Case Information
*1 The Attorney General of Texas November 13, 1978
JOHN L. HILL
Mornay Ganeral 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 original subdivision and the replat 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 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 a subdivtsion within a city’s jurisdiction1 have been sold, the plan, plat or replat, or any part thereof, maybe vacated upon the application all the owners 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 the county in whose office the plan or plat thus vacated he8 b&en recorded shall write . . . l c r osn plan or plat so vacated word “Vacated,“. . . .
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-. . (H-1261)
(Emphasis added). The quoted provision deacribss th8 procedure vacating e plat. Th8 Cwrts haV8 agr88d that the Correct pRXedUI% V&lCllting a recorded plat requires the application of all lot owners. See Bjomson v. McElroy, 316 S.W.2d 764 (Tex. Civ. App. - San Antonio 1958, no wriiT;, Blythe v. City 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 ref d n.r.8. . Pi
enerall M. Pohl, Establishing and Altering the Character Texas Subdiviai~ !h$r L. Rev. 638, 650 (1975) 1 n our opxnon, unl all jom tn the application for vecation, ‘the cl&k is not authorixed’?o ecz$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 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 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 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 inClUd88 a 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 such Clerk to ascertain that 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 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’7stiOn pursuant to a8ctien 3. We find no r8qUiMm8nt in article 974a that a pIat be Vacated repbt of the land k accepted for 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 section 5 of article 974a.
p. 4990
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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=?- re or8 cannot be held ltable filii a pht or replat which faciauy complies iii!? with the EqIitWn8ntS Of arti& 974a. Whether or not he Can b8 held liable for filing u vacation instrument In violation 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 pUrSMUIt t0 a&cl8 ivkicn to be valid. We base cur opinion on 287 S.W.2d 527 (Tex. Civ. App. - Part Worth plaintiff, a purchaser 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 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 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 iIF responsible for ascertaining that artiale 9748 makes Gamty that the ale original plat has been properly vacated 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 plat join in the application. Section 7, the penalty provision of article 974a, does not apply unauthorized filing of a vacation instrument, although the clerk may be personelly liable filing the doeUment, dep8nding on the facts. The clerk must file replat acknowle~ed by th8 owners land within it and properly endarsed by 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 clerk respamibl8 for enforoing that requirement.
P. 4999
Hatarable Bill Stubblefield (126L)
PO 5000