Can a Texas county attorney sue to enforce a plat use restriction without anyone filing a complaint first?

Plain-English summary

The Williamson County Attorney, Dee Hobbs, brought the Attorney General a concrete dispute. The Austin City Council had authorized the city to buy a hotel property sitting inside Williamson County, intending to convert it into a long-term residential facility for people experiencing homelessness. The property was zoned community commercial, and its plat, approved and recorded in 2004, carried a use restriction: "Development of this subdivision is restricted to uses other than residential." The county attorney wanted to know whether he could sue to enforce that plat restriction by enjoining residential use, and specifically whether he could do so even if no one had filed a formal complaint with his office.

The AG grounded the answer in chapter 203 of the Property Code. Section 203.003(a) authorizes a county attorney to sue in a court of competent jurisdiction to enjoin or abate violations of a restriction contained or incorporated by reference in a properly recorded plan, plat, replat, or other instrument affecting a real property subdivision in the county, regardless of when the instrument was recorded. The Legislature defined "restriction" to include a limitation affecting the use to which property may be put, so a plat clause barring residential use is exactly the kind of restriction section 203.003(a) reaches. The AG also flagged a population limit in a footnote: chapter 203 applies only to counties with more than 200,000 people, and the county attorney advised that Williamson County qualifies.

On the complaint question, the AG read the chapter as a whole. Section 203.003 itself says nothing about a complaint process, but section 203.004(a) says a complaint filed "in connection with Section 203.003" must include an administrative fee set by the commissioners court, and section 203.005(b) provides for refunding part of any excess recovery to a complainant. So chapter 203 does contemplate a route where a private individual complains and the county attorney sues on that complaint. But the AG found nothing in the chapter that requires a filed complaint before the county attorney acts. The grant of authority in section 203.003(a) is direct, and Texas courts have recognized that a political subdivision's enforcement of land-use restrictions can serve a public purpose, as in Young v. City of Houston, which upheld a city's enforcement of private deed restrictions against an argument that it misused public funds. Because a county can have its own valid public reasons for enforcing plat restrictions, the AG concluded the county attorney may sue to enjoin a plat-restriction violation independent of, and regardless of, whether any complaint was filed.

What this means for you

This describes what the 2021 opinion holds. It is the AG's reading of chapter 203, statutes can change, and the population threshold matters, so confirm current law before relying on it.

County attorneys in large counties

The opinion reads section 203.003(a) as a direct grant of authority: a county attorney in a county over 200,000 may sue to enjoin or abate a recorded plat-restriction violation without waiting for a complaint. The complaint and administrative-fee provisions in sections 203.004 and 203.005 set up an optional route, not a precondition.

Cities and other property owners

The opinion treats a recorded plat use restriction (here, "uses other than residential") as enforceable by the county attorney even against a governmental buyer like a city. It does not decide the merits of any particular enforcement suit; it answers only the county attorney's authority to bring one.

Residents and would-be complainants

The opinion confirms that filing a complaint (with the administrative fee) is one way to prompt enforcement, and that a complainant can be refunded part of an excess recovery, but it makes clear the county attorney can also act on the county's own initiative.

Common questions

Q: Can a county attorney enforce a plat restriction without a complaint?
A: Yes, in counties over 200,000. The AG concluded section 203.003(a) grants the authority directly, and chapter 203 does not require a filed complaint before the county attorney sues.

Q: Does chapter 203 apply to every county?
A: No. The AG noted in a footnote that chapter 203 applies only to a county with a population of more than 200,000, and Williamson County met that threshold.

Q: What kinds of restrictions can the county attorney enforce?
A: Restrictions in a properly recorded plan, plat, replat, or other instrument affecting a subdivision, including a limit on the use to which property may be put, such as a clause restricting land to non-residential uses.

Q: Does it matter that a city, not a private party, owns the property?
A: The opinion addresses the county attorney's authority to sue, not the ultimate outcome. It cites Young v. City of Houston for the point that enforcing land-use restrictions can serve a public purpose.

Background and statutory framework

Chapter 203 of the Property Code governs county enforcement of land-use restrictions. The chapter applies only to counties over 200,000 people (§ 203.001), and "restriction" is defined to include a limitation affecting the use of real property (§ 203.002). Section 203.003(a) is the operative grant, letting the county attorney sue to enjoin or abate violations of a restriction in a recorded plat or instrument, regardless of when recorded. The complaint-and-administrative-fee mechanism appears in § 203.004(a), and § 203.005(b) addresses refunds of excess recovery to a complainant. The AG cited Young v. City of Houston for the principle that a political subdivision's enforcement of land-use restrictions may serve a public purpose, in the context of the article III, section 52 limit on using public funds for private purposes.

Citations and references

Statutes and constitutional provisions:

• Tex. Prop. Code § 203.003 (county attorney's enforcement authority), and §§ 203.001, 203.002, 203.004, 203.005
• Tex. Const. art. III, § 52 (public funds for private purposes)

Key case:

• Young v. City of Houston, 756 S.W.2d 813 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (enforcement of land-use restrictions can serve a public purpose)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0368
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0368.pdf

Original opinion text

April 26, 2021

The Honorable Dee Hobbs
Williamson County Attorney
405 M.L.K. Street, #7
Georgetown, Texas 78626

Opinion No. KP-0368

Re: Authority of a county attorney to file suit to enjoin a violation of a restriction contained in a properly recorded plat of property within the county (RQ-0403-KP)

Dear Mr. Hobbs:

You ask whether a county attorney may file suit to enjoin a municipality's use of property in violation of a plat restriction "regardless of whether a formal complaint has been filed" with your office.¹

Background

You explain that the Austin City Council authorized the City of Austin ("City") to purchase a hotel property ("the Property") located in Williamson County ("County"). Request Letter at 2. You further explain that the City intends to use the Property as a long-term residential facility for the homeless. Id. You tell us the Property is currently zoned as "community commercial" and that the plat for the Property, approved by the City and recorded in 2004, includes a use restriction stating: "Development of this subdivision is restricted to uses other than residential." Id. at 2–3. Given this plat restriction prohibiting residential use of the Property, you question whether the County may sue to enforce the plat restriction as recorded by enjoining residential use of the property. Id. at 1.

Chapter 203 of the Property Code

Chapter 203 of the Property Code authorizes certain county attorneys to enforce land use restrictions, including those in a properly recorded plat. Subsection 203.003(a) provides:

The county attorney may sue in a court of competent jurisdiction to enjoin or abate violations of a restriction contained or incorporated by reference in a properly recorded plan, plat, replat, or other instrument affecting a real property subdivision located in the county, regardless of the date on which the instrument was recorded.

TEX. PROP. CODE § 203.003(a).² The Legislature defined the term "restriction" in this context to include "a limitation that affects the use to which real property may be put." Id. § 203.002. Subsection 203.003(a) therefore authorizes the county attorney to sue to enjoin a violation of a plat restriction prohibiting the use of property for residential purposes.

You specifically ask whether the authority granted pursuant to subsection 203.003(a) exists regardless of whether a formal complaint is filed with your office. Request Letter at 3–4. Read in isolation, section 203.003 makes no mention of a complaint process, but other sections in chapter 203 suggest that the county attorney may utilize the authority granted in subsection 203.003(a) on behalf of a complainant. Section 203.004(a) provides that a "complaint filed in connection with Section 203.003 must be accompanied by an administrative fee prescribed by the county commissioners court." TEX. PROP. CODE § 203.004(a).³ Thus, chapter 203 contemplates a procedure by which an individual may complain to the county attorney regarding another's violation of a land use restriction, and the county attorney may choose to sue to enforce the restriction based on that complaint. That said, nothing in chapter 203 expressly requires a filed complaint before the county attorney exercises the authority under section 203.003.

The language chosen by the Legislature in subsection 203.003(a) grants the county attorney authority to independently sue to enforce a plat restriction, without the necessity of a filed complaint. Texas courts have recognized that a political subdivision's enforcement of land use restrictions may serve a public purpose. See, e.g., Young v. City of Houston, 756 S.W.2d 813, 814–15 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (upholding municipal enforcement of private deed restrictions against a challenge that it violated Texas Constitution article III, section 52's prohibition against using public funds for private purposes). A county may have its own valid reasons, independent of a private landowner, for enforcing properly recorded plat restrictions. Thus, a county attorney possesses authority to sue to enjoin a violation of a plat restriction, independent from and regardless of whether a complaint was filed with the county attorney to initiate the lawsuit.

¹ Letter from Honorable Dee Hobbs, Williamson Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 3–4 (Apr. 8, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0403KP.pdf ("Request Letter").

² The authority applies "only to a county with a population of more than 200,000." TEX. PROP. CODE § 203.001. You advise that Williamson County has a population of more than 200,000. Request Letter at 2.

³ If the court costs and attorney's fees awarded to the county, together with the administrative fee collected under section 203.004, exceed the county's expenses in a successful action under chapter 203, any portion of the excess that does not exceed the amount of the administrative fee collected by the county shall be refunded to the complainant. TEX. PROP. CODE § 203.005(b).

S U M M A R Y

Subsection 203.003(a) of the Property Code authorizes a county attorney to sue to enjoin or abate violations of a restriction contained in a properly recorded plat affecting a real property subdivision located in the county. The authority granted exists independent from and regardless of whether a complaint was filed with the county attorney to initiate the lawsuit.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee