Can a Texas county treat a rental cabin development as a subdivision?

Plain-English summary

The Wilson County Attorney's office asked the Attorney General whether the county could regulate, as a subdivision, the partition of land into individual tracts in the unincorporated part of the county. The question (originally posed by the prior county attorney) grew out of residential developments in the Eagle Ford Shale area: clusters of small cabin-type rental units, each placed on its own tract, with common parking and the functional equivalent of streets laid out by a developer, but where title to the cabins and tracts never passes to anyone. The county wanted to treat these as subdivisions under chapter 232 of the Local Government Code because they create needs for waste removal, water, electricity, and emergency services.

The Attorney General concluded that, on the facts presented, a court would likely uphold that approach. Chapter 232 requires the owner of land outside a city to prepare a plat when dividing a tract into two or more parts to lay out a subdivision, lots, or streets and other public-use areas. The commissioners court may define and classify divisions, impose plat-approval requirements (fees, road and drainage specifications, groundwater certification, financial guarantees), and adopt rules for plats and subdivisions to protect public health, safety, and welfare. Subchapter A does not define "subdivision" except to exclude a manufactured-home community, and section 232.001(a-1) says a division counts regardless of the method used to make it.

Crucially, Texas courts have read "subdivision" broadly. One court of appeals held nothing requires that lots be offered for sale to be a subdivision; another held that a landowner who split his land into rental spaces "effected a subdivision," because the term can refer to the act of partition itself, whether or not ownership is transferred. So the county could regulate the cabin developments as subdivisions regardless of any title transfer. Because chapter 232 answered the question, the AG did not reach the alternative under Health and Safety Code chapter 121, noting in passing that chapter 121 contains no subdivision-regulation provision anyway. The opinion relied only on the facts in the request and did not resolve any factual dispute about the developments.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Wilson County Attorney (as the opinion described it): The opinion told the county that, on the facts presented, a court would likely uphold using chapter 232 to regulate the cabin-rental developments as subdivisions, even though title to the individual tracts never changes hands. It declined to reach the chapter 121 alternative and emphasized it was not resolving any factual dispute about the developments.

Counties and commissioners courts (as the opinion described it): The opinion described the chapter 232 toolkit: defining and classifying land divisions, requiring plats, imposing approval conditions, and adopting subdivision rules for the unincorporated area. It treated the statutory definition as broad enough to reach divisions not made for sale.

Developers and landowners (as the opinion described it): The opinion described "subdivision" as potentially covering the act of partition itself, so a developer who lays out separate rental tracts may be subject to county subdivision regulation regardless of whether the tracts are ever sold. It cabined its conclusion to the specific facts in the request.

Common questions

Can a county regulate a development as a subdivision if the lots are never sold?
The opinion concluded that, on the facts presented, a court would likely allow it. Texas courts have read "subdivision" to include the act of dividing land, not only divisions made for sale, so a transfer of title is not required.

What can a county require once something is a subdivision under chapter 232?
The opinion described requirements such as a prepared plat, application fees, road and drainage specifications, groundwater adequacy certification, financial guarantees, and rules to protect public health, safety, and welfare in the unincorporated area.

Does it matter that the cabins are rentals?
According to the opinion, no. It cited a case where dividing land into rental spaces was itself a "subdivision," so the rental nature did not take the development outside chapter 232.

Why didn't the opinion analyze Health and Safety Code chapter 121?
The opinion said it did not need to, because chapter 232 already supported regulation. It added that chapter 121, the Local Public Health Reorganization Act, has no subdivision-regulation provision to serve as an alternative.

Background and statutory framework

The opinion worked through chapter 232 of the Local Government Code: the platting requirement in section 232.001(a), the authority to define and classify divisions in section 232.0015(a), the plat-approval conditions in sections 232.002(a)-.0021, .003-.0032, and .004-.0045, and the subdivision-rule authority in section 232.101(a), (c). It noted that subchapter A does not define "subdivision" except to exclude a manufactured-home community (section 232.007(b)) and that section 232.001(a-1) makes the method of division irrelevant. It flagged but did not analyze the manufactured-home-rental-community definition in section 232.007(a)(1).

For the breadth of "subdivision," the opinion relied on Cowboy Country Estates v. Ellis Cnty. (no requirement that lots be offered for sale) and City of Weslaco v. Carpenter (dividing land into rental spaces effected a subdivision; the term can mean the act of partition regardless of transfer). On the alternative question, it cited Health and Safety Code sections 121.001-.103, and it relied solely on the facts in the request per GA-0760.

Citations

Cases:

• Cowboy Country Estates v. Ellis Cnty., 692 S.W.2d 882, 886 (Tex. App.-Waco 1985, no writ)
• City of Weslaco v. Carpenter, 694 S.W.2d 601, 603 (Tex. App.-Corpus Christi 1985, writ ref'd n.r.e.)

