### 2%~ ATPOWNEY GENE-L

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PRICE DANIEL ATTORNEY

GENERAL

Hon. A. C. Winborn DistrictAttorney 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 subdivisionwithin,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 incorporatedunder general law, approved a map of a subdivision of land situated in said city, outside of butwithin 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,untyopprove the saidmap to authoriz.etheCounty Clerk ofHarris County to file’, and record suchmap in the office of~,the CountyClerk ofHarris County?

The Acts involved, in your request are Vernon’s Civil Statutes,Articles 974a, enacted in 1927, and 6626, as amendedfin1931.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 inwhich such land lies to receive or record any such plan, plat or replat, unless and until the same shallhave been approved by the City Planning Commission of any city affected by thisAct, 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 suchplan or plat, or replat shall conform to the general plan of said city and its streets,alleys, parks, playgroundsand publicutility facilities, including thosewhich 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 highwayswithin said city Pm ithin fi iiLLLa/ e riles of the corworate l&g=
and,extensi& regard beinghad ,foraccess to

of sewerand water mains and the instrumentalitiesof public utilities, aad if same shall conform to such Penera.& rules and reculations, if anv. governing nlat and subdivisionsof land fallinawithin ifs jurisdictionas 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 citiesare herebv authorized to adont and wromulsateafter vublit hearing held thereon). then it shallbe the duty of said City Plannine Commission or of the governing bodv of such citv. as the
case mav be. to endorse awnrovalunon the plan, alat or reDlat submitted to it.”

In June 1931, the SupremeCourt approved an opinion by the Commission ofAppeals 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 ofHon. A. C. Winborn - rage 3 (V-624)

maps of subdivisions. The Court said:

“Puttingaside 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 casewill first be considered from that standpoint. The plat appears to be duly acknowledgedas 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.sas are contemelatidby the’ act. at lea f;

s reeards the recordinr of the nlats. the,csQ until of FortWorth has nothine to do io”es the act purport to give the city cbu.%l any authority in that respect, except in case therewas 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.

. IArticle 6591makes it the duty of the county clerk to record all instruments ofwriting 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 ofwriting 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~‘writtendedication comewithin the purview of the last-mentioned statute.

?We recommend that the first certified question be answered by saying that The Parkland Corporationhas a statutory right to have filed for record the tendered plot and dedication.”

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

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

"The following instruments ofwriting, which shallhave 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 1931Article 6626was'amended by adding the following:

'1.

. .provided,however, that in cases of subdivisionor re-subdivisionof real property no map or plat of m subdivw gr re-subdivision shall be filed or recorded until the samehas be n authorizad bv the Cofomissioners' court of Fhe county inwhich.the real estate is situatedby order duly entered in the minutes of said court except in cases of partition or other subdiv!sion through a cour,tof record; provided, thatwithin incoc

m the g?v;-&yg body -

n lieu of the Commissio ourt shall perform the dutieshereinabove 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 SanAntonio, butwithin 5miles thereof,had been approved by the governing body of that city, under Article 974a but not by the Commissioners1,Courtas required byArticle 6626. Itwas 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 judiciaidiscretionmay 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 executiveand administrative authorities cannot be clothedwith undefinea unrestrained. or arbitrarv powers. In spite' of the rules justmentioned,we are convinced that this act does not clothe the commission- .63-s' courtswith unrestrained.undefined. orHen. A. C. ‘Jlnhorn- Page 5 (V-624)

zutrarv no er or evenwith 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*amehdzitvlthe 1931eA% has onerated thatArticle

to reveal the extra-territorialnrovisions ofArticle 974a.Acts 1927. We are in accordwith Trawalter!g contention.Article 974a,Acts 1927, provides that maps or plats of subdivisions such as the one here involved shallbe approved by certainnamed authorities of cities and towns of 25,000 inhabitants or more, if the land represented by suchmaps or plats is situatedwithin the corporate limits of suchmunicipalities orwithin five miles thereof. Article 6626, Acts 1931, by its very plain language provides that no map or plat of any subdivisionof land shall be filed or recorded until such filing and recordinghas been authorizedby the commissionerst court. Article 6626, Acts 1931, then excepts from its general provision maps or plats of subdivisions situatedwithin the corporate limits of cities and towns, and maps or plats of subdivisionsauthorized by courts of record. It is plainly evident that the exception to Article 6626, Acts ‘1931,regardingmaps or plats of land situatedwithin the corporate lipits of cities and towns operates to keep in force the provisions of Article 974a,Acts 1927, insofar as such lastmentioned Act coversg)aDsor olats of land situat t edwith;l

n 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 givenArticle 6626,Acts 1931, Itwould have included landswithin fivemiles 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 thatArticle 6626, Acts 1931,has not repealed the extraterritorialprovisions ofArticle 974aActs 1927, then maps or plats of land locatedwitin five miles of citiesand towns containing 25,000 inhabitantsor more would be included within the.provisions of bothActs, and in. such instancesbothActs would have to be compliedwith. We hardly think that suchwas the intention of the Legislature; and yet this conclusionwould be inescapable if it should be held that Article 6626,Acts 1931,has not repealed the extra-territorialprovisions of Article 97&a,Acts 1927. At this pointwe wish to say that we exnressno Q&@n as & the validitv of the extra-territorialvrovi - ion of Article 974a.Acts 1927.Hollis v. Tze ParklandCorporation, (2d) 53." 120 Texas 531, 40 S. W.

Your request pertains to a subdivisionmap of land situated in Jacinto City, an incorporatedtown having an estimated 4,775 inhabitants, outside of, but within 5 miles of the City ofHouston. The incorporated cities of Jacinto City and the City of Houston have no jurisdictionwithin the boundariesof each other.

In the case of City of Galena Park v. the City ofHouston, 133 S. ti.(2d) 162 (errorrefused), the Court had under consiaerationthe question of the exercise of contemporaneousco-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 jurisdictionover the territory upon eligible annexing:

cities, the well settledprinciple, that two municipal corporationscaynothave coexistent control over the same territory and contemporaneouslyexercise essentially the same governmentalpowers 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-governmentas are possessed by towns and cities of 5000 inhabitants or less are held by the same title, as home rule citiesho.Ld,.,theirs; namely, by the State Constitution and general laws. Sec. 4, Art. XI of the State Constitution reads: 'Citiesand 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 jurisdictionover the territorywithin their corporate limits is the Constitution and general laws of this State, no part of their territory or jurisdictionis sublcctto monriation bv West Universitv Place n 0

We therefore believe that the conclusion reached In your brief, submittedwith your opinionrequest, is correct. Following the decision in the TraWalter case and Attorney General's Opinion 0-6090,we hold thatArticle 6626 rer: ealed the extra-territorial provisions of Article 97 a. therefore, The City of Houston,

need not and has no jurisdictionto 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 suchplats. No particular size or population is rcquired. We therefore hold that the approval of the governingbody of an incorporated citg or town (Jacinto City) satisfies that requirement ofArticle 6626. Therefore, assuming that all other requirementsare mot, the,plat in question is a proper subject for filing or recordation.

SUMMARY

The extra-territorialprovisions of Article 974awere repealed by Article 6626. Trawaltsr v. Schaefer, 142 Tex. 521, 179 S. W. (2d) 765; Attorney General's Opinion 0-6090. Where property is locatedwithinHan,A. C. Winborn - Page 8 (v-624)

an incorporatedtown (JacintoCity), and outside the limits of butwithin 5 miles of a larger incorporated town (Housta), 

### l r-2,~ the approval of tti governing body of the smaller town inwhich 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: