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 a commissioners 

court to impose certain requirements on a subdivider of land 

abutting a public road 

Dear Mr. Coffey: 

You ask about two provisions in.the Kendall County "Regulations, 

Rules and Specifications for Roads and Subdivisions." 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 by Commissioners' 

Court until at least one (1) year after original 

construction of Streets and Roads is completed. 

Upon final approval, title to all Streets and 

Roads shall be conveyed to the County, for their 

maintenance by a Warranty 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 made on the ground. 

Rule 301.100 

The entrance and/or exit to a subdivision shall 

be by public road or street and each lot shall 

front upon a public street. 

Kendall County, "Regulations, Rules and Specifications for Roads and 

Subdivisions" (1985 and Rev. 1987) at 24-85 and 5-87. 

p. 3729 
Mr. Mike Coffey - Page 2 (JM-789) 

You “ace that the commissioners court interprets rule 204.80 to 

require that a subdivider of land co”vey to the county a fee simple 

interest, and not just a” easement, in the public streets and roads 

within a proposed subdivision. You ask whether such a requirement is 

within the authority of the tzounty commissioners court. You also ask 

whether the commissioners court, pursuant to its rule 301.100, may 

refuse to approve a subdivision plat “where egress and engress is over 

a three party easement which is not shown on the prelfminary 

plat . . . [and when] two [of the three] parties have disagreed with 

the proposed use of this easement as a public road to the 

subdivision.” 

We conclude that the conrmissioners court has no authority to 

demand a deed transferring a fee simple interest to the county in the 

land dedicated to public streets and roads in the subdivision. 

Because rule 301.100 is in litigation, we will not discuss questions 

concerning that provision. 

A county 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 

~the case of a county which has a population of more than 2.2 million 

or is contiguous with a county with a population of more than 2.2 

million.1 The statute provides, in part, that 

[bly an order adopted and entered in the minutes 

of the commissioners court, and after a notice is 

published in a newspaper of general circulation in 

the county, the commissioners court may: 

(1) require a right-of-way on a street or 

road that functions as a main artery in a subdivision, of a width of not less than 50 feet or 

more than 100 feet; 

1. The subdivision of land in a county but also within the 

extraterritorial jurisdiction of a city requires the approval of the 

city and county. See Local Gov’t Code chs. 42, 212, 242; Attorney 

General Opinions JM-508 (1986); JM-365 (1985). 

p. 3730 
Mr. Mike Coffey - Page 3 (JM-789) 

(2) require a right-of-way on any other 

street or road in a subdivision of not less than 

40 feet or more than 70 feet; 

(3) require that the shoulder-to-shoulder 

width on collectore or main arteries within the 

right-of-way be not less than 32 feet or more than 

56 feet, and that the shoulder-to-shoulder width 

on any other street or road be not less than 25 

feet or more than 35 feet; 

(4) adopt, based on the amount and kind 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 and sufficient bond 

in the manner provided by Section 232.004. 

Local Gov't Code 1232.003. The commissioners court has the authority 

to refuse to approve a subdivision plat only for a failure to meet the 

specific requirements of section 232.003. Local Gov't Code 5232.002. 

A subdivision plat must be approved by the county before it can be 

filed and recorded by the county clerk. Prop. Code 512.002; Attorney 

General Opinion m-508; See also Attorney General Opinion JM-365. 

Although the county may require the dedication of public streets, 

a county has no power to compel a subdivider 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 on the question, we 

conclude that the law is otherwise contrary to the notion that the 

county can require, as a precondition to performing a ministerial act, 

something it is incapable of commanding. 

The county cannot condemn a fee simple interest in private 

property, absent specific statutory authorization. Prop. Code 

521.045. The common law rule in Texas has long been that condemnations for public highways result only in the taking of an easement. 

International h G.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 no authority for the county to 

condemn a fee simple interest in property for a public road as a 

p. 3731 
Mr. Mike Coffey - Page 4 (JM-789) 

precondition to approving a subdivision plat. 

Section 232.001 of the Local Government Code only requires that a 

subdivider provide a plat which gives the dimensions of streets and 

other areas "dedicated to public use." More precisely, the statutory 

powers granted to the county over subdivisions are plainly limited to 

ordering certain standards to be applied to the physical dimensions 

and construction standards of streets and roads. 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. 

The dedication of land for public roads does not convey more than 

a mere easement to the county. Humble Oil h Refining Co. v. 

Blankenburg, 235 S.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., 680 S.W.2d 802 (Tex. 1984). 

generally 32 Tex. Jur.3d Eminent Domain 543 (1984). 

See 

- 

The statute contains no other grants of power to the county to 

condition the acceptance or approval of a subdivision plat upon the 

conveyance of a fee simple interest. Without speciffc authority, the 

countv has no Dower to establish substantive reauirenlents for 

subdivisions. Commissioners' Court v. Frank Jester Development Co., 

199 S.W.2d 1004 (Tex. Civ. App. - Dallas 1947, writ ref'd n.r.e.1. 

Thus, when a person who seeks to file and record a plat has complied 

with all of the statutory requirements outlined in chapter 232 of 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 may not refuse to accept a subdivision 

plat by the subterfuge of declining to accept a dedication of streets 

and roads as proposed on a plat, if the streets and roads 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 232 of 

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. 

p. 3732 
Mr. Mike Coffey - Page 5 (JM-789) 

JIM MATTOX 

Attorney General of Texas 

MARY KXLLRR 

Executive Assistant Attorney General 

JUDGE ZOLLIE STBAXLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Don Bustion 

Assistant Attorney General 

p. 3733