Statutes:

• Tex. Loc. Gov't Code Ann. § 232.007(a)(1) (West 2005); § 232.001(a); § 232.0015(a); §§ 232.002(a)-.0021, .003-.0032, .004-.0045; § 232.101(a), (c); § 232.007(b); § 232.001(a-1)
• Tex. Health & Safety Code Ann. §§ 121.001-.103 (West 2010)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0760 (2010) at 1, n.2

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1007
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1007.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 31, 2013

The Honorable Daynah Fallwell Opinion No. GA-1007
Wilson County Attorney
1103 Fourth Street Re: Whether a county may regulate, as a
Floresville, Texas 78114-2014 subdivision, the partition of a tract of land in the
unincorporated portion of the county under Local
Government Code chapter 232 or Health and
Safety Code chapter 121 (RQ-1103-GA)

Dear Ms. Fallwell:

Your predecessor in office asked whether a county may regulate, as a subdivision, the partition of land into individual tracts in the unincorporated portion of Wilson County under chapter 232 of the Local Government Code.[1] He described residential developments consisting of small cabin-type rental units in the Eagle Ford Shale area. Request Letter at 1, 3. According to the Request Letter, "[e]ach individual residence is placed on its own tract of land, and common areas, such as parking lots, and the functional equivalent of streets, are laid out by the developer[,]" but "title to the individual cabins and tracts does not pass." Id. at 1. The Request Letter argues that the commissioners court may "deem such developments 'subdivisions'" under chapter 232 of the Local Government Code because the cabins "are on a divided tract of land, are separate residential units, and create a need for waste removal, potable water, electricity and emergency services" much like other developments that have been held subject to subdivision regulation. Id. at 5. The Request Letter does not indicate whether these developments might constitute manufactured home rental communities. See TEX. LOC. GOV'T CODE ANN. § 232.007(a)(1) (West 2005) (defining "manufactured home rental community"). Accordingly, our analysis does not consider the effect of such a designation.

Chapter 232 of the Local Government Code requires an owner of a tract of land outside a municipality to

have a plat of the subdivision prepared if the owner divides the tract into two or more parts to lay out: (1) a subdivision of the tract, including an addition; (2) lots; or (3) streets, alleys, squares, parks, or other parts of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, parks, or other parts.

Id. § 232.001(a). "To determine whether specific divisions of land are required to be platted," the commissioners court "may define and classify the divisions," subject to certain restrictions. Id. § 232.0015(a). The commissioners court may also impose plat approval requirements on subdivisions, including payment of application fees, road construction specifications, drainage specifications, groundwater adequacy certification, and the posting of a bond or other financial guarantee. See id. §§ 232.002(a)-.0021, .003-.0032, .004-.0045 (West 2005 & Supp. 2012). Additionally, the commissioners court "may adopt rules governing plats and subdivisions of land within the unincorporated area of the county to promote the health, safety, morals, or general welfare of the county and the safe, orderly, and healthful development of the unincorporated area of the county," subject to certain restrictions. Id. § 232.101(a), (c) (West Supp. 2012).

Subchapter A of chapter 232 does not define the term "subdivision" other than to exclude a manufactured home community from its scope. Id. § 232.007(b) (West 2005). Subsection 232.001(a-1) provides that a division of land for platting requirement purposes "includes a division regardless of whether it is made by using a metes and bounds description in a deed of conveyance or in a contract for a deed, by using a contract of sale or other executory contract to convey, or by using any other method." Id. § 232.001(a-1) (emphasis added). Courts have consistently construed this language broadly to include tract divisions made for purposes other than sale of the tract. One court of appeals found that nothing in the predecessor to section 232.001(a) requires "that lots be offered for sale in order to constitute a 'subdivision.'" Cowboy Country Estates v. Ellis Cnty., 692 S.W.2d 882, 886 (Tex. App.-Waco 1985, no writ). Similarly, another court of appeals held that a landowner who divided his land into rental spaces "effected a 'subdivision' of his property," noting that the term, for purposes of a municipal platting and subdivision statute, "may refer simply to the act of partition itself, regardless of whether an actual transfer of ownership . . . occurs" or is even intended. City of Weslaco v. Carpenter, 694 S.W.2d 601, 603 (Tex. App.-Corpus Christi 1985, writ ref'd n.r.e.). Based on these decisions, a court would likely conclude that, under the facts presented in the Request Letter, a county may regulate the partition of land for a residential development in the unincorporated portion of the county as a subdivision under chapter 232 of the Local Government Code regardless of whether there has been a transfer of title to individual tracts.[2]

Your predecessor in office also asked in the alternative whether chapter 121 of the Health and Safety Code could be used to regulate the type of development described in the Request Letter. See Request Letter at 1. Because we have determined that a court would likely uphold the county's use of chapter 232 of the Local Government Code to regulate the development as a subdivision, we need not consider chapter 121 of the Health and Safety Code. We note, however, that chapter 121, the Local Public Health Reorganization Act, contains no provision for subdivision regulation that could serve as an alternative to chapter 232 of the Local Government Code. See generally TEX. HEALTH & SAFETY CODE ANN. §§ 121.001-.103 (West 2010).

SUMMARY

Under the facts presented, a county may regulate, as a subdivision, the partition of land for a residential development in the unincorporated portion of the county under chapter 232 of the Local Government Code regardless of whether there has been a transfer of title to individual tracts.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Russell Wilson, Wilson Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Dec. 28, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] We rely solely on the facts as presented in the Request Letter. See Tex. Att'y Gen. Op. No. GA-0760 (2010) at 1, n.2. Any factual dispute that may exist regarding the nature of the residential developments in question is not the subject of this opinion, and this opinion should not be construed as resolving any such dispute.