Untitled Texas Attorney General Opinion ( 1969 )

Mr. Bruce Allen Opinion No. M-390
County Attorney
Ellis county Re: Question concerning
Waxahachie, Texas prosecution under
Article 1137h, Vernon's
Dear Mr. Allen: Penal Code
In your letter addressed to this office requesting
an official opinion on the above-captioned matter you
state the following:
"Rnclosed herewith is a copy of a Deed
which is self-explanatory. There are other
persons in Ellis County who are conveying
property under the same facts and circumstances.
"Please advise If such person may be
prosecuted under the laws of Texas?
"If not, may the Commissioners' Court of
Ellis County enjoin the developers from selling
property within the subdivision until such time
as they submit plats and gain the approval of
the Commissioners' Court, and record such plats
with the County Clerk; or in the alternative
bring a suit for mandatory injunction requiring
these developers or platters to prepare plats
and maps for approval by the Commissioners'
Court and to record them in the office of the
County Clerk?"
Your letter of request further states that Ellis
County has a population of 43,395, which renders that
County subject to the provisions of Article 6626a, Vernon's
Civil Statutes, as here'nafter shown.
The copy of the general warranty deed enclosed in your
letter purports to convey a 1.35-acre tract out of a
-1926-
Mr. Bruce Allen, page 2 ( M-390)
283.382-acre tract in the J. W. Baker Survey, Abstract
No. 35, and the Robert Crow Survey, Abstract No. 199,
in Ellis County, Texas, beln known as tract No. 37 of
an unrecorded plat of said 2 8 3.382 acres, said tract of
1.35 acres being further described by metes and bounds
as follows:
“BEGINNING at an iron stake in the center
of a 15 foot road easement, North 5 de
from the Southwest corner of said 2 8 3.3 8”
2” acre
tract;
“THENCE . giving bearing and distance
calls, but call& c or no natural objects7 to
the place of BEGINNING and CONTAINING 1.55 acres
of land more or less .‘I
From a study of the description contained in said deed,
it is believed that a surveyor could not locate tract No.
37 on the ground without the aid of the unrecorded plat.
It is our conclusion that tract No. 37 could be located only
if such plat correctly describes the said 283.382-acre tract
so that it can be located within the survey or surveys in-
volved, or unless the total combined acreag? makin& up ooth
surveys is the 283.382 acres in question.
To better understand the nature of the penal offense
under this opinion, it is necessary to set out Sections (1)
and (2) of Article 6626a, which read as follows:
town or city, or for laying out suburban lots
or building lots, and for the purpose of laying
out streets, alleys, or parks, or other portions
intended for public use, or the use of purchasers
- 1927 -
Mr. Bruce Allen, page 3 ( M-390)
or owners of lots frontIns thereon or
adjacent thereto, shall c&se a plat to
be made thereof, which shall accurately
describe all of said subdivision or ad-
ation 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 dimensions thereof of said
subdivision or addition and the dimensions
of all lots, streets, alleys, 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, pr-o\tided, however, that
no plat of any subdivis:
land or any addition shi
unless the same shall=
dimensions of all streets, alleys, squares,
parks cr 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. (Emphasis added)
“Sec. 2. That every such plat shall be
d&y acknowledged by owners or proprietors of
the land, or by some duly authorized agent of
said owners or proprietors, in the manner
required for acknowledgement of deeds; and the
said plat, subject to the provisions co-
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.” (Emphasix
added)
Section 3 of said Article authorizes the Commissioners
Courts of such counties to adopt orders promulgating speci-
fications to be followed in the construction of streets and
roads within such subdivision by the platters.
-1928-
Mr. Bruce Allen, page 4 (M-390)
Section 4 authorizes the Commissioners Courts of
such counties to refuse to approve any map or plat unless
it meets the requirements as set forth in the Act.
Article 1137h of Vernon's Penal Code is as follows:
"Section 1. No party shall file for
record or have recorded in the official records
in the County Clerk's office any map or plat of
a subdivision or resubdivision of real estate
without first securing approval therefor as may
be provided by law, and no party so subdividing
or resubdividing any rea‘l estate shall use the
subdivision's or resubdivision's description in
any deed of conveyance or contract of sale de-
livered to a purchaser unless and until the mae
and plat of such subdivision or resubdivision
shall~have been duly authorized as aforesaid and
such map and plat thereof has actually been filed
for record with the Clerk of the County Court of
the county in which the real estate is situated.
‘(Unphasis added.)
“Sec. 2. Any party violating any provision
of Section 1 of this Act shall be guilty of a
misdemeanor and upon conviction thereof shall be
fined in a sum not less than Ten Dollars ($10.00)
nor more than Five Hundred Dollars ($500.00), or
confined in the county jail not exceeding ninety
(90) days, or both such fine and imprisonment, and
each act of violation shall constitute a separate
offense, and in addition to the above penalties
any violation of the provisions of Section 1 of this
Act shall constitute prima facie evidence of an
attempt to defraud."
The case of Lizzie Tashnek v. J. Weldon Hefner, 282
S.W.2d 298 (Tex.Civ.App. 1955 error ref. n.r.e.) was a
civil suit for rescission of &I alleged contract of sale
cf real estate, and it construed Article 1137h. The
description in the alleged contract reads at page 300:
,I. . . Lot 55 in Block No. 1 of Tasfield
Subdivision No. 2, a subdivision in Harris
-i929-
Mr. Bruce Allen, page 5 (M-390)
County, Texas, according to an unrecorded
plat of said subdivision, being out of 10
acres of land out of 210.4 acres of the
Wiley Smith Survey on Hall's Bayou, a tri-
butary of Green's Bayou, . . ."
The court held at page 301:
'We do not deem that the contract here
involved does constitute a violation of afore-
said Article. It is noted that the nrohibition
subdivider using .a descii tion
dale
``pp~-%~$``til the
been filed for record with the
County Court * * *.I This is a
Penal statute and before one could be convicted
or be guilty of violation thereof, one would ha ve
to fall within the terms of the statute."
(Emphasis added.)
The contract provided for monthly payments and gave
the vendor the right to cancel if payments were not made,
and provided that all payments theretofore made by the
vendee shall be forfeited to the vendor as liquidated damages
in the event of cancellation, and further provided that the
contract should not,,be placed of record, and expressly stated
that the agreement shall not be construed as a con-
veyance or sale of the'pioperty above described but shall
be construed as a mere agreement to sell the property. . . ."
and further provided against assignment. The court held the
contract in question was merely an executory contract to
convey and not a contract of sale, and did not purport to
pass either an equitable or legal title, and that it did not
come within the terms of Article 1137h.
Your question, however, involves an executed deed of
conveyance which has been delivered and placed of record and
cannot in any sense be referred to as being executory. It
represents a completed transaction.
Other questions relating to duties of the County Clerk
as to recording statutes and as to approval of the Commis-
sioners Court in regard to Article llj'j'h, Vernon's Penal
-1930- -
Mr. Bruce Allen, page 6 (M-390)
Code are fully discussed in Attorney General Opinions
``-1438 (1962) and c-695 (1966).
The Penal Code (Art. 113'7h) makes a misdemeanor
offense of a conveyance by a subdivider where the property
description depends for its location upon reference to a
subdivision plat which has not 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.
Therefore, under the facts and circumstances related,
we hold that if the erson usin the subdivison descrip-
tion is a subdivider, -idedas ‘i A ti 1 1137
-on's Penal Code, and if the map orn lit ia: not Geen
authorized as is requiredTy said Artic e, and/or if the
plat has not been filed for record as is required by said
Article. a convevance bv and deliverv of a deed bv a sub-
divider-which p&ports 'to transfer ctle to the pkoperty
to a purchaser is a violation of said Article 1137h. Con-
sequently, your question asking whether or not such a party
may be prosecuted is answered in the affirmative. In view
of the above holding, your second and third questions which
are alternative do not require an answer.
SUMMARY
A subdivider who transfers title to real property
by deed which depends for its description and
location to a reference to an unauthorized and/or
unrecorded plat. violates Article 1137h, Vernon's
Penal Code, and may be prosecuted for such offense.
FAT:dc
- 1931-
Mr. Bruce Allen, page 7 (M-390)
Prepared by Fisher A. Tyler
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Bill Allen
Lox-my Zwiener
Marvin Sentell
Harold Kennedy
W. V. Geppert
Staff Legal Assistant
Hawthorne Phillips
Executive Assistant
-1932- .s