Honorable llenry !*lade       Opinion No. C-66
District.Attorney
Dallas Counts                 Re:   Interpretation of Article
Dallas, Texas                       2372k, V.C.S., in the light
                                    of the submitted facts.
Dear lir. %de:

          In a recent z-equest for the opinion of t:his office,
you have in effect presented to usthe followinp fi!cts.

            A real estate developer and subdivider is develop-
ing a tract of land in Dallas County that is outsidc of the
city limits of any incorporated city or town in said county
and is not within five~miles of the city limits of any incorpo-
rated city or town. The developer and subdivider has never
submitted any plat or map of ,said development and subdivision
to the Commissioners Court of Dallas County for their action
thereon, either as to approval or disapproval, or as to. the
promulgation of any standards for the construction of roads
shown thereon. The County Commissioners -Court    has not promul-
gated any standards or specificati~ons for the'construction of
roads and drains in subdivisions of the county as authorized
under Article 2372k, V.C.S.    The developer and subdivider has,
however , prcsented~ his plat or map of said development and
subdivision to the County Engineer of Dallas Countv and re-
ceived certain oral instructions from him regarding the type
construction for and drainane to the roads in the subdivision,
but the developer has refusrd to carry out said oral instruc-
tions   for building the roads in their entirety.~ Dallas County
hasa population considerably~in excess of 290,000. The
County Engineer of Dallas County has orally promuiEated, since
the passage of Article 2372k, V.C.S., his own rules, regulations
and standards pertaining to construction of streets and roads
and drainape in subdivisions in the county; however, his specifi-
cations   and standards have been within the bounds or limits set
for standards which might be promulgated by the Commissioners
Court under Article 2372k.

          You then in your opinion request ask the followin
three questions,




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        iionorablc !Icnry !.lade,par*“ : (C-66 )



                        "(1) Do we have the authoritv to
                   seek a mandator? injunction compelling
                   the developer to complete this road
                   according to the specifications set
                   forth by this county?

                        "(2) In the event you an55!er cues-
                   tion 210. 1 in the negative, then is our
                   only recourse the right to ref:;se to
                   accept this dedication?

                         "(3) In the event the developer
                   continuer, to sell lots without conplet-
                   inp. this road, may he then be enjoined
                   from so doing until he completes this
                   road according to our specifications?"

                     In 19117 in the case of Commissioners Court v. SIester,
         199 S.N.2d 10011 (Tex.Civ.App.1947, error ref. n.r.e.1 the Dallas
         Court of Civil Appeals had before it a situation wheri the Commis-
         sioners Court of ~Dallas County refused ur.derauthority of .Article
         6626, ~V.C.S.,  to approve a subdivision plat of land located in
         the county for filine!‘of said plat with the County Clerk. The
         County Clerk refused to file the subdivision plat without the
         Commissioners Court's approval.     The Comrissioners Court had
         set up standards for county roads and for their drainape to
         which the subdivision plat did not conform. It was the Commis-
         sioners Court’s   contention that it could require such conform-
         ance throuph Article 6626. Article 2372k, V.C.S.,     was not then
        .in existence, it being enacted in 1951. The subdivider sought
         by mandamus to cbmpel the Commissioners Court to approve the
         tendered plat for filing with the,County Clerk. The' Court of
         Civil Appeals held that the Commissioners Court lacked authority
         to refuse to approve ~subdivision plats,for filing with the County
         Clerk because the roads contained thereoz did not meet county
         specific&ions as established by the Comrissioners Court,

                  Obviously, as a result of this holding by the Dallas
        Court of Civil Appeals, the Legislature passed Article 2372k
        in 1951 so as to enable's commissioners court to set standards
        for roads in new subdivisions that must be.adhered to by sub-
        dividers before their plats would be elipible for filing with
        the ~County Clerk and the roads contained thereon accepted as
        county roads, It is apparent that Article 2372k and Article
        6626 insofar as the subdivision of land such as involved in the
        instant situation is concerned must b& considered in para
        materia.




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Honorable Henry Wade, pane 3 !!:-66 )



          Article 6626 reads in part:

               "The following: instruments of writing.
            . . are authorized to be recorded   . . .
          Ather instruments of writing conceriing
          any land . . . provided, however, that in
          cases of subdivision or re-subdivision of
          realproperty  no map or plat of any such
          subdivision or re-subdivision shall be
          filed or recorded unless and until the
          same,has been authorized by the Conmis-
          sioners Court of the county in which the
          real estate is situated by order duly
          entered in the minutes of said Court,
          . . .1,

          Article 2372k applies to all counties haviny! a popula-
tion in excess of'l90,OOO.

          Section 1 (a) thereof provides that the Commissioners
Courts of such counties mip.ht require subdividers of land to
provide for a minimum 60 foot rip.ht of way fcr roads .which are
to be included in their subdivision.

          Section l-(b) provides that the Cormissioners Courts.
of such counties mip.ht promulgate-reasonable specifications
to be followed by the subdividers in construction OF roads and
streets within their subdivision and for dracnage of such roads
and streets.

           Section 2 provides that the Commissioners Courts
might require of the subdivider a good and sufficient bond in
.an amount up to $3.00 per lineal foot of road for'the insurance
of proper construction and maintenance of roads in such sub-
divisions ,.said bond conditioned that such roads be constructed
in acco~rdance with the specifications promulgated by the Commis-
sioners Court under Section 1 (b).

          Section 3 provides that the Commissioners Courts ,of
such counties are Sranted authority to refuse to approve any
subdivision plat should the plat fail to provide for a minimum
60 foot right of way for roads in the subdivision and should
the subdivider fail to submit a sood and sufficient bond to
insure the contruction of roads in said subdivision i,n accord-
ance with specifications promulgated by the Commissioners Court
under authority of Sections 1 (b) and 2.
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            Iionorahle ilenry 'Jade, pi:?2 4 (C-G6 )



                      ::lhenthe above two articles are considered together,
            we see that Article 6626 in part authorizes the County Clerk
            of the county where the subdivided land is located to file a
            subdivision plat of a tract of land situated five miles or more
            outside of the corporate limits of a city or town only when the
            subdivision plat thereof has first been authorized by the Commis-
            sioners Court of the county in which the real estate is situated
            by order duly entered in the minutes of the court. Ye also see
            that Section 3 of Article 2372k authorizes the Commissioners
            Court to refuse such approval under certain situations.

                      This srant of the authority to the Commissioners Court
            contained in Article 2372k and Article 6626 cannot he considered
            as the bestowal of some idle and superfluous authority and duty
            upon the Commissioners Court~of'a county which subdividers and
            platters of tracts of land therein mip.h? ignore if they can
            successfully hide their subdivision and platting work from the
            eves of the Commissioners Court of the county where the sub-
            divided land lies.

                       It is encumbent upon such subdividers should they
            desire 'to have their plats filed for record in the County Clerk's
            office and/or to have the dedication of the streets and roads
            thereon accepted as "county roads " by the county to submit
            their plats to the Commissioners ~Court for its official con-
            sideration and action thereon,

                      Upon the submission of a'subdivision-plat to the
            Commissioners Court, the court may then by virute of the authority
            granted by Article 2372k, promulgate reasonable standards and
            specifications, which are'consistent with the authority granted
            it by Article 2372k. Upon the fail'ure or refusal of the sub-
            divider to Rive his bond (if required) or to make his plat conforn
            to such requirements, the Commissioners Court should refuse to
            authorize the filing of sai.d plat for record.

                      In the instant case, no standards or specificati'ons
            have been promulgated by the County Commissioners Court relat-
            ing to the acceptance of the dedication of streets or roads
            contained in thee subdivision of the tract in question. The
            subdivider has not even submitted his subdivision plat and
            plan for development to the Commissioners Court of Dallas
            County for their approval, ho legal obligations have been
            exchanged 'between the County Commissioners Court and the sub-
            divider in respect to his subdivision,   Obviously, if no oblip,a-
            tions exist between the countv and the subdivider, an injunction.
            would not lie with the county ap.ainst the subdivider..




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Honorable Henry !4ade, page 5 (C-66 )



          Therefore, the answer to your first question is no.
The County Commissioners Court does not have authority to seek
a mandatory injunction compelling the developer to complete
his road accordinn to the specifications set forth orally by
the County Engineer.

          We answer your second question yes, In the event that
the Commissioners Court has promulgated reasonable standards under
the authority of Article 2312k, and the developer fails or refuses
to Rive his bond (if required) or to make his plat conform to such
requirements, the Commissioners Court's only recourse is to refuse
the developer's subdivision,

          We answer your third question no. The County Commis-
sioners Court cannot enjoin the developer from sell.inn lots
Lthin his subdivision on the around that he has failed to
complete the roads therein according to the oral specifications
of the County Enp,ineer.

          Any statements in prior Attornev General's Opinions
s-2952 and V-1qOl that are inconsistent with this opinion are
overruled.

                          SUMMARY

               The County Commissioners Court lacks
          authority under Article 2372k, V.C.S. to
          compel a subdivider and developer, under
          the stated facts, to complete roads in his
          subdivision according to the orally promul-
          gated specifications of the County Enpineer.

               The County' Commissioners Court cannot
          arbitrarily and capriciously refuse to
          accept a subdivider's plat for filing,with
          the County Clerk.




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