                    The Attorney               General         of Texas
                                     November     13,   1978
JOHN L. HILL
Mornay Ganeral


                 Honorable Bill Stubblefield                   Opinion No. Ii- 1261
                 Williamson County Attorney
                 Georgetown, Texas 78626                       Re: Partial vacation       of sub-
                                                               division plats.
                 Dear Mr. Stubblefield:
                      You advise that land within the extraterritorial jurisdiction of the City
                 of Austin under V.T.C.S. articles 6626 and 974a, but not within the corporate
                 city limits, and within Williamson County, was properly subdivided, platted,
                 and filed. Part of the lots within this orlgbml subdivision were sold. A new
                 subdivision is now proposed which will contain e portion~of the unsold lots in
                 the original subdivision. The purchase~r of lots in the original subdivision
                 have not filed an application for vaaation. Except for the application by the
                 purchasers of lots in the originsl subdivision, the partial vacetlon of the
                 original subdivision and the replat of the new subdivision have been properly
                 ecknowledged and proved. The county clerk of Williamson County has
                 received a request to file and record the partial vacation of the portion of the
                 old subdivision to be resubdivided and the plat of the proposed new
                 subdivision. For purposes of this opinion we will eeeume that the proposed
                 new subdivision meets any requirements imposed under V.T.C.S. article
                 6626a, concerning proper description of land, drainage and street constwc-
                 tion, snd surety bonding. You ash whether the Williamson County clerk has a
                 duty to file the above described vacation end new subdivision p&t, and if he
                 could incur any liability in the event of a suit contesting the proposed
                 subdivision.
                       Article 974a, section 5, V.T.C.S, provides, inter alia:
                             In ceses where lots tout of a subdivtsion within a city’s
                             jurisdiction1 have been sold, the plan, plat or replat, or
                             any part thereof, maybe vacated upon the application
                             of all the owners of lots in. raid Plato and wtth the
                             approval . . . of the City Planning Commission or
                             governing body of said city, as the case may be. The
                             County Clerk of the county in whose office the plan or
                             plat thus vacated he8 b&en recorded shall write . . .
                             lc r o sn the plan   or plat so vacated the          word
                             “Vacated,“. . . .
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         Honorable Bill Stubblefield   -   Page 2    (H-1261)


         (Emphasis added). The quoted provision deacribss th8 procedure for vacating e
         plat. Th8 Cwrts haV8 agr88d that the Correct pRXedUI% for V&lCllting a recorded
         plat requires the application of all lot owners. See Bjomson v. McElroy, 316S.W.2d
         764 (Tex. Civ. App. - San Antonio 1958, no wriiT;, Blythe v. City of Graham, 287
         S.W.2d 527 (Tex. Civ. App. - Fort Worth 1956, writ rePd n.r.e.1; Priolo v. Cit of
         m,       257 S.W.2d 947 (TAX. Civ. App. - Dalles 1953, writ refPid n.r.8. .
          enerall M. Pohl, Establishing and Altering the Character of Texas Subdiviai~
         !h$r        L. Rev. 638, 650 (1975) 1n our opxnon, unl       all         jom tn the
         application for vecation, ‘the cl&k is not authorixed’?o ecz$e?he           vacation
         instrument, write ~acated”‘across the p&t, or annotate it, as provided in section 5.
                We balieve, however, that the clerk is authorized to accept the proposed plat
         of the new subdivision.     Article 9744 section 2, reqUir8S that every pIat be
         acknowledged by the owners or’proprietors of the land. S88 also V.T.C.S. art.
         6626. We b8li8V8 thet the relevant group of owners consis~ose             within the
         new plat and does not inolude owners whose land lies outside of it. Section 3
         requirns that the plat or replat be approved by the City planning commia&n or a
         simildc agency. In cur opinion, if the replat is aaknowledged by the owners of land
         within it and is properly endorsed by the rehmnt planning agency, the clerk has e
         ministerial duty to file it. Sea V.T.C.S. art. 6626 (plat must be approved by
         planning commission); AttOrn8yC8neral Opinions B-B55 (19781 (clerk must file
         pleadings even though not certified); H-426 (1974) (clerk may reject instrument
         clearly d8f8ctiV8 on its face); C-695 (1966) (Clerk must file deed ref8I%g to plat
         not recorded pursuant to article 974a, V.T.C.S..).
               Article 974e inClUd88a penalty provision which states In part:
                        When any. . . r8plat is tendered for filing in the office of
                     the County Clerk . . . it shell be the duty of such Clerk to
                     ascertain that the proposed . . . raplat is or k ,not subject to
                     the provisions of this Act, and if it is subject to its
                     provisions, then to examine said . . .. replat to ascertain
                     whether the endorsements required by this Act appear
                     th8I8On. If such endorsements do appear thereon, he shell
                     accept same for registration. If such endonements do not
                     appear thereon, he shall refuse to accept same for registre-
                     tion.
         sec. I. Filing of a replat contrary to the provisions of article 974a, V.T.C.S.,
         constitutes a misdam~eanor punkhable by fine. Id. Se&on 7 requires the cterk to
         file a repkt endorsed by the city phnning cOmm’7stiOnpursuant to a8ctien 3. We
         find no r8qUiMm8nt in article 974a that a pIat be Vacated before a repbt of the
         land k acceptedfor filing. Consequently, the prohibitkm and penalty provisions of
         s8ction 7 do not apply to the plat of the m           subdivbion. Since section 7
         applies only to any “map, plat, or replet,” it does not penalize th8 filing of a
         vauetion instrument contrary to the requirements of section 5 of article 974a.




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    HOItorabl8 Bill stUbbl8fi8td   -   Pag8 3    (X-1261)


            The clerk will incur no person& liability for filiw en instrument when
    required to do so by statute. Attorney Genernl Opinion H-643 0676); eee Morris v.
                 S23 S.W.ld 301 (Tex. Civ. App. - Awtin 1959, writ rem=?-
    iii!?re or8 cannot be held ltable for filii a pht or replat which faciauy complies
    with the EqIitWn8ntS Of arti& 974a. Whether or not he Can b8 held liable for
     filing u vacation instrument In violation of the requirement that ah Iot owners join
    in the application wilI d8pend cm al! the relevant facts end circUm+mces. Eubanks
                               6‘&O’h& lf;;T8ffc-A~;h&;          ;%Jt        mPd=

          W8 note fiMPy that the Original p&t must be Vacated pUrSMUItt0 a&cl8
                                           ivkicn to be valid. We base cur opinion on
                                           287 S.W.2d 527 (Tex. Civ. App. - Part Worth
                                          plaintiff, a purchaser of a lot in a sUbdivkion,
                                          and mstrbdividing of Unsold lots in the same
    a~bdivkion. The restrictions were to be lifted only to such a degmg that they
    warld be equal to those imposed on plaintiff% lot. The court     held that the Unsold
    lots 80uld not be m&divided without an application for VaCdian         by the plaintiff
    Under V.T.C.E. article 9744 section 5. It stated as follows:
                  If the city thereafter desired to replat . . . [the rub-
                division1 surely i! would have to follow the pmpdure
                stUbed     in katm    5 of Art. 974a in connection ~8th the
                      ....

    287 S.W.2d at 530. As in W 8 the injUred landowner may be able to Chti8nga
    the ms&divkion in cottrt..&P     lbl. Pahl, (RI e at 671. We do not, however, believe
    that  artiale 9748 makes Gamty           aleiIF responsible for ascertaining that the
    original plat has been properly vacated before he files a r88uMivisioU plaL
                                        SUMMARY

                The county clerk may not file a vacation instrument
                submitted pursuant to article 974a, V.T.C.S., unless all
                owners of lots in the plat join in the application. Section 7,
                the penalty provision of article 974a, does not apply to the
                unauthorized filing of a vacation instrument, although the
                clerk may be personelly liable for filing the doeUment,
                dep8nding on the facts.       The clerk must file a replat
                acknowle~ed by th8 owners of land within it and properly
                endarsed by the ml8vant planning agency punuant     to article
                974e, sectton 3. AlthoUgh vacetion of the original plat k a
                nrcerary Step in the r8sUbdivkon of land pUnuant to article
                974a, the statute does not make the clerk respamibl8 for
                enforoing that requirement.




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