Untitled Texas Attorney General Opinion ( 1963 )

Honorable llenry !*lade Opinion No. C-66 District.Attorney Dallas Counts Re: Interpretation of Article Dallas, Texas 2372k, V.C.S., in the light of the submitted facts. Dear lir. %de: In a recent z-equest for the opinion of t:his office, you have in effect presented to usthe followinp fi!cts. A real estate developer and subdivider is develop- ing a tract of land in Dallas County that is outsidc of the city limits of any incorporated city or town in said county and is not within five~miles of the city limits of any incorpo- rated city or town. The developer and subdivider has never submitted any plat or map of ,said development and subdivision to the Commissioners Court of Dallas County for their action thereon, either as to approval or disapproval, or as to. the promulgation of any standards for the construction of roads shown thereon. The County Commissioners -Court has not promul- gated any standards or specificati~ons for the'construction of roads and drains in subdivisions of the county as authorized under Article 2372k, V.C.S. The developer and subdivider has, however , prcsented~ his plat or map of said development and subdivision to the County Engineer of Dallas Countv and re- ceived certain oral instructions from him regarding the type construction for and drainane to the roads in the subdivision, but the developer has refusrd to carry out said oral instruc- tions for building the roads in their entirety.~ Dallas County hasa population considerably~in excess of 290,000. The County Engineer of Dallas County has orally promuiEated, since the passage of Article 2372k, V.C.S., his own rules, regulations and standards pertaining to construction of streets and roads and drainape in subdivisions in the county; however, his specifi- cations and standards have been within the bounds or limits set for standards which might be promulgated by the Commissioners Court under Article 2372k. You then in your opinion request ask the followin three questions, -321- , I iionorablc !Icnry !.lade,par*“ : (C-66 ) "(1) Do we have the authoritv to seek a mandator? injunction compelling the developer to complete this road according to the specifications set forth by this county? "(2) In the event you an55!er cues- tion 210. 1 in the negative, then is our only recourse the right to ref:;se to accept this dedication? "(3) In the event the developer continuer, to sell lots without conplet- inp. this road, may he then be enjoined from so doing until he completes this road according to our specifications?" In 19117 in the case of Commissioners Court v. SIester, 199 S.N.2d 10011 (Tex.Civ.App.1947, error ref. n.r.e.1 the Dallas Court of Civil Appeals had before it a situation wheri the Commis- sioners Court of ~Dallas County refused ur.derauthority of .Article 6626, ~V.C.S., to approve a subdivision plat of land located in the county for filine!‘of said plat with the County Clerk. The County Clerk refused to file the subdivision plat without the Commissioners Court's approval. The Comrissioners Court had set up standards for county roads and for their drainape to which the subdivision plat did not conform. It was the Commis- sioners Court’s contention that it could require such conform- ance throuph Article 6626. Article 2372k, V.C.S., was not then .in existence, it being enacted in 1951. The subdivider sought by mandamus to cbmpel the Commissioners Court to approve the tendered plat for filing with the,County Clerk. The' Court of Civil Appeals held that the Commissioners Court lacked authority to refuse to approve ~subdivision plats,for filing with the County Clerk because the roads contained thereoz did not meet county specific&ions as established by the Comrissioners Court, Obviously, as a result of this holding by the Dallas Court of Civil Appeals, the Legislature passed Article 2372k in 1951 so as to enable's commissioners court to set standards for roads in new subdivisions that must be.adhered to by sub- dividers before their plats would be elipible for filing with the ~County Clerk and the roads contained thereon accepted as county roads, It is apparent that Article 2372k and Article 6626 insofar as the subdivision of land such as involved in the instant situation is concerned must b& considered in para materia. -322- I .- c Honorable Henry Wade, pane 3 !!:-66 ) Article 6626 reads in part: "The following: instruments of writing. . . are authorized to be recorded . . . Ather instruments of writing conceriing any land . . . provided, however, that in cases of subdivision or re-subdivision of realproperty 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 Conmis- sioners Court of the county in which the real estate is situated by order duly entered in the minutes of said Court, . . .1, Article 2372k applies to all counties haviny! a popula- tion in excess of'l90,OOO. Section 1 (a) thereof provides that the Commissioners Courts of such counties mip.ht require subdividers of land to provide for a minimum 60 foot rip.ht of way fcr roads .which are to be included in their subdivision. Section l-(b) provides that the Cormissioners Courts. of such counties mip.ht promulgate-reasonable specifications to be followed by the subdividers in construction OF roads and streets within their subdivision and for dracnage of such roads and streets. Section 2 provides that the Commissioners Courts might require of the subdivider a good and sufficient bond in .an amount up to $3.00 per lineal foot of road for'the insurance of proper construction and maintenance of roads in such sub- divisions ,.said bond conditioned that such roads be constructed in acco~rdance with the specifications promulgated by the Commis- sioners Court under Section 1 (b). Section 3 provides that the Commissioners Courts ,of such counties are Sranted authority to refuse to approve any subdivision plat should the plat fail to provide for a minimum 60 foot right of way for roads in the subdivision and should the subdivider fail to submit a sood and sufficient bond to insure the contruction of roads in said subdivision i,n accord- ance with specifications promulgated by the Commissioners Court under authority of Sections 1 (b) and 2. . . . Iionorahle ilenry 'Jade, pi:?2 4 (C-G6 ) ::lhenthe above two articles are considered together, we see that Article 6626 in part authorizes the County Clerk of the county where the subdivided land is located to file a subdivision plat of a tract of land situated five miles or more outside of the corporate limits of a city or town only when the subdivision plat thereof has first been authorized by the Commis- sioners Court of the county in which the real estate is situated by order duly entered in the minutes of the court. Ye also see that Section 3 of Article 2372k authorizes the Commissioners Court to refuse such approval under certain situations. This srant of the authority to the Commissioners Court contained in Article 2372k and Article 6626 cannot he considered as the bestowal of some idle and superfluous authority and duty upon the Commissioners Court~of'a county which subdividers and platters of tracts of land therein mip.h? ignore if they can successfully hide their subdivision and platting work from the eves of the Commissioners Court of the county where the sub- divided land lies. It is encumbent upon such subdividers should they desire 'to have their plats filed for record in the County Clerk's office and/or to have the dedication of the streets and roads thereon accepted as "county roads " by the county to submit their plats to the Commissioners ~Court for its official con- sideration and action thereon, Upon the submission of a'subdivision-plat to the Commissioners Court, the court may then by virute of the authority granted by Article 2372k, promulgate reasonable standards and specifications, which are'consistent with the authority granted it by Article 2372k. Upon the fail'ure or refusal of the sub- divider to Rive his bond (if required) or to make his plat conforn to such requirements, the Commissioners Court should refuse to authorize the filing of sai.d plat for record. In the instant case, no standards or specificati'ons have been promulgated by the County Commissioners Court relat- ing to the acceptance of the dedication of streets or roads contained in thee subdivision of the tract in question. The subdivider has not even submitted his subdivision plat and plan for development to the Commissioners Court of Dallas County for their approval, ho legal obligations have been exchanged 'between the County Commissioners Court and the sub- divider in respect to his subdivision, Obviously, if no oblip,a- tions exist between the countv and the subdivider, an injunction. would not lie with the county ap.ainst the subdivider.. -.325- . Honorable Henry !4ade, page 5 (C-66 ) Therefore, the answer to your first question is no. The County Commissioners Court does not have authority to seek a mandatory injunction compelling the developer to complete his road accordinn to the specifications set forth orally by the County Engineer. We answer your second question yes, In the event that the Commissioners Court has promulgated reasonable standards under the authority of Article 2312k, and the developer fails or refuses to Rive his bond (if required) or to make his plat conform to such requirements, the Commissioners Court's only recourse is to refuse the developer's subdivision, We answer your third question no. The County Commis- sioners Court cannot enjoin the developer from sell.inn lots Lthin his subdivision on the around that he has failed to complete the roads therein according to the oral specifications of the County Enp,ineer. Any statements in prior Attornev General's Opinions s-2952 and V-1qOl that are inconsistent with this opinion are overruled. SUMMARY The County Commissioners Court lacks authority under Article 2372k, V.C.S. to compel a subdivider and developer, under the stated facts, to complete roads in his subdivision according to the orally promul- gated specifications of the County Enpineer. The County' Commissioners Court cannot arbitrarily and capriciously refuse to accept a subdivider's plat for filing,with the County Clerk. -326-