.\1:wrrlu. TDcxms TO711 

November 26, 1976 

The Honorable Tom Hanna 

Criminal District Attorney 

Jefferson County 

P. 0. Box 2553 

Beaumont, Texas 77704 

Opinion No. H-904 

Re: Whether a commissioners 

court may require subdividers to comply with 

county subdivision 

specifications. 

Dear Mr. Ranna: 

you have requested our opinion with regard to whether 

the Jefferson County Commissioners Court may require a 

subdivider to comply with county subdivision regulations 

promulgated under article 2372k, V.T.C.S., where the subdivider has not requested plat approval or acceptance of the 

roads by the county. Specifically, you ask whether such 

compliance may be required in the following situations: 

1. Where the subdivider represents to 

the purchaser that the roads are public 

and will be maintained by the county; and 

2. Where the roads are not public and 

intended only for the use of the purchasers 

who realize that the roads are private and 

not to be maintained by the county. 

Article 2372k states: 

ITlhe Commissioners Courts of.such counties 

shall have the authorit to re uire the 

owner GwiiEFsdrithd 

situated outside oft the boundaries of any 

incorporated town or city in such counties, 

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 for 

laying out suburban lots or building lots, 

and streets, alleys or parks or other portions 

p.3791 
: . 

‘. 

The Honorable Tom Hanna - page 2 (H-904) 

inte~nded for public use, or the use of 

purchasers or owners of lots of any such 

tract of land, to provide for a right-of-way 

of not less than sixty (60) feet for any 

road or street within such subdivision. 

(b) The Commissioners Courts of any 

such counties shall have the authorit 

romul ate reasonable 

ibirs&T n the construction of any such 

roads or streets within such subdivisions, 

which specifications may include provisions 

for the construction of adequate drainage for 

such roads or streets. V.T.C.S. art. 2372k. 

s 1. (Rmphasis added). 

Language of a statute that is plain and clear should bs given 

effect as written. Gateley v. Humphrey, 254 S.W.2d 98, 100 

(Tex. Sup. 1952). Therefore, the commissioners court has the 

authority to require owners of land located outside the five 

mile limits of an incorporated city [see art. 6626, V.T.C.S., 

and Attorney General Opinions V-1401 (1952) and R-2952 (1952)) 

who divide their land for the purposes set out above to provide 

for a sixty-foot right-of-way. The commissioners court also 

has the authority to promulgate reasonable specifications to 

be followed in the construction of roads in the 'subdivision 

and may require subdividers to give a bond for the construction 

and maintenance of such roads. V.T.C.S. art. 2372k, 99 l(b), 2. 

Additionally, section 3 of article 2372k gives the commissioners 

court the authority to refuse to approve or authorize any map 

or plat of a subdivision for recordation under article 6626, 

V.T.C.S., where the subdivider has failed to comply with the 

minimum right-of-way and bond requirements. 

The contemporaneous history surrounding the passage of 

article 2372k (Acts 1951, 52nd Leg., ch. 151 at 256) supports 

a literal reading of the statute. Shortly before the enactment of article 2372k, Commissioners' Court v. Frank Jester 

&r-d ~'~.~:~.~~s"~~~i~~~.~h~;s;;r~~~~s 

Develo ment Co., 

the Court considered a situation in which the EIlZZ Couniy 

Commissioners Court had promulgated specifications with which 

developers desiring the Commissioners Court's approval for 

filing of a plat had to comply. The Commissioners Court had 

also ordered that developers provide~entrance culverts to 

each separate piece of property and that through streets 

p.3792 
,. . 

The Honorable Tom Hanna - page 3 (h-g04) 

have a sixty-foot right-of-way. The Court of Civil Appeals 

held that under the then applicable statute;.article 6626, 

V.T.C.S., the Commissioners Court had no authority to refuse 

approval of a plat which contained sufficient information to 

allow it to be recorded. Additionally, they held that 

the Commissioners' Court [could not] impose 

upon appellee additional requirements and 

conditions as reflected in its order . . . 

since the Legislature has not seen fit to 

require such conditions. - Id. at 1007. 

In light of this background, we are of the opinion that the 

Legislature intended the provisions of article 2372k to' 

address the problems faced by the Court in Jester and to supply the 

legislative authority necessary for the ca&imners court 

to make the requirements specified in the terms of the statute. 

The emergency clause of the bill enacting article 2372k 

reads, in pertinent part: 

Sec. 6. The fact that maintaining 

shoddy roads and streets in new subdivisions 

has become a heavy drain on County Road and 

Bridge Funds, and the fact that at present 

the County Commissioners Courts have no 

legal authority to require real estate 

developers to construct substantial roads 

and streets in such new subdivisions, creates 

an emergency . . . . 

Allowing subdividers to escape the article's application by 

refusing to submit maps or plats of the subdivision for 

approval or by representing that the roads are nonpublic 

could result in perpetuation of the conditions which the 

emergency clause indicates the Legislature intended to 

correct. 

Attorney General Opinion V-1480 (1952) previously concluded that the commissioners court has the authority under 

article 2372k to require subdividers to provide for sixty 

foot right-of-ways and to promulgate reasonable specifications 

for the construction of roads within a subdivision. Attorney 

General Opinion V-1480 also held that it was appropriate for 

the commissioners court to seek injunctive relief as a means 

of enforcing the provisions of article 2372k. 

p.3793 
The Honorable Tom Hanna - page 4 (R-994) 

We are aware that Attorney General Opinion C-66 (1963) 

limited the application of the provisions of article 2372k 

only to subdividers who have suixaitted plats for approval 

by the ccnsmissioners court. However, as pointed out in this 

opinion, we believe that such a limitation could permit 

subdividers to avoid application of the statute by refusing 

to submit and would thereby subvert the legislative intent 

embodied in article 2372k. Additionally, Opinion C-66 purported to limit the Commissioners Court as follows: 

In the event that the Commissioners 

Court has promulgated reasonable standards 

under the authority of Article 2372k, and 

the developer fails or refuses to give his 

bond (if required) or to make his plat 

conform to such requirements, the Commissioners Court's on1 recourse is to refuse 

the developer's -id a ivision. (Emphasis 

added). 

This conclusion fails to take into consideration the contrary 

holding of V-1480. For the reasons we have stated, it is 

our conclusion that the commissioners court may require 

landowners subdividing land for the purposes set out in 

section l(a) of article 2372k to comply with regulations 

promulgated under that article. To 

General Opinion C-66 conflicts with 

overruled. 

SUMMARY 

_ - 

the extent that Attorney 

this opinion, it it 

The county commissioners court may require 

any land owner subdividing for the purposes 

set out in section l(a) of article 2372k to 

comply with regulations promulgated by the 

commissioners court under article 2372k. 

The commissioners court's authority to make 

requirements under the provisions of article 

2372k and to enforce such requirement is not 

dependent upon whether or not the subdivider 

p.3794 
The Honorable Tom Hanna - page 5 (H-904) 

has submitted a plat for the commissioners 

court's approval nor upon the subdivider's 

representations as to the public or nonpublic 

nature of the roads within the subdivision. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

Opinion Committee 

jwb 

p.3795