                                 The Attorney Generd of Texas
                                                          Harch     24,    1983
JIM MATTOX
Attorney General


                               Eonorablc   M. 6. Wells                                      opinion      No. Jn-20
Supreme     Court Building
                               County Atrorncy
P. 0. BOX 12546
Aurtin. TX. 76711.2546         Anderson   County Courthouse                                 Re:       ApprOVAl       of   subdivision
5121475~2501                   F. 0. Box 707                                                PlAtA
Telex 9101674.1367             PAlAAtine.   TeXAA    75801
Tdecopier    5121475.0266

                               DAar   Mr. WallA:
1607 win 3.. suite tarn
Dallas. TX. 75201.4706               You hAVe asked     About the Authority      Of the City                      Of Palestine.       in
2141742~6344                   incorporated    home rule   city,    t0 approve or diAApprOVe                      subdivision       maps
                               And plats    for land located     beyond the CiCy limits.
4624 Alberta Ave.. Suite 160
El Paso. TX. 799052793                Both Articles      974A.     V.T.C.S..       And 6626,        V.T.C.S..     provide      thst
,~5352464                      maps And plsts        of    subdivisions         located       within      five   miles     of    the
                               corporate     limits    of an incorporated             city     muAt be approved          by city
                               Authoritiee      in order      to be filed         or recorded.           This   would     end the
1~20 Dallas Ave.. Suits 202
                               matter    were it not for Articles             970A. V.T.C.S..          And 6626~,      V.T.C.S..
HO~J~O~. TX. 770026986
713l65M666
                               which,     it has been Argued.          conflict      with     those    first    mentioned.         In
                               our opinion,      the statutes      in question       do not conflict,          And the city        of
                               Palestine     has not     only    the Authority.           but    the duty,      to Approve         or
 806 Broadway. Suite 312       disApprOVe      ~11 maps and plats         of subdivisions            of land located        within
 Lubbock. TX. 79401.3479
                               five miles     of its   corporate      boundries.
 606,747.5236

                                      Article       97oA.      the    first    of Lhe Acts          said     to conflict.       is    rhe
 4306 N. Tenth. Suile S        Municipal       Annexation        Act.       Among other        things,      it establishes         A one
 McAllen. TX. 76501.1665       mile AonA of “extraterritorial                  jurisdiction”          Around cities       the size      of
 51216624547
                               Palestine.          Id.     S3.A.(2).          In    Addition        to    protecting        the    zoned
                               territory       fromannexAtion             by ocher     cities,      the stAtwe        sllows     A city
 200 thin PIaza. Suite 400     to extend        by ordinance          the Applicstion          of its      rules    And regulations
 San Anlonio. TX. 702W2797     governing      plAtS     And the subdivision            of land “to ~11 the Area under its
 512/225.4191                  extraterritorial           jurisdiction.”            From this,         some have concluded          thet
                               the    Authority        of    the     city    of Palestine           to. approve       or disapprove
 An Equal OppOrlunilyl         subdivision        plats      is    limited     to A distance            of one mile        beyond     its
 Affirmative Action EmPlOW     boundries.

                                      The relAtionship     of articles    97OA. 974A. And 6626 is discussed                             in
                               Pohl.    Estsblishing    And Altering    the Character   of TeXAS Subdivisions,
                               27 Baylor      LAW Review,   629 (1975).     The history  of the legislation                             is
                               unclear.

                                      Originally,        cities     of   A certain     sire                were    given     Approval
                               Authority      under    Srcicle      974S over   maps and                 plats    of    subdivisions
                               within    S five     mile     radius    of their  corporate                boundaries.        In 1944,



                                                                      p.   90
RonorAble       Ii. C. Wells        - RAge 2         (JH-20)




however,       the TeXAA Supreme Court                 held    that    An amendment            to Article
6626 (giving          counties      map And ~1st Approval                Authority)        repealed       the
Article         974A       “extrAterritoriAl”             plAt-ApprOVAl             jurisdiction           Of
municipalities.              See TrAvalter          v.    Schaefer.        179 S.W.Zd 765               (Tex.
1944).      A later       coUTt held thAt counties               could not impose             substantive
requirements        under article          6626 aa A condition             for county        ApprOVAl       of
subdivision        maps or pl~ta.            See Commisaionera’             Court v. Frank Jester
Development        CompAny.        199 S.Wx         1004 (Tex.        Civ.     App. - Dallas            1947,
writ    ref’d      n.r.e.).         In this      state      of Affairs.         neither        cities     nor
counties        could      regulate      the    mapping       And pletting            of    subdivisiona
outside     city     limits.       Cf. City of Corpus Christ1                v. Gouger,         236 S.W.2d
870 (Tex.        Civ.     App. -San          Antonio      1951.     writ     ref’d)       (amendment        to
article      974a      in    1949 did       not    lmpliedly        repeal Authority              given     to
commissioners’          court    by Article       6626).

        In 1951 the             legislature         passed      two statutes           dealing        with     the
matter.          The     first       passed.       Article       2372k.        V.T.C.S..         gave     larger
counties        the power         to promulgate           certain       requirements           to be met by
persona        subdividing           land     situated       “outside         the    boundaries          of Any
incorporated           town      or city,”         And it       SxprSSSly         rApAAlAd        Conflicting
1Al.W. Later.           during      the aAme session          of the legislature,                Article     6626
-- AppliCAblA            to large        And amsll        counties        Alike    -, WAS Amended.               As   ?
Amended,        Article        6626 returned           to cities        the Authority            and duty        to
approve       or disapprove            maps And plats            of subdivisions            located       within
five    miles       of city        limits      “AS provided           in Article         974A.”        Attorney
General       Daniel        concluded        in Attorney         General        Opinion       V-1401       (1952)
that      the      later       Article        6626      Amendment         repesled        the     conflicting
provisions         of Article          2372k.      And thst       cities.       not counties,           had the
power to approve               or disapprove           maps And plats            within       the five       mile
zone.

        Implicit      in the conclusion        of Attorney        General    DAnis      was the
further      conclusion       that    by incorporating        the   reference      to Article
974A.     the Amendment         to Article    6626 conferred        upon cities       the same
Authority      within      the five    mile zone that      they had exercised         prior     to
the supreme        court’s    1944 TrAvAlter     decision.        That authority       included
the power to withhold             Approval  of plats      and maps of aubdivisiona            not
conforming       to the general       plans of the city.        V.T.C.S..     art.   974a, 14.

        Subsequently.           in     1957.       Article      6626a.     V.T.C.S..        was      enacted
giving     smaller      counties        the same mep And plat ‘Approval                  powers article
2372k     had previously              given      larger      counties      “without       the     corporate
limits     of any city,”            but its        repealer      clause     specified       that     nothing
therein      should      “repeal.        nullify,       alter     or change       the rights         of Home
Rule     Charter       cities       to’regulate.            zone.     And restrict           subdivlaions
within     a five      (5) mile radius             of their      corporate      limita.”        Acts 1957,
55th    Leg.,      ch.     436.     $5. at        1302.      1303.      In 1961.       the     legislature            -,
further       specified          that      the      1957     enactment       had     not     limited       the
requirement        of prior         approvsl         of plats      by cities.          Acts     1961.     57th
Leg..    ch. 449, 12. At 1022. 1023.                     -See Attorney       General     Opinion       H-1057
(1977).



                                                        p.   91
HonorAble       Ii. G. Wells       - Page     3     (JM-20)




       Token     together,        we think    these     provisions       show A legislative
intent     that    Article       6626 invest      ~11 cities       with    power   to regulate
subdiviaiona       within     A five    mile zone.      And thAt counties         hAVe limited
regulstory      powers over other         aubdivisiona      in the county under Articles
2372k    And 6626~.       V.T.C.S.      See  Attorney     General     Opinion    H-904 (19761.
But see Attorney          General    Opinions     1313-1438 (1962).      C-459 (1965).      This
WAS the atste         of the law in 1963 when Article                   97OA. V.T,C.S..      the
Municipal     Annexation       Act. WAA enacted.

         The MunicipAl        Annexation         Act is only incidentally                  concerned     with
 the     ApprOVAl      Of plAtA          and      m3pA.       It     establishes,          primarily       for
 annexation         PUrpOAeA,          A      protected          OnA       mile       “extrAtArritoriAl
 jurisdiction”         zone      for     cities      of     PAlestine’s           population       bracket.
 Incidentally       the act Allows            such cities          to exteud        the ApplicAtion         of
 particulsr       ordinances         establishing           rules      And regulations            governing
 plats     And aubdivisiona           of land       to the Area.            And to enforce           them by
.injunctive      relief.        On the other hand,             Article       6626 requires        cities     to
 eXeKCiSe plat        Approval       Authority       within      A five mile eone, And, through
 the incorporation           of Article         974A. section          4 of article         6626 makes it
 the duty of city            officiAla        to Approve         plans      (After      public    hearing).
 plats     or replata      that conform          to the general          plan of the city           And meet
 the     general      rules       And regulations              promulgeted           by    the    city     for
 subdivisions.

       WA duo not believe              the    “one mile”         provision         of the        Municipal
Annexation       Act mutt be read            to repeal        the “five         mile” provisions           of
Articles        974A     And    6626.         Although        each      statute         addresses        the
extraterritorial            powers       of     A city        with     respect          to     plats     And
aubdiviaions,        they do it in WAYS that                are not inconsistent.                  There is
no repugnancy         between      the concept         (1) that      cities       have the power to
require      aubdivisionA        within       five     miles     of the        city     to conform         to
general      plans    and generel         rules      and ragulAtiona            regarding        plats   And
maps before        Approving      subdivision         plats     and (2) that          cities       have the
Additional         power     to    enforce        by    injunction         perticular          ordinances
respecting       subdivisiona        only within        one mile of the city               limits.

        If two statutory        provisions      can bc reasonably       construed    so that
both may stand,       neither     will    be held    to repeal   the other.      See 53 Tex.
Jur.      2d,  Statutes       1104.     st   153.      Moreover,    the     1963enActment
specified     that    it did not repeal           the ACt codified       86 article     974a,
V.T.C.S.,

                AS last    amended   or any other   law or part       of lsw
                upon the subject      of which  the provisions       of this
                Act relate    unless   they Are expressly     inconsistent
                and then only to the extent      of such inconsistency.

Acts 1963, 58th Leg..    ch. 160, Art. III,  At 447. 454.      In our opinion,
the enactment  of Article    970A did not repeal     Any provision   of either
articles  974A or 6626, nor Affect    their operation.




                                                      p.   92
,



    Honorable     M. G. Wells        - PAge 4       (JM-20)




            Consequently,         we Advise    you that unless            the AppropriAtA          municipA1
    Authority       of the city        of Palestine        has Approved         A Aubdiviaion          Mp or
    plat    for land located           within     five    milea      of lte     city    limits      (but not
    within     five     .milea      of a lerger        city),       the    county     clerk      is without
    Authority       to file     it.    V.T.C.S.      Art.     6626.     WC Also Advise          that COUnty
    Approval       is unneceasery          for    the maps And plAt6               of subdivisions          A0
    situated.       and thAt the Authority             given     counties      by Articles         2372k And
    6626~ to regulate           construction        And widthr        of rightA-Of-wAy          And streets
    Applies      only     to subdivisions          located      more than        five     miles     from the
    city’s    boundries.          See Attorney        General       Opinions     H-904 (1976);         V-1401
    (1952).       Cf. Attorney         General      Opinions      H-1146 (1978);           H-1057 (1977).
    Attorney      G%?eral      Opinions     C-459 (1965);         WW-1438 (1962)          (disapproved      to
    the extent        of conflict      herewith).

                                                SUMMARY

                       The county          clerk    of Anderson        County   is    not
                   Authorized       to file      A mep or plat       of A subdiviaioa
                   of land      located      within    five   miles    of the city     of
                   Palestine       unless       it   has    been    Approved    by    the
                   Appropriate        city     AuthOKity.        County   AppKOVAl      is
                   unnecessary.

                                                                Very   truly    you


                                                          LJ~          &        I&
                                                                JIM        NATTOX
                                                                Attorney    General      of   TAXAS


    TOM GREEN
    First AASiStAnt         Attorney      General

    DAVID R. RI&RDS
    Executive Assistant           Attorney      General

    Prepared      by Bruce     Youngblood
    Assistant      Attorney     General

    APPROVED:
    OPINION COMMITTEE

    Susan L. GAKKiSOn,           Chairman
    Jon Bible
    Rick Gilpin
    George Gray
    Jim Moellinger
    Bruce Youngblood
