.\1:wrrlu. TDcxms TO711

November 26, 1976

The HonorableTom Hanna CriminalDistrictAttorney JeffersonCounty 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 JeffersonCounty Commissioners Court may require a subdividerto comply with county subdivisionregulations promulgatedunder article 2372k,V.T.C.S., where the subdivider hasnot requested plat approval or acceptanceof the roads by the county. Specifically,you ask whether such compliancemay be required in the following situations:

1. Where the subdividerrepresentsto the purchaser that the roads are public and will be maintained by the county; and

2. Where the roads are not public and intendedonly for the use of the purchasers who realize that the roads are private and not to be maintained by the county. Article 2372k states: ITlheCommissioners **Courts** of.such counties shallhave the authorit to re uire the owner GwiiEFsdrithd situated outside oftthe boundariesof any incorporated town or city in such counties, who **may** hereafter divide the same in two or more parts for the purpose of layingout 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 HonorableTom 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 CommissionersCourts of any such counties shall have the authorit romul ate reasonable ibirs&T n the constructionof any such roads or streets within such subdivisions, which specifications **may** includeprovisions for the construction of adequate drainage for such roads or streets. V.T.C.S. art. 2372k. s 1. (Rmphasisadded). 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 commissionerscourt has the authority to require owners of land located outside the five mile limitsof an incorporated city [seeart. 6626,V.T.C.S., andAttorney General Opinions V-1401 (1952)and R-2952 (1952)) who divide their land for the purposes set out above to provide for a sixty-footright-of-way. The commissionerscourt also has the authority to promulgate reasonable specificationsto 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 recordationunder article 6626, V.T.C.S., where the subdivider has failed to comply with the minimum right-of-way and bond requirements. The contemporaneoushistory surrounding the passage of article 2372k (Acts1951, 52ndLeg., 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 inwhich the EIlZZ Couniy Commissioners Court had promulgated specificationswith which developers desiring the CommissionersCourt's approval for filing of a plat had to comply. The CommissionersCourt had also ordered that developers provide~entranceculverts to each separatepiece of property and that through streets

p.3792,. .
The Honorable Tom Hanna - page 3 (h-g04)

have a sixty-footright-of-way. The Court of Civil Appeals held that under the then applicable statute;.article 6626, V.T.C.S., the Commissioners Court hadno authority to refuse approval of a plat which contained sufficient information to allow it to be recorded. Additionally,they held that

the Commissioners' Court [couldnot] impose upon appellee additional requirementsand 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 provisionsof 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 thatmaintaining shoddy roads and streets innew 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 applicationby refusing to submitmaps 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 subdividersto provide for sixty foot right-of-ways and to promulgatereasonable 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 injunctiverelief as a means **of** enforcing the provisions of article 2372k.

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

We are aware thatAttorneyGeneral Opinion C-66 (1963) limited the application of theprovisionsof article 2372k only to subdividerswho have suixaitted plats **for** approval by the ccnsmissioners court. However,as pointed out in this opinion,we believe that sucha limitationcould permit subdividers to avoid applicationof 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 CommissionersCourt as follows:

In the event that theCommissioners Court has promulgatedreasonable standards under the authorityof Article 2372k, and the developer failsor refuses to give his bond (ifrequired)or tomake his plat conform to such requirements,the Commissioners Court's on1 recourse is to refuse

-id the developer's a ivision. (Emphasis added). This conclusion fails to take into consideration the contrary holding of V-1480. For the reasonswe have stated, it is our conclusion that the commissionerscourt may require landowners subdividing land for the purposes set out in section l(a) of article 2372kto complywith regulations promulgated under that article. To General Opinion C-66 conflictswith overruled.
SUMMARY _ - the extent that Attorney this opinion, it it

The county commissionerscourtmay require any land owner subdividingfor the purposes set out in section l(a) of article 2372k to comply with regulationspromulgatedby the commissioners courtunder article 2372k. The commissionerscourt's authority to make requirements under the provisions of article 2372k and to enforcesuch requirement is not dependent upon whetheror not the subdivider

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

has submitteda plat for the commissioners court's approval nor upon the subdivider's representationsas to the publicor nonpublic nature of the roads within the subdivision. Very trulyyours,

Attorney General of Texas APPROVED:

Opinion Committee jwb

p.3795