within
the land subdivided without completion of plat
approval requirements? This question assumes that
no portion of lands divided shall be dedicated to
public use.
3. What is the authority of the city within
its ETJ to require plats where such lands to be
subdivided contain no road dedicated for public
use and are adjacent to an existing county road?
4. What is the authority of the city within
its ETJ to require plats for subdivisions where a
tract is divided into two or more parcels and an
individual proposes to sell such lands by metes
and bounds without dedication of public roads?
Section 2.401 of the County Road and Bridge Act, article 6702-1,
p. 3678
Honorable George Pierce - Page 2 (JM-781)
v.T.c.S.~ provides:
Sec. 2.401. (a) This section applies to each
county of the state except a county that elects to
operate under Section 2.402 of this Act.
(b) The owner of any tract of land situated
without the corporate limits of any city in the
State of Texas, who may hereafter divide the same
in two or more parts for the purpose of laying out
any subdivision of any such tract of land, or an
addition without the corporate limits of any town
or city, or for laying out suburban lots or build-
ing lots, and for the purpose of laying out
streets, alleys,
- or parks, or other portions
intended for public use, or the use of purchasers
or owners of lots fronting thereon or adjacent
thereto, shall cause a plat to be made
thereof. . . . (Emphasis added.)
Article 974a, V.T.C.S., provides:
Section 1. Bereafter every owner of any tract
of land situated within the corporate limits, or
within five miles of the corporate limits of any
city in the State of Texas, who may hereafter
divide the same in two or more parts for the pur-
pose of laying out any subdivision of any tract of
land or any addition to any town or city, or for
laying out suburban lots or building lots, .or any
lots, and streets, alleys or parks or other por-
tions intended for public use, or the use of
purchasers or owners of lots fronting thereon or
adjacent thereto, shall cause a plat to be made
thereof. . . . ~(Emphasisadded.)
In Attorney General Opinion JM-365 (1985) the matter of the
phrase "within five miles of the corporate limits" contained in
section 1 of article 974a was considered. There it was stated:
Attorney General Opinion m-121, issued in
1. Sections 2.401 and 2.402 of Art. 6702-l. V.T.C.S. and
articles 970a and 974a. V.T.C.S., cited in this opinion are codified
in the Local Government Code without substantive change enacted by
Acts 1987, 70th Leg., Chapter 149, effective September 1, 1987.
p. 3679
,
Ronorable George Pierce - Page 3 (JM-781)
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December 1983, concluded that, notwithstanding
that articles 974a and 6626, V.T.C.S.. provided
for city approval of subdivision plats within five
miles of the corporate limits of a city, the
amendment and enactment of articles 6626a [now
section 2.401 of article 67021 and 6626aa,
respectively, by chapter 327 impliedly repealed
the five-mile range and provided instead that a
citv mav not exercise slat amroval autharitv out-
side the city's extraterritorial jurisdiction as
that area is determined by article 970a. It is
our opinion that 'said extraterritorial jurisdic-
tion' within the meaning of article 6626aa is a
city's extraterritorial jurisdiction as determined
by article 970a. Article ,6626a expressly states
that in areas under, a city's extraterritorial
jurisdiction as defined by article 970a, a plat
.- .. may not be filed without the authorization of both
the city and the county. (Emphasis added.)
Under article 970a, V.T.C.S., the extra-territorial jurisdiction
of a city is determined by its population. Section 2.402 of article
6702-I applies to each county "that has a population of more than 2.2
- million or is contiguous with a county with a population of lhore than
2 .2 million" and, insofar as pertinent to the issues herein, contains
the same language as both section 2.401 of section 6702-l and article
974a.
In Attorney General Opinion JM-508 (1986) the developers had not
attempted to file a map or plat of a subdivision. In that opinion it
was stated:
[Tlhe legislature has determined that, if the
owner of a tract of land who divides the same in
two or more parts
for the purpose of laying out any subdivision
.of any tract of land or any addition to any
town or city, or for laying out suburban lots
or building lots, or any lots, and streets,
alleys or parks or other portions intended for
public use, or the use of purchasers or owners
of lots frontina thereon or adtacent thereto.
[then he] shali cause a pla; to be mad;
thereof. . . .
V.T.C.S. art. 974a. §I. Whether the developers
filed the deeds and dedicatory certificates for
P .one of the above purposes is a question of fact
p. 3680
Honorable George Pierce - Page 4 (JM-781)
this office is not authorized to answer.
(Emphasis added.)
