Does a Texas city or county have to give specific reasons when it denies a plat application?

Plain-English summary

Senator Bryan Hughes, who authored House Bill 3167, asked the Attorney General about the bill's plat-approval reforms. HB 3167 amended the Local Government Code to make local jurisdictions act on a plat or plan (approve, approve with conditions, or disapprove) within thirty days of filing, with the stated goal of streamlining and speeding up plat approval statewide. The senator had three questions: what a local government must say when it does not fully approve a plat, what remedy applies if it falls short, and whether the bill created or removed authority to require things before an application is even accepted.

On the first question, the AG pointed to the new sections 212.0091 (for municipalities) and 232.0026 (for counties). When a city or county conditionally approves or disapproves a plat, it must give the applicant a written statement that clearly articulates each specific condition or reason. Each one must be directly related to the chapter's requirements, must include a citation to the law (a statute or ordinance) that is the basis for the decision, and may not be arbitrary. The senator noted that local governments were still issuing generic comments that did not identify specific deficiencies. The AG agreed that the statute prohibits generic statements and requires specific, citation-backed reasons for anything short of full approval; a jurisdiction that does not do this violates chapter 212 or 232.

On the remedy, the consequence is built into the statute. Under section 212.009(b), a plan or plat is approved by the governing body unless it is disapproved within the period and in accordance with section 212.0091, and the same applies to counties. So if a local government fails to adequately explain its denial or conditional approval, the plat is approved by operation of law. A denial is also subject to judicial review, and in a challenge, the city or county bears the burden of proving by clear and convincing evidence that the disapproval met the chapter's requirements. On the third question, the AG found that nothing in chapters 212 or 232 directs local entities to require pre-submission prerequisites, but nothing expressly prohibits it either. The fact that the Legislature singled out a groundwater availability certification as something that can be required before the thirty-day clock starts does not, by negative implication, bar other pre-submission studies. The AG declined to read such a prohibition into the statute, so a court is unlikely to construe the law to forbid local authorities from requiring reports or studies before a plat is submitted.

What this means for you

This describes what the 2021 opinion holds about HB 3167's plat-approval rules. The opinion is now several years old, and these Local Government Code provisions can change, so confirm current law before relying on this.

Land developers and applicants

Based on this opinion, if a city or county denies or conditionally approves your plat with vague, generic comments and no citation to a specific statute or ordinance, the law treats the plat as approved. The opinion also notes that in any court fight over a denial, the local government carries the clear-and-convincing burden of defending it.

Cities, counties, and planning staff

The opinion holds that a denial or conditional approval must list each specific reason, tie it to a chapter requirement, cite the controlling law, and avoid arbitrariness. Generic deficiency comments violate chapter 212 or 232 and risk an automatic approval. Separately, the opinion reads the statute as neither requiring nor prohibiting pre-submission studies, so requiring them is not foreclosed.

Anyone tracking the 30-day plat clock

The opinion confirms the thirty-day window in sections 212.009(a) and 232.0025(d), and notes the one express pre-clock item the Legislature named: a groundwater availability certification, which can be required before the period begins.

Common questions

Q: What happens if a Texas city denies my plat with a vague reason?
A: Under this opinion, if the city does not give specific, citation-backed reasons as section 212.0091 requires, the plat is approved by operation of law. The same rule applies to county decisions under section 232.0026.

Q: Does the city have to cite a specific law when it denies a plat?
A: Yes. The written statement must include a citation to the statute or municipal ordinance that is the basis for each condition or reason, and the reasons must be directly related to the chapter's requirements and not arbitrary.

Q: Who has the burden if I challenge a denial in court?
A: The municipality or county. The opinion notes that under sections 212.0099 and 232.0029, the local government must prove by clear and convincing evidence that the disapproval met the chapter's requirements.

Q: Can a city still require studies or reports before accepting my application?
A: Likely yes. The AG concluded that HB 3167 neither requires nor prohibits pre-submission prerequisites, and a court is unlikely to read the statute to forbid requiring reports or studies before a plat is submitted.

Background and statutory framework

House Bill 3167, enacted by the 86th Legislature, rewrote parts of chapters 212 (municipal) and 232 (county) of the Local Government Code to require timely, reasoned plat decisions. Sections 212.009(a) and 232.0025(d) impose the thirty-day decision deadline. New sections 212.0091 and 232.0026 require a written statement with specific, citation-backed, non-arbitrary reasons whenever a jurisdiction does not fully approve a plat. The enforcement mechanism is the deemed-approval rule in sections 212.009(b) and 232.0025(d): no proper disapproval means approval. Sections 212.0099 and 232.0029 put a clear-and-convincing burden on the jurisdiction in litigation, and Town of Annetta S. v. Seadrift Dev. illustrates judicial review of an unlawful denial. The pre-submission question turns on sections 212.009(b-1) and 232.0025(d-1), which let a jurisdiction require a groundwater availability certification (under section 212.0101) before the clock runs; the AG applied the plain-text canon from City of Rockwall v. Hughes to decline reading an implied bar on other prerequisites.

Citations and references

Statutory provisions:

• Tex. Loc. Gov't Code §§ 212.0091, 212.009, 212.0099 (plat decisions, reasons, burden); §§ 232.0026, 232.0025, 232.0029 (county equivalents)
• Tex. Loc. Gov't Code §§ 212.009(b-1), 232.0025(d-1), 212.0101 (groundwater availability certification)
• House Bill 3167, 86th Legislature

Key cases:

• Town of Annetta S. v. Seadrift Dev., L.P., 446 S.W.3d 823 (Tex. App.—Fort Worth 2014, pet. denied) (judicial review of an unlawful plat denial)
• City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) (courts will not read words into a statute against its plain text)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0349
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0349.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 25, 2021

The Honorable Bryan Hughes
Chair, Senate Committee on State Affairs
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. KP-0349

Re: Information a local jurisdiction must provide if denying or conditionally approving a plat under chapters 212 and 232 of the Local Government Code and the authority of local governments to establish prerequisites to the submission of a plat application (RQ-0367-KP)

Dear Senator Hughes:

You ask about requirements under House Bill 3167 ("HB 3167"), enacted by the Eighty-sixth Legislature.¹ HB 3167 amended provisions in the Local Government Code to require local jurisdictions responsible for approving plats or plans to generally "approve, approve with conditions, or disapprove" a plat or plan within thirty days of its filing. See TEX. LOC. GOV'T CODE §§ 212.009(a), 232.0025(d). As the author of HB 3167, you explain your intent in proposing the legislation was to "streamline and expedite the ability to obtain plat and plan approval statewide." Request Letter at 1.

You first ask what information a local jurisdiction must provide if it denies or conditionally approves a plat under the laws amended by HB 3167. Request Letter at 2. HB 3167 amended chapters 212 and 232 by adding, among other provisions, sections 212.0091 and 232.0026. Those sections identify information a local jurisdiction must provide when disapproving or conditionally approving a plan or plat:

(a) A municipal authority or governing body that conditionally approves or disapproves a plan or plat under this subchapter shall provide the applicant a written statement of the conditions for the conditional approval or reasons for disapproval that clearly articulates each specific condition for the conditional approval or reason for disapproval.

(b) Each condition or reason specified in the written statement:

(1) must:

(A) be directly related to the requirements under this subchapter; and

(B) include a citation to the law, including a statute or municipal ordinance, that is the basis for the conditional approval or disapproval, if applicable; and

(2) may not be arbitrary.

TEX. LOC. GOV'T CODE § 212.0091 (emphasis added); see also id. § 232.0026 (applying the same requirements to a commissioners court or designee that conditionally approves or disapproves of a plat application). Pursuant to these sections, a municipal or county authority that does not grant full approval for a plat or plan must specify a clear reason why approval was not granted, citing the law, including a specific statute or ordinance, that serves as the basis for the denial or conditional approval. Id. §§ 212.0091, 232.0026. Despite these new requirements, you explain that "local governments continue to deny or conditionally approve plat applications with generic comments that do not fully address any specific deficiencies or advise applicants on the revisions needed to obtain approval." Request Letter at 1. The language of sections 212.0091 and 232.0026 prohibit generic statements for a denial or conditional approval and instead require specific reasons with accompanying citations to law for anything other than full approval of a plan or plat. A municipal authority or commissioners court that does not provide such specificity violates chapter 212 or 232.

In your second question, you ask what remedies exist if a municipality or county denies or conditionally approves a plat or plan without providing a complete explanation of why full approval was not granted. Request Letter at 2. With regard to a municipality, subsection 212.009(b) provides: "A plan or plat is approved by the governing body unless it is disapproved within that period and in accordance with Section 212.0091." TEX. LOC. GOV'T CODE § 212.009(b). The same applies to decisions by a county regarding the approval of a plat or plan under subsection 232.0025(d). Id. §§ 232.0025(d), .0026. Thus, if a municipality or county fails to adequately explain the reason for the denial or conditional approval as required in subsection 212.0091, "the plan or plat is approved." Id. §§ 212.009(b), 232.0025(d). Furthermore, a local entity's decision to deny approval of a plan or plat is subject to judicial review. See, e.g., Town of Annetta S. v. Seadrift Dev., L.P., 446 S.W.3d 823, 830 (Tex. App.—Fort Worth 2014, pet. denied) (upholding summary judgment in favor of a developer who was unlawfully denied plat approval). In an action challenging the disapproval of a plan or plat, the municipality or county "has the burden of proving by clear and convincing evidence that the disapproval meets the requirements" in chapters 212 or 232, respectively. TEX. LOC. GOV'T CODE §§ 212.0099, 232.0029.

