JIM MAlTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12549 

Austin. TX. 75711. 2549 

51214752501 

Telex 910/974-1367 

Telecopier 51214750256 

714 Jackson, Suite 700 

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San Antonio, TX. 78205.2797 

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An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

hgust 19, 1986 

. 

Honorable 6. Bruce Curry 

District Attorney 

Opinion No. .X+534 

Re: Authority of a commissioners court 

to amend a subdivision ordinance to 

exempt certain kinds of subdivisions 

from the provisions of article 6702-l. 

V.T.C.S. 

521 Earl Garrett Street 

Kerrvil&e, Texas 713028 

Dear Mr. Curry: 

You inquire wmsther a commissioners court may amend its subdivision ordinance to exempt certain kinds of subdivisions from the 

provisions of article 6702-1, section 2.401, V.T.C.S. Your question 

is raised by the fac,t that a commissioners court by order established 

"minimum requirements for the laying out, design, and construction of 

streets, roads, parks, and other areas to be dedicated to public use 

within subdivisions or additions" lying outside the corporate limits 

of cities and towns in the county as a requisite to approval and 

authorization of ary map or plat of such subdivisions or additions. 

Subsequently, the commissioners court issued an amendment to its 

subdivision ordinmce which provides, in part, that the order 

establishing minimm requirements requisite to approval and authorization of a map or plat of a subdivision or addition outside the 

corporate limits of a city or town shall not apply to the following 

divisions: 

1. 

2. 

heirs, 

3. 

4. 

5. 

Di'rLsion of land by order of Court. 

DivLsion of inherited property between 

by agreement or by action in probate. 

Dtirision by gift or bequest. 

Division by sale to an adjoining owner. 

Dtirision of a tract into smaller tracts all 

-- _--. 

of which smaller tracts exceed twenty (20) acres 

per tract. 

6. Division of a larger tract into not more 

than three (3) smaller tracts, however said 

division of the larger tract or smaller tracts 

subdivided shall not occur more frequently than 

p. 2459 
Honorable E. Bruce Curry - Page 2 (JM-534) 

once each 12 mlxlths. Subsequent divisions of 

smaller tracts subdivided shall be subject to the 

limitation imposed on the larger tract as to 

number of smaller tracts (3) which may be subdivided in one 12 month interval. 

We conclude that, within the authority granted by article 6702-1, 

a commissioners court may amend and change its own minimum requirements that are requisite to its approval and authorization of a map or 

plat of a subdivision located outside the corporate limits of a city, 

but a commissioners court may not enact exemptions to provisions of 

the state statute. 

The approval of maps and plats of subdivisions located outside 

the corporate limits of a city is governed by section 2.401 of article 

6702-l. V.T.C.S., which is the County Road and Bridge Act, and article 

6626aa. V.T.C.S. See Attorney General Opinion .JM-365 (1985). Article 

6626aa provides thxin are,as under a city's extraterritorial jurisdiction as defined by article 970a. V.T.C.S., no plat shall be filed 

with the-county clerk withmxlt the authorization of both the city and 

county. Section 2.401 of article 6702-1, V.T.C.S., provides, in part, 

that 

(b) The owne:: of any tract of land situated 

without the corp;cate limits of any city in the 

State of Texas, &o may hereafter divide the same 

in two or more p&s for the purpose of laying out 

any subdivision of any such tract of land, or an 

addition without ihe 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 pubMc use, or the use of purchasers 

or owners of lots fronting thereon or adiacent 

thereto, shall cause a pla; to be made thireof, 

which shall accu.%tely describe all of said subdivision or addition by metes and bounds and 

locate the same with respect to an original corner 

of the original survey of which it is a part, 

giving the dimewions of said subdivisions or 

addition and the dimensions of all lots, streets, 

alleys, parks, or other portions of same intended 

to be dedicated to public use or for the use of 

purchasers or owxxs of lots fronting thereon or 

adjacent thereto. , . . 

(c) Every suc'h plat shall be duly acknowledged . . . sk!ct to the provisions contained 

in this section,- such plat shall be filed for 

record and be recorded in the office of the county 

clerk of the coun'y in which the land lies. 

p. 2460 
, 

Honorab1e.E. Bruce Curry - Iage 3 (JM-534) 

P 

(d) The commissioners court of the county may, 

by an order duly adopted and entered upon the 

minutes of the court, after a notice published in 

a newspaper of gezeral circulation in the county, 

be specifically authorized to make the following 

requirements: 

(1) to provide: for right of way on main artery 

streets or roads within such subdivision of a 

width of not less than 50 feet nor more than 100 

feet; 

(2) to providti for right of way on all other 

streets or roads in such subdivision of not less 

than 40 feet nor mclre than 70 feet; 

(3) to provide that the shoulder-to-shoulder 

width on collectors, or on main arteries within the 

right of way be not less than 32 feet nor more 

than 56 feet; 

(4) to provide for the shoulder-to-shoulder 

width on all othl?r streets or roads within such 

subdivision within the right of way to be not less 

than 25 feet nor uclre than 35 feet; 

(5) to promulgate reasonable specifications to 

be followed in the construction of any such roads 

or streets within such subdivision, considering 

the amount and kin?! of travel over said streets; 

(6) to promul];ate reasonable specifications to 

provide adequate drainage in accordance with 

standard engineering practices for all roads or 

streets in said subdivision or addition; 

(7) to require! the owner or owners of any such 

tract of land which may be so subdivided to give a 

good and sufficient bond for the proper construction of such roads or streets affected, with such 

sureties as may be approved by the court. In the 

event a surety 'sand by a corporate surety is 

required, such bold shall be executed by a surety 

company authorizead to do business in the State of 

Texas. Such bond shall be made payable to the 

county judge or his successors in office, of the 

county wherein scch subdivision lies, and conditioned that the owner or owners of any such tract 

of land to be subdivided will construct any roads 

or streets withir: such subdivision in accordance 

with the specifications promulgated by and within 

p. 2461 
Ronorable E. Bruce Curry - Eage 4 (JM-534) 

a reasonable time as may be allowed by the commissioners court cf the county. The bond shall be 

in such an amount as may be determined by the 

commissioners court not to exceed the estimated 

cost of constructi,ng such roads or streets. 

(e) The comudssioners court of the county 

shall have the a&ority to refuse to approve and 

authorize any map ';;r plat of any such subdivision, 

unless such map o:Eplat meets the requirements as 

set forth in this section and there is submitted 

at the time of a&oval of such map or plat such 

bond as may bt? required by this -section. 

(Emphasis added). 

The platting requirements o:? article 6702-l apply to the divisions of 

land into two or more parts for the purposes specified in subsection 

(b) . 

It is well established that a county commissioners court 

possesses only the powers c:onferred either expressly or by necessary 

implication by the constitution and statutes of this state. See Tex. 

Const. art. V, 518; Canales v. Laughlin, 214 S.W.2d 451, 453(Tex. 

1948). We are not aware of any statute that gives a county the power 

to enact exemptions to the provisions of article 6702-l that require 

the preparation and filing elf record of a plat by an owner who divided 

land outside a city into two or more parts for the purposes specified 

in subsection (b). See Attorney General Opinion JM-508 (1986). Cf. 

Lacy v. Huff, 633 S.=d 605, 610 (Tex. App. - Houston 114th Dist.] 

1982, writ ref'd n.r.e.) (requirements of statute authorizing cities 

to regulate subdivision development are applicable to owner who sought 

to divide lot into two 10,:s). When an order of the commis~sioners 

court conflicts with a proper legislative act, the order must give 

way; the act of the legislsture prevails. Brown v. Meeks, 96 S.W.2d 

839, 842 (Tex. Civ. App. - !;rm Antonio 1936, writ dism'd). 

A map or plat of a subdivision or addition outside the corporate 

limits~of a city must have bseen approved by the county before it can 

be filed and recorded by the county clerk. See Property Code 512.002; 

Trawalter v. Schaefer, 179 :S.W.2d 765 (Texx944); Attorney General 

Opinion JM-508 (1986). If a person who seeks to file and record a 

plat has complied with the statutory requirements outlined in section 

2.401 of article 6702-l. approval and filing of the plat becomes a 

mere ministerial duty. Eee Commissioners Court v. Frank Jester --- 

Development Co., 199 S.W.2d 11004, 1007 (Tex. Civ. App. - Dallas 1947, 

writ ref'd n.r.e.); Attorney General Opinion JM-317 (1985). See also, 

City of Corpus Christi v. Un:itarian Church, 436 S.W.2d 923, 927 (Tex. 

Civ. App. - Corpus Christi 1x168. writ ref'd n.r.e.1. 

Subsection (d) of section 2.401, however, expressly authorizes 

a commissioners court to establish by order the minimum requirements 

p. 2462 
Honorable E. Bruce Curry - Page 5 (JM-534) 

specified in subsection (d) as requirements that are necessary for the 

county's approval of maps or plats of subdivisions outside the 

corporate limits of a city. The commissioners court exercises the 

legislative power of the county and has the power to amend an order 

made in its legislative capacity, insofar as the amendment conforms to 

the authority granted by statute and does not impair vested rights or 

violate other constitutional provisions, such as the equal protection 

clause of the Fourteenth Asendment of the United States Constitution. 

Hence, it is our opinion that, to the extent authorized by 

article 6702-l. section 2.401, a commissioners court may amend its 

minimum requirements that are requisite for its approval of subdivision plats, but it ma!' not exempt certain kinds of subdivisions 

from the provisions of article 6702-1, section 2.401, that require 

owners who divide land into two or more parts for the purposes 

specified in section 2.40:.(b) to file a plat for recording In the 

office of the county clerk. 

SUMMARY 

A commissione:rr; court is authorized to amend 

its subdivision 'xdinance to make changes in the 

minimum requirements specified in section 2.401(d) 

of article 6702-I., V.T.C.S., which are enacted as 

requirements necessary for the county's approval 

of maps and plat!; of subdivisions located outside 

a city. A commis:sioners court may not amend its 

subdivision ordinance to exempt certain kinds of 

subdivisions from the provisions of section 2.401 

that require an owner to prepare and file a plat 

when land located outside a city is divided into 

two or more parl:s for the purposes specified in 

section 2.401(b). 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Nancy Sutton 

Assistant Attorney General 

p. 2463