Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
JIM MAlTOX
JUIE 30, 1986
Attorney General
Supreme Court Building ElonorableTimothy D. Yeats Opinion No. JM-508
P. 0. BOX 12548
Austin. TX. 75711. 2545
Howard County Attoriey
512i4752501 P. 0. Box 2096 Ret Duty of a county clerk to record
Telex 910/574-1387 Big.Spring, Texas '79721 a deed conveying real property under
Telecopier 51214750266 articles 974a and 6626aa. V.T.C.S.
714 Jackson, Suite 700
Dear Mr. Yeats:
Dallas, TX. 752024505
2141742-8944 You inform us that the county of Howard and the city of Big
Spring have recently experienced problems with developers "sub-
dividing" land within the one mile extraterritorial jurisdiction of
4524 Alberta Ave., Suite 160
El Paso, TX. 799052793
the city of Big Sprtng and dedicating streets and alleys to the use of
915/533-34&l the public without securing approval of the city planning commission
and the county. lbese "subdividers" have been selling "subdivided
lots" by means of deeds containing metes and bounds descriptions which
fiOO1 Texas, Suite 700 refer to streets an'ialleys which have been dedicated to the public.
,uston, TX. 77002-3111
113/2255SM
In that regard you ask the following questions:
606 Broadway, Suite 312 1. Ar'r the dedicatory certificates and deeds
Lubbock, TX. 79401-3479 referred to above in effect plats which are
8061747.5238
subject to the requirements of article 974a and
6626aa of the Texas Revised Civil Statutes and/or
42QS N. Tenth, Suite B section 12.002 of the Texas Property Code which
McAllen, TX. 78501.1555 would require approval by the city planning
512/682-4547
commissiai and the county before they would be
authorisejito be recorded by the county clerk?
230 Main Plaza, suite 4w
San Antonio. TX. 782052797 2. Is Attorney General Opinion C-695 (May 26,
512/2254191 1966) still a correct statement of the law?
An Equal OpportunItyI
3. Do,?13section 12.002 of the Texas Property
Affirmative Action Employer Code as lo the five-mile limit supersede article
6626aa to the extent of the inconsistency between
said fivelnile limit and the one-mile limit which
would apply to a city the size of the city of Big
Spring (5,000 or more population but under 25,000)
as provid'idin article 6626aa?
4. Wo1l.d the county clerk be authorized to
require the one offering the dedicatory certi-
ficate to file an affidavit stating that the land
p. 2330
Honorable Timothy D. Yeats .-Page 2 (JM-508)
is not within five miles of the corporate limits
of the city of Bi:3Spring as provided in section 7
of article 974a (section 7 was transferred from
Texas Penal Code article 427b by authority of
section 5 of Acts 1973, 63rd Legislature, page
995, chapter 399, enacting the new Texas Penal
Code)?
5. If Attorney General Opinion C-695 is a
correct statement of the law, then. is it true
that the platting statutes can be completely
circumvented by t'~sdevelopers using the procedure
described above?
6. Would the subdivider who utilizes the above
described procedure be in violation of article
6626~ of the Tex&s Revised Civil Statutes (former
article 1137h of ,the Texas Penal Code which was
referred to on prge 3 of Attorney General Opinion
C-695) by either recording the deeds and dedi-
catory certificate referred to above or by using
the metes and bounds description in the deed and
referring to the streets and alleys which were
dedicated to the use of the public in the
dedicatory certifL=ate?
7. If the county clerk is required to record
the deeds and i.edicatory certificates notwith-
standing a failwce to comply with the above
referenced platting statutes then what procedures
can the city and county utilize to get the sub-
dividers to comply with the platting statutes and
the city's subdivision development ordinance?
This office has recently issued an opinion discussing the
relationship among articles 974a and 6626aa. V.T.C.S., and section
12.002 of the Property &de. See Attorney General Opinion JM-365
(1985). In Attorney Genlzral Opinion JM-365 (1985) the attorney
general concluded that within the city of Palestine's one-mile
extraterritorial jurisdicl:ion, as determined by article 970a,
V.T.C.S., a subdivision plat shall not be filed without complying with
both articles 974a and 6626aa rather than section 12.002 of the
Property Code. Thus, the subdivision plat must have prior approval by
both the city of Palestine and the county of Anderson before it may be
filed by the county clerk, Attorney General Opinion JM-365 (1985).
It should also be noted that both article 6626aa. V.T.C.S., and
section 12.002 of the Property Code require compliance with article
974a, V.T.C.S.
p. 2331
Honorable Timothy D. Yeats -IPage 3 (JM-508)
Article 6626aa. V.T.C.S., requires that within a city's extra-
territorial jurisdiction 83 determined by article 970a. V.T.C.S., "no
plat shall be filed with the county clerk without the authorization of
both the city and the county." The city's authorization is found in
article 974a. V.T.C.S., Ed the county's authorization is found in
sections 2.401 or 2.402 o:E article 6702-l. the Road and Bridge Act.
These provisions require that every owner of a tract of land situated
within the extraterritoriat jurisdiction who divide the same into two
or more parts "shall cause a plat to be made." V.T.C.S. art. 974a.
51; V.T.C.S. art. 6702-1, !is;2.401(b).
2.402(b).
We now decide wheth,rr the dedicatory certificates and deeds
referred to above are in effect maps or plats which are subject to the
requirements of article 974a and 6626aa, V.T.C.S. You have submitted
a copy of a dedicatory cer1:ificatefor our review. This document is
not a map or plat. Cf. Attorney General Opinions C-695 (1966) (deeds
are not maps or plats); V-934 (1949) (field notes do not constitute
map or plat). A plat has been defined as a
map of a town, section, or subdivision showing the
location and boundaries of individual parcels of
land subdivided into lots, with streets, alleys,
easements, etc., usually drawn to scale.
See Blacks Law Dictionary (5th Ed. 1979). The dedicatory certificate
submitted is accompanied rrith "field notes" of a survey of the sub-
division giving a descript:ionof the property dedicated to the public.
Thus, the clerk is required to file the instrument in compliance with
section 11.004 of the Property Code. It has been held that this
duty is ministerial and may properly be enforced by mandamus. See
Turrentime V. Lasane, 389 E..W.2d336 (Tex. Civ. App. - Waco 1965,o
writ). We also believe that the clerk has the same duty in regard to
the deeds you described in your request.
In answer to your second question concerning the current validity
of Attorney General Opinti,n C-695 (1965), we conclude that although
article 6626, V.T.C.S., haI3been repealed and superseded by chapter 12
of the Property Code, the opinion remains a correct statement of the
law in regard to the clerk's duty to record instruments. See V.T.C.S.
art. 6626b. repealed by Acts 1983, 68th leg., ch. 576, at3729, eff.
Jan. 1, 1984. See also Property Code 512.001 (instrument must be
recorded if duly acknowleligedor proved according to law); Property
Code 512.002 (recording of subdivision maps and plats). The attorney
general held that the cocnty clerk was required to file and record
upon request properly acknowledged deeds; notwithstanding, the
subdivider did not file a map or plat also required by article 974a.
V.T.C.S. Attorney General Opinion C-695 (1966).
In regard to your th::rdquestion, you indicate that the city of
Big Spring has a population of 5.000 or more but under 25,000. Thus,
p. 2332
Ronorable Timothy D. Yeats -.Page 4 (JM-508)
the city has a one-mile extraterritorial jurisdiction limit as defined
by section 3 of article 970a. of the Municipal Annexation Act. See
V.T.C.S. art. 970a. 93. You ask whether section 12.002 of the
Property Code supersedes article 6626aa to the extent there is an
inconsistency between the f:tve-milelimit prescribed by section 12.002
and the one-mile limit prescribed in article 6626aa. This office has
previously ruled that it does not. See Attorney General Opinion
JM-365 (1985). In Attorney General $&ion JM-365 the attorney
general held that article 6626aa. V.T.C.S., "impliedly repealed the
provisions of section 12.0(~2of the Property Code to the extent that
it conflicted with [article 6626aal. . . ." Id. at 3. Consequently,
in this one-mile area under,the city's extraterritorial jurisdiction,
"no plat may be filed with the county clerk without the authorization
of both the city and the coaity." V.T.C.S. art. 6626aa.
In regard to your fourth question, we conclude that the county
clerk would not be authorized to require a person offering a
dedicatory certificate to file an affidavit stating that the land is
not within five miles of the corporate limits of the city of Big
Springs as provided in section 7 of article 974a, V.T.C.S. Section 7
provides in part:
When any --
such, map, plat, or replat is tendered
for filing in the office of the County Clerk of
any count? in which any city of the above class
may be situated, it shall be the duty of such
Clerk to ascertain that the proposed plan, plat or
replat is or is n,otsubject to the provisions of
this Act, and if it is subject to its provisions,
then to examine said map, plat or replat to ascer-
tain whether the endorsements required by this Act
appear thereon. . . . When same does not disclose
whether the land, covered by said map, plat or
replat, or any pg!ct thereof, is or is not within
five miles of the corporate limits of a city of
the class above mentioned, the County Clerk may
require one offering said map, plat. or replat for
registration to fTle with him an affidavit setting
forth such infor&tion. . . . (Emphasis added).
V.T.C.S. art. 974a, 57. It is clear that section 7 is only applicable
to map, plats, or plans fi:.edwith the county clerk and the provision
is not applicable to the d~?dicatorycertificates you describe in your
request letter.
Since we have concluded above that Attorney General Opinion C-695
(1965) is a correct statement of the law in regard to a clerk's duty
to file deeds, you next ask whether the platting statutes can be
circumvented by developers .using the procedure described above. The
legislature has defined tie duty of the county clerk in recording
p. 2333
Honorable Timothy D. Yeats - Page 5 (JM-508)
instruments filed in his office. Property Code 111.004 (duty of
recorder). If any person, including a developer, files any
instrument, whether a deed or dedicatory certificate, which is
authorized or required to he recorded in that clerk's office that is
"proved or acknowledged according to law," it is the duty of the clerk
to record it. Property Code 511.004(a)(l). If the clerk does not,
the legislature has also dsetermined that the sureties on his bond
shall be liable for damages. Prop. Code 111.004(b). On the other
hand, the legislature has Letermined that, if the owner of a tract of
land who divides the same in two or more parts
for the purpose of laying out any subdivision of
any tract of land or any addition to any town or
city, or for laying out suburban lots or building
lots, or any lots, and streets, alleys or parks or
other portions int.endedfor public use, or the use
of purchasers or owners of lots fronting thereon
or adjacent thereto, [then he] shall cause a plat
to be made thereof. . . . (Emphasis added).
V.T.C.S. art. 974a. 01. khether the developers filed the deeds and
dedicatory certificates for one of the above purposes is a question of
fact this office is not authorized to answer. Accordingly, we can
only conclude that the cour.tyclerk is required to perform his duties
in compliance with the leg:.slativemandate , regardless of the purpose
of the one who files. The developers you describe have not attempted
to file a map or plat of a subdivision. See V.T.C.S. art. 974a, 51;
V.T.C.S. art. 6702-1, 552.401(b), 2.402(b),
Your sixth question involves the application of article 6626c,
V.T.C.S. The provision provides:
Section 1. NC'party shall file for ~record or
have recorded z: the official records in the
County Clerk5 o:Efice any map or plat of a sub-
division or resul~divisionof real estate without
first securinn anooroval therefor as mav be
provided by law, .and no party so subdividing or
resubdividing ani real estate shall use the
subdivision's or resubdivision's description in
any deed of cc@eyance or contract of sale
delivered to a purchaser unless and untim
and plat of such! subdivision or resubdivision
shall have been &ly authorized as aforesaid and
such mao and nlat-thereof has actuallv been filed
for record wi;h the Clerk of the County Court of
the county in which the real estate is situated.
Sec. 2. Any party violating any provision of
Section 1 of this Act shall be guilty of a
p. 2334
,
Honorable Timothy D. Yeats ..Page 6 (JM-508)
misdemeanor and upon conviction thereof shall be
fined in a sum net less than Ten Dollars ($10.00)
nor more than Five Hundred Dollars ($500.00). or
confined in the county jail not exceeding ninety
(90) days. or both such fine and imprisonment, and
each act of violation shall constitute a separate
offense, and in addition to the above penalties,
any violation of the provisions of Section 1 of
this Act shall ccnstitute prima facie evidence of
an attempt to def,caud. (Emphasis added).
This article was transferrei from article 1137h of Vernon's Penal Code
by authority of section 5 of Acts 1973, 63rd Leg.. ch. 399, at 995,
enacting the new Penal Code. A person may be prosecuted under article
6626~. V.T.C.S., in two sepa:catecircumstances. First, for the act of
recording, and secondly, f'cr the act of selling property making a
reference to an unrecorded nap or plat. In Attorney General Opinion
M-390 (1969), this office he:Ldthat the second circumstance
makes a misdemeamr offense of a conveyance by a
subdivider where
-- the property description depends
for its location upon reference to a subdivision
plat which has Inot been duly authorized as
provided by law and/or has not been filed for
record. Use of the subdivision description is not
cured by additional metes and bounds descriptions,
which in themselves must rely upon the unrecorded
plat for location of the property on the ground.
(Emphasis added).
See Attorney General Opinion M-390 (1969) at 6; see also Attorney
General Opinions C-695 (1966); WW-1438 (1962).
You ask whether a subdivider who utilized the procedure described
above, by recording the d,eed and dedicatory certificates without
securing approval of the city and county, is not in compliance with
articles 974a and 6626aa. V.T.C.S., and is also In violation of
article 6626~. You also ask whether a subdivider who has dedicated
streets and alleys for the I#ublicin a dedicatory certificate and has
recorded this dedicatory certificate in the county clerk's office and
subsequently sells lots using the metes and bounds description
violates article 6626~. Tae dedicatory certificate you submitted to
this office referred to ftizldnotes of a survey to describe the land
dedicated to the public. I!romour review,~the dedicatory certificate
metes and bound descriptian does not refer to an unrecorded map or
plat. Thus, a developer who refers to the metes and bound description
in this particular dedicatory certificate in a deed conveying a lot to
a purchaser would not vialate article 6626~. - See Attorney General
Opinion M-390 (1969).
p. 2335
Ronorable Timothy D. Yeats -.Page 7 ~(~8-508)
Finally, you ask what procedure can the city and county utilize
to force the subdividers to comply with the platting statutes and the
city's subdivision develoI,mentordinance. You have not supplied us
with a copy of the city's r;ubdivisiondevelopment ordinance. However,
any developer who subdivid,es land for the purpose of laying out a
subdivision is required to make a plat. See, e.g., V.T.C.S. art.
974a. 01; art. 6702-l. 92,4,01(b). An instrument which contains only
metes and bounds descriptions is not a plat. See Major Investments
Inc. V. De Castillo, 673 S.W.2d at 276, 281 (TerCt. App. - Corpus
Christ1 1984, writ ref'd n.r.e.).
In Major Investments, supra, a court of civil appeals held that
article 6626~ prohibits tx delivery of a deed or contract of sale
that depends on an unrec,x:ded plat for a description of the real
property involved and that it does not prohibit delivery of a document
that uses metes and bounds rather than an unrecorded plat to describe
the property involved. Al,:boughMajor Investments, s, is a narrow
interpretation of article: 6626c, it may also be interpreted to
prohibit delivery of a dee:d.that contains any kind of description of
an illegal subdivision. There are several penalties which may be
utilized if a subdivider f;l:ils
to prepare and file a plat. See, e.g.,
V.T.C.S. art. 6702-l. 92.~iOl(A),(B) (damages, injunctions, criminal
sanctions). Accordingly, a city is not powerless in preventing
illegal subdivisions.
SUMMARY
A county clerk must record a properly
acknowledged deed even if the deed subdivides land
which the subdlvider has failed to bring into
compliance with applicable statutes governing
subdivision of land; however, a city may require a
subdivider to prepare and file a plat in
compliance with xticle 6702-l. section 2.401.
Very tr ly,yours,
J -
JIM MATTOX
Attorney General of Texas
JACK HIGETOWER
First Assistant Attorney Gsneral
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairmen, Opinion Cormsitter
Prepared by Tony Guillory
Assistant Attorney General
p. 2336