Untitled Texas Attorney General Opinion ( 1983 )

The Attorney Generd of Texas
Harch 24, 1983
JIM MATTOX
Attorney General
Eonorablc M. 6. Wells opinion No. Jn-20
Supreme Court Building
County Atrorncy
P. 0. BOX 12546
Aurtin. TX. 76711.2546 Anderson County Courthouse Re: ApprOVAl of subdivision
5121475~2501 F. 0. Box 707 PlAtA
Telex 9101674.1367 PAlAAtine. TeXAA 75801
Tdecopier 5121475.0266
DAar Mr. WallA:
1607 win 3.. suite tarn
Dallas. TX. 75201.4706 You hAVe asked About the Authority Of the City Of Palestine. in
2141742~6344 incorporated home rule city, t0 approve or diAApprOVe subdivision maps
And plats for land located beyond the CiCy limits.
4624 Alberta Ave.. Suite 160
El Paso. TX. 799052793 Both Articles 974A. V.T.C.S.. And 6626, V.T.C.S.. provide thst
,~5352464 maps And plsts of subdivisions located within five miles of the
corporate limits of an incorporated city muAt be approved by city
Authoritiee in order to be filed or recorded. This would end the
1~20 Dallas Ave.. Suits 202
matter were it not for Articles 970A. V.T.C.S.. And 6626~, V.T.C.S..
HO~J~O~. TX. 770026986
713l65M666
which, it has been Argued. conflict with those first mentioned. In
our opinion, the statutes in question do not conflict, And the city of
Palestine has not only the Authority. but the duty, to Approve or
806 Broadway. Suite 312 disApprOVe ~11 maps and plats of subdivisions of land located within
Lubbock. TX. 79401.3479
five miles of its corporate boundries.
606,747.5236
Article 97oA. the first of Lhe Acts said to conflict. is rhe
4306 N. Tenth. Suile S Municipal Annexation Act. Among other things, it establishes A one
McAllen. TX. 76501.1665 mile AonA of “extraterritorial jurisdiction” Around cities the size of
51216624547
Palestine. Id. S3.A.(2). In Addition to protecting the zoned
territory fromannexAtion by ocher cities, the stAtwe sllows A city
200 thin PIaza. Suite 400 to extend by ordinance the Applicstion of its rules And regulations
San Anlonio. TX. 702W2797 governing plAtS And the subdivision of land “to ~11 the Area under its
512/225.4191 extraterritorial jurisdiction.” From this, some have concluded thet
the Authority of the city of Palestine to. approve or disapprove
An Equal OppOrlunilyl subdivision plats is limited to A distance of one mile beyond its
Affirmative Action EmPlOW boundries.
The relAtionship of articles 97OA. 974A. And 6626 is discussed in
Pohl. Estsblishing And Altering the Character of TeXAS Subdivisions,
27 Baylor LAW Review, 629 (1975). The history of the legislation is
unclear.
Originally, cities of A certain sire were given Approval
Authority under Srcicle 974S over maps and plats of subdivisions
within S five mile radius of their corporate boundaries. In 1944,
p. 90
RonorAble Ii. C. Wells - RAge 2 (JH-20)
however, the TeXAA Supreme Court held that An amendment to Article
6626 (giving counties map And ~1st Approval Authority) repealed the
Article 974A “extrAterritoriAl” plAt-ApprOVAl jurisdiction Of
municipalities. See TrAvalter v. Schaefer. 179 S.W.Zd 765 (Tex.
1944). A later coUTt held thAt counties could not impose substantive
requirements under article 6626 aa A condition for county ApprOVAl of
subdivision maps or pl~ta. See Commisaionera’ Court v. Frank Jester
Development CompAny. 199 S.Wx 1004 (Tex. Civ. App. - Dallas 1947,
writ ref’d n.r.e.). In this state of Affairs. neither cities nor
counties could regulate the mapping And pletting of subdivisiona
outside city limits. Cf. City of Corpus Christ1 v. Gouger, 236 S.W.2d
870 (Tex. Civ. App. -San Antonio 1951. writ ref’d) (amendment to
article 974a in 1949 did not lmpliedly repeal Authority given to
commissioners’ court by Article 6626).
In 1951 the legislature passed two statutes dealing with the
matter. The first passed. Article 2372k. V.T.C.S.. gave larger
counties the power to promulgate certain requirements to be met by
persona subdividing land situated “outside the boundaries of Any
incorporated town or city,” And it SxprSSSly rApAAlAd Conflicting
1Al.W. Later. during the aAme session of the legislature, Article 6626
-- AppliCAblA to large And amsll counties Alike -, WAS Amended. As ?
Amended, Article 6626 returned to cities the Authority and duty to
approve or disapprove maps And plats of subdivisions located within
five miles of city limits “AS provided in Article 974A.” Attorney
General Daniel concluded in Attorney General Opinion V-1401 (1952)
that the later Article 6626 Amendment repesled the conflicting
provisions of Article 2372k. And thst cities. not counties, had the
power to approve or disapprove maps And plats within the five mile
zone.
Implicit in the conclusion of Attorney General DAnis was the
further conclusion that by incorporating the reference to Article
974A. the Amendment to Article 6626 conferred upon cities the same
Authority within the five mile zone that they had exercised prior to
the supreme court’s 1944 TrAvAlter decision. That authority included
the power to withhold Approval of plats and maps of aubdivisiona not
conforming to the general plans of the city. V.T.C.S.. art. 974a, 14.
Subsequently. in 1957. Article 6626a. V.T.C.S.. was enacted
giving smaller counties the same mep And plat ‘Approval powers article
2372k had previously given larger counties “without the corporate
limits of any city,” but its repealer clause specified that nothing
therein should “repeal. nullify, alter or change the rights of Home
Rule Charter cities to’regulate. zone. And restrict subdivlaions
within a five (5) mile radius of their corporate limita.” Acts 1957,
55th Leg., ch. 436. $5. at 1302. 1303. In 1961. the legislature -,
further specified that the 1957 enactment had not limited the
requirement of prior approvsl of plats by cities. Acts 1961. 57th
Leg.. ch. 449, 12. At 1022. 1023. -See Attorney General Opinion H-1057
(1977).
p. 91
HonorAble Ii. G. Wells - Page 3 (JM-20)
Token together, we think these provisions show A legislative
intent that Article 6626 invest ~11 cities with power to regulate
subdiviaiona within A five mile zone. And thAt counties hAVe limited
regulstory powers over other aubdivisiona in the county under Articles
2372k And 6626~. V.T.C.S. See Attorney General Opinion H-904 (19761.
But see Attorney General Opinions 1313-1438 (1962). C-459 (1965). This
WAS the atste of the law in 1963 when Article 97OA. V.T,C.S.. the
Municipal Annexation Act. WAA enacted.
The MunicipAl Annexation Act is only incidentally concerned with
the ApprOVAl Of plAtA and m3pA. It establishes, primarily for
annexation PUrpOAeA, A protected OnA mile “extrAtArritoriAl
jurisdiction” zone for cities of PAlestine’s population bracket.
Incidentally the act Allows such cities to exteud the ApplicAtion of
particulsr ordinances establishing rules And regulations governing
plats And aubdivisiona of land to the Area. And to enforce them by
.injunctive relief. On the other hand, Article 6626 requires cities to
eXeKCiSe plat Approval Authority within A five mile eone, And, through
the incorporation of Article 974A. section 4 of article 6626 makes it
the duty of city officiAla to Approve plans (After public hearing).
plats or replata that conform to the general plan of the city And meet
the general rules And regulations promulgeted by the city for
subdivisions.
WA duo not believe the “one mile” provision of the Municipal
Annexation Act mutt be read to repeal the “five mile” provisions of
Articles 974A And 6626. Although each statute addresses the
extraterritorial powers of A city with respect to plats And
aubdiviaions, they do it in WAYS that are not inconsistent. There is
no repugnancy between the concept (1) that cities have the power to
require aubdivisionA within five miles of the city to conform to
general plans and generel rules and ragulAtiona regarding plats And
maps before Approving subdivision plats and (2) that cities have the
Additional power to enforce by injunction perticular ordinances
respecting subdivisiona only within one mile of the city limits.
If two statutory provisions can bc reasonably construed so that
both may stand, neither will be held to repeal the other. See 53 Tex.
Jur. 2d, Statutes 1104. st 153. Moreover, the 1963enActment
specified that it did not repeal the ACt codified 86 article 974a,
V.T.C.S.,
AS last amended or any other law or part of lsw
upon the subject of which the provisions of this
Act relate unless they Are expressly inconsistent
and then only to the extent of such inconsistency.
Acts 1963, 58th Leg.. ch. 160, Art. III, At 447. 454. In our opinion,
the enactment of Article 970A did not repeal Any provision of either
articles 974A or 6626, nor Affect their operation.
p. 92
,
Honorable M. G. Wells - PAge 4 (JM-20)
Consequently, we Advise you that unless the AppropriAtA municipA1
Authority of the city of Palestine has Approved A Aubdiviaion Mp or
plat for land located within five milea of lte city limits (but not
within five .milea of a lerger city), the county clerk is without
Authority to file it. V.T.C.S. Art. 6626. WC Also Advise that COUnty
Approval is unneceasery for the maps And plAt6 of subdivisions A0
situated. and thAt the Authority given counties by Articles 2372k And
6626~ to regulate construction And widthr of rightA-Of-wAy And streets
Applies only to subdivisions located more than five miles from the
city’s boundries. See Attorney General Opinions H-904 (1976); V-1401
(1952). Cf. Attorney General Opinions H-1146 (1978); H-1057 (1977).
Attorney G%?eral Opinions C-459 (1965); WW-1438 (1962) (disapproved to
the extent of conflict herewith).
SUMMARY
The county clerk of Anderson County is not
Authorized to file A mep or plat of A subdiviaioa
of land located within five miles of the city of
Palestine unless it has been Approved by the
Appropriate city AuthOKity. County AppKOVAl is
unnecessary.
Very truly you
LJ~ & I&
JIM NATTOX
Attorney General of TAXAS
TOM GREEN
First AASiStAnt Attorney General
DAVID R. RI&RDS
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. GAKKiSOn, Chairman
Jon Bible
Rick Gilpin
George Gray
Jim Moellinger
Bruce Youngblood