                  2%~     ATPOWNEY          GENE-L

                               cwTEx~s

PRICE  DANIEL
ATTORNEYGENERAL




        Hon. A. C. Winborn
        District Attorney
        Harris County
        Houston, Texas
             Attn:      Hon. W. K. Richardson
                                 Opinion No. V-624
                                Re:   Authority of County Clerk
                                      to record a map of a sub-
                                      division within,and ap-
                                      proved by the off.icersof,
                                      a town of less than 25,000
                                      without approval ef same
                                      by officers of a city ef
                                      over 25,000, within 5 miles
                                      of such subdivision.
        Dear Sir:
                  We refer to your request for an opinion on
        the following question:
                   The governing body of Jacinto City in
              Harris County, a city incorporated under
              general law, approved a map of a subdivi-
              sion of land situated in said city, outside
              of but within five miles of the incorpor-
              ated city of Houston which has a population
              of more than 25,000.
                   Is it necessary that the City Planning
              Commission of the city.of Houston or the
              Commissioners’ Court of Harris Co,untyop-
              prove the said map to authoriz.ethe County
              Clerk of Harris County to file’,
                                             and record
              such map in the office of~,theCounty Clerk
              of Harris County?
                  The Acts involved,in your request are Ver-
       non’s Civil Statutes, Articles 974a, enacted in 1927,
       and 6626, as amended fin 1931.
Hon. A. C. Winborn - Page 2   (V- 624 )



          The pertinent parts of Article 974a read in
part:
           "Sec. 3. That it shall be unlawful
     for the County Clerk of any county in which
     such land lies to receive or record any
     such plan, plat or replat, unless and un-
     til the same shall have been approved by
     the City Planning Commission of any city af-
     fected by this Act, if said city have a City
     Planning Commission and if it have no City
     ?lanning Commission, unless and until the
     said plan, plat or replat shall have been ap-
     proved by the governing body of such city.
          "Sec. 4.   IS such plan or plat, or re-
    plat shall conform to the general plan of
    said city and its streets, alleys, parks,
    playgrounds and public utility facilities,
    including those which have been or may be
    laid out, and to the general plan for the
    extension of such city and of its roads,
    streets and public highways within said city
    Pm   ithin fi e riles of the corworate l&g=
    iiLLLa/       regard being had ,foraccess to
    and,extensi& of sewer and water mains and
    the instrumentalities of public utilities,
    aad if same shall conform to such Penera.&
    rules and reculations, if anv. governing
    nlat and subdivisions of land fallina with-
    in ifs jurisdiction as the aoverning bodv of
    such citv mav adont and nromulgate to pro-
    mote the health, safety, morals or general
    welfare of the community, and the safe, or-
    derly and healthful development of said COR-
            ( c
    munity (wh        er
    for said DurDoses such cities are herebv au-
    thorized to adont and wromulsate after vub-
    lit hearing held thereon). then it shall be
    the duty of said City Plannine Commission or
    of the governing bodv of such citv. as the
    case mav be. to endorse awnroval unon the
    plan, alat or reDlat submitted to it.”
           In June 1931, the Supreme Court approved an
opinion by the Commission of Appeals in the case of
Hollis, County Clerk v. The Parkland Corporation, 120
Tex. 531, 40 S. W. (2d) 53, pertaining to the duty of
the County Clerk concerning the filing and recording of
Hon. A. C. Winborn - rage 3   (V-624)


maps of subdivisions. The Court said:
           “Putting aside the crave censtitutiomal,
     questions i’nvolved.and treating the orovis-
     ions of this act as valid. with resnect to
     lands lvinz outside the territorial boundaries
     of the city . . . the case will first be con-
     sidered from that standpoint. The plat appears
     to be duly acknowledged as required by law and
     bears the approval of the City Planning Comis-
     sion. This is all that the act calls for as a
     prerequisite of the recording of the plat in
     the office of the county clerk. With refer-
     en   to the acuroval. o d-u      oval. of such
     p1zz.sas are contemelatid by the’act. at lea f;
     s reeards the recordinr of the nlats. the,csQ
       until of Fort Worth has nothine to do
     io”esthe act purport to give the city cbu.%l
     any authority in that respect, except in case
     there was no city planning commission. Tha.
     powor to regulate the recistration of instru-
     nents in the office of the CO&Y    clerk does
     not anwertaig to B              . . . .
           ‘1. . I Article 6591 makes it the duty
     of the county clerk to record all instruments
     of writing authorized or required to be re-
     corded in the county clerk’s office. By the
     provisions of article 6626, certain specified
     instruments Ior other instruments of writing
     concerning lands or tenements’ are authorized
     to be so recorded, when ackno’!Jedaedor Dr0vef.j
     gccordine t la      The plat in question and
     the accompa~yin~‘written dedication come with-
     in the purview of the last-mentioned statute.
           ?We recommend that the first certified
     question be answered by saying that The Park-
     land Corporation has a statutory right to have
     filed for record the tendered plot and dedica-
     tion.”
           While the Hollis case was pending in the Su-
preme Court, Article 6626 was amended.
           Article 6626, as enacted in 1846, read:
Hon.   A. C. Winborn - Page 4   (V-624)


             "The following instruments of writing,
       which shall have been acknowledged or proved
       according to law, are authorized to be re-
       corded, viz. all deeds, mortgages, convey-
       ances, deeds of trust, bonds for title, cove-
       nants, defeasances, or other instruments of
       writing concerning any lands or tenements, or
       goods and chattels, or moveable property of
       any description."
           In 1931 Article 6626 was'amended by adding
the following:
             '1. . . provided, however, that in cases
       of subdivision or re-subdivision of real prop-
       erty no map or plat of m         subdivw
       gr re-subdivision shall be filed or recorded
       until the same has be n authorizad bv the Cofo-
       missioners' court of Fhe county in which.the
       real estate is situated by order duly entered
       in the minutes of said court except in cases
       of partition or other subdiv!sion through a
       cour,tof record; provided, that within incoc
       m                         the g?v;-&yg body -
                n lieu of the Commissio        ourt
       shall perform the duties hereinabove imposed
       upon the Commissioners' Court."
           In Trawalter County Clerk v. Schaefer, 142
Tex. 521, 179 S. W. (2dj 765, a map of property located
outside of San Antonio, but within 5 miles thereof, had
been approved by the governing body of that city, under
Article 974a but not by the Commissioners1 ,Court as re-
quired by Article 6626. It was contended that the 1931
amendment of Article 6626 is void. The Court said in
upholding the validity of the Act:
              ,I     We are Sully avare of the fact
       that judiciai discretion may exist in judi-
       cial tribunals less definitely defined than
       it can exist in tribunals or authorities
       which exercise purely executive or adminis-
       trative powers. We are also Sully aware of
       the fact that executive and administrative
       authorities cannot be clothed with undefinea
       unrestrained. or arbitrarv powers. In spite'
       of the rules just mentioned, we are convinced
       that this act does not clothe the commission-
            courts with unrestrained. undefined. or
       .63-s'
Hen. A. C. ‘Jlnhorn- Page 5   (V-624)


    zutrarv   no er or even with undefined iudi-
    cial discretron. To the contrarv. we thi&
    the Act. taken as a whole. is 'sufficiently
    certain to furnish commissioners’ courts
    with a definite auide to eovern their action%
    thereunder.”
           With reference to the matter here under con-
sideration, the Supreme Court then stated:
                   a a ter cant n    that Article
     6626 a6*amehdzi tvlthe 1931eA%  has onerated
    to reveal the extra-territorial nrovisions
    of Article 974a. Acts 1927. We are in ac-
    cord with Trawalter!g contention. Article
    974a, Acts 1927, provides that maps or plats
    of subdivisions such as the one here involv-
    ed shall be approved by certain named auth-
    orities of cities and towns of 25,000 inhab-
    itants or more, if the land represented by
    such maps or plats is situated within the cor-
    porate limits of such municipalities or with-
    in five miles thereof. Article 6626, Acts
    1931, by its very plain language provides
    that no map or plat of any subdivision of
    land shall be filed or recorded until such
    filing and recording has been authorized by
    the commissionerst court. Article 6626, Acts
    1931, then excepts from its general provision
    maps or plats of subdivisions situated within
    the corporate limits of cities and towns, and
    maps or plats of subdivisions authorized by
    courts of record. It is plainly evident that
    the exception to Article 6626, Acts ‘1931,re-
    garding maps or plats of land situated within
    the corporate lipits of cities and towns oper-
    ates to keep in force the provisions of Arti-
    cle 974a, Acts 1927, insofar as such last-
    mentioned Act covers g)aDs or olats of land
    situated with;l
                 n t                      ol’the
    cities and towns mentioned therein, cut it
    does not operar;eto preserve or keep in force
    such Act insofar as it co ers extra-w-
    toripl          Certainly zad the Legislature
    intenfledsuci a construction to be given Ar-
    ticle 6626, Acts 1931, It would have included
    lands within five miles OS cities and towns
    of 25,000 inhabitants or more in the language
    of the exception.
iron.A. C. winborn - Page 6   (v-624)



          “Even if it should be held that Article
    6626, Acts 1931, has not repealed the extra-
    territorial provisions of Article 974a Acts
    1927, then maps or plats of land located wit-
    in five miles of cities and towns containing
    25,000 inhabitants or more would be included
    within the.provisions of both Acts, and in.
    such instances both Acts would have to be com-
    plied with. We hardly think that such was the
    intention of the Legislature; and yet this
    conclusion would be inescapable if it should
    be held that Article 6626, Acts 1931, has not
    repealed the extra-territorial provisions of
    Article 97&a, Acts 1927. At this point we
    wish to say that we exnress no Q&@n    as &
    the validitv of the extra-territorial vrovi -
    ion of Article 974a. Acts 1927. Hollis v. Tze
    Parkland Corporation, 120 Texas 531, 40 S. W.
    (2d) 53."
           Your request pertains to a subdivision map of
land situated in Jacinto City, an incorporated town hav-
ing an estimated 4,775 inhabitants, outside of, but with-
in 5 miles of the City of Houston. The incorporated
cities of Jacinto City and the City of Houston have no
jurisdiction within the boundaries of each other.
           In the case of City of Galena Park v. the
City of Houston, 133 S. ti. (2d) 162 (error refused), the
Court had under consiaeration the question of the exer-
cise of contemporaneous co-existent control over the same
territory. In that regard the Court said:
           I,
            . . . Since the statute does, by neces-
     sary effect, so negate the passing of any such
     claimed right to other cities and towns under
     the general law of their creation, and, at the
     same time affirmatively does confer exclusive
     jurisdiction over the territory upon eligible
     annexing:cities, the well settled principle,
     that two municipal corporations caynot have co-
     existent control over the same territory and
     contemporaneously exercise essentially the same
     governmental powers in it applies."
           In City of West University Place v. City of
Dellaire, 198 S. d. (Zd) 766, the Court said:
Hon. A. C. Winborn, Page 7   (V-624)



           "The powers of local self government
     possessed by citizens of towns and cities
     of 5000 inhabitants or less are not so ample
     as those held by home rule cities. However,
     such powers of local self-government as are
     possessed by towns and cities of 5000 inhab-
     itants or less are held by the same title, as
     home rule cities ho.Ld,.,theirs;
                                   namely, by the
     State Constitution and general laws. Sec. 4,
     Art. XI of the State Constitution reads:
     'Cities and towns having a population of five
     thousand or less may be chartered alone by
     general law. They may levy, assess and col-
     lect . . 0' Since the title by which Bel-
     laire and Southside Place hold their munici-
     pal jurisdiction over the territory within
     their corporate limits is the Constitution
     and general laws of this State, no part of
     their territory or jurisdiction is sublcct to
     monriation    bv West Universitv Place 0n
           We therefore believe that the conclusion
reached In your brief, submitted with your opinion re-
quest, is correct. Following the decision in the Tra-
Walter case and Attorney General's Opinion 0-6090, we
hold that Article 6626 re ealed the extra-territorial
provisions of Article 97r:a. The City of Houston,
therefore, need not and has no jurisdiction to approve
the plat of property located outside its limits and
within another incorporated city.
           Further, Article 6626 simply requires that
a city or town be incorporated in order to approve
such plats. No particular size or population is rc-
quired. We therefore hold that the approval of the
governing body of an incorporated citg or town (Ja-
cinto City) satisfies that requirement of Article 6626.
Therefore, assuming that all other requirements are
mot, the,plat in question is a proper subject for fil-
ing or recordation.
                        SUMMARY

             The extra-territorial provisions of
     Article 974a were repealed by Article 6626.
     Trawaltsr v. Schaefer, 142 Tex. 521, 179
     S. W. (2d) 765; Attorney General's Opinion
     0-6090.    Where property is located within
Han, A. C. Winborn - Page 8   (v-624)



     an incorporated town (Jacinto City), and out-
     side the limits of but within 5 miles of a
     larger incorporated town (Housta), l r-2,~
                                              the
     approval of tti governing body of the smaller
     town in which the property is located is re-
     quired in order that a plat of such property
     may be filed and recorded by the County Clerk.
     Art. 6626.
                               Very truly yours,
                         ATTORNEY GENERAL OF TEXAS




WTW:vb;erc;wb                 Assistant


                         APPROVED:
