Can a Texas county exempt certain kinds of land divisions from its subdivision platting rules?

Texas AG Opinion JM-534: County Subdivision Plats

Plain-English summary

A district attorney asked the Attorney General about a Kerr County-area problem. The commissioners court had adopted an order setting minimum requirements for laying out streets, roads, parks, and other public areas in subdivisions outside city limits, as a condition of approving any subdivision plat. It then amended that order to say the requirements would not apply to several kinds of land divisions: divisions ordered by a court, divisions of inherited property among heirs, divisions by gift or bequest, sales to an adjoining owner, divisions into tracts all larger than twenty acres, and divisions of a larger tract into no more than three smaller tracts no more than once a year. The question was whether a commissioners court could write those exemptions into its ordinance. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

The AG drew a careful distinction between the county's own rules and the state statute behind them. Section 2.401 of article 6702-1 (the County Road and Bridge Act) governs approval of plats outside a city. Subsection (b) imposes a state requirement: an owner who divides land outside a city into two or more parts to lay out a subdivision, addition, or building lots (with streets, alleys, parks, or other public areas) must have a plat made and recorded with the county clerk. Subsection (d) is different: it lets the commissioners court, by order, set specific minimum requirements (right-of-way widths, road specifications, drainage, and a construction bond) as conditions for approving a plat. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

The AG concluded that the county could amend the subsection (d) requirements but not carve out exemptions from subsection (b). The commissioners court exercises the county's legislative power and can amend an order it made in that capacity, as long as the change stays within its statutory authority and does not impair vested rights or violate the constitution (for instance the Fourteenth Amendment's equal protection clause). But a commissioners court has only the powers the constitution and statutes give it, and no statute lets a county exempt landowners from the state's platting requirement. Where a county order conflicts with a valid state statute, the statute controls. The AG also noted that once an owner complies with section 2.401, approving and filing the plat becomes a ministerial duty, and that plats within a city's extraterritorial jurisdiction need both city and county authorization under article 6626aa. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

Currency note

This opinion was issued in 1986. Article 6702-1 (the County Road and Bridge Act) and the related platting statutes have since been recodified, largely into the Local Government Code and Transportation Code, and the Legislature has revised county subdivision-plat rules several times. Treat this page as historical context, not current legal advice. Verify the current statutes before relying on any specific section number or rule mentioned here.

Common questions

Can a county decide that small or family land divisions don't need a plat at all?

No. The AG concluded that a commissioners court cannot exempt kinds of subdivisions from the state requirement (section 2.401(b)) that an owner who divides land outside a city into two or more parts for the listed purposes prepare and file a plat for recording. The county has no statutory authority to create those exemptions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

What can a county change, then?

Its own minimum standards. The AG explained that under section 2.401(d) a commissioners court may amend and change the minimum requirements it sets as conditions for approving a plat, such as right-of-way widths, road construction specifications, drainage standards, and the construction bond, because it exercises the county's legislative power and may amend an order made in that capacity within its statutory authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

What happens if a county ordinance conflicts with the state statute?

The statute wins. The AG stated that when an order of the commissioners court conflicts with a proper legislative act, the order must give way and the act of the Legislature prevails. A county cannot use its ordinance to override the platting requirements the Legislature imposed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

If a landowner meets all the requirements, can the county still refuse to approve the plat?

No. The AG explained that if a person seeking to file and record a plat has complied with the statutory requirements of section 2.401, approval and filing of the plat becomes a mere ministerial duty. The county's discretion is in setting and applying the lawful requirements, not in denying a compliant plat. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

Background and statutory framework

Approval of subdivision plats outside a city is governed by section 2.401 of article 6702-1 (the County Road and Bridge Act) and, for land in a city's extraterritorial jurisdiction, by article 6626aa, which requires both city and county authorization before a plat can be filed (extraterritorial jurisdiction is defined by article 970a). Section 2.401(b) requires an owner who divides land outside a city into two or more parts for laying out a subdivision, addition, suburban or building lots, streets, alleys, parks, or other public areas to have a plat made that describes the tract by metes and bounds; subsection (c) requires the plat to be acknowledged and recorded with the county clerk. Subsection (d) authorizes the commissioners court, by published order, to set specific minimum requirements (right-of-way widths, shoulder widths, road specifications, drainage, and a construction bond), and subsection (e) lets the court refuse to approve a plat that does not meet those requirements. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

The AG grounded the limit on county power in the rule that a commissioners court possesses only the powers conferred expressly or by necessary implication by the constitution and statutes (Tex. Const. art. V, section 18; Canales v. Laughlin). No statute authorizes a county to exempt landowners from the state platting requirement (see also Lacy v. Huff, applying a city subdivision statute to an owner dividing a lot in two), and a county order that conflicts with a statute gives way to the statute (Brown v. Meeks). A plat must be approved by the county before the county clerk can record it (Property Code section 12.002; Trawalter v. Schaefer), but once the owner complies, approval and filing are ministerial (Commissioners Court v. Frank Jester Development Co.; City of Corpus Christi v. Unitarian Church). The AG had reached related conclusions in prior opinions JM-365, JM-508, and JM-317. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

