Mr. Bruce Allen Opinion No. M-390 

County Attorney 

Ellis county Re: Question concerning 

Waxahachie, Texas prosecution under 

Article 1137h, Vernon's 

Dear Mr. Allen: Penal Code 

In your letter addressed to this office requesting 

an official opinion on the above-captioned matter you 

state the following: 

"Rnclosed herewith is a copy of a Deed 

which is self-explanatory. There are other 

persons in Ellis County who are conveying 

property under the same facts and circumstances. 

"Please advise If such person may be 

prosecuted under the laws of Texas? 

"If not, may the Commissioners' Court of 

Ellis County enjoin the developers from selling 

property within the subdivision until such time 

as they submit plats and gain the approval of 

the Commissioners' Court, and record such plats 

with the County Clerk; or in the alternative 

bring a suit for mandatory injunction requiring 

these developers or platters to prepare plats 

and maps for approval by the Commissioners' 

Court and to record them in the office of the 

County Clerk?" 

Your letter of request further states that Ellis 

County has a population of 43,395, which renders that 

County subject to the provisions of Article 6626a, Vernon's 

Civil Statutes, as here'nafter shown. 

The copy of the general warranty deed enclosed in your 

letter purports to convey a 1.35-acre tract out of a 

-1926- 
Mr. Bruce Allen, page 2 ( M-390) 

283.382-acre tract in the J. W. Baker Survey, Abstract 

No. 35, and the Robert Crow Survey, Abstract No. 199, 

in Ellis County, Texas, beln known as tract No. 37 of 

an unrecorded plat of said 2 8 3.382 acres, said tract of 

1.35 acres being further described by metes and bounds 

as follows: 

“BEGINNING at an iron stake in the center 

of a 15 foot road easement, North 5 de 

from the Southwest corner of said 2 8 3.3 8”” 2 acre 

tract; 

“THENCE . 

c 

giving bearing and distance 

calls, but call& or no natural objects7 to 

the place of BEGINNING and CONTAINING 1.55 acres 

of land more or less .‘I 

From a study of the description contained in said deed, 

it is believed that a surveyor could not locate tract No. 

37 on the ground without the aid of the unrecorded plat. 

It is our conclusion that tract No. 37 could be located only 

if such plat correctly describes the said 283.382-acre tract 

so that it can be located within the survey or surveys involved, or unless the total combined acreag? makin& up ooth 

surveys is the 283.382 acres in question. 

To better understand the nature of the penal offense 

under this opinion, it is necessary to set out Sections (1) 

and (2) of Article 6626a, which read as follows: 

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 

- 1927 - 
Mr. Bruce Allen, page 3 ( M-390) 

or owners of lots frontIns thereon or 

adjacent thereto, shall c&se a plat to 

be made thereof, which shall accurately 

describe all of said subdivision or adation 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 dimensions thereof of said 

subdivision 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 owners of lots fronting thereon 

or adjacent thereto, pr-o\ 

no plat of any subdivis: 

land or any addition shi 

unless the same shall= 

tided, however, that 

dimensions of all streets, alleys, squares, 

parks cr other portions of same intended to 

be dedicated to public use, or for the use 

of purchasers or owners of lots fronting 

thereon or adjacent thereto. (Emphasis added) 

“Sec. 2. That every such plat shall be 

d&y acknowledged by owners or proprietors of 

the land, or by some duly authorized agent of 

said owners or proprietors, in the manner 

required for acknowledgement of deeds; and the 

said plat, subject to the provisions coin this Act, shall be filed for record and be 

recorded in the office of the County Clerk of 

the County in which the land lies.” (Emphasix 

added) 

Section 3 of said Article authorizes the Commissioners 

Courts of such counties to adopt orders promulgating specifications to be followed in the construction of streets and 

roads within such subdivision by the platters. 

-1928- 
Mr. Bruce Allen, page 4 (M-390) 

Section 4 authorizes the Commissioners Courts of 

such counties to refuse to approve any map or plat unless 

it meets the requirements as set forth in the Act. 

Article 1137h of Vernon's Penal Code is as follows: 

"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 

"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 rea‘l 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 mae 

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. 

‘(Unphasis added.) 

“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 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." 

The case of Lizzie Tashnek v. J. Weldon Hefner, 282 

S.W.2d 298 (Tex.Civ.App. 1955 error ref. n.r.e.) was a 

civil suit for rescission of &I alleged contract of sale 

cf real estate, and it construed Article 1137h. The 

description in the alleged contract reads at page 300: 

,I 

. . . Lot 55 in Block No. 1 of Tasfield 

Subdivision No. 2, a subdivision in Harris 

-i929- 
Mr. Bruce Allen, page 5 (M-390) 

County, Texas, according to an unrecorded 

plat of said subdivision, being out of 10 

acres of land out of 210.4 acres of the 

Wiley Smith Survey on Hall's Bayou, a tributary of Green's Bayou, . . ." 

The court held at page 301: 

'We do not deem that the contract here 

involved does constitute a violation of aforesaid Article. It is noted that the nrohibition 

subdivider using .a descii tion 

dale 

~~pp~-%~$~~til the 

been filed for record with the 

County Court * * *.I This is a 

Penal statute and before one could be convicted 

or be guilty of violation thereof, one would ha 

to fall within the terms of the statute." 

(Emphasis added.) 

ve 

The contract provided for monthly payments and gave 

the vendor the right to cancel if payments were not made, 

and provided that all payments theretofore made by the 

vendee shall be forfeited to the vendor as liquidated damages 

in the event of cancellation, and further provided that the 

contract should not,,be placed of record, and expressly stated 

that the agreement shall not be construed as a conveyance or sale of the'pioperty above described but shall 

be construed as a mere agreement to sell the property. . . ." 

and further provided against assignment. The court held the 

contract in question was merely an executory contract to 

convey and not a contract of sale, and did not purport to 

pass either an equitable or legal title, and that it did not 

come within the terms of Article 1137h. 

Your question, however, involves an executed deed of 

conveyance which has been delivered and placed of record and 

cannot in any sense be referred to as being executory. It 

represents a completed transaction. 

Other questions relating to duties of the County Clerk 

as to recording statutes and as to approval of the Commissioners Court in regard to Article llj'j'h, Vernon's Penal 

-1930- - 
Mr. Bruce Allen, page 6 (M-390) 

Code are fully discussed in Attorney General Opinions 

~~-1438 (1962) and c-695 (1966). 

The Penal Code (Art. 113'7h) makes a misdemeanor 

offense of a conveyance by a subdivider where the property 

description 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. 

Therefore, under the facts and circumstances related, 

we hold that if the erson usin the subdivison description is a subdivider, -ided as ‘i A ti 1 1137 

-on's Penal Code, and if the map orn lit ia: not Geen 

authorized as is requiredTy said Artic e, and/or if the 

plat has not been filed for record as is required by said 

Article. a convevance bv and deliverv of a deed bv a subdivider-which p&ports 'to transfer ctle to the pkoperty 

to a purchaser is a violation of said Article 1137h. Consequently, your question asking whether or not such a party 

may be prosecuted is answered in the affirmative. In view 

of the above holding, your second and third questions which 

are alternative do not require an answer. 

SUMMARY 

A subdivider who transfers title to real property 

by deed which depends for its description and 

location to a reference to an unauthorized and/or 

unrecorded plat. violates Article 1137h, Vernon's 

Penal Code, and may be prosecuted for such offense. 

FAT:dc 

- 1931- 
Mr. Bruce Allen, page 7 (M-390) 

Prepared by Fisher A. Tyler 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Bill Allen 

Lox-my Zwiener 

Marvin Sentell 

Harold Kennedy 

W. V. Geppert 

Staff Legal Assistant 

Hawthorne Phillips 

Executive Assistant 

-1932- .s