The Attorney General of Texas
November 13, 1978
JOHN L. HILL
Mornay Ganeral
Honorable Bill Stubblefield Opinion No. Ii- 1261
Williamson County Attorney
Georgetown, Texas 78626 Re: Partial vacation of sub-
division plats.
Dear Mr. Stubblefield:
You advise that land within the extraterritorial jurisdiction of the City
of Austin under V.T.C.S. articles 6626 and 974a, but not within the corporate
city limits, and within Williamson County, was properly subdivided, platted,
and filed. Part of the lots within this orlgbml subdivision were sold. A new
subdivision is now proposed which will contain e portion~of the unsold lots in
the original subdivision. The purchase~r of lots in the original subdivision
have not filed an application for vaaation. Except for the application by the
purchasers of lots in the originsl subdivision, the partial vacetlon of the
original subdivision and the replat of the new subdivision have been properly
ecknowledged and proved. The county clerk of Williamson County has
received a request to file and record the partial vacation of the portion of the
old subdivision to be resubdivided and the plat of the proposed new
subdivision. For purposes of this opinion we will eeeume that the proposed
new subdivision meets any requirements imposed under V.T.C.S. article
6626a, concerning proper description of land, drainage and street constwc-
tion, snd surety bonding. You ash whether the Williamson County clerk has a
duty to file the above described vacation end new subdivision p&t, and if he
could incur any liability in the event of a suit contesting the proposed
subdivision.
Article 974a, section 5, V.T.C.S, provides, inter alia:
In ceses where lots tout of a subdivtsion within a city’s
jurisdiction1 have been sold, the plan, plat or replat, or
any part thereof, maybe vacated upon the application
of all the owners of lots in. raid Plato and wtth the
approval . . . of the City Planning Commission or
governing body of said city, as the case may be. The
County Clerk of the county in whose office the plan or
plat thus vacated he8 b&en recorded shall write . . .
lc r o sn the plan or plat so vacated the word
“Vacated,“. . . .
.
-. .
.
Honorable Bill Stubblefield - Page 2 (H-1261)
(Emphasis added). The quoted provision deacribss th8 procedure for vacating e
plat. Th8 Cwrts haV8 agr88d that the Correct pRXedUI% for V&lCllting a recorded
plat requires the application of all lot owners. See Bjomson v. McElroy, 316S.W.2d
764 (Tex. Civ. App. - San Antonio 1958, no wriiT;, Blythe v. City of Graham, 287
S.W.2d 527 (Tex. Civ. App. - Fort Worth 1956, writ rePd n.r.e.1; Priolo v. Cit of
m, 257 S.W.2d 947 (TAX. Civ. App. - Dalles 1953, writ refPid n.r.8. .
enerall M. Pohl, Establishing and Altering the Character of Texas Subdiviai~
!h$r L. Rev. 638, 650 (1975) 1n our opxnon, unl all jom tn the
application for vecation, ‘the cl&k is not authorixed’?o ecz$e?he vacation
instrument, write ~acated”‘across the p&t, or annotate it, as provided in section 5.
We balieve, however, that the clerk is authorized to accept the proposed plat
of the new subdivision. Article 9744 section 2, reqUir8S that every pIat be
acknowledged by the owners or’proprietors of the land. S88 also V.T.C.S. art.
6626. We b8li8V8 thet the relevant group of owners consis~ose within the
new plat and does not inolude owners whose land lies outside of it. Section 3
requirns that the plat or replat be approved by the City planning commia&n or a
simildc agency. In cur opinion, if the replat is aaknowledged by the owners of land
within it and is properly endorsed by the rehmnt planning agency, the clerk has e
ministerial duty to file it. Sea V.T.C.S. art. 6626 (plat must be approved by
planning commission); AttOrn8yC8neral Opinions B-B55 (19781 (clerk must file
pleadings even though not certified); H-426 (1974) (clerk may reject instrument
clearly d8f8ctiV8 on its face); C-695 (1966) (Clerk must file deed ref8I%g to plat
not recorded pursuant to article 974a, V.T.C.S..).
Article 974e inClUd88a penalty provision which states In part:
When any. . . r8plat is tendered for filing in the office of
the County Clerk . . . it shell be the duty of such Clerk to
ascertain that the proposed . . . raplat is or k ,not subject to
the provisions of this Act, and if it is subject to its
provisions, then to examine said . . .. replat to ascertain
whether the endorsements required by this Act appear
th8I8On. If such endorsements do appear thereon, he shell
accept same for registration. If such endonements do not
appear thereon, he shall refuse to accept same for registre-
tion.
sec. I. Filing of a replat contrary to the provisions of article 974a, V.T.C.S.,
constitutes a misdam~eanor punkhable by fine. Id. Se&on 7 requires the cterk to
file a repkt endorsed by the city phnning cOmm’7stiOnpursuant to a8ctien 3. We
find no r8qUiMm8nt in article 974a that a pIat be Vacated before a repbt of the
land k acceptedfor filing. Consequently, the prohibitkm and penalty provisions of
s8ction 7 do not apply to the plat of the m subdivbion. Since section 7
applies only to any “map, plat, or replet,” it does not penalize th8 filing of a
vauetion instrument contrary to the requirements of section 5 of article 974a.
p. 4990
-
-
HOItorabl8 Bill stUbbl8fi8td - Pag8 3 (X-1261)
The clerk will incur no person& liability for filiw en instrument when
required to do so by statute. Attorney Genernl Opinion H-643 0676); eee Morris v.
S23 S.W.ld 301 (Tex. Civ. App. - Awtin 1959, writ rem=?-
iii!?re or8 cannot be held ltable for filii a pht or replat which faciauy complies
with the EqIitWn8ntS Of arti& 974a. Whether or not he Can b8 held liable for
filing u vacation instrument In violation of the requirement that ah Iot owners join
in the application wilI d8pend cm al! the relevant facts end circUm+mces. Eubanks
6‘&O’h& lf;;T8ffc-A~;h&; ;%Jt mPd=
W8 note fiMPy that the Original p&t must be Vacated pUrSMUItt0 a&cl8
ivkicn to be valid. We base cur opinion on
287 S.W.2d 527 (Tex. Civ. App. - Part Worth
plaintiff, a purchaser of a lot in a sUbdivkion,
and mstrbdividing of Unsold lots in the same
a~bdivkion. The restrictions were to be lifted only to such a degmg that they
warld be equal to those imposed on plaintiff% lot. The court held that the Unsold
lots 80uld not be m÷d without an application for VaCdian by the plaintiff
Under V.T.C.E. article 9744 section 5. It stated as follows:
If the city thereafter desired to replat . . . [the rub-
division1 surely i! would have to follow the pmpdure
stUbed in katm 5 of Art. 974a in connection ~8th the
....
287 S.W.2d at 530. As in W 8 the injUred landowner may be able to Chti8nga
the ms&divkion in cottrt..&P lbl. Pahl, (RI e at 671. We do not, however, believe
that artiale 9748 makes Gamty aleiIF responsible for ascertaining that the
original plat has been properly vacated before he files a r88uMivisioU plaL
SUMMARY
The county clerk may not file a vacation instrument
submitted pursuant to article 974a, V.T.C.S., unless all
owners of lots in the plat join in the application. Section 7,
the penalty provision of article 974a, does not apply to the
unauthorized filing of a vacation instrument, although the
clerk may be personelly liable for filing the doeUment,
dep8nding on the facts. The clerk must file a replat
acknowle~ed by th8 owners of land within it and properly
endarsed by the ml8vant planning agency punuant to article
974e, sectton 3. AlthoUgh vacetion of the original plat k a
nrcerary Step in the r8sUbdivkon of land pUnuant to article
974a, the statute does not make the clerk respamibl8 for
enforoing that requirement.
P. 4999
Hatarable Bill Stubblefield - Page 4 (126L)
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PO 5000