Untitled Texas Attorney General Opinion

THE &rrORs~r GENERAL
OF EXAS
September 21, 1987
Mr. Mike Coffey Opinion No. JM-789
Kendall County Auditor
Kendall County Courthouse Re: Authority of a commissioners
Boerne, Texas 78006 court to impose certain require-
ments on a subdivider of land
abutting a public road
Dear Mr. Coffey:
You ask about two provisions in.the Kendall County "Regulations,
Rules and Specifications for Roads and Subdivisions." Specifically,
you request an opinion on the authority of the county to adopt the
following provisions:
Rule 204.80
All Streets and Roads will not receive
consideration for final approval by Commissioners'
Court until at least one (1) year after original
construction of Streets and Roads is completed.
Upon final approval, title to all Streets and
Roads shall be conveyed to the County, for their
maintenance by a Warranty Deed, which shall be
acceptable to the Commissioners Court.
Accompanying such deed shall be an adequate
description of Streets and Roads, either by
reference to approved subdivision plat or by field
notes prepared by a Registered Surveyor from a
survey made on the ground.
Rule 301.100
The entrance and/or exit to a subdivision shall
be by public road or street and each lot shall
front upon a public street.
Kendall County, "Regulations, Rules and Specifications for Roads and
Subdivisions" (1985 and Rev. 1987) at 24-85 and 5-87.
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Mr. Mike Coffey - Page 2 (JM-789)
You “ace that the commissioners court interprets rule 204.80 to
require that a subdivider of land co”vey to the county a fee simple
interest, and not just a” easement, in the public streets and roads
within a proposed subdivision. You ask whether such a requirement is
within the authority of the tzounty commissioners court. You also ask
whether the commissioners court, pursuant to its rule 301.100, may
refuse to approve a subdivision plat “where egress and engress is over
a three party easement which is not shown on the prelfminary
plat . . . [and when] two [of the three] parties have disagreed with
the proposed use of this easement as a public road to the
subdivision.”
We conclude that the conrmissioners court has no authority to
demand a deed transferring a fee simple interest to the county in the
land dedicated to public streets and roads in the subdivision.
Because rule 301.100 is in litigation, we will not discuss questions
concerning that provision.
A county commissioners court possesses only the powers conferred
either expressly or by nechssary implication from the constitution and
statutes. See Tex. Const. art. V, 518; Canales v. Laughlin, 214
S.W.Zd 451,453 (Tex. 1948); Attorney General Opinion JM-534 (1986).
Local Government Code section 232;004 (formerly article 6702-1,
section 2.401, V.T.C.S.) is the sole relevant solirce of statutory
authority for a commissioners court’s regulatory authority over the
subdividing of land in the county, unless section 232.006 applies in
~the case of a county which has a population of more than 2.2 million
or is contiguous with a county with a population of more than 2.2
million.1 The statute provides, in part, that
[bly an order adopted and entered in the minutes
of the commissioners court, and after a notice is
published in a newspaper of general circulation in
the county, the commissioners court may:
(1) require a right-of-way on a street or
road that functions as a main artery in a sub-
division, of a width of not less than 50 feet or
more than 100 feet;
1. The subdivision of land in a county but also within the
extraterritorial jurisdiction of a city requires the approval of the
city and county. See Local Gov’t Code chs. 42, 212, 242; Attorney
General Opinions JM-508 (1986); JM-365 (1985).
p. 3730
Mr. Mike Coffey - Page 3 (JM-789)
(2) require a right-of-way on any other
street or road in a subdivision of not less than
40 feet or more than 70 feet;
(3) require that the shoulder-to-shoulder
width on collectore or main arteries within the
right-of-way be not less than 32 feet or more than
56 feet, and that the shoulder-to-shoulder width
on any other street or road be not less than 25
feet or more than 35 feet;
(4) adopt, based on the amount and kind of
travel over each street or road in a subdivision,
reasonable specifications relating to the con-
struction of each street or road;
(5) adopt reasonable specifications to
provide adequate drainage for each street or road
1r1 a subdivisoin in accordance with standard
engineering practices; and
(6) require that the owner of the tract to
be subdivided execute a good and sufficient bond
in the manner provided by Section 232.004.
Local Gov't Code 1232.003. The commissioners court has the authority
to refuse to approve a subdivision plat only for a failure to meet the
specific requirements of section 232.003. Local Gov't Code 5232.002.
A subdivision plat must be approved by the county before it can be
filed and recorded by the county clerk. Prop. Code 512.002; Attorney
General Opinion m-508; See also Attorney General Opinion JM-365.
Although the county may require the dedication of public streets,
a county has no power to compel a subdivider to convey to the county a
fee simple interest in the land dedicated for use as streets in the
subdivision. While section 232.003 is silent on the question, we
conclude that the law is otherwise contrary to the notion that the
county can require, as a precondition to performing a ministerial act,
something it is incapable of commanding.
The county cannot condemn a fee simple interest in private
property, absent specific statutory authorization. Prop. Code
521.045. The common law rule in Texas has long been that condemna-
tions for public highways result only in the taking of an easement.
International h G.N.R. Co. v. Boles, 161 S.W. 914 (Tex. Civ. App. -
Austin 1913, writ ref'd). See also Schlottman v. Wharton County, 259
S.W.2d 325, 332 (Tex. Civ. App. - Fort Worth 1953, writ dism'd). The
County Road and Bridge Act contains no authority for the county to
condemn a fee simple interest in property for a public road as a
p. 3731
Mr. Mike Coffey - Page 4 (JM-789)
precondition to approving a subdivision plat.
Section 232.001 of the Local Government Code only requires that a
subdivider provide a plat which gives the dimensions of streets and
other areas "dedicated to public use." More precisely, the statutory
powers granted to the county over subdivisions are plainly limited to
ordering certain standards to be applied to the physical dimensions
and construction standards of streets and roads. Local Gov't Code
5232.003. The statute simply contains no other relevant grant of
substantive powers to the county, notably not the power to demand a
fee simple interest in dedicated streets.
The dedication of land for public roads does not convey more than
a mere easement to the county. Humble Oil h Refining Co. v.
Blankenburg, 235 S.W.2d 891 (Tex. 1951) (plat dedication of plazas,
parks, streets, and alleys created easement only). Cf. _city of
College Station v. Turtle Rock Corp., 680 S.W.2d 802 (Tex. 1984). -See
generally 32 Tex. Jur.3d Eminent Domain 543 (1984).
The statute contains no other grants of power to the county to
condition the acceptance or approval of a subdivision plat upon the
conveyance of a fee simple interest. Without speciffc authority, the
countv has no Dower to establish substantive reauirenlents for
subdivisions. Commissioners' Court v. Frank Jester Development Co.,
199 S.W.2d 1004 (Tex. Civ. App. - Dallas 1947, writ ref'd n.r.e.1.
Thus, when a person who seeks to file and record a plat has complied
with all of the statutory requirements outlined in chapter 232 of the
Local Government Code. awnroval and filing of the "lat becomes a mere
mi"isterial duty. Id.; "Attorney Genersl Opinibns JM-534 (1986);
JM-317 (1985). See also City of Corpus Christ1 v. Unitarian Church,
436 S.W.Zd 923, 927 (Tex. Civ. App. - Corpus Christ1 lY68, writ ref'd
n.r.e.). Certainly, the county may not refuse to accept a subdivision
plat by the subterfuge of declining to accept a dedication of streets
and roads as proposed on a plat, if the streets and roads comply with
the requirements permitted to be imposed by section 232.003.
SUMMARY
A county may provide requirements for the
approval of subdivision plats only to the extent
such requirements are authorized by chapter 232 of
the Local Government Code. A county may not
.require the transfer to it of a fee simple
interest on lands dedicated to public roads in the
subdivision.
p. 3732
Mr. Mike Coffey - Page 5 (JM-789)
JIM MATTOX
Attorney General of Texas
MARY KXLLRR
Executive Assistant Attorney General
JUDGE ZOLLIE STBAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
p. 3733