Honorable llenry!*lade

District.Attorney Dallas Counts Dallas, Texas Opinion No. C-66

Re: Interpretation of Article 2372k, V.C.S., in the light of the submitted facts. Dear lir.%de:

Ina recent z-equest for the opinion of t:hisoffice, youhave in effect presented to usthe followinp fi!cts.

A real estate developer and subdivider is developinga tract of land in Dallas County that is outsidc of the city limits of any incorporated city or town in said county and is not within five~miles of the city limits of any incorporated city or town. The developer and subdivider has never submitted any plat or map of ,saiddevelopment and subdivision tothe Commissioners Court of Dallas County for their action thereon, either as to approval or disapproval, or as to.the promulgation of any standards for the construction of roads shown thereon. The County Commissioners -Court has not promulgatedany standards or specificati~ons for the'construction of roadsand drains in subdivisions of the county as authorized underArticle 2372k, V.C.S. The developer and subdivider has, however,prcsented~his plat ormap of said development and subdivision to the County Engineer of Dallas Countv and received certain oral instructions fromhim regarding the type construction for and drainane to the roads in the subdivision, butthe developer has refusrd to carry out said oral instructions for building the roads in their entirety.~ Dallas County hasa population considerably~in excess of 290,000. The County Engineer of Dallas County has orally promuiEated, since thepassage of Article 2372k, V.C.S., his own rules, regulations and standards pertaining to construction of streets and roads anddrainape in subdivisions in the county; however, his specifications and standards have been within the bounds or limits set forstandards which might be promulgated by the Commissioners Courtunder Article 2372k.

You then inyour opinion request ask the followin threequestions,

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iionorablc!Icnry!.lade, par*“: (C-66 )

"(1) Dowe have the authoritv to seek amandator? injunction compelling the developer to complete this road according to the specifications set forthby this county?
"(2) In the event you an55!ercuestion 210.1 in the negative, then is our only recourse the right toref:;seto accept this dedication?
"(3) In the event the developer continuer,to sell lots without conpletinp.this road, may he thenbe enjoined from so doing until he completes this road according to our specifications?"

In 19117in the case of Commissioners Court v. SIester, 199 S.N.2d 10011(Tex.Civ.App.1947, error ref. n.r.e.1 the Dallas Court of Civil Appeals had before ita situation wheri the Commissioners Court of ~DallasCounty refused ur.derauthority of .Article 6626,~V.C.S., to approve a subdivision plat of land located in the county for filine!‘ofsaid plat with the County Clerk. The County Clerk refused to file the subdivision plat without the Commissioners Court's approval. The Comrissioners Court had set up standards for county roads and fortheir drainape to which the subdivision plat did not conform. Itwas the Commissioners Court’s contention that it could require such conformance throuph Article 6626. .inexistence, Article 2372k, V.C.S., was not then

itbeing enacted in 1951. The subdivider sought bymandamus to cbmpel the Commissioners Court to approve the tendered plat for filing with the,County Clerk. The'Court of Civil Appeals held that the Commissioners Court lacked authority to refuse to approve~subdivision plats,for filing with the County Clerk because the roads contained thereoz did not meet county specific&ions asestablished by the Comrissioners Court,

Obviously, as a result of thisholding by the Dallas Court of CivilAppeals, the Legislature passed Article 2372k in 1951 so as to enable's commissioners court to set standards for roads in new subdivisions that must be.adhered to by subdividers before their plats would be elipible for filingwith the~CountyClerk and the roads contained thereon accepted as county roads, It is apparent that Article 2372k and Article 6626 insofar as the subdivision of land such as involved in the instant situation is concerned must b& considered inpara materia.

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.- cHonorable Henry Wade, pane 3 !!:-66)

Article 6626 reads in part:

"The following:instruments ofwriting.

. .are authorized to be recorded

. Ather instruments of writing conceriing. .
any land

. . .provided, however, that in
cases of subdivision or re-subdivision of realproperty nomap or plat of any such subdivision or re-subdivision shall be filed or recorded unless and until the same,has been authorized by the Conmissioners Court of the county inwhich the real estate is situated by order duly entered in the minutes of said Court, 1,

. . . Article 2372k applies to all counties haviny!a population in excess of'l90,OOO.

Section 1 (a) thereof provides that the Commissioners Courts of such counties mip.htrequire subdividers of land to provide for a minimum 60 foot rip.htof way fcrroads .whichare tobe included in their subdivision.

Section l-(b) provides that the Cormissioners Courts. ofsuch counties mip.htpromulgate-reasonable specifications tobe followed by the subdividers in construction OF roads and streets within their subdivision and for dracnage of such roads andstreets.

Section 2provides that the Commissioners Courts might require of the subdivider a good and sufficient bond in
.anamount up to $3.00 per lineal foot of road for'the insurance ofproper construction andmaintenance of roads in such subdivisions,.said bond conditioned that such roads be constructed inacco~rdancewith the specifications promulgated by the Commissioners Court under Section 1 (b).

Section 3provides that the Commissioners Courts ,of suchcounties are Sranted authority to refuse toapprove any subdivision plat should the plat fail to provide for aminimum 60foot right of way for roads in the subdivision and should thesubdivider fail to submit a sood and sufficient bond to insurethe contruction of roads in said subdivision i,naccordancewith specifications promulgated by the Commissioners Court underauthority of Sections 1 (b)and 2.. . .

Iionorahleilenry'Jade,pi:?24 (C-G6 )

::lhen the above two articles are considered together, we see that Article 6626 in part authorizes the County Clerk of the county where the subdivided land is located to filea subdivision plat of a tract of land situated fivemiles ormore outside of thecorporate limits of a city or town onlywhen the subdivision plat thereof has first been authorized by the Commissioners Court of the county inwhich the real estate issituated by order duly entered in theminutes of the court. Ye also see that Section 3ofArticle 2372k authorizes the Commissioners Court to refuse such approval under certain situations.

This srant of the authority to the Commissioners Court contained inArticle 2372k and Article 6626 cannot he considered
as the bestowal of some idle and superfluous authority and duty upon the Commissioners Court~of'a county which subdividers and platters of tracts of land therein mip.h?ignore if they can successfully hide their subdivision and platting work from the eves of the Commissioners Court of the county where the subdivided land lies.

It isencumbent upon such subdividers should they desire 'tohave their plats filed forrecord in the County Clerk's office and/or tohave the dedication of the streets and roads thereon accepted as "county roads"by the county to submit their plats to the Commissioners ~Courtfor its official consideration and action thereon,

Upon the submission of a'subdivision-plat to the Commissioners Court, the court may then by virute of the authority granted byArticle 2372k, promulgate reasonable standards and specifications, which are'consistent with the authority granted itby Article 2372k. Upon the fail'ureor refusal of the subdivider to Rive his bond (ifrequired) or to make his plat conforn to such requirements, the Commissioners Court should refuse to authorize the filing of sai.dplat for record.

In the instant case, no standards or specificati'ons have been promulgated by the County Commissioners Court relating to the acceptance of the dedication of streets or roads contained in theesubdivision of the tract inquestion. The subdivider has not even submitted his subdivision plat and plan for development to the Commissioners Court of Dallas County for their approval, ho legal obligations have been exchanged 'betweenthe County Commissioners Court and the subdivider in respect tohis subdivision, Obviously, ifno oblip,ations exist between the countv and the subdivider, an injunction. would not liewith the county ap.ainstthe subdivider..

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Honorable Henry !4ade,page 5 (C-66 )

Therefore, the answer to your firstquestion is no. The County Commissioners Court does not have authority to seek
amandatory injunction compelling the developer to complete his road accordinn to the specifications set forth orally by the County Engineer.

We answer your second question yes, In the event that the Commissioners Court has promulgated reasonable standards under the authority ofArticle 2312k, and the developer fails or refuses toRive his bond (ifrequired) or tomake his plat conform to such requirements, the Commissioners Court's only recourse is to refuse thedeveloper's subdivision,

We answer your third question no. The County Commissioners Court cannot enjoin the developer from sell.innlots Lthin his subdivision on the around that he has failed to complete the roads therein according to the oral specifications ofthe County Enp,ineer.

Any statements in prior Attornev General's Opinions s-2952and V-1qOl that are inconsistent with this opinion are overruled.

SUMMARY

TheCounty Commissioners Court lacks authority under Article 2372k, V.C.S. to compel a subdivider and developer, under the stated facts, to complete roads inhis subdivision according to the orally promulgated specifications of the County Enpineer.

The County'Commissioners Court cannot arbitrarily and capriciously refuse to accept a subdivider's plat for filing,with the County Clerk.

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