"Subdivision" and "public use" are not given statutory definitions.
In City of Weslaco v. Carpenter, 694 S.W.2d 601, 603 (Tex. App. -
Corpus Christ1 1985, writ ref'd n.r.e.) the court stated "a
'subdivision' of property may refer simply to the act of partition
itself, regardless of whether an actual transfer of ownership -- or
even an intended transfer of ownership -- occurs." The Texas Supreme
Court in Coastal States Gas Producing Company v. Pate, 309 S.W.2d 828
(Tex. 1958) in examining the meaning of the words "public use" stated:
No hard and fast rule can be laid down for
determining public use. however, and each case is
usually decided upon the basis of its own facts
and circumstances.
. 309 S.W.2d at 833.
In Attorney General Opinion JM-508 it was stated:
Your sixth question involves the application of
article 6626c, V.T.C.S. The provision provides:
-,
Section 1. No party shall file for record
or have recorded in the official records in the
County Clerk's office any map or plat of a sub-
division or resubdivision of real estate with-
out first securing approval therefor as may be
provided by law, and no party so subdividing or
resubdividing any real estate shall use the
subdivision's or resubdivision's description in
any deed of conveyance or contract of sale
delivered to a purchaser unless and until the
map and plat of such subdivision or resubdivi-
sion shall have been duly authorized as afore-
said and such map and plat thereof has actually
been filed for record with the Clerk of the
County Court of the county in which the real
estate is situated.
Sec. 2. Any party violating any provision
of Section 1 of this Act shall be guilty of a
misdemeanor and upon conviction thereof shall
be fined in a sum not less than Ten Dollars
($10.00) nor more than Five Hundred Dollars
($500.00), or confined in the county jail not
exceeding ninety (90) days, or both such fine
and imprisonment, and each act of violation 1
p. 3681
Honorable George Pierce - Page 5 (JM-781)
,-
shall constitute a separate offense, and in
addition to the above penalties, any violation
of the provisions of Section 1 of this Act
shall constitute prima facie evidence of an
attempt to defraud. (Emphasis added.)
This article was transferred from article 1137h of
Vernon's Penal Code by authority of section 5 of
Acts 1973, 63rd Leg., ch. 399, at 995, enacting
the new Penal Code. A person may be prosecuted
under article 6626~. V.T.C.S., in two separate
circumstances. First, for the act of recording,
and secondly, for the act of selling property
making a reference to an unrecorded map or plat.
In Attorney General Opinion M-390 (1969), this
office held that the second circumstance
makes a misdemeanor offense of a convevance bv
a subdivider where the property des&iptioh
depends for its location upon reference to a
subdivision plat which has not been duly
authorized as provided by law and/or has not
been filed for record. Use of the subdivision
description is not cured by additional metes
and bounds descriptions, which in themselves
must rely upon the unrecorded plat for location
of the property on the ground. (Emphasis
added.)
We Are of the opinion that the answer to your first question
depends on the facts and circumstances of the individual case. For
example, we believe that it is highly unlikely that the courts would
hold that a plat is required where an owner of ranch or farm land in a
sparsely populated rural area sold a single tract of land under the
scenario you have outlined. Your first question is broad enough to
include a division of a tract "into two or more parcels" in a densely
populated area near a crowded city resulting in the need of city
services and creating problems detrimental to the public interest.
The answer to your first question depends upon a factual determination
on a case by case basis that is not within the province of this
office.
We are of the opinion that a court would look beyond the facade
created by the designation "private road" and the absence of any parts
of the divided land being dedicated to public use in determining
whether the land could be subdivided without compliance of plat
approval requirements. The absence of any dedication of land for
public use, standing alone, does not dispense with the necessity of
complying with plat requirements. Both statutes quoted above refer to
p. 3682
Honorable George Pierce - Page 6 (JM-781)
land "intended for public use," not to land "dedicated to public use."
Additionally, both statutes refer to land "intended for public use, or
the use of purchasers or owners."
We believe this conclusion to be supported by the opinion in City
of Weslaco v. Carpenter, where the land owner claimed that his land
was being used as a "rental park" and not a "subdivision" and was not
subject to the city's extraterritorial jurisdiction. The court
stated:
In arguing that the only issue before us is
whether his conduct has created a 'subdivision,'
appellee argues that the 'ordinary understanding'
of the term 'subdivision' must be construed as
requiring the land to be split into at least two
different lots which are owned by different
people. He states that the purpose of his
development is merely to rent. spaces rather than
to sell lots, and contends that transfer of
ownership is needed before a 'one-lot project' can
be 'subdivided.' Thus, a mere splitting of title
by lease or rent is insufficient to create a
'subdivision.' We find appellee's reasoning
overly narrow.
