Item =. 11 ConslCi4eT'fi'I;aUil and discn_ts<.7inn oi' a~..ithor'i ing I:er~r~
i.o~_tnty FII:GUT'flE?y to filr~ Rmic~.ts r~_tr-i.ae brief ii-~ the TE~x~,s
:i~..ipreme Cn~_7rt in =_~..tp}ao'rt. of Travis L:otanty's=. posit inn in :its
apF,eal of Elgin Bank v. TraviE; Cn,_tnty. C:a,_tse tdo.
63;i_t3.G._4300f,69-°CV, regarding 1ntE'T'pT'f?t<it]Uil of sL-atue=.> regar'diny
r_o~_uity coi'itr-ol. of subdivision p].aLs. "(his item was disc~_tssed
b~.tt no deci=_ion was made.
°`~I oI ~e
OFFICE OF THE COUNTY AT'T'ORNEY
KERR COUNTY, TEXAS
CDDNIY CDDRIHDD$R, SDI78 B20
700 EAST' MAIN STRBaf
KBRRVILLE, 7$XA5 78028-537A
'113L~xoNB (210) 8965338 FAx (210) 896-OSOM1
DAVID M. MO'n.Bx, muem Armancr JISB D. BAILBY, Assaevn' murrrc Anow+uY
HAROLD J. DANIORD, A9B6TAM murrrr Ailanxcr
To: Kerr County Commissioners' Court ~~Q~
From: Ilse D. Bailey, Assistant County Attorneyi~yl"
Date: October 31, 1995
Re: Amicus Curiae Brief to the Texas Supreme Court in Travis
County's Appeal in Elgin Bank v. Travis County, Cause No.
03-94-00669, August 16, 1995
Travis County has requested Kerr County's assistance, along
with requests to numerous other affected counties, in their effort
to get the Texas Supreme Court to overturn the Austin Court of
Appeals decision in the above case. In that case, the Court of
Appeals agreed with Elgin Bank's position that a county can not
require a developer to comply with its subdivision regulations if
the developer does not "plan to lay out streets, alleys, squares,
parks, or other parts of the tract intended to be dedicated to
public use or for the purchasers or owners of lots fronting on or
adjacent to the streets, alleys, squares, parks or other parts."
I have attached a copy of the Court of Appeals' opinion for your
review.
Our assistance would be in the form of what is referred to as
an amicus curiae ("friend of the court") brief, wherein Kerr County
would file a brief with the Supreme Court stating its position in
support of the position which Travis County will be taking in its
brief.
We recommend that you authorize the County Attorney to file
such a brief in support of Travis County, since it will affect all
Texas counties if the Austin Court of Appeals' decision is
permitted to stand. There will be attempts made by Travis County
and others in the next legislature to correct this problem
statutorily, but if the situation can be correct in the courts,
this will be a quicker and more efficient remedy.
C
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
JUDGMENT RENDERED AUGUST 16, 1995
NO. 03-94-00669-CV
ELGIN BANK OF TEXAS V. TRAVIS COUNTY, TEXAS
APPEAL FROM 250TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE JUSTICES POWERS, JONES AND KIDD
REVERSED AND REMANDED IN PART; REVERSED AND RENDERID IIQ PART -
PER CURIAM OPINION
THIS CAUSE came on to be heard on the transcript of the record of the court below; and the
Game being considered, because it is the opinion of this Court that there was error in the trial
court's judgment: 1T IS THEREFORE considered, adjudged and ordered that the judgment of
the trial court is reversed; judgment is here rendered in favor of Elgin Bank of Texas, and
declaring that Travis County may not require Elgin Bank to plat the subject property if Elgin
~ Bank subdivides but does not lay out streets, alleys, squares, parks, or other parts of the tract
intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on
or adjacent to the struts, alleys, squares, parks, or other parts; and we remand to the trial court
the determination of Elgin Bank's request for attorney's fees. It is FURTHER ordered that the
Travis County, Texas pay all cosu relating to this appeal, both in this Court and the court
below; and that this decision with a copy of the opinion herein delivered be certified below for
observance.

