                                               (:)
                              ATTORNEY GENERAL OF TEXAS
                                          GREG      ABBOTT



                                              May 31,2013



The Honorable Daynah Fallwell                      Opinion No. GA-1007
Wilson County Attorney
1103 Fourth Street                                 Re: Whether a county may regulate, as a
Floresville, Texas 78114-2014                      subdivision, the partition of a tract of land in the
                                                   unincorporated portion of the county under Local
                                                   Government Code chapter 232 or Health and
                                                   Safety Code chapter 121 (RQ-1103-GA)

Dear Ms. Fallwell:

        Your predecessor in office asked whether a county may regulate, as a subdivision, the
partition of land into individual tracts in the unincorporated portion of Wilson County under
chapter 232 of the Local Government Code. 1 He described residential developments consisting
of small cabin-type rental units in the Eagle Ford Shale area. Request Letter at 1, 3. According
to the Request Letter, "[e]ach individual residence is placed on its own tract of land, and
common areas, such as parking lots, and the functional equivalent of streets, are laid out by the
developer[,]" but "title to the individual cabins and tracts does not pass." !d. at 1. The Request
Letter argues that the commissioners court may "deem such developments 'subdivisions"' under
chapter 232 ofthe Local Government Code because the cabins "are on a divided tract of land, are
separate residential units, and create a need for waste removal, potable water, electricity and
emergency services" much like other developments that have been held subject to subdivision
regulation. !d. at 5. The Request Letter does not indicate whether these developments might
constitute manufactured home rental communities. See TEX. Loc. Gov'T CODE ANN. §
232.007(a)(l) (West 2005) (defining "manufactured home rental community"). Accordingly,
our analysis does not consider the effect of such a designation.

       Chapter 232 of the Local Government Code requires an owner of a tract of land outside a
municipality to

                have a plat of the subdivision prepared if the owner divides the
                tract into two or more parts to lay out: (1) a subdivision of the
                tract, including an addition; (2) lots; or (3) streets, alleys, squares,


        1
          See Letter from Honorable Russell Wilson, Wilson Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y
Gen. at I (Dec. 28, 2012), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Daynah Fallwell - Page 2                      (GA-1007)



                  parks, or other parts of the tract intended to be dedicated to public
                  use or for the use of purchasers or owners of lots fronting on or
                  adjacent to the streets, alleys, squares, parks, or other parts.

!d. § 232.001(a). "To determine whether specific divisions of land are required to be platted,"
the commissioners court "may define and classify the divisions," subject to certain restrictions.
!d. § 232.00 15(a). The commissioners court may also impose plat approval requirements on
subdivisions, including payment of application fees, road construction specifications, drainage
specifications, groundwater adequacy certification, and the posting of a bond or other financial
guarantee . .See id. §§ 232.002(a)-.0021, .003-.0032, .004-.0045 (West 2005 & Supp. 2012).
Additionally, the commissioners court "may adopt rules governing plats and subdivisions of land
within the unincorporated area of the county to promote the health, safety, morals, or general
welfare ofthe county and the safe, orderly, and healthful development of the unincorporated area
ofthe county," subject to certain restrictions. !d. § 232.101(a), (c) (West Supp. 2012).

        Subchapter A of chapter 232 does not define the term "subdivision" other than to exclude
a manufactured home community from its scope. !d. 232.007(b) (West 2005). Subsection
232.001(a-1) provides that a division of land for platting requirement purposes "includes a
division regardless of whether it is made by using a metes and bounds description in a deed of
conveyance or in a contract for a deed, by using a contract of sale or other executory contract to
convey, or by using any other method." !d. § 232.001(a-1) (emphasis added). Courts have
consistently construed this language broadly to include tract divisions made for purposes other
than sale of the tract. One court of appeals found that nothing in the predecessor to section
232.001(a) requires "that lots be offered for sale in order to constitute a 'subdivision."' Cowboy
Country Estates v. Ellis Cnty., 692 S.W.2d 882, 886 (Tex. App.-Waco 1985, no writ).
Similarly, another court of appeals held that a landowner who divided his land into rental spaces
"effected a 'subdivision' of his property," noting that the term, for purposes of a municipal
platting and subdivision statute, "may refer simply to the act of partition itself, regardless of
whether an actual transfer of ownership ... occurs" or is even intended. City of Weslaco v.
Carpenter, 694 S.W.2d 601, 603 (Tex. App.-Corpus Christi 1985, writ refd n.r.e.). Based on
these decisions, a court would likely conclude that, under the facts presented in the Request
Letter, a county may regulate the partition of land for a residential development in the
unincorporated portion of the county as a subdivision under chapter 232 of the Local
Government Code regardless of whether there has been a transfer of title to individual tracts. 2

        Your predecessor in office also asked in the alternative whether chapter 121 of the Health
and Safety Code could be used to regulate the type of development described in the Request
Letter. See Request Letter at 1. Because we have determined that a court would likely uphold
the county's use of chapter 232 of the Local Government Code to regulate the development as a


         2
           We rely solely on the facts as presented in the Request Letter. See Tex. Att'y Gen. Op. No. GA-0760
(20 10) at 1, n.2. Any factual dispute that may exist regarding the nature of the residential developments in question
is not the subject of this opinion, and this opinion should not be construed as resolving any such dispute.
The Honorable Daynah Fallwell - Page 3          (GA-1007)



subdivision, we need not consider chapter 121 of the Health and Safety Code. We note,
however, that chapter 121, the Local Public Health Reorganization Act, contains no provision for
subdivision regulation that could serve as an alternative to chapter 232 of the Local Government
Code. See generally TEX. HEALTH & SAFETY CODE ANN.§§ 121.001-.103 (West 2010).
The Honorable Daynah Fallwell - Page 4          (GA-1007)



                                     SUMMARY

                      Under the facts presented, a county may regulate, as a
              subdivision, the partition of land for a residential development in
              the unincorporated portion of the county under chapter 232 of the
              Local Government Code regardless of whether there has been a
              transfer of title to individual tracts.

                                            Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee
