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                   RE    &l-l-O        EY   GEXERAL
                             OF        EXAS


                              September 1, 1987




    Honorable George Pierce                 Opinion No. JM-781
    Chairman
    Texas Committee on Urban Affairs        Re:    Whether an individual may
    House of Representatives                divide and sell a tract of land
    P. 0. Box 2910                          which is located on an existing
    Austin, Texas 78769                     county road without complying
                                            with plat approval requirements
                                            and related questions

    Dear Representative Pierce:

        You ask the following questions:

                1. Can an individual divide a tract into two
             or more parcels and sell same without complying
             with plat approval requirements where such lands
             are located on an existing county road and no
             roads are contemplated within the land to be sub-
             divided?

                2. Can an individual who divides a tract into
             two or more tracts sell such lands by metes and
             bounds with the creation of a private road within
             the land subdivided without completion of plat
             approval requirements? This question assumes that
             no portion of lands divided shall be dedicated to
             public use.

                3. What is the authority of the city within
             its ETJ to require plats where such lands to be
             subdivided contain no road dedicated for public
             use and are adjacent to an existing county road?

                 4. What is the authority of the city within
              its ETJ to require plats for subdivisions where a
              tract is divided into two or more parcels and an
              individual proposes to sell such lands by metes
              and bounds without dedication of public roads?

         Section 2.401 of the County Road and Bridge Act, article 6702-1,




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Honorable George Pierce - Page 2   (JM-781)




v.T.c.S.~ provides:

            Sec. 2.401. (a) This section applies to each
         county of the state except a county that elects to
         operate under Section 2.402 of this Act.

            (b) The owner of any tract of land situated
         without the corporate limits of any city in the
         State of Texas, who may hereafter divide the same
         in two or more parts for the purpose of laying out
         any subdivision of any such tract of land, or an
         addition without the corporate limits of any town
         or city, or for laying out suburban lots or build-
         ing lots, and for the purpose of laying out
         streets, alleys,
                     -      or parks, or other portions
         intended for public use, or the use of purchasers
         or owners of lots fronting thereon or adjacent
         thereto, shall cause a plat          to be made
         thereof. . . . (Emphasis added.)

    Article 974a, V.T.C.S., provides:

            Section 1. Bereafter every owner of any tract
         of land situated within the corporate limits, or
         within five miles of the corporate limits of any
         city in the State of Texas, who may hereafter
         divide the same in two or more parts for the pur-
         pose of laying out any subdivision of any tract of
         land or any addition to any town or city, or for
         laying out suburban lots or building lots, .or any
         lots, and streets, alleys or parks or other por-
         tions intended for public use, or the use of
         purchasers or owners of lots fronting thereon or
         adjacent thereto, shall cause a plat to be made
         thereof. . . . ~(Emphasisadded.)

     In Attorney General Opinion JM-365 (1985) the matter of the
phrase "within five miles of the corporate limits" contained in
section 1 of article 974a was considered. There it was stated:

            Attorney   General   Opinion   m-121,   issued   in



      1. Sections 2.401 and 2.402 of Art. 6702-l. V.T.C.S. and
articles 970a and 974a. V.T.C.S., cited in this opinion are codified
in the Local Government Code without substantive change enacted by
Acts 1987, 70th Leg., Chapter 149, effective September 1, 1987.




                             p. 3679
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        Ronorable George Pierce - Page 3   (JM-781)


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                  December 1983, concluded that, notwithstanding
                  that articles 974a and 6626, V.T.C.S.. provided
                  for city approval of subdivision plats within five
                  miles of the corporate limits of a city, the
                  amendment and enactment of articles 6626a [now
                  section 2.401 of article 67021 and 6626aa,
                  respectively, by chapter 327 impliedly repealed
                  the five-mile range and provided instead that a
                  citv mav not exercise slat amroval autharitv out-
                  side the city's extraterritorial jurisdiction as
                  that area is determined by article 970a. It is
                  our opinion that 'said extraterritorial jurisdic-
                  tion' within the meaning of article 6626aa is a
                  city's extraterritorial jurisdiction as determined
                  by article 970a. Article ,6626a expressly states
                  that in areas under, a city's extraterritorial
                  jurisdiction as defined by article 970a, a plat
        .-   ..   may not be filed without the authorization of both
                  the city and the county. (Emphasis added.)

              Under article 970a, V.T.C.S., the extra-territorial jurisdiction
        of a city is determined by its population. Section 2.402 of article
        6702-I applies to each county "that has a population of more than 2.2
-       million or is contiguous with a county with a population of lhore than
        2 .2 million" and, insofar as pertinent to the issues herein, contains
        the same language as both section 2.401 of section 6702-l and article
        974a.

             In Attorney General Opinion JM-508 (1986) the developers had not
        attempted to file a map or plat of a subdivision. In that opinion it
        was stated:

                  [Tlhe legislature has determined that, if the
                  owner of a tract of land who divides the same in
                  two or more parts

                     for the purpose of laying out any subdivision
                    .of any tract of land or any addition to any
                     town or city, or for laying out suburban lots
                     or building lots, or any lots, and streets,
                    alleys or parks or other portions intended for
                    public use, or the use of purchasers or owners
                    of lots frontina thereon or adtacent thereto.
                     [then he] shali cause a pla; to be mad;
                     thereof. . . .

                  V.T.C.S. art. 974a. §I. Whether the developers
                  filed the deeds and dedicatory certificates for
P                 .one of the above purposes is a question of fact




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    Honorable George Pierce - Page 4    (JM-781)




              this office is      not   authorized   to   answer.
              (Emphasis added.)

    "Subdivision" and "public use" are not given statutory definitions.
    In City of Weslaco v. Carpenter, 694 S.W.2d 601, 603 (Tex. App. -
    Corpus Christ1 1985, writ ref'd n.r.e.) the court stated "a
    'subdivision' of property may refer simply to the act of partition
    itself, regardless of whether an actual transfer of ownership -- or
    even an intended transfer of ownership -- occurs." The Texas Supreme
    Court in Coastal States Gas Producing Company v. Pate, 309 S.W.2d 828
    (Tex. 1958) in examining the meaning of the words "public use" stated:

             No hard and fast rule can be laid down for
             determining public use. however, and each case is
             usually decided upon the basis of its own facts
             and circumstances.

.   309 S.W.2d at 833.

         In Attorney General Opinion JM-508 it was stated:

                Your sixth question involves the application of
             article 6626c, V.T.C.S. The provision provides:
                                                                             -,

                     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 sub-
                division or resubdivision of real estate with-
                out first securing approval therefor as may be
                provided by law, and no party so subdividing or
                resubdividing any real estate shall use the
                subdivision's or resubdivision's description in
                any deed of conveyance or contract of sale
                delivered to a purchaser unless and until the
                map and plat of such subdivision or resubdivi-
                sion shall have been duly authorized as afore-
                said 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.

                     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                  1




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     Honorable George Pierce - Page 5   (JM-781)


,-



                  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. (Emphasis added.)

              This article was transferred from article 1137h of
              Vernon's Penal Code by authority of section 5 of
              Acts 1973, 63rd Leg., ch. 399, at 995, enacting
              the new Penal Code. A person may be prosecuted
              under article 6626~. V.T.C.S., in two separate
              circumstances. First, for the act of recording,
              and secondly, for the act of selling property
              making a reference to an unrecorded map or plat.
              In Attorney General Opinion M-390 (1969), this
              office held that the second circumstance

                 makes a misdemeanor offense of a convevance bv
                 a subdivider where the property des&iptioh
                 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.        (Emphasis
                 added.)

          We Are of the opinion that the answer to your first question
     depends on the facts and circumstances of the individual case. For
     example, we believe that it is highly unlikely that the courts would
     hold that a plat is required where an owner of ranch or farm land in a
     sparsely populated rural area sold a single tract of land under the
     scenario you have outlined. Your first question is broad enough to
     include a division of a tract "into two or more parcels" in a densely
     populated area near a crowded city resulting in the need of city
     services and creating problems detrimental to the public interest.
     The answer to your first question depends upon a factual determination
     on a case by case basis that is not within the province of this
     office.

          We are of the opinion that a court would look beyond the facade
     created by the designation "private road" and the absence of any parts
     of the divided land being dedicated to public use in determining
     whether the land could be subdivided without compliance of plat
     approval requirements. The absence of any dedication of land for
     public use, standing alone, does not dispense with the necessity of
     complying with plat requirements. Both statutes quoted above refer to



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Honorable George Pierce - Page 6    (JM-781)




land "intended for public use," not to land "dedicated to public use."
Additionally, both statutes refer to land "intended for public use, or
the use of purchasers or owners."

     We believe this conclusion to be supported by the opinion in City
of Weslaco v. Carpenter, where the land owner claimed that his land
was being used as a "rental park" and not a "subdivision" and was not
subject to the city's extraterritorial jurisdiction. The court
stated:
             In arguing that the only issue before us is
          whether his conduct has created a 'subdivision,'
          appellee argues that the 'ordinary understanding'
          of the term 'subdivision' must be construed as
          requiring the land to be split into at least two
          different lots which are owned by different
          people.   He states that the purpose of his
          development is merely to rent. spaces rather than
          to sell lots, and contends that transfer of
          ownership is needed before a 'one-lot project' can
          be 'subdivided.' Thus, a mere splitting of title
          by lease or rent is insufficient to create a
          'subdivision.'   We find appellee's reasoning
          overly narrow.

             The normal, common-sense meaning of the term
          'subdivision' is expressed in Black's Law Diction-
          ary (5th ed. 1979) as '[dlivision into smaller
          parts of the same thing -or subject-matter. The
          division of a lot, tract or parcel of land into
          two nor more lots, tracts, parcels or other divi-
          sions of land for sale or development.'

             A similar interpretation was expressed in the
          case of City of Corpus Christ1 v. Unitarian
          Church, 436 S.W.2d 923 (Tex. Civ. App. - Corpus
          Christ1 1968, writ ref'd n.r.e.1, [involved city
          withholding approval of plat filed by church] in
          which this court considered the following language
          of Tex. Rev. Civ. Stat. Ann. art. 974a, 91 (Vernon
          1963):

                  Hereafter, every owner of any tract of
             land situated within the corporate limits
             . . . who may hereafter divide the same in two
             or more parts for the purpose of laying out any
             subdivision of any tract of land or any addi-
             tion to any . . . city, or for laying out sub-
             urban lots or building lots, . . . shall cause
             a plat to be made thereof. . . .




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    Honorable George Pierce - Page 7     (JM-781)
                                               "




             We then stated that:

                      The language of Section 1 of Art. 974 is
                 plural and relates to a division of property
                 into parts.    The same is true of the City
                 Charter and the applicable provisions of its
                 ordinances. It contemplates subdivision for
                 subdivision development purposes. . . .

                      .   .   .   .

                     [3] The injunction sought by appellant
                arises not only from proper interpretation @
                pertinent statutes and ordinances but also asa
                valid exercise of appellant's police power,
                which by its very nature involves the regula-
                tion of-subdivi&n   development 'to prevent the
                use thereof in a manner that is detrimental to
                the public interest. The police power may be
                loosely described as the power of the sovereign
                to prevent persons under its jurisdiction from
                conducting themselves or using their property
C
                to the detriment of the general welfare.'
                Dupuy v. City of Waco, 396 S.W.2d 103, n. 3
                (Tex. 1965); city of Corpus Christ1 v.
                Unitarian Church, 436 S.W.2d at 910. Appellee
                seeks to provide 128 rental spaces on an 8.17
                acre lot.    The concomitant need for city
                services, in addition to the predictable pro-
                blems generated by such intensive population of
                the land, justify appellant's use of its police
                power in protecting the general welfare. See
                City of Round Rock v. Smith, 687 S.W.2d 300
                (Tex. 1985). (Emphasis added.)

    694 S.W.2d at 603, 604.

         We believe the division of a "tract into two or more tracts" and
    its sale by "metes and bounds" with "a private road within the land"
    would suggest to the fact finder that the subdivision is for public
    use or the use of the purchasers or owners of the land. In light of
    City of Weslaco v. Carpenter, we find it difficult to believe that a
    court would not find that completion of plat approval requirements was
    required under this scenario. See also Gifford v. Planning Board of
    Nantucket, 383 N.E.2d 1123 (Mass. 1978).

         We do not believe that the answer to your third question will be
    controlled solely on the basis of whether the lands subdivided are
    adjacent to an existing county road and an absence of roads dedicated




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Honorable George Pierce - Page 8    (~~-781)
                                .




for public use. In determining the authority of the city in City of
Weslaco v. Carpenter, the court carefully considered all the facts and
circumstances therein in reaching its opinion. We believe the resolu-
tion of this question depends on a factual determination as pointed
out in Attorney General Opinion JM-508.

     In your fourth question you inquire about the "authority of the
city within its ETJ to require plats for subdivisions where a tract is
divided into two or more parcels" and a sale is contemplated "by metes
and bounds without dedication of public roads." We believe our
analyses to the previous questions dictate that it is unlikely that a
court would hold that it was not within a city's authority to require
plats for subdivisions under this scenario.

                              SUMMARY

             Whether an individual divides a tract into two
          or more parcels for one of the purposes set out in
          section 2.401 of article 6702-l. V.T.C.S., article
          974a, V.T.C.S.. or section 2.402 of article
          6702-l. V.T.C.S., and can sell same without being
          required to comply with plat approval requirements
          is a question of fact this office is not author-
          ized to answer. While the absence of a dedication
          of any parts of the divided land to public use is
          a relevant circumstance, it is our opinion that a
          court's decision will not turn on the presence or
          absence of this factor. The resolution of this
          issue by the courts will, in our judgment, be
          governed by the facts and circumstances of each
          individual case.




                                         JIM     MATTOX
                                         Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General



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