TEXAS COURT OF APPEALS, T1~tD DISTRICT, AT AUSTIN
NO.03-94-00669-CV
Elgin Bank of Texas, Appellant
~ v.
Travis Couuty, Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO.94-01412, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDWG
PER CURIAM
Appellant Elgin Bank of Texas challenges the trial court's grant of summary
judgment in favor of appellee Travis County and denial of the Bank's motion far summary
judgment. We will reverse the trial court's judgment.
Elgin Bank owns an approximately 150.35-acre tract of land in Travis County.
The land is not within the corporate limits or the extra-territorial jurisdiction of any
municipality. F1gin Bank wants to subdivide the property for sale in multiple tracts using metes
and bounds descriptions but does not-want to file a subdivision plat.' Since the property has
access to existing roads, Elgin Bank does not plan to build streets or roads within the
' A plat is a map of specific land showing the location and boundaries of individual panxls
of land subdivided into lots, with streets, alleys, and easements drawn to scale. Black's Law
Dictionary 1151 (6th ed. 1990).
F`-
subdivision. Travis County asserts that Teacas Local Government Code section 232.001(a)
tequiiss that Elgin Bank file a subdivision plat. We disagret.
Texas Local Government Code section 232.001(x) provides:
The owner of a tract of land located outside the iimiu of a municipality who
divides the tract into two or more parts to lay out a subdivision of the tract,
including an addition, or to lay out suburban lots or building lots, seed do lay out
streets, alleys, squares, parks, or other parts of the tract inteaded to be dcdipted
to public use or for the use of purchasers or owners of lots fronting oa or
adjacent tiD the str+cets, alleys, squares, parks, or other parts must have a plat of
the subdivision prepared.
Tex. Lac. Gov't Code Ann. ˘232.001(x) (West Supp. 1995) (emphasis added). The question
. we decide is whether Travis County can, under section 232.001(a),= requind the owner of a tact
of land who subdivides, but does not plan to lay out streets, alleys, squares, parks, or other parts,
of the tract for public ar private rue; >b prepare a plat of the subdivision.
Common words should be interpreted as Wey are wmmonly used. Satterfield v.
Sotttrfield, 448 S.W.2d 456, 459 (Tex. 1959). The word •and• is geaerally used as a
conjunctive. Board oflnt. Cotnm'rs v. Guardian L{'ft Int. t;o., 180 S.W.2d 906, 908-09 (Tex.
1944). On iu face, the plain language of the statute requires a plat only if the owner both
divides the property and ]aye out streets or other public arras. See Op. Tex. Att'y Gea. No.
JM-1100 (1989) (stating that county could require plat only if ]and was subdivided and public
areas were planned). The word •and' may be construed as a disjunctive m preveat an absurd
=The comm;~aotrer's court has only specific enumerated powers. Set Tex. Coast art. V,
˘ 18; Projear Mr. Corp. v Hflliard, 711 S.W.2d 386, 389 (Pac. App.-Tyler 1986, no writ).
Therefore, both parties agree that section 232.001 controls the disposition of this issue.
2

result. (iuatdian L;12 Ins. Co. ojTer., 180 S.W.Zd at 908-09. However, as discussed below,
we conclude that no absurd result arises from astraight-forward construction of the statutory
Language.
Our interpretation of the plain language of section 232.001(a) is supported by our
analysis of Texas Local Govennment Code section 212.004(a). Section 212.004(a) authorizes
a municipality ro regulate subdivisions within its corporate limits or extraterritorial jurisdiction.
Before 1993, relevant portions of section 212.004(a) were identical to sxtion 232.001(a).
Section 212.004(x) formerly provided:'
The owner of a tract of land located within the limits or in the extraterritorial
jurisdiaron of a municipality who divides the tract in two or more parts to lay out
a subdivision of the tract, including an addition to a municipality, or w lay out
suburban, building, or other lots, and to lay out streets, alleys, squares, parks.
or other parts of the tray intended to be dedicated m public use or for the ttse of
purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares,
parks, or other parts must have a plat of the subdivision prepared.
