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RE &l-l-O EY GEXERAL OF EXAS
September1, 1987

HonorableGeorge Pierce Chairman OpinionNo. JM-781
Texas Committee on UrbanAffairs Re: Whether an individualmay 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 relatedquestions
Dear RepresentativePierce:
You ask the followingquestions:

1. Can an individual divide a tract into two or more parcels and sell same without complying with plat approval requirementswhere such lands are located on an existing county road and no roads are contemplatedwithin the land to be subdivided? 2. Can an individualwho 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 approvalrequirements? This questionassumes that no portion of lands divided shall be dedicated to publicuse. 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 countyroad? 4. What is the authority of the city within its ETJ to requireplats for subdivisionswhere a tract is divided into two or more parcels and an individual proposes to sell such lands by metes andboundswithout dedicationof public roads? Section 2.401 of the County Road and BridgeAct, article 6702-1,

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v.T.c.S.~provides:

Sec. 2.401. (a)This section applies to each countyof the state except a county that elects to operateunder Section 2.402 of thisAct. (b)The owner of any tract of land situated without the corporate limits of any city in the State of Texas, who may hereafterdivide the same in two ormore parts for thepurpose 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.
. . . (Emphasisadded.) 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 subdivisionof any tract of land or any addition to any town or city, or for laying out suburban lots or building lots, .orany 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.
. . . ~(Emphasisadded.)
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 974awas considered. There itwas 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, 70thLeg., Chapter 149,effectiveSeptember 1, 1987.

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C
December 1983, concluded that, notwithstanding that articles 974a and 6626, V.T.C.S.. provided for city approvalof subdivisionplatswithin 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 citvmav not exerciseslat amroval autharitvoutside 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'sextraterritorialjurisdictionas determined by article 970a. Article ,6626aexpressly states that in areas under,a city's extraterritorial jurisdiction as defined by article 970a, a plat

- .- .. may not be filedwithout the authorizationof both the city and the county. (Emphasisadded.) Under article 970a, V.T.C.S., the extra-territorialjurisdiction of a city is determinedby its population. Section 2.402 of article 6702-I applies to each county "thathas a population of more than 2.2 million or is contiguouswith a countywith a population of lhorethan 2 2million" and, insofar as pertinent to the issuesherein, contains

. the same languageas both section 2.401 of section 6702-l and article 974a.
In Attorney General Opinion JM-508 (1986)the developershad 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 ormore 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 .oneof the above purposes is a question of fact

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this office is not authorized to answer. (Emphasisadded.) "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 StatesGas Producing Companyv. Pate, 309 S.W.2d 828 (Tex.1958) in examining themeaning of thewords "publicuse" stated:

No hard and fast rule can be laid down for determiningpublic use. however, and each case is usually decided upon the basis of its own facts and circumstances.

. 309 S.W.2d at 833.

InAttorneyGeneral OpinionJM-508 itwas stated:

Your sixth question involvesthe applicationof article 6626c,V.T.C.S. The provisionprovides:

Section 1. No party shall file for record or have recorded in the officialrecords in the CountyClerk's office anymap or plat of a subdivision or resubdivision of real estatewithout first securing approval therefor as may be providedby law, andno party so subdividingor resubdividing any real estate shall use the subdivision'sor resubdivision'sdescription 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 authorizedas aforesaidand suchmap andplat thereofhas 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 partyviolating anyprovision 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 exceedingninety (90) days, or both such fine and imprisonment, and each act of violation -,

1

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shall constitute a separate offense, and in addition to the above penalties, anyviolation of the provisions of Section 1 of this Act shall constitute prima facie evidence of an attempt todefraud. (Emphasisadded.) This articlewas transferredfromarticle 1137hof 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 unrecordedmap or plat. In Attorney General Opinion M-390 (1969), this officeheld that the secondcircumstance makes a misdemeanor offense of a convevancebv 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 relyupon theunrecordedplat 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 thata plat is requiredwhere an owner of ranch or farm land in a sparselypopulated rural area sold a single tract of land under the scenario you have outlined. Your first question is broad enough to includea division of a tract "into two ormore 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 toyour first questiondependsupon a factualdetermination 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 createdby thedesignation "privateroad" and the absenceof anyparts 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 complyingwith plat requirements. Both statutesquotedaboverefer to

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land "intended forpublicuse,"not to land "dedicatedtopublicuse." Additionally,both statutesrefer to land "intendedforpublicuse, or theuse of purchasersor owners."
We believe this conclusionto be supportedby the opinion inCity of Weslaco v. Carpenter, where the land owner claimed that his land was being used as a "rentalpark" 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 'ordinaryunderstanding' 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 isneededbefore a 'one-lotproject' can be 'subdivided.' Thus, a mere splittingof title by lease or rent is insufficient to create a 'subdivision.' We find appellee's reasoning overlynarrow. The normal, common-sense meaning of the term 'subdivision'is expressed in Black'sLaw 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 twonormore lots, tracts, parcels or other divisions of land for sale or development.'
A similar interpretationwas 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 consideredthe 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 ormore parts for thepurpose 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 tobe made thereof.
. . .

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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 subdivisiondevelopmentpurposes. . . .

. . . . [3] The injunction sought by appellant arises not only from proper interpretation@ pertinent statutesand ordinancesbut also asa valid exercise of appellant's police power, which by its very nature involves the regulation of-subdivi&n development 'toprevent the use thereof in a manner that is detrimental to the public interest. The police power may be looselydescribedas thepower of the sovereign to prevent persons under its jurisdiction from conducting themselves or using their property to the detriment of the general welfare.' p y v. City of Waco, Du u 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 generatedby such intensivepopulationof the land, justify appellant'suse of itspolice power in protecting the general welfare. See City of Round Rock v. Smith, 687 S.W.2d 300 (Tex. 1985). (Emphasisadded.) C

694 S.W.2dat 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 courtwould not find that completionof plat approvalrequirementswas required under this scenario. See also Gifford v. Planning Board of Nantucket, 383N.E.2d 1123 (Mass. 1978).
We do not believe that the answer to your third questionwill be controlled solely on the basis of whether the lands subdivided are adjacent to an existing county road and an absence of roads dedicated

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for public use. In determining the authority of the city in City of Weslaco v. Carpenter,the court carefully consideredall the facts and circumstancestherein in reaching its opinion. We believe the resolution of this question depends on a factual determination as pointed out inAttorney GeneralOpinion JM-508.
In your fourth question you inquire about the "authority of the citywithin its ETJ to requireplats for subdivisionswhere a tract is divided into two ormore parcels" and a sale is contemplated "bymetes and bounds without dedication of public roads." We believe our analyses to the previous questionsdictate that it is unlikely that a courtwould hold that it was not within a city's authority to require plats for subdivisionsunder this scenario.
SUMMARY Whether an individual divides a tract into two ormore parcels for one of thepurposes 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 samewithout being required to complywith plat approvalrequirements 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 decisionwill 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 individualcase.

JIM MATTOX AttorneyGeneral of Texas
MARY KELLER ExecutiveAssistantAttorney General
JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General
RICKGILPIN Chairman,Opinion Committee Preparedby Tom G.Davis AssistantAttorneyGeneral

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