. 

RE &l-l-O EY GEXERAL 

OF EXAS 

September 1, 1987 

Honorable George Pierce 

Chairman 

Opinion No. JM-781 

Texas Committee on Urban Affairs Re: Whether an individual may 

House of Representatives divide and sell a tract of land 

P. 0. Box 2910 which is located on an existing 

Austin, Texas 78769 county road without complying 

with plat approval requirements 

and related questions 

Dear Representative Pierce: 

You ask the following questions: 

1. Can an individual divide a tract into two 

or more parcels and sell same without complying 

with plat approval requirements where such lands 

are located on an existing county road and no 

roads are contemplated within the land to be subdivided? 

2. Can an individual who divides a tract into 

two or more tracts sell such lands by metes and 

bounds with the creation of a private road within 

the land subdivided without completion of plat 

approval requirements? This question assumes that 

no portion of lands divided shall be dedicated to 

public use. 

3. What is the authority of the city within 

its ETJ to require plats where such lands to be 

subdivided contain no road dedicated for public 

use and are adjacent to an existing county road? 

4. What is the authority of the city within 

its ETJ to require plats for subdivisions where a 

tract is divided into two or more parcels and an 

individual proposes to sell such lands by metes 

and bounds without dedication of public roads? 

Section 2.401 of the County Road and Bridge Act, article 6702-1, 

p. 3678 
Honorable George Pierce - Page 2 (JM-781) 

v.T.c.S.~ provides: 

Sec. 2.401. (a) This section applies to each 

county of the state except a county that elects to 

operate under Section 2.402 of this Act. 

(b) The owner of any tract of land situated 

without the corporate limits of any city in the 

State of Texas, 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 an 

addition without the corporate limits of any town 

or city, or for laying out suburban lots or building lots, and for the purpose of laying out 

streets, alleys, - or parks, or other portions 

intended for public use, or the use of purchasers 

or owners of lots fronting thereon or adjacent 

thereto, shall cause a plat to be made 

thereof. . . . (Emphasis added.) 

Article 974a, V.T.C.S., provides: 

Section 1. Bereafter every owner of any tract 

of land situated within the corporate limits, or 

within five miles of the corporate limits of any 

city in the State of Texas, who may hereafter 

divide the same in two or more parts for the purpose of laying out any subdivision of any tract of 

land or any addition to any town or city, or for 

laying out suburban lots or building lots, .or any 

lots, and streets, alleys or parks or other portions intended for public use, or the use of 

purchasers or owners of lots fronting thereon or 

adjacent thereto, shall cause a plat to be made 

thereof. . . . ~(Emphasis added.) 

In Attorney General Opinion JM-365 (1985) the matter of the 

phrase "within five miles of the corporate limits" contained in 

section 1 of article 974a was considered. There it was stated: 

Attorney General Opinion m-121, issued in 

1. Sections 2.401 and 2.402 of Art. 6702-l. V.T.C.S. and 

articles 970a and 974a. V.T.C.S., cited in this opinion are codified 

in the Local Government Code without substantive change enacted by 

Acts 1987, 70th Leg., Chapter 149, effective September 1, 1987. 

p. 3679 
, 

Ronorable George Pierce - Page 3 (JM-781) 

C 

December 1983, concluded that, notwithstanding 

that articles 974a and 6626, V.T.C.S.. provided 

for city approval of subdivision plats within five 

miles of the corporate limits of a city, the 

amendment and enactment of articles 6626a [now 

section 2.401 of article 67021 and 6626aa, 

respectively, by chapter 327 impliedly repealed 

the five-mile range and provided instead that a 

citv mav not exercise slat amroval autharitv outside the city's extraterritorial jurisdiction as 

that area is determined by article 970a. It is 

our opinion that 'said extraterritorial jurisdiction' within the meaning of article 6626aa is a 

city's extraterritorial jurisdiction as determined 

by article 970a. Article ,6626a expressly states 

that in areas under, a city's extraterritorial 

jurisdiction as defined by article 970a, a plat 

- 

.- . . may not be filed without the authorization of both 

the city and the county. (Emphasis added.) 

Under article 970a, V.T.C.S., the extra-territorial jurisdiction 

of a city is determined by its population. Section 2.402 of article 

6702-I applies to each county "that has a population of more than 2.2 

million or is contiguous with a county with a population of lhore than 

2 . 2 million" and, insofar as pertinent to the issues herein, contains 

the same language as both section 2.401 of section 6702-l and article 

974a. 

In Attorney General Opinion JM-508 (1986) the developers had not 

attempted to file a map or plat of a subdivision. In that opinion it 

was stated: 

[Tlhe legislature has determined that, if the 

owner of a tract of land who divides the same in 

two or more parts 

for the purpose of laying out any subdivision 

.of any tract of land or any addition to any 

town or city, or for laying out suburban lots 

or building lots, or any lots, and streets, 

alleys or parks or other portions intended for 

public use, or the use of purchasers or owners 

of lots frontina thereon or adtacent thereto. 

[then he] shali cause a pla; to be mad; 

thereof. . . . 

P 

V.T.C.S. art. 974a. §I. Whether the developers 

filed the deeds and dedicatory certificates for 

.one of the above purposes is a question of fact 

p. 3680 
Honorable George Pierce - Page 4 (JM-781) 

this office is not authorized to answer. 

(Emphasis added.) 

"Subdivision" and "public use" are not given statutory definitions. 

In City of Weslaco v. Carpenter, 694 S.W.2d 601, 603 (Tex. App. - 

Corpus Christ1 1985, writ ref'd n.r.e.) the court stated "a 

'subdivision' of property may refer simply to the act of partition 

itself, regardless of whether an actual transfer of ownership -- or 

even an intended transfer of ownership -- occurs." The Texas Supreme 

Court in Coastal States Gas Producing Company v. Pate, 309 S.W.2d 828 

(Tex. 1958) in examining the meaning of the words "public use" stated: 

No hard and fast rule can be laid down for 

determining public use. however, and each case is 

usually decided upon the basis of its own facts 

and circumstances. 

. 309 S.W.2d at 833. 

In Attorney General Opinion JM-508 it was stated: 

Your sixth question involves the application of 

article 6626c, V.T.C.S. The provision provides: 

Section 1. No party shall file for record 

or have recorded in the official records in the 

County Clerk's office any map or plat of a subdivision or resubdivision of real estate without first securing approval therefor as may be 

provided by law, and no party so subdividing or 

resubdividing any real estate shall use the 

subdivision's or resubdivision's description in 

any deed of conveyance or contract of sale 

delivered to a purchaser unless and until the 

map and plat of such subdivision or resubdivision shall have been duly authorized as aforesaid and such map and plat thereof has actually 

been filed for record with the Clerk of the 

County Court of the county in which the real 

estate is situated. 

Sec. 2. Any party violating any provision 

of Section 1 of this Act shall be guilty of a 

misdemeanor and upon conviction thereof shall 

be fined in a sum not less than Ten Dollars 

($10.00) nor more than Five Hundred Dollars 

($500.00), or confined in the county jail not 

exceeding ninety (90) days, or both such fine 

and imprisonment, and each act of violation 

-, 

1 

p. 3681 
,- 

Honorable George Pierce - Page 5 (JM-781) 

shall constitute a separate offense, and in 

addition to the above penalties, any violation 

of the provisions of Section 1 of this Act 

shall constitute prima facie evidence of an 

attempt to defraud. (Emphasis added.) 

This article was transferred from article 1137h of 

Vernon's Penal Code by authority of section 5 of 

Acts 1973, 63rd Leg., ch. 399, at 995, enacting 

the new Penal Code. A person may be prosecuted 

under article 6626~. V.T.C.S., in two separate 

circumstances. First, for the act of recording, 

and secondly, for the act of selling property 

making a reference to an unrecorded map or plat. 

In Attorney General Opinion M-390 (1969), this 

office held that the second circumstance 

makes a misdemeanor offense of a convevance bv 

a subdivider where the property des&iptioh 

depends for its location upon reference to a 

subdivision plat which has not been duly 

authorized as provided by law and/or has not 

been filed for record. Use of the subdivision 

description is not cured by additional metes 

and bounds descriptions, which in themselves 

must rely upon the unrecorded plat for location 

of the property on the ground. (Emphasis 

added.) 

We Are of the opinion that the answer to your first question 

depends on the facts and circumstances of the individual case. For 

example, we believe that it is highly unlikely that the courts would 

hold that a plat is required where an owner of ranch or farm land in a 

sparsely populated rural area sold a single tract of land under the 

scenario you have outlined. Your first question is broad enough to 

include a division of a tract "into two or more parcels" in a densely 

populated area near a crowded city resulting in the need of city 

services and creating problems detrimental to the public interest. 

The answer to your first question depends upon a factual determination 

on a case by case basis that is not within the province of this 

office. 

We are of the opinion that a court would look beyond the facade 

created by the designation "private road" and the absence of any parts 

of the divided land being dedicated to public use in determining 

whether the land could be subdivided without compliance of plat 

approval requirements. The absence of any dedication of land for 

public use, standing alone, does not dispense with the necessity of 

complying with plat requirements. Both statutes quoted above refer to 

p. 3682 
Honorable George Pierce - Page 6 (JM-781) 

land "intended for public use," not to land "dedicated to public use." 

Additionally, both statutes refer to land "intended for public use, or 

the use of purchasers or owners." 

We believe this conclusion to be supported by the opinion in City 

of Weslaco v. Carpenter, where the land owner claimed that his land 

was being used as a "rental park" and not a "subdivision" and was not 

subject to the city's extraterritorial jurisdiction. The court 

stated: 

In arguing that the only issue before us is 

whether his conduct has created a 'subdivision,' 

appellee argues that the 'ordinary understanding' 

of the term 'subdivision' must be construed as 

requiring the land to be split into at least two 

different lots which are owned by different 

people. He states that the purpose of his 

development is merely to rent. spaces rather than 

to sell lots, and contends that transfer of 

ownership is needed before a 'one-lot project' can 

be 'subdivided.' Thus, a mere splitting of title 

by lease or rent is insufficient to create a 

'subdivision.' We find appellee's reasoning 

overly narrow. 

The normal, common-sense meaning of the term 

'subdivision' is expressed in Black's Law Dictionary (5th ed. 1979) as '[dlivision into smaller 

parts of the same thing -or subject-matter. The 

division of a lot, tract or parcel of land into 

two nor more lots, tracts, parcels or other divisions of land for sale or development.' 

A similar interpretation was expressed in the 

case of City of Corpus Christ1 v. Unitarian 

Church, 436 S.W.2d 923 (Tex. Civ. App. - Corpus 

Christ1 1968, writ ref'd n.r.e.1, [involved city 

withholding approval of plat filed by church] in 

which this court considered the following language 

of Tex. Rev. Civ. Stat. Ann. art. 974a, 91 (Vernon 

1963): 

Hereafter, every owner of any tract of 

land situated within the corporate limits 

. . . who may hereafter divide the same in two 

or more parts for the purpose of laying out any 

subdivision of any tract of land or any addition to any . . . city, or for laying out suburban lots or building lots, . . . shall cause 

a plat to be made thereof. . . . 

p. 3683 
Honorable George Pierce - Page 7 (JM-781) 

" 

We then stated that: 

The language of Section 1 of Art. 974 is 

plural and relates to a division of property 

into parts. The same is true of the City 

Charter and the applicable provisions of its 

ordinances. It contemplates subdivision for 

subdivision development purposes. . . . 

. . . . 

[3] The injunction sought by appellant 

arises not only from proper interpretation @ 

pertinent statutes and ordinances but also asa 

valid exercise of appellant's police power, 

which by its very nature involves the regulation of-subdivi&n development 'to prevent the 

use thereof in a manner that is detrimental to 

the public interest. The police power may be 

loosely described as the power of the sovereign 

to prevent persons under its jurisdiction from 

conducting themselves or using their property 

to the detriment of the general welfare.' 

Du p u y v. City of Waco, 396 S.W.2d 103, n. 3 

(Tex. 1965); city of Corpus Christ1 v. 

Unitarian Church, 436 S.W.2d at 910. Appellee 

seeks to provide 128 rental spaces on an 8.17 

acre lot. The concomitant need for city 

services, in addition to the predictable problems generated by such intensive population of 

the land, justify appellant's use of its police 

power in protecting the general welfare. See 

City of Round Rock v. Smith, 687 S.W.2d 300 

(Tex. 1985). (Emphasis added.) 

C 

694 S.W.2d at 603, 604. 

We believe the division of a "tract into two or more tracts" and 

its sale by "metes and bounds" with "a private road within the land" 

would suggest to the fact finder that the subdivision is for public 

use or the use of the purchasers or owners of the land. In light of 

City of Weslaco v. Carpenter, we find it difficult to believe that a 

court would not find that completion of plat approval requirements was 

required under this scenario. See also Gifford v. Planning Board of 

Nantucket, 383 N.E.2d 1123 (Mass. 1978). 

We do not believe that the answer to your third question will be 

controlled solely on the basis of whether the lands subdivided are 

adjacent to an existing county road and an absence of roads dedicated 

p. 3684 
Honorable George Pierce - Page 8 (~~-781) 

. 

for public use. In determining the authority of the city in City of 

Weslaco v. Carpenter, the court carefully considered all the facts and 

circumstances therein in reaching its opinion. We believe the resolution of this question depends on a factual determination as pointed 

out in Attorney General Opinion JM-508. 

In your fourth question you inquire about the "authority of the 

city within its ETJ to require plats for subdivisions where a tract is 

divided into two or more parcels" and a sale is contemplated "by metes 

and bounds without dedication of public roads." We believe our 

analyses to the previous questions dictate that it is unlikely that a 

court would hold that it was not within a city's authority to require 

plats for subdivisions under this scenario. 

SUMMARY 

Whether an individual divides a tract into two 

or more parcels for one of the purposes set out in 

section 2.401 of article 6702-l. V.T.C.S., article 

974a, V.T.C.S.. or section 2.402 of article 

6702-l. V.T.C.S., and can sell same without being 

required to comply with plat approval requirements 

is a question of fact this office is not authorized to answer. While the absence of a dedication 

of any parts of the divided land to public use is 

a relevant circumstance, it is our opinion that a 

court's decision will not turn on the presence or 

absence of this factor. The resolution of this 

issue by the courts will, in our judgment, be 

governed by the facts and circumstances of each 

individual case. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

p. 3685