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 Dallas. TX. 75202.4506 2141742-8944

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

hgust 19, 1986

. Honorable 6. Bruce Curry District Attorney OpinionNo. .X+534
Re: Authority of a commissionerscourt to amend a subdivision ordinance to exempt certain kinds of subdivisions from the provisions of article 6702-l. V.T.C.S. 521Earl Garrett Street Kerrvil&e,Texas 713028

DearMr. 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,tthat a commissionerscourtby order established "minimum requirements for the laying out, design, and constructionof 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 establishingminimm requirementsrequisite to approvaland 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 landby order of Court. DivLsion of inherited property between by agreementorby action in probate. Dtirision

by gift or bequest. Divisionby sale to an adjoiningowner. Dtirision

of a tract into smaller tractsall -- _--. 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

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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 12month interval.
We conclude that,within the authoritygrantedby article 6702-1, a commissioners court may amend and change its own minimum requirements that are requisite

### to its approval and authorizationof amap or plat of a subdivision located outside the corporate limits of a city, but a commissioners court may not enact exemptions to provisions of thestate statute. The approval of maps and plats of subdivisions located outside the corporate limits of a city is governedby section 2.401 of article 6702-l.V.T.C.S.,which is theCounty Road and BridgeAct, and article 6626aa.V.T.C.S. SeeAttorneyGeneral 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 clerkwithmxltthe authorization of both the city and county. Section 2.401of article 6702-1,V.T.C.S.,provides, inpart, 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 ormore p&s for thepurpose of layingout any subdivision of any such tract of land, or an additionwithout 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 samewith respect to an originalcorner 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'hplat 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 inwhich the land lies.

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P (d) The commissionerscourtof the countymay, 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) toprovide:

for right ofway onmain artery streets or roads within such subdivision of a width of not less than 50 feet nor more than 100 feet; (2) to providtifor right of way on all other streets or roads in such subdivision of not less than 40 feetnor mclrethan 70 feet; (3) to provide that the shoulder-to-shoulder width on collectors, or onmain arterieswithin 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?rstreets or roads within such subdivisionwithin the right ofway tobe not less than 25 feetnor uclrethan 35 feet; (5) topromulgatereasonable specificationsto be followed in the constructionof any such roads or streets within such subdivision, considering the amount and kin?!of travelover said streets; (6) topromul];ate reasonable specificationsto provide adequate drainage in accordance with standard engineering practices for all roads or streets in said subdivisionor addition; (7) to require!

the owner or owners of any such tract of landwhichmay be so subdividedto give a good and sufficientbond for the proper construction of such roads or streets affected,with such sureties as may be approvedby the court. In the event a surety 'sandby a corporate surety is required, such bold shallbe executedby 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 subdividedwill construct any roads or streets withir:such subdivision in accordance with the specificationspromulgatedby and within

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a reasonable time as may be allowed by the commissioners court cf the county. The bond shallbe 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 authorizeanymap ';;r plat of any such subdivision, unless suchmap 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. (Emphasisadded). 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 implicationby the constitutionand 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 thepreparationand filing elf record of a plat by an ownerwho divided land outside a city into two ormore parts for thepurposes specified in subsection (b). SeeAttorney General Opinion JM-508 (1986). Cf. Lacy v. Huff, 633 S.=d 605, 610 (Tex.App. - Houston 114thDist.] 1982, writ ref'd n.r.e.) (requirementsof statute authorizing cities to regulate subdivisiondevelopmentare applicable to ownerwho 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 legislstureprevails. Brown v. Meeks, 96 S.W.2d 839, 842 (Tex.Civ. App. - !;rm Antonio 1936,writ dism'd).
A map or plat of a subdivisionor addition outside the corporate limits~of a city must have bseenapprovedby the county before it can be filed and recordedby the county clerk. See Property Code 512.002; Trawalter v. Schaefer, 179 :S.W.2d765 (Texx944); Attorney General Opinion JM-508 (1986). If a person who seeks to file and record a plat has compliedwith the statutoryrequirementsoutlined 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 --- DevelopmentCo., 199 S.W.2d 11004,1007 (Tex.Civ. App. - Dallas 1947, writ ref'dn.r.e.);AttorneyGeneralOpinion JM-317 (1985). See also, City of Corpus Christiv. Un:itarian Church, 436 S.W.2d 923, 927 (Tex. Civ.App. - Corpus Christi 1x168. writ ref'dn.r.e.1. Subsection (d) of section 2.401, however, expressly authorizes a commissionerscourt to establish by order the minimum requirements

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specified in subsection (d)as requirementsthat arenecessary for the county's approval of maps or plats of subdivisions outside the corporate limits of a city. The commissioners court exercises the legislativepower of the county and has the power to amend an order made in its legislativecapacity, insofaras the amendment conforms to the authoritygranted by statute and does not impairvested rights or violate other constitutionalprovisions, such as the equal protection clauseof the FourteenthAsendment of theUnited StatesConstitution. 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 officeof the county clerk.
SUMMARY

A commissione:rr;

court is authorized to amend its subdivision 'xdinance to make changes in the minimum requirementsspecified 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:sfor the purposes specified in section 2.401(b).

JIM MATTOX AttorneyGeneral of Texas JACK HIGHTOWER FirstAssistantAttorneyGeneral
MARY KELLER ExecutiveAssistantAttorneyGeneral
RICK GILPIN Chairman,Opinion Committee Preparedby Nancy Sutton AssistantAttorneyGeneral

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