Constitutional and statutory provisions:

• V.T.C.S. art. 6702-1, § 2.401(b), (c), (d), (e) (County Road and Bridge Act; subdivision plats)
• V.T.C.S. art. 6626aa (plats in a city's extraterritorial jurisdiction)
• V.T.C.S. art. 970a (extraterritorial jurisdiction)
• Tex. Const. art. V, § 18 (commissioners court powers)
• Tex. Property Code § 12.002 (recording a subdivision plat)
• U.S. Const. amend. XIV (equal protection)

Cases:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Lacy v. Huff, 633 S.W.2d 605 (Tex. App. - Houston [14th Dist.] 1982, writ ref'd n.r.e.)
• Brown v. Meeks, 96 S.W.2d 839 (Tex. Civ. App. - San Antonio 1936, writ dism'd)
• Trawalter v. Schaefer, 179 S.W.2d 765 (Tex. 1944)
• Commissioners Court v. Frank Jester Development Co., 199 S.W.2d 1004 (Tex. Civ. App. - Dallas 1947, writ ref'd n.r.e.)
• City of Corpus Christi v. Unitarian Church, 436 S.W.2d 923 (Tex. Civ. App. - Corpus Christi 1968, writ ref'd n.r.e.)

The opinion also cited Attorney General Opinions JM-365 (1985), JM-508 (1986), and JM-317 (1985), which appear in the reproduced text below.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0534
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0534.pdf

Original opinion text

Best-effort transcription from a scanned PDF text layer. Minor OCR errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

August 19, 1986

JIM MATTOX
Attorney General

Honorable E. Bruce Curry
District Attorney
521 Earl Garrett Street
Kerrville, Texas 78028

Opinion No. JM-534

Re: Authority of a commissioners court to amend a subdivision ordinance to exempt certain kinds of subdivisions from the provisions of article 6702-1, V.T.C.S.

Dear Mr. Curry:

You inquire whether a commissioners court may amend its subdivision ordinance to exempt certain kinds of subdivisions from the provisions of article 6702-1, section 2.401, V.T.C.S. Your question is raised by the fact that a commissioners court by order established "minimum requirements for the laying out, design, and construction of streets, roads, parks, and other areas to be dedicated to public use within subdivisions or additions" lying outside the corporate limits of cities and towns in the county as a requisite to approval and authorization of any map or plat of such subdivisions or additions. Subsequently, the commissioners court issued an amendment to its subdivision ordinance which provides, in part, that the order establishing minimum requirements requisite to approval and authorization of a map or plat of a subdivision or addition outside the corporate limits of a city or town shall not apply to the following divisions:

1. Division of land by order of Court.

2. Division of inherited property between heirs, by agreement or by action in probate.

3. Division by gift or bequest.

4. Division by sale to an adjoining owner.

5. Division of a tract into smaller tracts all of which smaller tracts exceed twenty (20) acres per tract.

6. Division of a larger tract into not more than three (3) smaller tracts, however said division of the larger tract or smaller tracts subdivided shall not occur more frequently than once each 12 months. Subsequent divisions of smaller tracts subdivided shall be subject to the limitation imposed on the larger tract as to number of smaller tracts (3) which may be subdivided in one 12 month interval.

We conclude that, within the authority granted by article 6702-1, a commissioners court may amend and change its own minimum requirements that are requisite to its approval and authorization of a map or plat of a subdivision located outside the corporate limits of a city, but a commissioners court may not enact exemptions to provisions of the state statute.

The approval of maps and plats of subdivisions located outside the corporate limits of a city is governed by section 2.401 of article 6702-1, V.T.C.S., which is the County Road and Bridge Act, and article 6626aa, V.T.C.S. See Attorney General Opinion JM-365 (1985). Article 6626aa provides that in areas under a city's extraterritorial jurisdiction as defined by article 970a, V.T.C.S., no plat shall be filed with the county clerk without the authorization of both the city and county. Section 2.401 of article 6702-1, V.T.C.S., provides, in part, that

(b) The owner of any tract of land situated without the corporate limits of any city in the State of Texas, 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 an addition without the corporate limits of any 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 or owners of lots fronting thereon or adjacent thereto, shall cause a plat to be made thereof, which shall accurately describe all of said subdivision or addition 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 of said subdivisions 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. . . .

(c) Every such plat shall be duly acknowledged . . . subject to the provisions contained in this section, such plat shall be filed for record and be recorded in the office of the county clerk of the county in which the land lies.

(d) The commissioners court of the county may, by an order duly adopted and entered upon the minutes of the court, after a notice published in a newspaper of general circulation in the county, be specifically authorized to make the following requirements:

(1) to provide for right of way on main artery streets or roads within such subdivision of a width of not less than 50 feet nor more than 100 feet;

(2) to provide for right of way on all other streets or roads in such subdivision of not less than 40 feet nor more than 70 feet;

(3) to provide that the shoulder-to-shoulder width on collectors or on main arteries within the right of way be not less than 32 feet nor more than 56 feet;

(4) to provide for the shoulder-to-shoulder width on all other streets or roads within such subdivision within the right of way to be not less than 25 feet nor more than 35 feet;

(5) to promulgate reasonable specifications to be followed in the construction of any such roads or streets within such subdivision, considering the amount and kind of travel over said streets;

(6) to promulgate reasonable specifications to provide adequate drainage in accordance with standard engineering practices for all roads or streets in said subdivision or addition;

(7) to require the owner or owners of any such tract of land which may be so subdivided to give a good and sufficient bond for the proper construction of such roads or streets affected, with such sureties as may be approved by the court. In the event a surety bond by a corporate surety is required, such bond shall be executed by a surety company authorized to do business in the State of Texas. Such bond shall be made payable to the county judge or his successors in office, of the county wherein such subdivision lies, and conditioned that the owner or owners of any such tract of land to be subdivided will construct any roads or streets within such subdivision in accordance with the specifications promulgated by and within a reasonable time as may be allowed by the commissioners court of the county. The bond shall be in such an amount as may be determined by the commissioners court not to exceed the estimated cost of constructing such roads or streets.

(e) The commissioners court of the county shall have the authority to refuse to approve and authorize any map or plat of any such subdivision, unless such map or plat meets the requirements as set forth in this section and there is submitted at the time of approval of such map or plat such bond as may be required by this section. (Emphasis added).

The platting requirements of article 6702-1 apply to the divisions of land into two or more parts for the purposes specified in subsection (b).

It is well established that a county commissioners court possesses only the powers conferred either expressly or by necessary implication by the constitution and statutes of this state. See Tex. Const. art. V, §18; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). We are not aware of any statute that gives a county the power to enact exemptions to the provisions of article 6702-1 that require the preparation and filing of record of a plat by an owner who divided land outside a city into two or more parts for the purposes specified in subsection (b). See Attorney General Opinion JM-508 (1986). Cf. Lacy v. Huff, 633 S.W.2d 605, 610 (Tex. App. - Houston [14th Dist.] 1982, writ ref'd n.r.e.) (requirements of statute authorizing cities to regulate subdivision development are applicable to owner who sought to divide lot into two lots). When an order of the commissioners court conflicts with a proper legislative act, the order must give way; the act of the legislature prevails. Brown v. Meeks, 96 S.W.2d 839, 842 (Tex. Civ. App. - San Antonio 1936, writ dism'd).

A map or plat of a subdivision or addition outside the corporate limits of a city must have been approved by the county before it can be filed and recorded by the county clerk. See Property Code §12.002; Trawalter v. Schaefer, 179 S.W.2d 765 (Tex. 1944); Attorney General Opinion JM-508 (1986). If a person who seeks to file and record a plat has complied with the statutory requirements outlined in section 2.401 of article 6702-1, approval and filing of the plat becomes a mere ministerial duty. See Commissioners Court v. Frank Jester Development Co., 199 S.W.2d 1004, 1007 (Tex. Civ. App. - Dallas 1947, writ ref'd n.r.e.); Attorney General Opinion JM-317 (1985). See also, City of Corpus Christi v. Unitarian Church, 436 S.W.2d 923, 927 (Tex. Civ. App. - Corpus Christi 1968, writ ref'd n.r.e.).

Subsection (d) of section 2.401, however, expressly authorizes a commissioners court to establish by order the minimum requirements specified in subsection (d) as requirements that are necessary for the county's approval of maps or plats of subdivisions outside the corporate limits of a city. The commissioners court exercises the legislative power of the county and has the power to amend an order made in its legislative capacity, insofar as the amendment conforms to the authority granted by statute and does not impair vested rights or violate other constitutional provisions, such as the equal protection clause of the Fourteenth Amendment of the United States Constitution.

Hence, it is our opinion that, to the extent authorized by article 6702-1, section 2.401, a commissioners court may amend its minimum requirements that are requisite for its approval of subdivision plats, but it may not exempt certain kinds of subdivisions from the provisions of article 6702-1, section 2.401, that require owners who divide land into two or more parts for the purposes specified in section 2.401(b) to file a plat for recording in the office of the county clerk.

SUMMARY

A commissioners court is authorized to amend its subdivision ordinance to make changes in the minimum requirements specified in section 2.401(d) of article 6702-1, V.T.C.S., which are enacted as requirements necessary for the county's approval of maps and plats of subdivisions located outside a city. A commissioners court may not amend its subdivision ordinance to exempt certain kinds of subdivisions from the provisions of section 2.401 that require an owner to prepare and file a plat when land located outside a city is divided into two or more parts for the purposes specified in section 2.401(b).

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General