Hon. Ramle H. Qrlffln Opinion Ho. V-1401 Crlm. Dlst.,+,Attorney Jefferson County Re: Legality of the County Beaumont,Texas Clerk recording the plat of a subdivisionwithin five miles of an Incorporated city vhen it has been approved by the City Planning Commission but not by the Commissioners Dear Sir: court.

You have requested an opinion on the followlng question:

m

. . *whether or not It Is necessary for the Commissioner's Court to approve the plat of a subalvl8lon locatedwithin five miles of an incorporated citywhen the plat has been approved by the appropriate city authorities.'
The original act relating to the platting and recording of sub6lvlslonswa8 passed In 1927, and became Article 974a, 

### V.C.S. Thla act purported to give cities of 25,000 inhabitants or more authority over the filing of plats of subdivisions within five mllee of the city limltcr and authorized cities of leas than 25,000 inhabitants to adopt its provlslone. City of Corpua Chriati v. Ooueer, 

### 236S.W.2d870 (Tex. clv. App. 1951 error ref.). The act required that such plats be ipprovea by the City Planning Coatmls8lOn or by the governing body of the city if it had no Planning Conrmlsslon.

In 1931, Article 6626, V.C.S., ua8 amended 80 a8 to provider

"The following Instruments of vrltlng vhlch shall have been actiovleaccl or proved according to law, are authorized to bo recorded, viz.: all deeaa, mortgages, conveyances, aeecloof trust, bonan for title,Hon. RamIe H. Griffin, page 2 

### (V-1401)

covenants,defeaaancea or other instruments ofwriting concerningany lands or tenements, or g00a3 and chattels, or movable property of any description;provIdea,however, that In cases of aubdlvlalon or rye-subdivision of real propertyno map or plat of any such aubdivision or re-subdivision shall be filed or recorded unless and until the sameha3 been authorizedby the Commissioners Court of the county in which the real estate la situated by order-

duly entered In theminutes of said Court, except In cases of partition or other subdivision through a Court of record;provided. thatwithin incorporated citiesand towns the governingbody thereof in lieu of the CoIlrmissIonera' Court shall perform the dutieshereinabove Imposed upon the CommIaslonera'Court." (Ernphaaia added.)

In construing the above provisions, the Supreme Court stated In Trawalter v.,Schaefer, 142 Tex. 521, I 179 S.W.2d 

### 765 (1944): 5

*

. . . It la plainly evident that the exception to Article 

### 6626,Acts 1931, regarding mapa.or plats of land situatedwithin the corpdratelimits of citiesand towns operates to keep In force the provisions ofArticle 974a, Acts 1927, in so far as such last-mentioned Act coversmaps or plats of land situatedwlthIn the corporate limits of the cities and towns mentioned therein,but it does not operate to preserve or keep In force suchAct In so far

as it covers extraterritorial lands. Certainly had the Legislature Intended such a conatructlon tobe givenArticle 6626,Acts 1931, It would have Included landswithin fivemiles of cltlesand towns of 25,000 Inhabitants or more in the language of the exception.

"Even If it should be held thatArticle 6626,Acts 1931,has not repealed the extraterritorialprovisions of Article 974a,Acts 1927, thenmaps or plats of lands located within fivemiles of cities and towns contalnlng 25,000 inhabitants or more would be lncluaed within the provisions of bothActs, and In such Instancesboth Acts wouldhave to be compliedwith. We hardly think that suchwas theHon. RamIe H. Griffin, page 

### 3 (V-1401)

Intention of the Legislature;and yet this conclusionwould be Inescapable if It should be held thatArticle<6626,Acts 1931,has not repealed the extraterritorialprovision ofArtlcle'974a,Acts 1927.

. . ." 179 S.W.2d at 

### 768.

In 1949,Article 974a was amended by K.B. 

### 158, Acts 51at Leg., R.S. 1949, ch. 

### 154,p. 321. In conatrulng this amendment the court stated in City of Corpus Christ1 v. Gouger, aupra:

-*The1949Act does not expressly state that It Is an amendment to the 1931Acts, and It does not purport to do anything further than to amend Section 1 of Article 974a by making more detailedrequirementsas to maps or plats of land lyingwithin Incorporated cities or within five mllea distance therefrom,and repeal Section 10 In Its entirety. Said Act does not restore to the City Planning Commission or the City Governing Body the powers theretofore vested in saidbodies prior to the 1931 amendment of Article 

### 6626.

"We are unable to agree with appellant's contention that the amendment of Section 1 and the repeal of Section 10 of Article 974a $mplledlg repealed the provisions of the 1931 amendment to~Artlcle 

### 6626,which the Supreme Court, in Trawalter v. Schaefer, 142 Tex. 521, 179 S.W.2d 765,held deprived cities of the authority to prevent plats of aubdlvlalona outside the city limits from being filed or recorded. Repeals by implication are not favored and If the Legislature desires to reinvest the cities of the State'wlth authority overmaps and plata of subdivided lands lying outside the munlclpal llmlta, it must employ language Indicating a clear intention to modify the provisions of Article 

### 6626as the same have been construedby the Supreme Court." 236 S.W.2d at 871.

House Bill fi6;Z. Acts 52nd Leg.. R.S. 1951. ch. 