Aa of May 11, 1987, 70th Leg. R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 970 (emphasis
added). Section 212.004(x) was amended in 1993 by substituting the word 'or' for the word
'and' and adding a provision that excluded parts greater than five acres, if each part has access
~ Travis County claims that the original language of § 212.004(x), which basically mirrored
~ 232.001, had been judicially irtte~reted to require a plat whenever land was subdivided,
regardless of whether struts, alleys, squares, or other parts of the tract were dedicated to public
use. Travis County is wreog. The cases that it cites, including Cowboy County Fstatu v Ellis
Cotarry, 692 S.W.2d 882 (Tex. Civ. App.-Waco 1985, no writ), and Cytty o}' wesiaco v
Carp~tuer, 694 S.W.2d 601 (Tex. App.-Corpus Christi 1985, writ ref d n.r.e.), do not address
this issue.
~~
..~
and rto public improvement is being dedicated. Ad of May 26, 1993, 73rd Leg., R.S., ch.
104b, ˘ 1, Tu. Gen. Laws 4469. Section 212.004(a) now provides:
The owner of a tract of land located within the limits or is the extraterritorial
jurisdiction of a municipality who divides the trail in two or mote parts to lay out
a subdivision of the tract, including an addition tO a municipality, to lay ou!
suburban, building, or other lots, or to lay out streets, alleys, squares, parlor, or
other parts of the tract intended to be dedicated to public use of for the tree of
purchasers or owners of lots fronting on or adjacent to the struts, alleys, sgtrares,
parlor, of other parts must have a plat of the subdivision prepared.... A
division o, f a rraa under this subsection does not include a divislon of land into
pare greater than ftvc acres, when each pan has aarss and no public
i»ipro-rment is being dedicated.
Tex. Loc. Gov't Code Ann. ˘ 212.004(x) (West Supp. 1995) (emphasis added).
The 1993 amendments to section 212.004(x) were made after the Attorney General
issued Opinion No. JM-1100, concluding that section 212.032 allowed counties to require a plat
only when the subdivider also planned to dedicate struts, alleys, squares, and other property
to public use. Op. Tex. Att'y Gen. No. JM-1100 (1989). We tzject Travis County's contention
that the Legislature was attempting w cotTect the Attorney General's misinterptetatioa of section
232.001(x) by correcting section 212.004(a) or that the Legislature erred by ~g~8 ~~
212.004(x) but not 232.001(x). Rather, the Legislature's amendment of section 212.004(x) but
not section 232.001(a) suggests that it intended for section 232.001(a), as written sad
interprrxW, W remain unchanged' See Allen Soles do Strvicatter, Inc. v. Ryan, 525 S.W.2d
863, 866 (Tex. 1975) (revised statute presumed to be enacted with full lmowledge of existing
Attorney geaetal's opinions ane considered by the courts in ooastruiag statutes. Although
they art not binding, they are petsuasaive and entitled to due consideration. Hancock v Stare
Bd. trflns., 797 S.W.2d 379, 381 (Tex. App.-Austin 1990, ao writ).

4
! ~
ooodition of law); cf. Drrsootl v Harris County Commis Courr, 688 S.w.Zd Sti9, 571 (Tex.
App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.) pegistatun:'undoubtably' amended statute
in response to attorney general opinion).
The trial court concluded that it would be absurd to require an owner who plans
to subdivide his property and to lay wit stress to plat the property, while the owns who
subdivides without laying out streets is not so required. We believe the result is sensible rather
than absurd because the county may only consider street design and construction in approving
plats.
The county may refuse to approve a plat only if the plat does not meet the
requirements 'pnescn'bed by or under' chapter 232 of the Texas Local Government Code. Tex.
