                                  The Attorney         General of Texas

 JIM MAlTOX
                                                   hgust   19, 1986
 Attorney General
                                                                              .

 Supreme Court Building                                         Opinion No.   .X+534
                                Honorable 6. Bruce Curry
 P. 0. BOX 12549
 Austin. TX. 75711. 2549
                                District Attorney
 51214752501                    521 Earl Garrett Street         Re: Authority of a commissioners court
 Telex 910/974-1367             Kerrvil&e, Texas 713028         to amend a subdivision ordinance to
 Telecopier  51214750256                                        exempt certain kinds of subdivisions
                                                                from the provisions of article 6702-l.
 714 Jackson, Suite 700                                         V.T.C.S.
 Dallas. TX. 75202.4506
 2141742-8944                   Dear Mr. Curry:

                                       You inquire wmsther a commissioners court may amend its sub-
 4824 Alberta Ave., Suite 150
 El Paso, TX. 79905.2793
                                division ordinance to exempt certain kinds of subdivisions from the
 915/533-3494                   provisions of article 6702-1, section 2.401, V.T.C.S. Your question
                                is raised by the fac,tthat a commissioners court by order established
                                "minimum requirements for the laying out, design, and construction of
/lC@l Texas, Suite 700          streets, roads, parks, and other areas to be dedicated to public use
      ,ston. TX. .77002-3111
   .j1223+,&%3
                                within    subdivisions or additions" lying outside the corporate limits
                                of cities and towns in the county as a requisite to approval and
                                authorization of ary map or plat of such subdivisions or additions.
 806 Broadway. Suite 312        Subsequently, the commissioners court issued an amendment to its
 Lubbock, TX. 79401.3479        subdivision ordinmce      which provides, in part, that the order
 9OS/747-5239
                                establishing minimm requirements requisite to approval and authoriza-
                                tion    of a map or plat of a subdivision or addition outside the
 4309 N. Tenth, Suite S         corporate limits of a city or town shall not apply to the following
 McAllen, TX. 79501-1695        divisions:
 5W692.4547

                                             1. Di'rLsionof land by order of Court.
 200 Main Plaza, Suite 400
 San Antonio, TX. 78205.2797                 2. DivLsion of inherited property between
 512/225-4191                             heirs, by agreement or by action in probate.

 An Equal Opportunity/
                                             3.   Dtirisionby gift or bequest.
 Affirmative Action Employer
                                             4.   Division by sale to an adjoining owner.

                                             5. Dtirisionof a tract into smaller tracts
                                                                                 _--.   all
                                                      --
                                          of which smaller tracts exceed twenty (20) acres
                                          per tract.

                                             6. Division of a larger tract into not more
                                          than three (3) smaller tracts, however said
                                          division of the larger tract or smaller tracts
                                          subdivided shall not occur more frequently than



                                                           p. 2459
Honorable E. Bruce Curry - Page 2   (JM-534)




         once each 12 mlxlths. Subsequent divisions of
         smaller tracts subdivided shall be subject to the
         limitation imposed on the larger tract as to
         number of smaller tracts (3) which may be sub-
         divided in one 12 month interval.

     We conclude that, within the authority granted by article 6702-1,
a commissioners court may amend and change its own minimum require-
ments that are requisite to its approval and authorization of a map or
plat of a subdivision located outside the corporate limits of a city,
but a commissioners court may not enact exemptions to provisions of
the state statute.

     The approval of maps and plats of subdivisions located outside
the corporate limits of a city is governed by section 2.401 of article
6702-l. V.T.C.S., which is the County Road and Bridge Act, and article
6626aa. V.T.C.S. See Attorney General Opinion .JM-365(1985). Article
6626aa provides thxin    are,asunder a city's extraterritorial juris-
diction as defined by article 970a. V.T.C.S., no plat shall be filed
with the-county clerk withmxlt the authorization of both the city and
county. Section 2.401 of article 6702-1, V.T.C.S., provides, in part,
that

            (b) The owne:: of any tract of land situated
         without the corp;cate limits of any city in the
         State of Texas, &o may hereafter divide the same
         in two or more p&s   for the purpose of laying out
         any subdivision of any such tract of land, or an
         addition without ihe corporate limits of any 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 pubMc use, or the use of purchasers
         or owners of lots fronting thereon or adiacent
         thereto, shall cause a pla; to be made thireof,
         which shall accu.%tely describe all of said sub-
         division or addition 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 dimewions of said subdivisions 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 owxxs of lots fronting thereon or
         adjacent thereto. , . .

             (c) Every suc'h plat shall be duly acknow-
          ledged . . . sk!ct    to the provisions contained
          in this section,- such plat shall be filed for
          record and be recorded in the office of the county
          clerk of the coun'y in which the land lies.



                                 p. 2460
,


    Honorab1e.E. Bruce Curry - Iage 3     (JM-534)




                (d) The commissioners court of the county may,
             by an order duly adopted and entered upon the
             minutes of the court, after a notice published in
             a newspaper of gezeral circulation in the county,
             be specifically authorized to make the following
             requirements:

                 (1) to provide:for right of way on main artery
              streets or roads within such subdivision of a
              width of not less than 50 feet nor more than 100
              feet;

                 (2) to providti for right of way on all other
              streets or roads in such subdivision of not less
              than 40 feet nor mclrethan 70 feet;

                 (3) to provide that the shoulder-to-shoulder
              width on collectors,or on main arteries within the
              right of way be not less than 32 feet nor more
              than 56 feet;

                 (4) to provide for the shoulder-to-shoulder
              width on all othl?r streets or roads within such
P
              subdivision within the right of way to be not less
              than 25 feet nor uclrethan 35 feet;

                 (5) to promulgate reasonable specifications to
              be followed in the construction of any such roads
              or streets within such subdivision, considering
              the amount and kin?!of travel over said streets;

                 (6) to promul];atereasonable specifications to
              provide adequate drainage in accordance with
              standard engineering practices for all roads or
              streets in said subdivision or addition;

                 (7) to require!the owner or owners of any such
              tract of land which may be so subdivided to give a
              good and sufficient bond for the proper construc-
              tion of such roads or streets affected, with such
              sureties as may be approved by the court. In the
              event a surety 'sand by a corporate surety is
              required, such bold shall be executed by a surety
              company authorizeadto do business in the State of
              Texas. Such bond shall be made payable to the
              county judge or his successors in office, of the
              county wherein scch subdivision lies, and condi-
              tioned that the owner or owners of any such tract
              of land to be subdivided will construct any roads
              or streets withir: such subdivision in accordance
              with the specifications promulgated by and within



                                        p. 2461
Ronorable E. Bruce Curry - Eage 4      (JM-534)




         a reasonable time as may be allowed by the com-
         missioners court cf the county. The bond shall be
         in such an amount as may be determined by the
         commissioners court not to exceed the estimated
         cost of constructi,ngsuch roads or streets.

             (e) The comudssioners court of the county
          shall have the a&ority   to refuse to approve and
          authorize any map ';;r
                               plat of any such subdivision,
          unless such map o:Eplat meets the requirements as
          set forth in this section and there is submitted
          at the time of a&oval    of such map or plat such
          bond as may bt? required by this -section.
          (Emphasis added).

The platting requirements o:?article 6702-l apply to the divisions of
land into two or more parts for the purposes specified in subsection
(b).

     It is well established that a county commissioners court
possesses only the powers c:onferredeither expressly or by necessary
implication by the constitution and statutes of this state. See Tex.
Const. art. V, 518; Canales v. Laughlin, 214 S.W.2d 451, 453(Tex.
1948). We are not aware of any statute that gives a county the power
to enact exemptions to the provisions of article 6702-l that require
the preparation and filing elfrecord of a plat by an owner who divided
land outside a city into two or more parts for the purposes specified
in subsection (b). See Attorney General Opinion JM-508 (1986). Cf.
Lacy v. Huff, 633 S.=d    605, 610 (Tex. App. - Houston 114th Dist.]
1982, writ ref'd n.r.e.) (requirements of statute authorizing cities
to regulate subdivision development are applicable to owner who sought
to divide lot into two 10,:s). When an order of the commis~sioners
court conflicts with a proper legislative act, the order must give
way; the act of the legislsture prevails. Brown v. Meeks, 96 S.W.2d
839, 842 (Tex. Civ. App. - !;rmAntonio 1936, writ dism'd).

     A map or plat of a subdivision or addition outside the corporate
limits~of a city must have bseen approved by the county before it can
be filed and recorded by the county clerk. See Property Code 512.002;
Trawalter v. Schaefer, 179 :S.W.2d 765 (Texx944);    Attorney General
Opinion JM-508 (1986). If a person who seeks to file and record a
plat has complied with the statutory requirements outlined in section
2.401 of article 6702-l. approval and filing of the plat becomes a
mere  ministerial duty.    Eee Commissioners Court v. Frank Jester
                          ---
Development Co., 199 S.W.2d 11004,1007 (Tex. Civ. App. - Dallas 1947,
writ ref'd n.r.e.); Attorney General Opinion JM-317 (1985). See also,
City of Corpus Christi v. Un:itarianChurch, 436 S.W.2d 923, 927 (Tex.
Civ. App. - Corpus Christi 1x168.writ ref'd n.r.e.1.

     Subsection (d) of section 2.401, however, expressly authorizes
a commissioners court to establish by order the minimum requirements



                                    p. 2462
Honorable E. Bruce Curry - Page 5       (JM-534)




specified in subsection (d) as requirements that are necessary for the
county's approval of maps or plats of subdivisions outside the
corporate limits of a city. The commissioners court exercises the
legislative power of the county and has the power to amend an order
made in its legislative capacity, insofar as the amendment conforms to
the authority granted by statute and does not impair vested rights or
violate other constitutional provisions, such as the equal protection
clause of the Fourteenth Asendment of the United States Constitution.

     Hence, it is our opinion that, to the extent authorized by
article 6702-l. section 2.401, a commissioners court may amend its
minimum requirements that are requisite for its approval of sub-
division plats, but it ma!' not exempt certain kinds of subdivisions
from the provisions of article 6702-1, section 2.401, that require
owners who divide land into two or more parts for the purposes
specified in section 2.40:.(b) to file a plat for recording In the
office of the county clerk.

                              SUMMARY

            A commissione:rr;court is authorized to amend
         its subdivision 'xdinance to make changes in the
         minimum requirements specified in section 2.401(d)
         of article 6702-I.,V.T.C.S., which are enacted as
         requirements necessary for the county's approval
         of maps and plat!; of subdivisions located outside
         a city. A commis:sionerscourt may not amend its
         subdivision ordinance to exempt certain kinds of
         subdivisions from the provisions of section 2.401
         that require an owner to prepare and file a plat
         when land located outside a city is divided into
         two or more parl:s for the purposes specified in
         section 2.401(b).




                                         JIM     MATTOX
                                         Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General

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