THE &rrORs~r GENERAL OF EXAS September 21, 1987

Mr. Mike Coffey Kendall County Auditor Kendall County Courthouse Boerne, 

### Texas 78006 Opinion No. JM-789
Re: Authority of acommissioners court to impose certain requirements on a subdivider of land abutting apublic road
Dear Mr. Coffey:
Youask about twoprovisions in.the Kendall County "Regulations, Rules andSpecifications for Roads andSubdivisions." Specifically, you request an opinion on the authority of the county to adopt the following provisions: Rule 204.80

All Streets and Roads will not receive consideration for final approval byCommissioners' Court until at least one (1) year after original construction of Streets andRoads is completed. Uponfinal approval, title to all Streets and Roads shall be conveyed to the County, for their maintenance by aWarranty Deed, which shall be acceptable to the Commissioners Court. Accompanying such deed shall be an adequate description of Streets and Roads, either by reference to approved subdivision plat or by field notes prepared by a Registered Surveyor from a survey madeon the ground. Rule 301.100
Theentrance and/or exit to asubdivision shall bebypublic road or street and each lot shall front upon apublic street. Kendall County, "Regulations, Rules andSpecifications for Roads and Subdivisions" (1985 andRev. 1987) at 24-85 and5-87.

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### Mr.Mike Coffey - Page 2 (JM-789)

You“ace that the commissioners court interprets rule 204.80 to require that asubdivider of land co ”vey to **the** county afee simple interest, andnot just a” easement, in the public streets and roads within aproposed subdivision. You askwhether such arequirement is within the authority of the tzounty commissioners court. Youalso ask whether the commissioners court, pursuant to its rule 301.100, may refuse to approve asubdivision plat “where egress andengress is over a three party easement which is 

### not shown on the prelfminary plat

. . . [andwhen] two [of the three] parties have disagreed with the proposed use of this easement as a public road to the subdivision.”
Weconclude that the conrmissioners court has no authority to demandadeed transferring afee simple interest to the county in the land dedicated to public streets and roads in the subdivision. Because rule 301.100 is in litigation, wewill not discuss questions concerning that provision.



### Acounty commissioners court possesses only the powers conferred either expressly or by nechssary implication from the constitution and statutes. See Tex. Const. art. V, 518; S.W.Zd 451,453 (Tex. 1948); Canales v. Laughlin, 214 Attorney General Opinion JM-534 (1986). Local Government Code section 232;004 (formerly article 6702-1, section 2.401, V.T.C.S.) is the sole relevant solirce of statutory authority for a commissioners court’s regulatory authority over the subdividing of land in the county, unless section 232.006 applies in ~thecase of acounty which has apopulation of more than 2.2 million 

### oris contiguous with a county with a population of more than 2.2 million.1 Thestatute provides, in part, that

[bly anorder adopted andentered in the minutes of the commissioners court, andafter anotice is published in anewspaper of general circulation in the county, the commissioners court may: (1) require a right-of-way on astreet or road that functions as a main artery in a subdivision, of awidth of not less than 50feet or more than 100feet;

1. Thesubdivision of land in a county but also within the extraterritorial jurisdiction of acity requires the approval of the city andcounty. See Local Gov’t Code chs. 42, 212, 242; Attorney General Opinions JM-508 (1986); JM-365 (1985).

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(2) require a right-of-way on any other street or road in a subdivision of not less than 40feet or more than 70feet; (3) require that the shoulder-to-shoulder width oncollectore or main arteries within the right-of-way be not less than 32 feet or more than 56feet, and that the shoulder-to-shoulder width onany other street or road be not less than 25 feet or morethan 35feet; (4) adopt, based onthe amount andkind of travel over each street or road in a subdivision, reasonable specifications relating to the construction of each street or road; (5) adopt reasonable specifications to provide adequate drainage for each street or road 1r1 a subdivisoin in accordance with standard engineering practices; and (6) require that the owner of the tract to be subdivided execute a good andsufficient bond in the manner provided by Section 232.004.
Local Gov't Code 1232.003. Thecommissioners court has the authority to refuse to approve asubdivision plat only for afailure to meet the specific requirements of section 232.003. Local Gov't Code 5232.002. Asubdivision plat must be approved bythe county before it can be filed andrecorded by the county clerk. Prop. Code 512.002; Attorney General Opinion m-508; See also Attorney General Opinion JM-365. Although the county mayrequire the dedication of public streets, acounty has nopower to compel asubdivider to convey to the county a fee simple interest in the land dedicated for use as streets in the subdivision. While section 232.003 is silent onthe question, we conclude that the law is otherwise contrary to the notion that the county can require, as aprecondition 

### toperforming aministerial act, something it is incapable of commanding. Thecounty cannot condemn afee simple interest in private property, absent specific statutory authorization. Prop. Code 521.045. Thecommonlaw rule in Texas has long been that condemnations for public highways result only in the taking of an easement. International hG.N.R. Co. v. Boles, 161 S.W. 914 (Tex. Civ. App. - Austin 1913, writ ref'd). See also Schlottman v. Wharton County, 259 S.W.2d 325, 332 (Tex. Civ. App. - Fort Worth 1953, writ dism'd). The County Road and Bridge Act contains noauthority for the county to condemn a fee simple interest in property for apublic road as a

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precondition to approving asubdivision plat.
Section 232.001 of the Local Government Code only requires that a subdivider provide aplat which gives the dimensions of streets and other areas "dedicated to public use." Moreprecisely, the statutory powers granted to the county over subdivisions are plainly limited to ordering certain standards to be applied to the physical dimensions andconstruction standards of streets androads. Local Gov't Code 5232.003. The statute simply contains no other relevant grant of substantive powers to the county, notably not the power to demand a fee simple interest in dedicated streets. Thededication of land for public roads does not convey more than amere easement to the county. Humble Oil h Refining Co. v. Blankenburg, 235S.W.2d 891 (Tex. 1951) (plat dedication of plazas, parks, streets, and alleys created easement only). Cf.

_ city of College Station v. Turtle Rock Corp., 680S.W.2d 802 (Tex. 1984). generally 32Tex. Jur.3d Eminent Domain 543 (1984). See -
Thestatute contains no other **grants** of power to the county to condition the acceptance or approval of a subdivision plat upon the conveyance of afee simple interest. Without speciffc authority, the countv has no Dower to establish substantive reauirenlents for subdivisions. Commissioners' Court v. Frank Jester Development Co., 199S.W.2d 1004 (Tex. Civ. App. - Dallas 1947, writ ref'd n.r.e.1. Thus, whenaperson whoseeks to file andrecord aplat has complied with all of the statutory requirements outlined in chapter 232of the Local Government Code. awnroval and filing of the "lat becomes a mere mi"isterial duty. Id.; "Attorney Genersl Opinibns JM-534 (1986); JM-317 (1985). See also City of Corpus Christ1 v. Unitarian Church, 436 S.W.Zd 923, 927 (Tex. Civ. App. - Corpus Christ1 lY68, writ ref'd n.r.e.). Certainly, the county maynot refuse to accept asubdivision plat by the subterfuge of declining to accept adedication of streets androads asproposed onaplat, if the streets androads comply with the requirements permitted to be imposed by section 232.003.
SUMMARY
A county may provide requirements for the approval of subdivision plats only to the extent such requirements are authorized by chapter 232of the Local Government Code. A county may not .require the transfer to it of a fee simple interest on lands dedicated to public roads in the subdivision.

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JIM MATTOX Attorney General of Texas MARYKXLLRR Executive Assistant Attorney General
JUDGEZOLLIESTBAXLEY Special Assistant Attorney General
RICKGILPIN Chairman, Opinion Committee Prepared byDonBustion Assistant Attorney General

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