Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
JIM MAlTOX
hgust 19, 1986
Attorney General
.
Supreme Court Building Opinion No. .X+534
Honorable 6. Bruce Curry
P. 0. BOX 12549
Austin. TX. 75711. 2549
District Attorney
51214752501 521 Earl Garrett Street Re: Authority of a commissioners court
Telex 910/974-1367 Kerrvil&e, Texas 713028 to amend a subdivision ordinance to
Telecopier 51214750256 exempt certain kinds of subdivisions
from the provisions of article 6702-l.
714 Jackson, Suite 700 V.T.C.S.
Dallas. TX. 75202.4506
2141742-8944 Dear Mr. Curry:
You inquire wmsther a commissioners court may amend its sub-
4824 Alberta Ave., Suite 150
El Paso, TX. 79905.2793
division ordinance to exempt certain kinds of subdivisions from the
915/533-3494 provisions of article 6702-1, section 2.401, V.T.C.S. Your question
is raised by the fac,tthat a commissioners court by order established
"minimum requirements for the laying out, design, and construction of
/lC@l Texas, Suite 700 streets, roads, parks, and other areas to be dedicated to public use
,ston. TX. .77002-3111
.j1223+,&%3
within subdivisions or additions" lying outside the corporate limits
of cities and towns in the county as a requisite to approval and
authorization of ary map or plat of such subdivisions or additions.
806 Broadway. Suite 312 Subsequently, the commissioners court issued an amendment to its
Lubbock, TX. 79401.3479 subdivision ordinmce which provides, in part, that the order
9OS/747-5239
establishing minimm requirements requisite to approval and authoriza-
tion of a map or plat of a subdivision or addition outside the
4309 N. Tenth, Suite S corporate limits of a city or town shall not apply to the following
McAllen, TX. 79501-1695 divisions:
5W692.4547
1. Di'rLsionof land by order of Court.
200 Main Plaza, Suite 400
San Antonio, TX. 78205.2797 2. DivLsion of inherited property between
512/225-4191 heirs, by agreement or by action in probate.
An Equal Opportunity/
3. Dtirisionby gift or bequest.
Affirmative Action Employer
4. Division by sale to an adjoining owner.
5. Dtirisionof a tract into smaller tracts
_--. all
--
of which smaller tracts exceed twenty (20) acres
per tract.
6. Division of a larger tract into not more
than three (3) smaller tracts, however said
division of the larger tract or smaller tracts
subdivided shall not occur more frequently than
p. 2459
Honorable E. Bruce Curry - Page 2 (JM-534)
once each 12 mlxlths. Subsequent divisions of
smaller tracts subdivided shall be subject to the
limitation imposed on the larger tract as to
number of smaller tracts (3) which may be sub-
divided in one 12 month interval.
We conclude that, within the authority granted by article 6702-1,
a commissioners court may amend and change its own minimum require-
ments that are requisite to its approval and authorization of a map or
plat of a subdivision located outside the corporate limits of a city,
but a commissioners court may not enact exemptions to provisions of
the state statute.
The approval of maps and plats of subdivisions located outside
the corporate limits of a city is governed by section 2.401 of article
6702-l. V.T.C.S., which is the County Road and Bridge Act, and article
6626aa. V.T.C.S. See Attorney General Opinion .JM-365(1985). Article
6626aa provides thxin are,asunder a city's extraterritorial juris-
diction as defined by article 970a. V.T.C.S., no plat shall be filed
with the-county clerk withmxlt the authorization of both the city and
county. Section 2.401 of article 6702-1, V.T.C.S., provides, in part,
that
(b) The owne:: of any tract of land situated
without the corp;cate limits of any city in the
State of Texas, &o may hereafter divide the same
in two or more p&s for the purpose of laying out
any subdivision of any such tract of land, or an
addition without ihe corporate limits of any town
or city, or for laying out suburban lots or
building lots, and for the purpose of laying out
streets, alleys, or parks, or other portions
intended for pubMc use, or the use of purchasers
or owners of lots fronting thereon or adiacent
thereto, shall cause a pla; to be made thireof,
which shall accu.%tely describe all of said sub-
division or addition by metes and bounds and
locate the same with respect to an original corner
of the original survey of which it is a part,
giving the dimewions of said subdivisions or
addition and the dimensions of all lots, streets,
alleys, parks, or other portions of same intended
to be dedicated to public use or for the use of
purchasers or owxxs of lots fronting thereon or
adjacent thereto. , . .
(c) Every suc'h plat shall be duly acknow-
ledged . . . sk!ct to the provisions contained
in this section,- such plat shall be filed for
record and be recorded in the office of the county
clerk of the coun'y in which the land lies.
p. 2460
,
Honorab1e.E. Bruce Curry - Iage 3 (JM-534)
(d) The commissioners court of the county may,
by an order duly adopted and entered upon the
minutes of the court, after a notice published in
a newspaper of gezeral circulation in the county,
be specifically authorized to make the following
requirements:
(1) to provide:for right of way on main artery
streets or roads within such subdivision of a
width of not less than 50 feet nor more than 100
feet;
(2) to providti for right of way on all other
streets or roads in such subdivision of not less
than 40 feet nor mclrethan 70 feet;
(3) to provide that the shoulder-to-shoulder
width on collectors,or on main arteries within the
right of way be not less than 32 feet nor more
than 56 feet;
(4) to provide for the shoulder-to-shoulder
width on all othl?r streets or roads within such
P
subdivision within the right of way to be not less
than 25 feet nor uclrethan 35 feet;
(5) to promulgate reasonable specifications to
be followed in the construction of any such roads
or streets within such subdivision, considering
the amount and kin?!of travel over said streets;
(6) to promul];atereasonable specifications to
provide adequate drainage in accordance with
standard engineering practices for all roads or
streets in said subdivision or addition;
(7) to require!the owner or owners of any such
tract of land which may be so subdivided to give a
good and sufficient bond for the proper construc-
tion of such roads or streets affected, with such
sureties as may be approved by the court. In the
event a surety 'sand by a corporate surety is
required, such bold shall be executed by a surety
company authorizeadto do business in the State of
Texas. Such bond shall be made payable to the
county judge or his successors in office, of the
county wherein scch subdivision lies, and condi-
tioned that the owner or owners of any such tract
of land to be subdivided will construct any roads
or streets withir: such subdivision in accordance
with the specifications promulgated by and within
p. 2461
Ronorable E. Bruce Curry - Eage 4 (JM-534)
a reasonable time as may be allowed by the com-
missioners court cf the county. The bond shall be
in such an amount as may be determined by the
commissioners court not to exceed the estimated
cost of constructi,ngsuch roads or streets.
(e) The comudssioners court of the county
shall have the a&ority to refuse to approve and
authorize any map ';;r
plat of any such subdivision,
unless such map o:Eplat meets the requirements as
set forth in this section and there is submitted
at the time of a&oval of such map or plat such
bond as may bt? required by this -section.
(Emphasis added).
The platting requirements o:?article 6702-l apply to the divisions of
land into two or more parts for the purposes specified in subsection
(b).
It is well established that a county commissioners court
possesses only the powers c:onferredeither expressly or by necessary
implication by the constitution and statutes of this state. See Tex.
Const. art. V, 518; Canales v. Laughlin, 214 S.W.2d 451, 453(Tex.
1948). We are not aware of any statute that gives a county the power
to enact exemptions to the provisions of article 6702-l that require
the preparation and filing elfrecord of a plat by an owner who divided
land outside a city into two or more parts for the purposes specified
in subsection (b). See Attorney General Opinion JM-508 (1986). Cf.
Lacy v. Huff, 633 S.=d 605, 610 (Tex. App. - Houston 114th Dist.]
1982, writ ref'd n.r.e.) (requirements of statute authorizing cities
to regulate subdivision development are applicable to owner who sought
to divide lot into two 10,:s). When an order of the commis~sioners
court conflicts with a proper legislative act, the order must give
way; the act of the legislsture prevails. Brown v. Meeks, 96 S.W.2d
839, 842 (Tex. Civ. App. - !;rmAntonio 1936, writ dism'd).
A map or plat of a subdivision or addition outside the corporate
limits~of a city must have bseen approved by the county before it can
be filed and recorded by the county clerk. See Property Code 512.002;
Trawalter v. Schaefer, 179 :S.W.2d 765 (Texx944); Attorney General
Opinion JM-508 (1986). If a person who seeks to file and record a
plat has complied with the statutory requirements outlined in section
2.401 of article 6702-l. approval and filing of the plat becomes a
mere ministerial duty. Eee Commissioners Court v. Frank Jester
---
Development Co., 199 S.W.2d 11004,1007 (Tex. Civ. App. - Dallas 1947,
writ ref'd n.r.e.); Attorney General Opinion JM-317 (1985). See also,
City of Corpus Christi v. Un:itarianChurch, 436 S.W.2d 923, 927 (Tex.
Civ. App. - Corpus Christi 1x168.writ ref'd n.r.e.1.
Subsection (d) of section 2.401, however, expressly authorizes
a commissioners court to establish by order the minimum requirements
p. 2462
Honorable E. Bruce Curry - Page 5 (JM-534)
specified in subsection (d) as requirements that are necessary for the
county's approval of maps or plats of subdivisions outside the
corporate limits of a city. The commissioners court exercises the
legislative power of the county and has the power to amend an order
made in its legislative capacity, insofar as the amendment conforms to
the authority granted by statute and does not impair vested rights or
violate other constitutional provisions, such as the equal protection
clause of the Fourteenth Asendment of the United States Constitution.
Hence, it is our opinion that, to the extent authorized by
article 6702-l. section 2.401, a commissioners court may amend its
minimum requirements that are requisite for its approval of sub-
division plats, but it ma!' not exempt certain kinds of subdivisions
from the provisions of article 6702-1, section 2.401, that require
owners who divide land into two or more parts for the purposes
specified in section 2.40:.(b) to file a plat for recording In the
office of the county clerk.
SUMMARY
A commissione:rr;court is authorized to amend
its subdivision 'xdinance to make changes in the
minimum requirements specified in section 2.401(d)
of article 6702-I.,V.T.C.S., which are enacted as
requirements necessary for the county's approval
of maps and plat!; of subdivisions located outside
a city. A commis:sionerscourt may not amend its
subdivision ordinance to exempt certain kinds of
subdivisions from the provisions of section 2.401
that require an owner to prepare and file a plat
when land located outside a city is divided into
two or more parl:s for the purposes specified in
section 2.401(b).
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
p. 2463