The normal, common-sense meaning of the term
'subdivision' is expressed in Black's Law Diction-
ary (5th ed. 1979) as '[dlivision into smaller
parts of the same thing -or subject-matter. The
division of a lot, tract or parcel of land into
two nor more lots, tracts, parcels or other divi-
sions of land for sale or development.'
A similar interpretation was expressed in the
case of City of Corpus Christ1 v. Unitarian
Church, 436 S.W.2d 923 (Tex. Civ. App. - Corpus
Christ1 1968, writ ref'd n.r.e.1, [involved city
withholding approval of plat filed by church] in
which this court considered the following language
of Tex. Rev. Civ. Stat. Ann. art. 974a, 91 (Vernon
1963):
Hereafter, every owner of any tract of
land situated within the corporate limits
. . . who may hereafter divide the same in two
or more parts for the purpose of laying out any
subdivision of any tract of land or any addi-
tion to any . . . city, or for laying out sub-
urban lots or building lots, . . . shall cause
a plat to be made thereof. . . .
p. 3683
Honorable George Pierce - Page 7 (JM-781)
"
We then stated that:
The language of Section 1 of Art. 974 is
plural and relates to a division of property
into parts. The same is true of the City
Charter and the applicable provisions of its
ordinances. It contemplates subdivision for
subdivision development purposes. . . .
. . . .
[3] The injunction sought by appellant
arises not only from proper interpretation @
pertinent statutes and ordinances but also asa
valid exercise of appellant's police power,
which by its very nature involves the regula-
tion of-subdivi&n development 'to prevent the
use thereof in a manner that is detrimental to
the public interest. The police power may be
loosely described as the power of the sovereign
to prevent persons under its jurisdiction from
conducting themselves or using their property
C
to the detriment of the general welfare.'
Dupuy v. City of Waco, 396 S.W.2d 103, n. 3
(Tex. 1965); city of Corpus Christ1 v.
Unitarian Church, 436 S.W.2d at 910. Appellee
seeks to provide 128 rental spaces on an 8.17
acre lot. The concomitant need for city
services, in addition to the predictable pro-
blems generated by such intensive population of
the land, justify appellant's use of its police
power in protecting the general welfare. See
City of Round Rock v. Smith, 687 S.W.2d 300
(Tex. 1985). (Emphasis added.)
694 S.W.2d at 603, 604.
We believe the division of a "tract into two or more tracts" and
its sale by "metes and bounds" with "a private road within the land"
would suggest to the fact finder that the subdivision is for public
use or the use of the purchasers or owners of the land. In light of
City of Weslaco v. Carpenter, we find it difficult to believe that a
court would not find that completion of plat approval requirements was
required under this scenario. See also Gifford v. Planning Board of
Nantucket, 383 N.E.2d 1123 (Mass. 1978).
We do not believe that the answer to your third question will be
controlled solely on the basis of whether the lands subdivided are
adjacent to an existing county road and an absence of roads dedicated
p. 3684
Honorable George Pierce - Page 8 (~~-781)
.
for public use. In determining the authority of the city in City of
Weslaco v. Carpenter, the court carefully considered all the facts and
circumstances therein in reaching its opinion. We believe the resolu-
tion of this question depends on a factual determination as pointed
out in Attorney General Opinion JM-508.
In your fourth question you inquire about the "authority of the
city within its ETJ to require plats for subdivisions where a tract is
divided into two or more parcels" and a sale is contemplated "by metes
and bounds without dedication of public roads." We believe our
analyses to the previous questions dictate that it is unlikely that a
court would hold that it was not within a city's authority to require
plats for subdivisions under this scenario.
SUMMARY
Whether an individual divides a tract into two
or more parcels for one of the purposes set out in
section 2.401 of article 6702-l. V.T.C.S., article
974a, V.T.C.S.. or section 2.402 of article
6702-l. V.T.C.S., and can sell same without being
required to comply with plat approval requirements
is a question of fact this office is not author-
ized to answer. While the absence of a dedication
of any parts of the divided land to public use is
a relevant circumstance, it is our opinion that a
court's decision will not turn on the presence or
absence of this factor. The resolution of this
issue by the courts will, in our judgment, be
governed by the facts and circumstances of each
individual case.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3685