You also ask whether enactment of HB 3167 established "a new statutory requirement or direct authorization" for local governments to require developers to complete certain prerequisites prior to acceptance of a plan or plat application. Request Letter at 2. You tell us that prior to the enactment of HB 3167, some local governments required developers to include certain studies and reports with their plan or plat application, including "drainage studies, traffic impact analyses, utility evaluations, geotechnical reports, federal permits such as FEMA Conditional Letters of Map Revision (CLOMR) and Letters of Map Revision (LOMR)."² Id. And you state that in some instances, local governments are now requiring a "'completeness check' of an application before the application itself can be accepted for submission."³ Id.

"A person desiring approval of a plat must apply to and file a copy of the plat with the municipal planning commission or, if the municipality has no planning commission, the governing body of the municipality." TEX. LOC. GOV'T CODE § 212.008; see also id. § 232.001 (requiring filing of a plat with the county for division of land outside municipal boundaries). "Plan" is defined as "a subdivision development plan, including a subdivision plan, subdivision construction plan, site plan, land development application, and site development plan." Id. § 212.001(2). "Plat" is defined as "a preliminary plat, general plan, final plat, and replat." Id. § 212.001(3). Municipalities and counties are authorized to adopt rules and ordinances governing plats "to promote the health, safety, morals, or general welfare of the municipality and the safe, orderly, and healthful development of the municipality." Id. § 212.044; see also id. § 232.076 (authorizing a commissioners court to adopt rules related to certification regarding compliance with plat requirements).

Nothing in the language of chapters 212 or 232 directs local entities to require developers to complete certain prerequisites prior to acceptance of a plan or plat application, but it likewise does not expressly prohibit a municipality or county from requiring applicants to obtain certain approvals before submitting a plat or plan. While sections 212.009(a) and 232.0025(d) establish a thirty-day period in which a local jurisdiction must act on a plan or plat after filing, they do not provide an exhaustive list of what an applicant must include with that filing.

You point to subsections 212.009(b-1) and 232.0025(d-1) as evidence of the Legislature's intent that a local government may not generally require prerequisites to submission of a plat or plan for approval. Request Letter at 2. Those subsections allow a municipality or county to require a groundwater availability certification be submitted prior to the start of the 30-day period for approval:

Notwithstanding Subsection (a) or (b), if a groundwater availability certification is required under Section 212.0101, the 30-day period described by those subsections begins on the date the applicant submits the groundwater availability certification to the municipal authority responsible for approving plats or the governing body of the municipality, as applicable.

TEX. LOC. GOV'T CODE § 212.009(b-1); see also id. § 232.0025(d-1) (providing substantially the same for county authorities). You suggest that the inclusion of these provisions "is indicative that any other similar prerequisites to the beginning of the 30-day application timeline would have been specifically included in House Bill 3167 if they had been part of the Legislature's intent." Request Letter at 2. While subsections 212.009(b-1) and 232.0025(d-1) authorize a municipal or county authority to require a groundwater availability certification prior to the thirty-day period beginning to run, they do not expressly prohibit those authorities from requiring other reports or studies prior to the submission of a plan or plat. Courts refrain from reading words into a statute to create a meaning different from the plain text of the statute, and this office likewise will refrain from doing so. See City of Rockwall v. Hughes, 246 S.W.3d 621, 630 (Tex. 2008).

¹ See Letter from Honorable Bryan Hughes, Chair, Senate Comm. on State Affairs, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (July 28, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0367KP.pdf ("Request Letter").

² Briefing submitted in response to your request states that a FEMA Conditional Letters of Map Revision (CLOMR) is necessary "for jurisdictions that participate in the National Flood Insurance Program" and that it can take "three to six months to obtain from FEMA." See Brief from Honorable Bobby W. Stovall, Hunt Cty. Judge at 2 (Aug. 27, 2020) ("Hunt County Brief") (on file with the Op. Comm.).

³ Briefing submitted in response to your request states that some local governments required the studies and reports you describe prior to filing a plat even before the adoption of HB 3167. Hunt County Brief at 3; Brief from Scott Houston, Deputy Exec. Dir. & Gen. Counsel, Tex. Mun. League at 2 (Aug. 28, 2020) (all briefing on file with the Op. Comm.).

S U M M A R Y

Sections 212.0091 and 232.0026 of the Local Government Code prohibit local jurisdictions from denying or conditionally approving a plan or plat with generic statements, instead requiring specific reasons with accompanying citations to law for anything other than full approval of a plan or plat. A municipal or county authority that does not provide such specificity violates chapter 212 or 232, respectively. If a local jurisdiction fails to adequately explain the reason for the denial or conditional approval as required in section 212.0091 or 232.0026, the plan or plat is approved, and a local authority's decision to deny approval of a plan or plat is subject to judicial review.

Subsections 212.009(a) and 232.0025(d) require the local authority responsible for approving plats to approve, approve with conditions, or disapprove a plan or plat within 30 days after the date the plan or plat is filed. A court is unlikely to construe the language of those provisions to prohibit local authorities from requiring reports or studies to be completed prior to the submission of a plan or plat.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff
Acting Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee