Untitled Texas Attorney General Opinion ( 1952 )

Hon. Ramle H. Qrlffln Opinion Ho. V-1401
Crlm. Dlst.,+,Attorney
Jefferson County Re: Legality of the County
Beaumont, Texas Clerk recording the plat
of a subdivision within
five miles of an Incor-
porated city vhen it has
been approved by the City
Planning Commission but
not by the Commissioners
Dear Sir: court.
You have requested an opinion on the follow-
lng question:
m . . * whether or not It Is necessary
for the Commissioner's Court to approve
the plat of a subalvl8lon located within
five miles of an incorporated city when the
plat has been approved by the appropriate
city authorities.'
The original act relating to the platting
and recording of sub6lvlslons wa8 passed In 1927, and
became Article 974a, V.C.S. Thla act purported to
give cities of 25,000 inhabitants or more authority
over the filing of plats of subdivisions within five
mllee of the city limltcrand authorized cities of
leas than 25,000 inhabitants to adopt its provlslone.
City of Corpua Chriati v. Ooueer, 236 S.W.2d 870 (Tex.
clv. App. 1951 error ref.). The act required that
such plats be ipprovea by the City Planning Coatmls8lOn
or by the governing body of the city if it had no Plan-
ning Conrmlsslon.
In 1931, Article 6626, V.C.S., ua8 amended
80 a8 to provider
"The following Instruments of vrltlng
vhlch shall have been actiovleaccl or proved
according to law, are authorized to bo re-
corded, viz.: all deeaa, mortgages, convey-
ances, aeecloof trust, bonan for title,
Hon. RamIe H. Griffin, page 2 (V-1401)
covenants, defeaaancea or other instruments
of writing concerning any lands or tenements,
or g00a3 and chattels, or movable property
of any description; provIdea, however, that
In cases of aubdlvlalon or rye-subdivisionof
real property no map or plat of any such aub-
division or re-subdivision shall be filed or
recorded unless and until the same ha3 been
authorized by the Commissioners Court of the
county in which the real estate la situated
by order-duly entered In the minutes of said
Court, except In cases of partition or other
subdivision through a Court of record; pro-
vided. that within incorporated cities and
towns the governing body thereof in lieu of
the CoIlrmissIonera'
Court shall perform the
duties hereinabove Imposed upon the CommIa-
slonera' Court." (Ernphaaiaadded.)
In construing the above provisions, the Supreme I
Court stated In Trawalter v.,Schaefer, 142 Tex. 521, 5
179 S.W.2d 765 (1944):
*
. . . It la plainly evident that the
exception to Article 6626, Acts 1931, regard-
ing mapa.or plats of land situated within the
corpdrate limits of cities and towns operates
to keep In force the provisions of Article 974a,
Acts 1927, in so far as such last-mentioned
Act covers maps or plats of land situated wlth-
In the corporate limits of the cities and towns
mentioned therein, but it does not operate to
preserve or keep In force such Act In so far
as it covers extraterritorial lands. Certainly
had the Legislature Intended such a conatruc-
tlon to be given Article 6626, Acts 1931, It
would have Included lands within five miles of
cltles and towns of 25,000 Inhabitants or more
in the language of the exception.
"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 lands located
within five miles of cities and towns contaln-
lng 25,000 inhabitants or more would be lnclua-
ed 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
Hon. RamIe H. Griffin, page 3 (V-1401)
Intention of the Legislature; and yet this con-
clusion would be Inescapable if It should be
held that Article <6626, Acts 1931, has not re-
pealed the extraterritorial provision of Artl-
cle'974a, Acts 1927. . . ." 179 S.W.2d at
768.
In 1949, Article 974a was amended by K.B. 158,
Acts 51at Leg., R.S. 1949, ch. 154, p. 321. In conatru-
lng this amendment the court stated in City of Corpus
Christ1 v. Gouger, aupra:
-*The 1949 Act does not expressly state
that It Is an amendment to the 1931 Acts, and
It does not purport to do anything further than
to amend Section 1 of Article 974a by making
more detailed requirements as to maps or plats
of land lying within Incorporated cities or
within five mllea distance therefrom, and re-
peal Section 10 In Its entirety. Said Act does
not restore to the City Planning Commission or
the City Governing Body the powers theretofore
vested in said bodies prior to the 1931 amend-
ment of Article 6626.
"We are unable to agree with appellant's
contention that the amendment of Section 1 and
the repeal of Section 10 of Article 974a $m-
plledlg repealed the provisions of the 1931
amendment to~Artlcle 6626, which the Supreme
Court, in Trawalter v. Schaefer, 142 Tex. 521,
179 S.W.2d 765, held deprived cities of the
authority to prevent plats of aubdlvlalona out-
side the city limits from being filed or record-
ed. Repeals by implication are not favored and
If the Legislature desires to reinvest the
cities of the State'wlth authority over maps
and plata of subdivided lands lying outside
the munlclpal llmlta, it must employ language
Indicating a clear intention to modify the
provisions of Article 6626 as the same have
been construed by the Supreme Court." 236 S.W.2d
at 871.
House Bill fi6;Z.Acts 52nd Leg.. R.S. 1951. ch.
403, p. '745, amended Article':6626so that lt now provides:
, VI 2
.I: 23
Hon. Ramie H. Griffin, page 4 (V-1401)
"The following instruments of writing
which shall have been acknowledged or proved
according to law, are authorized to be re-
corded, viz.: all deeds, mortgages, convey-
ances, deeds of trust, bonds for title, cove-
nants, defeasances or other instruments of
writing concerning any lands or tenements,
or goods and chattels, or moveable property
of any.deacrIptIon; provided, however, that
In cases of subdivision or resubdlvlalon
of realproperty no map or plat of any such
aubd!.vIalonor re-aubdlvlalon shall be filed
or recorded unless and until the same has
been authorized by tlieCommissioners Court
of the county In which the real estate la
situated by order duly entered In the minutes
of said Court, except In cases of the partl-
tlon or other subdivision through a court e
of record; provided that where the real ea-
tate is situated within the corporate limits
or wlthi fi il f the corporate limits
of any i~cor$~teedsc~ty or town, the govern-
ing body thereof or the city planning commla-
alon, as the case may b , pro;;d;d,F Artl-
cle 974a. Vernon's Texa: C&l S t t , shall
perform the duties hereinabove Imposed upon
the Commissioners Court."
The emergency clause of House Bill 661 of the
52nd Legislature states:
'The fact that the decision of the Su-
preme Court In the case of Trawalter, County
Clerk vs. Shaefer, 179 S.W.2d 765, has raised
a question whether the~governlng bodies or
planning commlaalons within the corporate
limits or within five (5) miles of the cor-
porate limits of such cities still have the
powers conferred upon them by said Article
974a, Vernon's Texts Civil Statutes, creates
an emergency . . .
In view of the leglalatlve and judicial
history of Articles 974a and 6626, V.C.S., It la our
opinion that'maps or plats of land v1thI.nthe corporate
llmlta or within five miles of the corporate limits of
an incorporated city or town must be approved only by
the governing body of such city or town or the city
. .
Hon. Ramle H. Griffin, page 5 (v-1431)
planning commla3Ion. These plats do not need the ap-
proval of the commissioners' court of the county In
which the land Is situated In order to be filed or re-
corded with the county clerk.
In view of the fact that Jefferson County
has a population of 195,083 Inhabitants according to
the 1950 Federal Census, we must consider one further
act (Senate Bill 321, Acts 52nd Leg., R.S. 1951, ch.
151, p. 2'56, codified as Art. 2372k, V.C.S.) in connec-
tlon with your request. Senate Bill 321, aupra, provides
for the approval of maps or plats of lands lying outside
the corporate limits of the city or town by the commIa-
aloners' court In counties having a population of 190,000
Inhabitants or more. This act was passed on April 2 ,
1951. House Bill 661 (amending Article 5626, V.C.S.7 was
passed on May 31, 1951. Since House Bill 661 13 a later
enactment of the same Legislature. it will onerate to re-
peal that portion of Senate Bill 521 to the extent of any
conflict in their terms. Ex part&MarIa``de-Jesus de la 0,
227 s.W.2d 212 (Tex. Crlm.Yi_ )50); Att'y Gen. Op. V-990
(19501.
, _- . Obvloualv Senate Bill 321 and-House Bill 66i are
In conflict with Respect to the-approval of maps or plats
of lands by the commissioners' courts prI.orto recording
In the office of the county clerk. Thus, House Bill 551,
being the later enactment of the same TLegislature,will
control over the provisions of Senate Bill 321. Ex parte
Maria de Jesus de la 0, supra.
We therefore agree with your conclusion that
maps or plats of land lying within five miles of the
. corporate limits of an Incorporated city or town need
not be approved by the commissioners court as a pre-
requisite to recording.
SUMMARY
Maps or plats of land lying within the
corporate limits or within five miles of the
corporate limits of an incorporated city or
town must be stiproved only by the governing
body or the city planning commission of such
city or town, and need not be approved by the
commI33loner3' court of the county In which
. . . 8
Hon. Ramle H. Griffin, page 6 (V-1401)
the land Is situated, to be filed or re-
coeded with the county clerk. Article 6626,
V.C.S., as amended by RotiseBill 661, Acts
52nd Leg., R.S. 1951, ch. 403, p. 745.
Yours' very truly,
APPROVED: PRICE DANIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
E. Jacobs&
Reviewing Assistant Beeee
Assistant
Charles D. Mathews
First Assistant .
JR:mh
.