Untitled Texas Attorney General Opinion

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November 26, 1976
The Honorable Tom Hanna Opinion No. H-904
Criminal District Attorney
Jefferson County Re: Whether a commissioners
P. 0. Box 2553 court may require sub-
Beaumont, Texas 77704 dividers to comply with
county subdivision
specifications.
Dear Mr. Ranna:
you have requested our opinion with regard to whether
the Jefferson County Commissioners Court may require a
subdivider to comply with county subdivision regulations
promulgated under article 2372k, V.T.C.S., where the sub-
divider has not requested plat approval or acceptance of the
roads by the county. Specifically, you ask whether such
compliance may be required in the following situations:
1. Where the subdivider represents to
the purchaser that the roads are public
and will be maintained by the county; and
2. Where the roads are not public and
intended only for the use of the purchasers
who realize that the roads are private and
not to be maintained by the county.
Article 2372k states:
ITlhe Commissioners Courts of.such counties
shall have the authorit to re uire the
owner GwiiEFsdrithd
situated outside oftthe boundaries of any
incorporated town or city in such counties,
who may hereafter divide the same in two or
more parts for the purpose of laying out any
subdivision of any such tract of land, or for
laying out suburban lots or building lots,
and streets, alleys or parks or other portions
p.3791
‘.
: .
The Honorable Tom Hanna - page 2 (H-904)
inte~ndedfor public use, or the use of
purchasers or owners of lots of any such
tract of land, to provide for a right-of-way
of not less than sixty (60) feet for any
road or street within such subdivision.
(b) The Commissioners Courts of any
such counties shall have the authorit
romul ate reasonable
ibirs&T n the construction of any such
roads or streets within such subdivisions,
which specifications may include provisions
for the construction of adequate drainage for
such roads or streets. V.T.C.S. art. 2372k.
s 1. (Rmphasis added).
Language of a statute that is plain and clear should bs given
effect as written. Gateley v. Humphrey, 254 S.W.2d 98, 100
(Tex. Sup. 1952). Therefore, the commissioners court has the
authority to require owners of land located outside the five
mile limits of an incorporated city [see art. 6626, V.T.C.S.,
and Attorney General Opinions V-1401 (1952) and R-2952 (1952))
who divide their land for the purposes set out above to provide
for a sixty-foot right-of-way. The commissioners court also
has the authority to promulgate reasonable specifications to
be followed in the construction of roads in the 'subdivision
and may require subdividers to give a bond for the construction
and maintenance of such roads. V.T.C.S. art. 2372k, 99 l(b), 2.
Additionally, section 3 of article 2372k gives the commissioners
court the authority to refuse to approve or authorize any map
or plat of a subdivision for recordation under article 6626,
V.T.C.S., where the subdivider has failed to comply with the
minimum right-of-way and bond requirements.
The contemporaneous history surrounding the passage of
article 2372k (Acts 1951, 52nd Leg., ch. 151 at 256) supports
a literal reading of the statute. Shortly before the enact-
ment of article 2372k, Commissioners' Court v. Frank Jester
Develo ment Co.,
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the Court considered a situation in which the EIlZZ Couniy
Commissioners Court had promulgated specifications with which
developers desiring the Commissioners Court's approval for
filing of a plat had to comply. The Commissioners Court had
also ordered that developers provide~entrance culverts to
each separate piece of property and that through streets
p.3792
,. .
The Honorable Tom Hanna - page 3 (h-g04)
have a sixty-foot right-of-way. The Court of Civil Appeals
held that under the then applicable statute;.article 6626,
V.T.C.S., the Commissioners Court had no authority to refuse
approval of a plat which contained sufficient information to
allow it to be recorded. Additionally, they held that
the Commissioners' Court [could not] impose
upon appellee additional requirements and
conditions as reflected in its order . . .
since the Legislature has not seen fit to
require such conditions. -Id. at 1007.
In light of this background, we are of the opinion that the
Legislature intended the provisions of article 2372k to'
address the problems faced by the Court in Jester and to supply the
legislative authority necessary for the ca&imners court
to make the requirements specified in the terms of the statute.
The emergency clause of the bill enacting article 2372k
reads, in pertinent part:
Sec. 6. The fact that maintaining
shoddy roads and streets in new subdivisions
has become a heavy drain on County Road and
Bridge Funds, and the fact that at present
the County Commissioners Courts have no
legal authority to require real estate
developers to construct substantial roads
and streets in such new subdivisions, creates
an emergency . . . .
Allowing subdividers to escape the article's application by
refusing to submit maps or plats of the subdivision for
approval or by representing that the roads are nonpublic
could result in perpetuation of the conditions which the
emergency clause indicates the Legislature intended to
correct.
Attorney General Opinion V-1480 (1952) previously con-
cluded that the commissioners court has the authority under
article 2372k to require subdividers to provide for sixty
foot right-of-ways and to promulgate reasonable specifications
for the construction of roads within a subdivision. Attorney
General Opinion V-1480 also held that it was appropriate for
the commissioners court to seek injunctive relief as a means
of enforcing the provisions of article 2372k.
p.3793
The Honorable Tom Hanna - page 4 (R-994)
We are aware that Attorney General Opinion C-66 (1963)
limited the application of the provisions of article 2372k
only to subdividers who have suixaittedplats for approval
by the ccnsmissionerscourt. However, as pointed out in this
opinion, we believe that such a limitation could permit
subdividers to avoid application of the statute by refusing
to submit and would thereby subvert the legislative intent
embodied in article 2372k. Additionally, Opinion C-66 pur-
ported to limit the Commissioners Court as follows:
In the event that the Commissioners
Court has promulgated reasonable standards
under the authority of Article 2372k, and
the developer fails or refuses to give his
bond (if required) or to make his plat
conform to such requirements, the Commis-
sioners Court's on1 recourse is to refuse
the developer's -id
a ivision. (Emphasis
added).
This conclusion fails to take into consideration the contrary
holding of V-1480. For the reasons we have stated, it is
our conclusion that the commissioners court may require
landowners subdividing land for the purposes set out in
section l(a) of article 2372k to comply
_ - with regulations
promulgated under that article. To the extent that Attorney
General Opinion C-66 conflicts with this opinion, it it
overruled.
SUMMARY
The county commissioners court may require
any land owner subdividing for the purposes
set out in section l(a) of article 2372k to
comply with regulations promulgated by the
commissioners court under article 2372k.
The commissioners court's authority to make
requirements under the provisions of article
2372k and to enforce such requirement is not
dependent upon whether or not the subdivider
p.3794
The Honorable Tom Hanna - page 5 (H-904)
has submitted a plat for the commissioners
court's approval nor upon the subdivider's
representations as to the public or nonpublic
nature of the roads within the subdivision.
Very truly yours,
Attorney General of Texas
APPROVED:
Opinion Committee
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p.3795