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 acopy of aDeed which is self-explanatory. There are other persons in Ellis County whoare conveying property under the samefacts and circumstances. "Please advise If such person maybe prosecuted under the laws of Texas? "If not, maythe 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 asuit for mandatory injunction requiring these developers or platters to prepare plats andmapsfor 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 apopulation of 43,395, which renders that County subject to the provisions of Article 6626a, Vernon's Civil Statutes, as here'nafter shown. Thecopy 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 CrowSurvey, Abstract No. 199, in Ellis County, Texas, beln knownas tract No. 37of anunrecorded plat of said 23.382 acres, said tract of 8 1.35 acres being further described bymetes andbounds as follows:

“BEGINNINGat aniron stake in the center of a 15foot road easement, North 5 de 8 8”” from the Southwest corner of said 23.3 2acre tract;

“THENCE

. cgiving bearing anddistance calls, but call& or no natural objects7 to the place of BEGINNINGand CONTAINING1.55 acres of land more or less

.‘I Fromastudy of the description contained in said deed, it is believed that asurveyor could not locate tract No. 37 on the ground without the aid of the unrecorded plat. It is our conclusion that tract No. 37could 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&upooth surveys is the 283.382 acres in question. Tobetter 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, andfor 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 aplat to be made thereof, which shall accurately describe all of said subdivision or adation by metes andbounds and locate the samewith respect to anoriginal 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\ noplat of any subdivis: land or any addition shi unless the sameshall= 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 someduly authorized agent of said owners or proprietors, in the manner required for acknowledgement of deeds; andthe said plat, subject to the provisions coin this Act, shall be filed for record andbe recorded in the office of the County Clerk of the County in which the land lies.” (Emphasix added) Section 3of 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 4authorizes the Commissioners Courts of such counties to refuse to approve anymapor plat unless it meets the requirements as set forth in the Act. Article 1137h of Vernon's Penal Code is as follows: "Section 1. Noparty shall file for record or have recorded in the official records in the County Clerk's office anymapor plat of asubdivision or resubdivision of real estate without first securing approval therefor as may "Section 1. Noparty shall file for record or have recorded in the official records in the County Clerk's office anymapor plat of asubdivision or resubdivision of real estate without first securing approval therefor as may be provided bylaw, andno party so subdividing or resubdividing any rea‘l estate shall use the subdivision's or resubdivision's description in anydeed of conveyance or contract of sale delivered to apurchaser unless and until the mae and plat of such subdivision or resubdivision shall~have been duly authorized as aforesaid and such mapandplat 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. Anyparty violating anyprovision of Section 1of this Act shall be guilty of a misdemeanor andupon conviction thereof shall be fined in asumnot 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 aseparate offense, andin addition to the above penalties any violation of the provisions of Section 1of this Act shall constitute prima facie evidence of an attempt todefraud." The case of Lizzie Tashnek v. J. Weldon Hefner, 

### 282 S.W.2d 298 (Tex.Civ.App. 1955 error ref. n.r.e.) wasa civil suit for rescission of &Ialleged contract of sale cf real estate, and it construed Article 1137h. The description in the alleged contract reads at page 300:

,I

. . .Lot 

### 55in Block No. 1of Tasfield Subdivision No. 2, asubdivision 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 onHall's Bayou, atributary of Green's Bayou,

. . ." The court held at page 301: 'Wedonot deemthat the contract here involved does constitute aviolation of aforesaid Article. It is noted that the nrohibition

subdivider using .adescii tion dale ~~pp~-%~$~~til the been filed for record with the County Court * * *.I This is a Penal statute andbefore 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, andprovided that all payments theretofore madeby 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, andexpressly stated that the agreement shall not be construed as a conveyance or sale of the'pioperty above described but shall be construed as amere agreement to sell the property.

. . ." andfurther provided against assignment. Thecourt held the contract in question wasmerely an executory contract to convey andnot a contract of sale, anddid not purport to pass either anequitable or legal title, andthat it did not comewithin the terms of Article 1137h. Your question, however, involves anexecuted deed of conveyance which has been delivered andplaced of record and cannot in any sense be referred to as being executory. It represents acompleted 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) andc-695 (1966). The Penal Code (Art. 113'7h) makes amisdemeanor offense of aconveyance byasubdivider 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 byadditional metes andbounds descriptions, which in themselves must rely upon the unrecorded plat for location of the property onthe ground. Therefore, under the facts andcircumstances related, wehold that if the erson usin the subdivison description is asubdivider, as -ided ‘i Ati 1 1137 -on's Penal Code, and if the maporn 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. aconvevance bv anddeliverv of adeed bv asubdivider-which p&ports 'to transfer ctle to the pkoperty to apurchaser is aviolation of said Article 1137h. Consequently, your question asking whether or not such aparty maybe prosecuted is answered in the affirmative. In view of the above holding, your second and third questions which are alternative donot require ananswer. SUMMARY Asubdivider whotransfers title to real property by deed which depends for its description and location to areference to anunauthorized and/or unrecorded plat. violates Article 1137h, Vernon's Penal Code, andmaybe prosecuted for such offense.

FAT:dc

-1931-Mr. Bruce Allen, page 

### 7 (M-390)

Prepared by Fisher A. Tyler Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Bill Allen Lox-myZwiener Marvin Sentell Harold Kennedy W.V. Geppert Staff Legal Assistant Hawthorne Phillips Executive Assistant

-1932- .s