Tnr Honorable Paul R. Roberts, Jr. Opinion No. H-1057
Coma1 County Attorney
Room 206, Courthouse Re: Whether the Com-
New Braunfels, Texas 78130 missioners Court may
require subdividers to
comply with county sub-
division specifications
under Article 6626a,
V.T.C.S.
Dear Mr. Roberts:
You ask:
Does Article 6626a, V.T.C.S., allow Coma1
County to use injunctive powers to force
developers (who disclose that private roads
on their property are not County maintained)
to comply with Coma1 County road standards,
even if said developers do not file plats.
We addressed a similar question in Attorney General Opinion
H-904 (1976) which discussed powers of commissioners courts in
counties with a population not less than 190,000. V.T.C.S. art.
2372k, 9 l(a). We concluded that the commissioners court "may
require any land owner subdividing for the purposes set out . . .
to comply with regulations promulgated . . . under article
2372k." Attorney General Opinion H-904 (1976) at 4. Furthermore,
we have said that the authority of the commissioners court to
make and enforce such regulations
is not dependent upon whether or not the
subdivider has submitted a plat for the
commissioners court's approval nor upon
the subdivider's representations as to the
public or nonpublic nature of the roads
within the subdivision.
Id. at 4-5. In our opinion, the same conclusions are appli-
Able to a construction of article 6626a.
P. 4342
The Honorable Paul R. Roberts, Jr.
Article 6626a, section 1, applies to all counties having
a population of less than 190,000; however, the provisions of
the statute and the reasons for its enactment parallel that of
article 2372k. Section 1 provides that
every 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 (2) or more parts
for the purpose of laying out any sub-
division of any such tract of land, or an
addition without the corporate limits of
any town or city, or for laying out sub-
urban lots or building lots, and for the
purpose of-laying out streets, alleys, or
par
p s, or ot er
public use, or the use of purchasers or
owners of lots fronting thereon or adja-
cent thereto, shall cause a plat to be
made therof. . . .
(Emphasis added). See V.T.C.S. art. 2372k, § l(a). Section 2
of article 6626a prxdes that the plat shall be filed and
recorded in the county clerk's office; however, approval of
the commissioners court is required before the county clerk
may file such plats. Attorney General Opinion WW-1438 (1962)
at 3. The provisions of section 3 authorize the commissioners
court to adopt subdivision requirements and specifications for
rights of way, streets, drainage, and the posting of bond.
Compare V.T.C.S. art. 6226a, 9 3 (a)-(q) with V.T.C.S. art.
2372k, S§ 1 (b), 2. Finally, section 4 psdes that the
commissioners courts of such counties have the authority to
refuse to approve and authorize any map or plat of any such
subdivision unless the requirements set forth in the Act are
met. This provision parallels section 3 of article.2372k.
Although the provisions of article 6626a and article 2372k
apply to counties in different population brackets, both
statutes authorize the commissioners courts to require sub-
dividers to comply with substantive subdivision specifications.
Article 2372k was passed by the Texas Legislature, Acts
1951, 52nd Leg., ch. 151, at 256, after the Dallas Court of
Civil Appeals held that plat approval requirements under ar-
ticle 6626 did not give the commissioners court power to impose
substantive requirements -- plats had to be approved if lots
were sufficiently described to enable the taxing authority
to carry the property on its tax rolls. Commissioners' Court
v. Frank Jester Development Co., 199 S.W.Zd 1004, 1007 (Tex.
Civ. App. -- Dallas 1947, writ ref'd n.r.e.). - See Pohl,
Establishing and Altering the Character of Texas Subdivisions,
p. 4343
The Honorable Paul R. Roberts, Jr. : Page 3 (H-1057)
27 Baylor L. Rev. 639, 640~ (1975). Although the enactment of
article 2372k provided substantive regulations for counties
with a population of at least 190,000, other counties were
still under the restrictive interpretation of article 6626;
therefore, the 55th Legislature passed article 6626a to provide
substantive supervision through the commissioners courts of
such counties. Acts 1957, 55th Leg., ch. 289, at 1302. (Amend-
ed, Acts 1961, 57th Leg., ch. 449, at 1022).
The emergency clause of the bill enacting article 6626a in
1955 provides:
Sec. 7. 'The fact that there are no
adequate laws giving supervision to sub-
divisions without the corporate limits
of a city creates an emergency.. . . ..
Id. at 1303. We do not believe a subdivider can avoid this
zticle's application by refusing to file plats or by repre-
senting that the roads are nonpublic. Since "Isltatutes con-
tainins orants of Dower are to be construed so as to include
the authority to db all things necessary to accomplish.the
object of the grant," Terre11 v. Sparks, 135 S.W. 519, 521
(Tex. 19111, we are of the oPpinion that a court would probably
rule that it is anoronriate for the Commissioners Court of -
Coma1 County to seek injunctive relief as a means for enforcing
article 6226a. See West v. Ell;slCounty, 241 S.W.2d 344 (Tex.
Civ. App. -- Waco 1951, no writ county entitled to in]unctlve
relief-for the purpose of keeping easements for road purposes
unobstructed); Attorney General Opinions H-904 (1976) Tnd V-1480
(1952) (commissioners courts in counties of 190,000 or more
have authority to bring injunctive relief to enforce the pro-
visions of article 2372kl.
You have also asked whether article 6626a "is unconstitu-
tionally vague, in that the term 'subdivision' is not clearly
defined." We note that every statute carries a strong presump-
tion of constitutionality, and all reasonable doubts are to be
resolved in favor of its validity. Smith v. Davis, 426 S.W.2d
827, 831 (Tex. 1968). Webster's Third New International
Dictionary 2274 (1967) classifies "subdivision" as a noun and
defines it as the "[alct or process of subdividing" or a "tract
of land surveyed and divided into lots. . _ . fi Black's Law
Dictionary 1593 (4th ed. 1951) defines ssbdivision as a “[dlivi-
sion into smaller parts of the same thing or subject-matter."
We believe that the word "subdivision" as used in article 6626a
is at least consistent with these defi~nitions and, when viewed
in its statutory context, is even more specific than the dic-
tionary definitions. It is our opinion that article 6626a is
P. 4344
The Honorable Paul R. Roberts, jr. - Page 4 (H-1057')
not unconstitutionally vague in its usage of the word -sub-
division."
Your remaining quest&n is whether
[alrticle 6626a requires the State to prove
intent of a developer to create a "sub-
division" before they can use injunctive
powers to require compliance with road
standards.
Generally, a suit for an injunction is a proceeding in equity
designed to protect, from irreparable injury, property or
rights which a court of equity will recognize by either command-
ing acts to be done dr by prohibiting their commission. The
statute does not address the question of proof of intent to
create a subdivision. The Rules of Civil Procedure, regarding
injunctions are silent as to intent and merely state that the
applicant "shall present his petition to the judge . . . con-
taining a plain and intelligible statement" of the grounds for
relief. Tex. R. Civ. P. 682. The judge must then proceed to
*hear and determine such motion . . . as the ends of justice
require." Tex. R. Civ. P. 680. It is our opinion, therefore,
that it would probably not be held necessary that the county
prove a developer's intent to create a subdivision; rather, the
county must make a showing that the provisions of article 6626a
have been or will be violated and that irreparable harm will
result unless relief is granted.
SUMMARY
The Commissioners Court of Coma1 County
may seek injunctive relief in order to
enforce the provisions of article 6626a.
The County's authority to enforce the
statute depends neither on the developer's
filing a plat for the commissioners court's
approval nor on disclosure that the roads
are not maintained by the county. Article
6626a is not unconstitutionally vague in
its usage of the term subdivision. The
statute does not require that the county
prove the developer's intent to create
a subdivision before seeking injunctive
relief to require compliance with road
standards.
P. 4345
The Honorable Paul R. Roberts, Jr. - Page 5 (H-1057)
Very truly yours,
,
d?. -
JO N L. HILL
Attorney General of Texas
APPROVED: b
Q-lSh.4L3
DAVID M. KENDALL, First Assistant
Opinion Committee
jst
p. 4346