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 .      giving bearing  and distance
       calls,   but call&  c 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      in-
volved,  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 ad-
       ation     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\tided,    however,     that
       no plat of any subdivis:
       land or any addition          shi
       unless     the same shall=




       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      co-
       in 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    speci-
fications      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
     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 de-
     livered     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 tri-
      butary of Green's   Bayou, . . ."

      The court       held   at page   301:

             'We do not deem that the contract      here
      involved   does constitute    a violation   of afore-
      said 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 ve
      to fall  within    the terms of the statute."
      (Emphasis added.)

      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 con-
veyance 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 Commis-
sioners   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     descrip-
tion is a subdivider, -idedas                    ‘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 sub-
divider-which    p&ports     'to transfer     ctle    to the pkoperty
to a purchaser     is a violation      of said Article      1137h.     Con-
sequently,     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
