                  .\1:wrrlu.TDcxms   TO711


                    November 26, 1976




The Honorable Tom Hanna                 Opinion No. H-904
Criminal District Attorney
Jefferson County                        Re:  Whether a commissioners
P. 0. Box 2553                          court may require sub-
Beaumont, Texas   77704                 dividers to comply with
                                        county subdivision
                                        specifications.

Dear Mr. Ranna:
     you have requested our opinion with regard to whether
the Jefferson County Commissioners Court may require a
subdivider to comply with county subdivision regulations
promulgated under article 2372k, V.T.C.S., where the sub-
divider has not requested plat approval or acceptance of the
roads by the county. Specifically, you ask whether such
compliance may be required in the following situations:
          1. Where the subdivider represents to
          the purchaser that the roads are public
          and will be maintained by the county; and

          2.  Where the roads are not public and
          intended only for the use of the purchasers
          who realize that the roads are private and
          not to be maintained by the county.
     Article 2372k states:
          ITlhe Commissioners Courts of.such counties
          shall have the authorit to re uire the
          owner GwiiEFsdrithd
          situated outside oftthe boundaries of any
          incorporated town or city in such counties,
          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 for
          laying out suburban lots or building lots,
          and streets, alleys or parks or other portions

                            p.3791
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:   .


        The Honorable Tom Hanna -   page   2   (H-904)




                  inte~ndedfor public use, or the use of
                  purchasers or owners of lots of any such
                  tract of land, to provide for a right-of-way
                  of not less than sixty (60) feet for any
                  road or street within such subdivision.
                     (b) The Commissioners Courts of any
                  such counties shall have the authorit
                   romul ate reasonable
                  ibirs&T   n the construction of any such
                  roads or streets within such subdivisions,
                  which specifications may include provisions
                  for the construction of adequate drainage for
                  such roads or streets. V.T.C.S. art. 2372k.
                  s 1. (Rmphasis added).
        Language of a statute that is plain and clear should bs given
        effect as written. Gateley v. Humphrey, 254 S.W.2d 98, 100
        (Tex. Sup. 1952). Therefore, the commissioners court has the
        authority to require owners of land located outside the five
        mile limits of an incorporated city [see art. 6626, V.T.C.S.,
        and Attorney General Opinions V-1401 (1952) and R-2952 (1952))
        who divide their land for the purposes set out above to provide
        for a sixty-foot right-of-way. The commissioners court also
        has the authority to promulgate reasonable specifications to
        be followed in the construction of roads in the 'subdivision
        and may require subdividers to give a bond for the construction
        and maintenance of such roads. V.T.C.S. art. 2372k, 99 l(b), 2.
        Additionally, section 3 of article 2372k gives the commissioners
        court the authority to refuse to approve or authorize any map
        or plat of a subdivision for recordation under article 6626,
        V.T.C.S., where the subdivider has failed to comply with the
        minimum right-of-way and bond requirements.
             The contemporaneous history surrounding the passage of
        article 2372k (Acts 1951, 52nd Leg., ch. 151 at 256) supports
        a literal reading of the statute. Shortly before the enact-
        ment of article 2372k, Commissioners' Court v. Frank Jester
        Develo ment Co.,
        &r-d             ~'~.~:~.~~s"~~~i~~~.~h~;s;;r~~~~s
        the Court considered a situation in which the EIlZZ Couniy
        Commissioners Court had promulgated specifications with which
        developers desiring the Commissioners Court's approval for
        filing of a plat had to comply. The Commissioners Court had
        also ordered that developers provide~entrance culverts to
        each separate piece of property and that through streets


                                p.3792
,.   .


         The Honorable Tom Hanna - page 3 (h-g04)


         have a sixty-foot right-of-way. The Court of Civil Appeals
         held that under the then applicable statute;.article 6626,
         V.T.C.S., the Commissioners Court had no authority to refuse
         approval of a plat which contained sufficient information to
         allow it to be recorded. Additionally, they held that

                   the Commissioners' Court [could not] impose
                   upon appellee additional requirements and
                   conditions as reflected in its order . . .
                   since the Legislature has not seen fit to
                   require such conditions. -Id. at 1007.
         In light of   this background, we are of the opinion that the
         Legislature   intended the provisions of article 2372k to'
         address the   problems faced by the Court in Jester and to supply the
         legislative   authority necessary for the ca&imners     court
         to make the   requirements specified in the terms of the statute.
              The emergency clause of the bill enacting article 2372k
         reads, in pertinent part:
                       Sec. 6. The fact that maintaining
                   shoddy roads and streets in new subdivisions
                   has become a heavy drain on County Road and
                   Bridge Funds, and the fact that at present
                   the County Commissioners Courts have no
                   legal authority to require real estate
                   developers to construct substantial roads
                   and streets in such new subdivisions, creates
                   an emergency . . . .
         Allowing subdividers to escape the article's application by
         refusing to submit maps or plats of the subdivision for
         approval or by representing that the roads are nonpublic
         could result in perpetuation of the conditions which the
         emergency clause indicates the Legislature intended to
         correct.
              Attorney General Opinion V-1480 (1952) previously con-
         cluded that the commissioners court has the authority under
         article 2372k to require subdividers to provide for sixty
         foot right-of-ways and to promulgate reasonable specifications
         for the construction of roads within a subdivision. Attorney
         General Opinion V-1480 also held that it was appropriate for
         the commissioners court to seek injunctive relief as a means
         of enforcing the provisions of article 2372k.



                                    p.3793
The Honorable Tom Hanna - page 4   (R-994)


     We are aware that Attorney General Opinion C-66 (1963)
limited the application of the provisions of article 2372k
only to subdividers who have suixaittedplats for approval
by the ccnsmissionerscourt. However, as pointed out in this
opinion, we believe that such a limitation could permit
subdividers to avoid application of the statute by refusing
to submit and would thereby subvert the legislative intent
embodied in article 2372k. Additionally, Opinion C-66 pur-
ported to limit the Commissioners Court as follows:
          In the event that the Commissioners
          Court has promulgated reasonable standards
          under the authority of Article 2372k, and
          the developer fails or refuses to give his
          bond (if required) or to make his plat
          conform to such requirements, the Commis-
          sioners Court's on1 recourse is to refuse
          the developer's -id
                          a   ivision. (Emphasis
          added).
This conclusion fails to take into consideration the contrary
holding of V-1480. For the reasons we have stated, it is
our conclusion that the commissioners court may require
landowners subdividing land for the purposes set out in
section l(a) of article 2372k to comply
                                    _ - with regulations
promulgated under that article. To the extent that Attorney
General Opinion C-66 conflicts with this opinion, it it
overruled.
                      SUMMARY
          The county commissioners court may require
          any land owner subdividing for the purposes
          set out in section l(a) of article 2372k to
          comply with regulations promulgated by the
          commissioners court under article 2372k.
          The commissioners court's authority to make
          requirements under the provisions of article
          2372k and to enforce such requirement is not
          dependent upon whether or not the subdivider




                         p.3794
The Honorable Tom Hanna - page 5 (H-904)


            has submitted a plat for the commissioners
            court's approval nor upon the subdivider's
            representations as to the public or nonpublic
            nature of the roads within the subdivision.

                               Very truly yours,



                                Attorney General of Texas
APPROVED:




Opinion Committee
jwb




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