2%~ ATPOWNEY GENE-L 

cwTEx~s 

PRICE DANIEL 

ATTORNEY GENERAL 

Hon. A. C. Winborn 

District Attorney 

Harris County 

Houston, Texas 

Attn: Hon. W. K. Richardson 

Opinion No. V-624 

Dear Sir: 

Re: Authority of County Clerk 

to record a map of a subdivision within,and approved by the off.icers of, 

a town of less than 25,000 

without approval ef same 

by officers of a city ef 

over 25,000, within 5 miles 

of such subdivision. 

We refer to your request for an opinion on 

the following question: 

The governing body of Jacinto City in 

Harris County, a city incorporated under 

general law, approved a map of a subdivision of land situated in said city, outside 

of but within five miles of the incorporated city of Houston which has a population 

of more than 25,000. 

Is it necessary that the City Planning 

Commission of the city. of Houston or the 

Commissioners’ Court of Harris Co,unty opprove the said map to authoriz.ethe County 

Clerk of Harris County to file’, and record 

such map in the office of~,the County Clerk 

of Harris County? 

The Acts involved, in your request are Vernon’s Civil Statutes, Articles 974a, enacted in 1927, 

and 6626, as amended fin 1931. 
Hon. A. C. Winborn - Page 2 (V- 624 ) 

The pertinent parts of Article 974a read in 

part: 

"Sec. 3. That it shall be unlawful 

for the County Clerk of any county in which 

such land lies to receive or record any 

such plan, plat or replat, unless and until the same shall have been approved by 

the City Planning Commission of any city affected by this Act, if said city have a City 

Planning Commission and if it have no City 

?lanning Commission, unless and until the 

said plan, plat or replat shall have been approved by the governing body of such city. 

"Sec. 4. IS such plan or plat, or replat shall conform to the general plan of 

said city and its streets, alleys, parks, 

playgrounds and public utility facilities, 

including those which have been or may be 

laid out, and to the general plan for the 

extension of such city and of its roads, 

streets and public highways within said city 

Pm ithin fi 

iiLLLa/ 

e riles of the corworate l&g= 

and,extensi& 

regard being had ,for access to 

of sewer and water mains and 

the instrumentalities of public utilities, 

aad if same shall conform to such Penera.& 

rules and reculations, if anv. governing 

nlat and subdivisions of land fallina within ifs jurisdiction as the aoverning bodv of 

such citv mav adont and nromulgate to promote the health, safety, morals or general 

welfare of the community, and the safe, orderly and healthful development of said CORmunity (wh ( c er 

for said DurDoses such cities are herebv authorized to adont and wromulsate after vublit hearing held thereon). then it shall be 

the duty of said City Plannine Commission or 

of the governing bodv of such citv. as the 

case mav be. to endorse awnroval unon the 

plan, alat or reDlat submitted to it.” 

In June 1931, the Supreme Court approved an 

opinion by the Commission of Appeals in the case of 

Hollis, County Clerk v. The Parkland Corporation, 120 

Tex. 531, 40 S. W. (2d) 53, pertaining to the duty of 

the County Clerk concerning the filing and recording of 
Hon. A. C. Winborn - rage 3 (V-624) 

maps of subdivisions. The Court said: 

“Putting aside the crave censtitutiomal, 

questions i’nvolved. and treating the orovisions of this act as valid. with resnect to 

lands lvinz outside the territorial boundaries 

of the city . . . the case will first be considered from that standpoint. The plat appears 

to be duly acknowledged as required by law and 

bears the approval of the City Planning Comission. This is all that the act calls for as a 

prerequisite of the recording of the plat in 

the office of the county clerk. With referen to the acuroval. o d-u oval. of such 

p1zz.s as are contemelatid by the’ act. at lea f; 

s reeards the recordinr of the nlats. the, csQ 

until of Fort Worth has nothine to do 

io”es the act purport to give the city cbu.%l 

any authority in that respect, except in case 

there was no city planning commission. Tha. 

powor to regulate the recistration of instrunents in the office of the CO&Y clerk does 

not anwertaig to B . . . . 

‘1. . I Article 6591 makes it the duty 

of the county clerk to record all instruments 

of writing authorized or required to be recorded in the county clerk’s office. By the 

provisions of article 6626, certain specified 

instruments I or other instruments of writing 

concerning lands or tenements’ are authorized 

to be so recorded, when ackno’!Jedaed or Dr0vef.j 

gccordine t la The plat in question and 

the accompa~yin~‘written dedication come within the purview of the last-mentioned statute. 

?We recommend that the first certified 

question be answered by saying that The Parkland Corporation has a statutory right to have 

filed for record the tendered plot and dedication.” 

While the Hollis case was pending in the Supreme Court, Article 6626 was amended. 

Article 6626, as enacted in 1846, read: 
Hon. A. C. Winborn - Page 4 (V-624) 

"The following instruments of writing, 

which shall have been acknowledged or proved 

according to law, are authorized to be recorded, viz. all deeds, mortgages, conveyances, deeds of trust, bonds for title, covenants, defeasances, or other instruments of 

writing concerning any lands or tenements, or 

goods and chattels, or moveable property of 

any description." 

In 1931 Article 6626 was' amended by adding 

the following: 

'1. . . provided, however, that in cases 

of subdivision or re-subdivision of real property no map or plat of m subdivw 

gr re-subdivision shall be filed or recorded 

until the same has be n authorizad bv the Cofomissioners' court of Fhe county in which.the 

real estate is situated by order duly entered 

in the minutes of said court except in cases 

of partition or other subdiv!sion through a 

cour,t of record; provided, that within incoc 

m the g?v;-&yg body - 

n lieu of the Commissio ourt 

shall perform the duties hereinabove imposed 

upon the Commissioners' Court." 

In Trawalter County Clerk v. Schaefer, 142 

Tex. 521, 179 S. W. (2dj 765, a map of property located 

outside of San Antonio, but within 5 miles thereof, had 

been approved by the governing body of that city, under 

Article 974a but not by the Commissioners1 ,Court as required by Article 6626. It was contended that the 1931 

amendment of Article 6626 is void. The Court said in 

upholding the validity of the Act: 

,I We are Sully avare of the fact 

that judiciai discretion may exist in judicial tribunals less definitely defined than 

it can exist in tribunals or authorities 

which exercise purely executive or administrative powers. We are also Sully aware of 

the fact that executive and administrative 

authorities cannot be clothed with undefinea 

unrestrained. or arbitrarv powers. In spite' 

of the rules just mentioned, we are convinced 

that this act does not clothe the commission- 

.63-s' courts with unrestrained. undefined. or 
Hen. A. C. ‘Jlnhorn - Page 5 (V-624) 

zutrarv no er or even with undefined iudicial discretron. To the contrarv. we thi& 

the Act. taken as a whole. is 'sufficiently 

certain to furnish commissioners’ courts 

with a definite auide to eovern their action% 

thereunder.” 

With reference to the matter here under consideration, the Supreme Court then stated: 

a a ter cant n 

6626 a6*amehdzi tvlthe 1931eA% has onerated 

that Article 

to reveal the extra-territorial nrovisions 

of Article 974a. Acts 1927. We are in accord with Trawalter!g contention. Article 

974a, Acts 1927, provides that maps or plats 

of subdivisions such as the one here involved shall be approved by certain named authorities of cities and towns of 25,000 inhabitants or more, if the land represented by 

such maps or plats is situated within the corporate limits of such municipalities or within five miles thereof. Article 6626, Acts 

1931, by its very plain language provides 

that no map or plat of any subdivision of 

land shall be filed or recorded until such 

filing and recording has been authorized by 

the commissionerst court. Article 6626, Acts 

1931, then excepts from its general provision 

maps or plats of subdivisions situated within 

the corporate limits of cities and towns, and 

maps or plats of subdivisions authorized by 

courts of record. It is plainly evident that 

the exception to Article 6626, Acts ‘1931, regarding maps or plats of land situated within 

the corporate lipits of cities and towns operates to keep in force the provisions of Article 974a, Acts 1927, insofar as such lastmentioned Act covers g)aDs or olats of land 

situat ed with;l n t ol’ the 

cities and towns mentioned therein, cut it 

does not operar;e to preserve or keep in force 

such Act insofar as it co ers extra-wtoripl Certainly zad the Legislature 

intenfled suci a construction to be given Article 6626, Acts 1931, It would have included 

lands within five miles OS cities and towns 

of 25,000 inhabitants or more in the language 

of the exception. 
iron. A. C. winborn - Page 6 (v-624) 

“Even if it should be held that Article 

6626, Acts 1931, has not repealed the extraterritorial provisions of Article 974a Acts 

1927, then maps or plats of land located witin five miles of cities and towns containing 

25,000 inhabitants or more would be included 

within the.provisions of both Acts, and in. 

such instances both Acts would have to be complied with. We hardly think that such was the 

intention of the Legislature; and yet this 

conclusion would be inescapable if it should 

be held that Article 6626, Acts 1931, has not 

repealed the extra-territorial provisions of 

Article 97&a, Acts 1927. At this point we 

wish to say that we exnress no Q&@n as & 

the validitv of the extra-territorial vrovi - 

ion of Article 974a. Acts 1927. Hollis v. Tze 

Parkland Corporation, 

(2d) 53." 

120 Texas 531, 40 S. W. 

Your request pertains to a subdivision map of 

land situated in Jacinto City, an incorporated town having an estimated 4,775 inhabitants, outside of, but within 5 miles of the City of Houston. The incorporated 

cities of Jacinto City and the City of Houston have no 

jurisdiction within the boundaries of each other. 

In the case of City of Galena Park v. the 

City of Houston, 133 S. ti. (2d) 162 (error refused), the 

Court had under consiaeration the question of the exercise of contemporaneous co-existent control over the same 

territory. In that regard the Court said: 

I, . . . Since the statute does, by necessary effect, so negate the passing of any such 

claimed right to other cities and towns under 

the general law of their creation, and, at the 

same time affirmatively does confer exclusive 

jurisdiction over the territory upon eligible 

annexing: cities, the well settled principle, 

that two municipal corporations caynot have coexistent control over the same territory and 

contemporaneously exercise essentially the same 

governmental powers in it applies." 

In City of West University Place v. City of 

Dellaire, 198 S. d. (Zd) 766, the Court said: 
Hon. A. C. Winborn, Page 7 (V-624) 

"The powers of local self government 

possessed by citizens of towns and cities 

of 5000 inhabitants or less are not so ample 

as those held by home rule cities. However, 

such powers of local self-government as are 

possessed by towns and cities of 5000 inhabitants or less are held by the same title, as 

home rule cities ho.Ld,.,theirs; namely, by the 

State Constitution and general laws. Sec. 4, 

Art. XI of the State Constitution reads: 

'Cities and towns having a population of five 

thousand or less may be chartered alone by 

general law. 

lect . . 0' 

They may levy, assess and colSince the title by which Bellaire and Southside Place hold their municipal jurisdiction over the territory within 

their corporate limits is the Constitution 

and general laws of this State, no part of 

their territory or jurisdiction is sublcct to 

monriation bv West Universitv Place 0 n 

We therefore believe that the conclusion 

reached In your brief, submitted with your opinion request, is correct. Following the decision in the TraWalter case and Attorney General's Opinion 0-6090, we 

hold that Article 6626 re 

r: 

ealed the extra-territorial 

provisions of Article 97 a. 

therefore, 

The City of Houston, 

need not and has no jurisdiction to approve 

the plat of property located outside its limits and 

within another incorporated city. 

Further, Article 6626 simply requires that 

a city or town be incorporated in order to approve 

such plats. No particular size or population is rcquired. We therefore hold that the approval of the 

governing body of an incorporated citg or town (Jacinto City) satisfies that requirement of Article 6626. 

Therefore, assuming that all other requirements are 

mot, the, plat in question is a proper subject for filing or recordation. 

SUMMARY 

The extra-territorial provisions of 

Article 974a were repealed by Article 6626. 

Trawaltsr v. Schaefer, 142 Tex. 521, 179 

S. W. (2d) 765; Attorney General's Opinion 

0-6090. Where property is located within 
Han, A. C. Winborn - Page 8 (v-624) 

an incorporated town (Jacinto City), and outside the limits of but within 5 miles of a 

larger incorporated town (Housta), l r-2,~ the 

approval of tti governing body of the smaller 

town in which the property is located is required in order that a plat of such property 

may be filed and recorded by the County Clerk. 

Art. 6626. 

Very truly yours, 

ATTORNEY GENERAL OF TEXAS 

WTW:vb;erc;wb Assistant 

APPROVED: