Untitled Texas Attorney General Opinion ( 1950 )

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December 21, 1950
Hon. Will R. Wilson, Jr. Opinion NO. v-1138.
Mstrlct Attorney
Dallas County Re: Approval of maps and
Dallas, Texas plats of subdivisions
by cities adj~acent
thereto as a prere-
quisite to filing with
Dear Sir: the County Clerk.
You have requested an opinion on the following
questions:
"1. Where an owner of land which lies
outside the limits of any city, but within
five miles of the limits of a city, divides
such land into two or more parts for the pur-
poses described in Sec. 1, Article 974a, V.
C.S., does the law require that maps and
plats of such land be approved by sn agency
of the city before filing for record with
the County Clerk?
"2. If, in such case, the land is with-
in five miles of the limits of more than one
city, which city, If any, shall make the re-
quisite approval?
"3. Is the approval of the Ccmmlsslon-
ers' Court of the county in which the land
lies required for such filing and recording
In all cases in wNch the land lies outside
the limits of a city?"
In order to answer your request, it is neces-
sary that we determine the law relative to recordation
of maps or plats of land situated outside of, but with-
in five miles of, the corporate limits of a city or town
prior to the enactment of House Bill 158, Acts 51st Leg.,
R.S. 1949, ch.154, p.321.
Article 974a, V.C.S. (Acts 40th Leg., R.S. 1927,
ch.231, p.342) provided in part:
Hon. Will R. Wilson, Jr., page 2' (v-1138)
"Sec. 1. That hereafter, every owner of
any tract of land situated within the corporate
limits or within five miles of the corporate
limits of any city in the State of Texas which
contains twenty-five thousand inhabitants or
more, according to the Federal Census of 1920,
or any subsequent Federal Census, who may here-
after subdivide the same in two or more parts
for the purpose of laying out any subdlvlsion
of any such town, or city, or any addition
thereto, or any part thereof, or suburban lots
orebuilding lots, or any lots, and streets,
ellegs , parks or other portions Intended for
public use, or for the use of purchasers or
owners of lots confronting thereon or adjacent
thereto, shall cause a plat to be made wNch
shall accurately describe all of the subdlvi-
sion of such tract or parcels of land, giving
dimensions thereof, and the dimensions of all
the streets, alleys, squares, parks, or other
portions of same Intended to be dedicated to
public use, or for the use of purchasers or
owners of lots fronting thereon or adjacent
thereto.
,"Sec.2. That every such plat shall be
duly acknowledged by owners or proprietors
of the land, or by some duly authorized agent
of said owners or proprietors, in the manner
required for the acknowledgment of deeds; and
the said plat, subject to the provisions con-
tained In this Act, shall be filed for record
and be recorded in the office of the County
Clerk of the County in which the land lies.
"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 until the same
shall have been approved by the City Planning
Commission of 'any city affected by this Act,
if said city have a City Planning Commission
and if it have no City Planning ConimisSlan,
unless and until the said plan, plat, or re-
plat shall have been approved by the governing
body cfsuch city. If such land lies outside
of and within five miles of more than one city
affected by this Act.,then the requisite ap-
proval shall be by the City Planning Commls-
slon or Governing Body, as the case may be, of
,
Hon. Will R. Wilson, Jr., page 3 (V-1138)
such of said cities having the largest
population. Any person desiring to have
a plan, plat or replat approved as here-
in provided, shall apply therefor to and
file a copy with the~commlssion or govern-
ing body herein authorized to approve same,
which shall act upon same wltNn thirty
days from the filing date. If said plat
be not disapproved witbin thirty days from
said filing date, It shall be deemed to
have been approved and a certificate show-
ing said filing,date and the failure to
take action thereon within thirty days from
said filing date, shall on demand be Issued
by the City Planning Commission or Govern-
ing Body, as the case may be, of such city,
and said certificate shall~be sufficient in
lieu of the written endorsement or other
evidence of approval herein required. If
the plan, plat or replat Is approved, such
Commission or governing body shall indicate
such findlng by certificate endorsed there-
on, signed by the Chairman or presiding of-
ficer of said Commission or governing body
and attested by Its Secretary, or signed by
a majority of the members of said Cormnisslon
or Governing Body. Such Cammission or gov-
erning body shall keep a record of such ap-
plications and the action taken thereupon,
and upon demand of the owners of any land
affected, shall certify its reasons for the
action taken~in the matter."
Article,6626, V.C.S. (Acts 42nd Leg., R.S. 1931,
ch.217, p.371),provided:
"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, cov-
enants, defeasances or other Instruments of
writing concerning any lands or tenements,
or goods and chattels, or movable property
of any description, provided, however, that
in cases of subdivision or resubdivision of
real property no map or plat of any such
subdivision or re-subdivision shall be filed
or recorded unless and until the same has
been authorized by the Commissioners' Court
Hon. Will R. Wilson, Jr., page 4 (v-1138)
of the county in which the real estate is
situated by order duly entered Fn the mln-
utes of said Court, except in cases of par-
tition or other subdivision through a
Court al'record: provided, that within in-
corporated cities and towns the governing
body thereof in lieu of the Commissioners'
Court shall perform the duties hereinabove
imposed upon the Commissioners' Court."
In construing the provisions of the above Acts
It was held in Trawalter v. Schaefer, 142 Tex. 521, 527,
179 S.W.26 765, 768 (1944):
” 0 Article 974a, Acts 1927, pro-
vfdes Gt maps or plats of subdivisions
such as the one here involved shall be ap-
proved by certain named authorities of
cities and towns of 25,000 inhabitants or
more, if the land represented by such maps
or plats is situated withIn the corporate
limits of such municipalities or within
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 commissioners court. Article 6626,
Acts 1931, then excepts from Its general
provision maps OF plats of subdivisions
situated wlthln the corporate limits of
cities and towns, and maps or plats of sub-
divisions authorfzed by courts of record.
It is plainly evident that the exception
to Article 6626, Acts 1931, regarding maps
or plats of land situated within the corpo-
rate.llmlts 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
withln 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 extrater-
ritorfal lands. Certai.nlyhad the Legfs-
lature intended such a construction to be
given Article 6626, Acts 1931, it would
'naveincluded lands wltbin five miles of
cities and towns of 25,000 inhabitants or
more in the language of the exception.
.
Hon. Will R. Wilson, Jr., page 5 (v-1138)
"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 con-
taining 25,000 Inhabitants or more would be
included within the provisions of both Acts,
and In such instances both Acts would have
to be complied with. We hardlythinkthat
such was the Intention of the Legislature;
and yet this conclusion would be inescapable
If it should be held that Article 6626, Aots
1931, has no+;repealed the extraterritorial
provision of Article 974a, Acts 1927. At
this point we wish to say that we express no
opinion as to the validity of the extrater-
rltorial provision of Article 974a, Acts
1927. . . .(I
'It Is seen from the foregoing that maps or
plats of land lying within the corporate limits of a
city or town needed only the approval of the governing
board of such city or town, while maps or plats of land
lying outside the corporate limits of a city or town
needed only the approval of the commissionerst court of
the county in which the land was situated, the extra-
terrltorlal provisions of Article 974a, Acts of 1927,
being repealed by Article 6626. Trawalter V. Sohaefer,
Sllpl%.
It is stated in 1 Sutherland, Statutory Con-
struction (3ra Ea. 1943) 1926:
"A reviving act is one which restores
legal 8XiSt8nC8 EtIIa
force t0 a statute that
has been expressly or lmplledly repealed.
A repealed statute may be r8iiV8d by express
enactment or by implication,
Therefore House Bill 158 Is in our opinion a
reviving Act restoring the extraterritorial provisions
contained in APtlCl8 974a, which provides:
"Section 1, That hereafter every owner
of any tract of land situated within the cor-
porate limits, or wit&in five miles of the
corporate limits of any city in the State of
Texas, who may hereafter divide the same in
two or more parts for the purpose of laying
out any subdivision of any tract of land or
Hon. Will R. Wilson, Jr., page 6 (v-1138)
any addition to any town or city, or for lay-
ing out suburban lots or building lots, or
any lots, and streets, alleys or parks or
other portions intended for public use, or
the use of purchasers or owners of lots
fronting thereon OP adjacent thereto, shall
cause a plat to be made thereof which shall
accurately d8SCrib8 all of said subdivision
or addition by metes and bounds and locate
the same with respect to an original corner
of the original survey of which It is a part,
‘giving the dim8nSionS thereof of said subdi-
vlslon or addition, and dimensions of all
Streets, alleys, squares, parks or other
portions of same intended to be dedicated
to public use, Or'for the US8 Of pUt'ChaS8rS
or owner8 of lots fronting thereon or ad- .
jacent thereto; provided, however, that no
plat of any subdivision of any tract of land
or any addition to any town or city shall be
recorded unless the same shall accurately
describe all of said subdivision or aadition
by metes and bounds and locate the Sam8 with
respect to an original corner of the original
survey of which it is a part giving the di-
mensions thereof of said subdivision or ad-
dition, ana dimensions of all streets, alleys,
squares, parks or other portions of same in-
tended to be dedicated to public use, or for
the us8 of purchasers or owners of lots front-
ing th8r8On or adjacent thereto."
In view of the foregoing, it is our opinion that
maps or plats of "land situated within the corporate llm-
its or within five miles of the corporate limits of any
city" are required by Article 974a as amended by Rouse Bill
158, Acts 51st Leg., R.S. 1949, ch.154, p.321, to be ap-,
proved by the proper authorities of such city prior to the
recordation by the County Clerk. We express no opinion as
to th8 constituti~onalityof the extra-territorial prOVi-
sions of House Bill 158. Trawalt8r v. Schaefer, supra;
Att'y Gen. Op. V-934 (1949).
In answer to your second question, you are ad-
vised that if such land lies outside of and within five
miles of more than one city, Article 97&a requires the
approval of the proper authorities of the city having the
largest population0
,‘, I
I
1
181:
Hon. Will R. Wilson, Jr., page 7 (v-1138)
There is no provision in House Bill 158 which
would indicate that It was the intention of the Legisla-
ture to repeal Article 6626. On the contrary, the enact-
ment of House Bill 158 subsequent to the decision in
TPawalt8r V. Schaefer, Supra, indicates that it was the
intention of the Legislature that both Acts (Arts. 6626
ana 974a) should stand. You are therefore advised that
maps or plats of land lying outside the dorporate limits
of a city or town must be approved by the commissioners1
court*
SUMMARY
Maps or plats of land situated within
five miles of the corporate limits of any
city are required by Article 974a, V.C.S.,
to be approved by the proper aUthoriti8S of
the city. If such land 118s within fiV8
miles of more than one city, Article 974a
requires the approval of the proper au-
thorities of the city having the largest
population. Maps or plats of land lying
outside the corporate limits of a city re-
quire the additional approval of th8 com-
missioners' court. Art. 6626, V.C.S.
APPROVED: Yours very truly,
J. C, Davis, Jr. PRICE DANIEL
County Affairs Division Attorney General
Everett Hutchinson
Executive Assistant
/G&. I.+?(';(:
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Charles D. Mathews John ReeV8S
First Assistant Assistant
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