              THE       &rrORs~r                    GENERAL
                            OF          EXAS

                            September       21,   1987




Mr. Mike Coffey                                   Opinion   No.   JM-789
Kendall County Auditor
Kendall County Courthouse                         Re:   Authority   of a commissioners
Boerne, Texas   78006                             court to impose certain     require-
                                                  ments on a subdivider       of    land
                                                  abutting   a public  road

Dear Mr. Coffey:

       You ask about two provisions   in.the  Kendall County                "Regulations,
Rules and Specifications    for   Roads and Subdivisions."                  Specifically,
you request   an opinion  on the    authority  of the    county             to adopt      the
following   provisions:

                                     Rule     204.80

               All    Streets      and Roads        will   not   receive
           consideration       for final   approval    by Commissioners'
           Court until     at least      one (1) year after     original
           construction      of Streets    and Roads is completed.

               Upon final   approval,    title     to all Streets       and
           Roads shall be conveyed         to the County, for         their
           maintenance    by a Warranty        Deed, which      shall     be
           acceptable      to     the       Commissioners           Court.
           Accompanying     such    deed     shall   be   an     adequate
           description     of   Streets     and Roads,       either       by
           reference   to approved subdivision        plat or by field
           notes prepared     by a Registered        Surveyor      from a
           survey made on the ground.

                                   Rule 301.100

               The entrance    and/or exit to a subdivision            shall
           be by public     road or     street and each lot            shall
           front upon a public      street.

Kendall County, "Regulations,        Rules  and Specifications             for   Roads   and
Subdivisions"  (1985 and Rev.       1987) at 24-85 and 5-87.




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       You “ace that the commissioners                court interprets       rule 204.80      to
require    that a subdivider          of land co”vey       to    the county     a fee    simple
interest,      and not just      a” easement,        in the    public    streets   and roads
within a proposed        subdivision.        You ask whether such a requirement               is
within the authority         of the tzounty commissioners            court.     You also    ask
whether the commissioners             court,    pursuant      to its     rule 301.100,      may
refuse    to approve a subdivision           plat “where egress         and engress    is over
a three        party   easement      which      is    not shown on the prelfminary
plat . .     .  [and  when]   two   [of   the     three]   parties    have disagreed       with
the    proposed      use   of    this     easement        as   a    public    road    to    the
subdivision.”

      We conclude    that the   conrmissioners   court              has    no authority         to
demand a deed transferring     a fee simple interest                to    the county in        the
land dedicated    to   public   streets     and roads               in     the    subdivision.
Because rule 301.100     is in  litigation,    we will             not    discuss    questions
concerning   that provision.

       A county commissioners         court possesses         only the powers       conferred
either    expressly    or by nechssary        implication      from the constitution         and
statutes.      See Tex. Const.          art.    V, 518;       Canales v.      Laughlin,      214
S.W.Zd 451,453        (Tex. 1948);       Attorney      General Opinion JM-534           (1986).
Local     Government      Code    section      232;004      (formerly       article     6702-1,
section    2.401,    V.T.C.S.)     is    the sole       relevant    solirce     of  statutory
authority     for a commissioners          court’s     regulatory      authority    over     the
subdividing      of land in the       county,      unless   section    232.006 applies          in
~the case of a county which has              a population      of more than 2.2        million
or is contiguous        with a county with a population                 of    more than      2.2
million.1      The statute     provides,      in part,     that

              [bly an order adopted      and entered   in the     minutes
              of the commissioners    court,  and after    a notice     is
              published   in a newspaper of general     circulation     in
              the county,   the commissioners    court may:

                       (1) require  a      right-of-way   on a street  or
              road that functions          as a main artery     in a sub-
              division,    of a width      of    not less than 50 feet or
              more than 100 feet;




        1.    The subdivision     of land   in a county but    also within    the
extraterritorial     jurisdiction    of a city   requires the approval   of   the
city and county.        See Local Gov’t     Code chs. 42,  212, 242;    Attorney
General Opinions     JM-508 (1986);     JM-365 (1985).



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Mr. Mike Coffey      - Page 3       (JM-789)




                    (2) require  a right-of-way               on    any    other
             street  or road in a subdivision            of   not   less    than
             40 feet or more than 70 feet;

                      (3) require   that  the   shoulder-to-shoulder
             width on collectore      or main arteries      within   the
             right-of-way     be not less than 32 feet or more than
             56 feet,     and that the shoulder-to-shoulder        width
             on any other street      or road be not less than         25
             feet or more than 35 feet;

                     (4) adopt, based on the         amount and kind    of
             travel    over each street     or road in a subdivision,
             reasonable      specifications    relating    to  the   con-
             struction     of each street    or road;

                     (5) adopt       reasonable      specifications         to
             provide    adequate drainage       for each street     or   road
             1r1 a subdivisoin          in  accordance      with    standard
             engineering     practices;    and

                    (6) require   that the owner  of the tract   to
             be subdivided   execute  a good and sufficient    bond
             in the manner provided    by Section 232.004.

Local Gov't Code        1232.003.     The commissioners    court has the authority
to refuse    to approve a subdivision       plat only for a failure     to meet the
specific    requirements     of section   232.003.    Local Gov't Code      5232.002.
A subdivision      plat   must be approved      by the county    before   it can     be
filed    and recorded    by the county clerk.      Prop. Code 512.002;       Attorney
General Opinion m-508;         See also Attorney    General Opinion JM-365.

      Although     the county may require     the dedication      of public    streets,
a county has no power to compel a subdivider             to convey to the county a
fee simple interest        in   the land dedicated    for    use as streets      in   the
subdivision.      While     section   232.003  is silent      on the    question,       we
conclude     that the    law is otherwise     contrary     to the   notion   that     the
county can require,       as a precondition    to performing      a ministerial     act,
something     it is incapable      of commanding.

      The county      cannot      condemn      a fee   simple     interest    in    private
property,      absent    specific        statutory     authorization.        Prop.      Code
521.045.      The common law rule in Texas has              long been that       condemna-
tions   for public highways          result    only in the     taking of an easement.
International      h G.N.R. Co.       v. Boles,     161 S.W.     914 (Tex. Civ. App.        -
Austin 1913, writ ref'd).            See also Schlottman       v. Wharton County,        259
S.W.2d 325, 332 (Tex. Civ. App. - Fort Worth 1953, writ dism'd).                         The
County Road and Bridge Act contains                 no authority     for   the county      to
condemn a fee simple           interest     in   property   for    a public    road as a




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precondition       to approving     a subdivision       plat.

       Section    232.001 of the Local Government Code only requires                 that a
subdivider     provide    a plat    which gives the        dimensions   of streets       and
other areas "dedicated         to public    use."    More precisely,      the    statutory
powers granted to the county over subdivisions                are plainly     limited      to
ordering    certain    standards      to be applied      to the physical        dimensions
and construction       standards      of streets     and roads.       Local Gov't       Code
5232.003.      The statute       simply   contains     no other relevant         grant     of
substantive     powers to the       county,    notably   not the     power to demand a
fee simple interest        in dedicated     streets.

       The dedication       of land for public    roads does not convey more than
a mere     easement      to   the   county.     Humble Oil    h Refining         Co.    v.
Blankenburg,       235 S.W.2d     891 (Tex. 1951)     (plat dedication     of    plazas,
parks,    streets,     and alleys       created  easement   only).     Cf.    _city     of
College    Station    v. Turtle    Rock Corp.,   680 S.W.2d 802 (Tex. 1984).          -See
generally     32 Tex. Jur.3d Eminent Domain 543 (1984).

         The statute    contains   no other grants          of power     to the county          to
condition     the acceptance      or   approval      of a subdivision       plat upon         the
conveyance      of a fee simple interest.            Without speciffc      authority,         the
countv      has   no Dower to         establish        substantive     reauirenlents          for
subdivisions.        Commissioners'      Court v.       Frank Jester     Development       Co.,
199 S.W.2d 1004         (Tex. Civ. App.        - Dallas 1947,        writ ref'd      n.r.e.1.
Thus, when a person who seeks to               file   and record a plat has          complied
with all of the statutory          requirements       outlined     in chapter   232 of        the
Local Government Code. awnroval and filing                  of the "lat becomes a mere
mi"isterial      duty.      Id.; "Attorney        Genersl     Opinibns     JM-534      (1986);
JM-317 (1985).         See also City      of Corpus Christ1 v. Unitarian              Church,
436 S.W.Zd 923, 927 (Tex. Civ. App. - Corpus Christ1                     lY68, writ       ref'd
n.r.e.).      Certainly,      the county may not refuse          to accept    a subdivision
plat by the subterfuge          of declining       to accept a dedication       of    streets
and roads as proposed          on a plat,    if the streets        and roads comply        with
the requirements        permitted    to be imposed by section          232.003.

                                         SUMMARY

                    A county      may provide       requirements      for    the
                approval     of subdivision   plats     only to the      extent
                such requirements       are authorized    by chapter     232 of
                the Local      Government    Code.      A county      may not
               .require      the   transfer   to    it   of   a fee      simple
                interest     on lands dedicated     to public    roads in the
                subdivision.




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Mr. Mike Coffey     - Page 5      (JM-789)




                                                    JIM      MATTOX
                                                    Attorney  General   of   Texas

MARY KXLLRR
Executive Assistant     Attorney     General

JUDGE ZOLLIE STBAXLEY
Special Assistant Attorney         General

RICK GILPIN
Chairman, Opinion     Committee

Prepared    by Don Bustion
Assistant    Attorney General




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