### 403,p.

### '745,amendedArticle':6626 so that lt now provides:

, VI 2

### .I: 23 Hon.

52ndRamie H. Griffin, page 4 (V-1401)

"The following instruments of writing which shallhave been acknowledged or proved according to law, are authorized to be recorded, viz.: all deeds, mortgages, conveyances, deeds of trust,bonds for title, covenants, defeasances or other instruments of writing concerningany lands or tenements, or goods and chattels, or moveable property of any.deacrIptIon;provided,however, that In cases of subdivisionor resubdlvlalon of realproperty no map or plat of any such aubd!.vIalon

or re-aubdlvlalon shallbe filed or recorded unless and until the same has been authorizedby tlie CommissionersCourt of the county In which the real estate la situatedby order duly entered In theminutes of said Court, except In cases of the partltlon or other subdivision througha court e of record; provided thatwhere the real eatate is situatedwithin the corporate limits orwlthi fi il f the corporate limits of any i~cor$~teedsc~ty or town, the governing body thereof or the cityplanning commlaalon, as the casemay b , cle 974a.Vernon's Texa: C&l S t t , shall pro;;d;d,F Artlperform the dutieshereinabove Imposed upon the CommissionersCourt."
The emergency clause of House Bill 661 of the Legislature states:
'The fact that the decision of the Supreme Court In the case of Trawalter, County Clerk vs. Shaefer, 179 S.W.2d 765, has raised a questionwhether the~governlngbodies or planning commlaalonswithin the corporate limits or within five (5)miles of the corporate limits of such cities stillhave the powers conferredupon themby saidArticle 974a,Vernon'sTexts Civil Statutes, creates an emergency . . . In view of the leglalatlveand judicial history ofArticles 974a and 6626,V.C.S., It la our opinion that'maps or plats of land v1thI.nthe corporate llmlta or within fivemiles of the corporate limits of an incorporatedcity or townmust be approved onlyby the governingbody of such city or town or the city. .

Hon. Ramle H. Griffin, page 5 (v-1431)

planning commla3Ion. These plats do not need the approval of the commissioners' court of the county In which the land Is situated In order to be filed or recordedwith the county clerk.

In view of the fact that Jefferson County has a population of 195,083 Inhabitantsaccording to the 1950 Federal Census, we must consider one further act (SenateBill 321, Acts 52nd Leg., R.S. 1951, ch. 151, p. 2'56, codified as Art. 2372k,V.C.S.) in connectlonwith your request. Senate Bill 321, aupra, provides for the approval of maps or plats of lands lying outside the corporate limits of the city or town by the commIaaloners' court In counties having a population of 190,000 Inhabitants or more. This act was passed on April 2 , 1951. House Bill 661 (amendingArticle 5626, V.C.S. was 7 passed onMay 31, 1951. Since House Bill 661 13 a later enactment of the same Legislature. itwill onerate to repeal that portion of Senate Bill 521 to the extent of any conflict in their terms. Ex part&MarIa~~de- Jesus de la 0, 227 s.W.2d 212 (Tex. Crlm.Yi_ )50); Att'y Gen. Op. V-990 (19501. Obvloualv Senate Bill 321 and-HouseBill 66i are
, _- . In conflictwith Respect to the-approval ofmaps or plats of lands by the commissioners' courts prI.or to recording In the office of the county clerk. Thus, House Bill 551, being the later enactment of the same TLegislature, will control over the provisions of Senate Bill 321. Ex parte Maria de Jesus de la 0, supra.

We thereforeagree with your conclusion that maps or plats of land lyingwithin fivemiles of the

. corporate limits of an Incorporated city or town need not be approved by the commissioners courtas a prerequisite to recording.

SUMMARY

Maps or plats of land lyingwithin the corporate limits or within five miles of the corporate limits of an incorporated city or town must be stiprovedonly by the governing body or the city planning commissionof such city or town, and need not be approvedby the commI33loner3' court of the county In which. . . 8

Hon. Ramle H. Griffin, page 6 (V-1401)

the land Is situated, to be filed or recoededwith the county clerk. Article 6626, V.C.S., as amended by Rotise Bill 661,Acts 52nd Leg., R.S. 1951, ch. 403, p. 745.
Yours'very truly,

APPROVED:

J. C. Davis, Jr. CountyAffairs Division PRICE DANIEL Attorney General

E. Jacobs& ReviewingAssistant
Charles D. Mathews FirstAssistant Beeee Assistant

. JR:mh

.