Loc. Gov't Code Ann. ~ 232.002 (West Supp. 1995); Projects Am. Corp. x Hilliard, 711
S.W.2d 386, 389 (Tex. App.-Tyler 1986, no writ) (approving writ of mandamus requiring
commissioners to approve plat that both parties agrxd met requirements of chapter 232). With
artain exxptions applicable only in particular counties,s the only requirements prescn'bed by
chapter 232 are those under section 232.003. Section 232.003 authorizes the commissioner's
court to adopt rules regulating the design and construction of roads.` Except for the
: The exceptions are provisions relating specifically to eoonomicaIiy distressed areas:
~~ 232.0035, 232.0036, 232.0046, 232.0047 and 232.0049. These sections are discussed below.
` Section 232.003 provides that the commissioner's court may:
(1) require a right~f--way on a strett or mad that functions as a main artery in
a subdivision, of a width of not less than 50 feet or more than 200 feat;
(2) require a right~f--way on any other street or road in a subdivision of not less
than 40 feat or more than 70 fax;
5
~-.-
-~ ~*
requinement that a purchase contract state whether and whey water will be available, which is
independent of the platting requirement,' all of the powers enumerated in sccdon 232.003
presuppose planned roads. Section 232.003 is the only authority upon which the county may
base platting requirements. Projects Am. Corp., 711 S.W.2d at 389. Since the standard for
approving the plat is whether planned roadways conform with the county's design and
construction standards, it would be pointless to require a plat of property that does not include
roads.
(3) require that the shoulder-to-shoulder width on collectors or main arteries
within the right-of--way be not less than 32 feet or more than 56 feet, and that
the shoulder-to-shoulder width on any other street or road be not less than 25
feat or more than 35 feet;
(4) adopt, based on the amount and land of navel over each stroet oz road in a
subdivision, reasonable specifications relating to the construction of each
street or road; .
(5) adopt reasonable specifications to provide adequate drainage for each street
or road in a subdivision in accordance with standard engineering practices;
(6) require that each .purchase contract made between a subdivider and a
purchaser of land in the subdivision contain a statement descn'bing the extent
to which water will be made available to the subdivision and, if it will be
made available how and when; and
rn require that the owner of the tract to be subdivided execute a good and
aufficieat bond in the manner provided by Section 232.004.
Tex. Loc. Gov't Code Ann. ˘232.003 (West Supp. 1995)
' The requirement regarding purchase contract provisions is independent of the platting
requirement. Stt Act of May 28, 1989, 71st Leg., RS., ch. 624, ˘ 3.04, 1989 Tez. Gen. Laws
2063, 2087 (er+,n;~g nxluireraent that plat contain statement desQibing extort to which water
will be available). The mquirerneat regarding purchase contract provisions is presumably
enforceable under ˘232.005, which authorizes the county attorney err other prosecuting attorney
to enjoin violations of rules adopted under chapter 232 and to recover damages. Tex. Loc.
Gov't Code Arm. ˘232.005 (West Supp. 1995).

6

By contrast, a municipality's power to regulate subdivisions is much broader. The
verning body of a municipality may adopt rules governing plats and subdivisions of Lmd
thin the municipality's jurisdiction to promote the health, safety, morals, or genera] welfare
the municipality and the safe, orderly, and healthful development of the municipality. Tex.
c. Gov't Code Ann. § 212.002 (West 1988). The municipal authority approves the plat only
ate plat conforms w the general plan of the municipality and its ourrent and future streets,
rys, parks, playgrounds, and public utility facilities; the plat conforms to the general plan for
extension of the municipality, taking into account access to and extension of sewer and water
ins and the instrumentalities of public utilities; any applicable bonds are filed; and the plat
iforms to any rules adopted to promote the health, safety, morals, or general welfare of the
nicipality. Tex. Loc. Gov't Code Ann. § 212.010 (West Supp. 1995).• Because a
Section 212.010 provides that the municipal authority approves the plat only if:
(1) it conforms to the general plan of the municipality and its current and future
streets, alleys, parks, playgrounds, and public utility fatalities;
(2) it conforms to the general plan for the extension of the municipality and its
roads, streets, and public highways within the municipality and in iu
extraterritorial jurisdictitm, taking into account atxest to and extension of
sewer and water mains and the instrumentalities of public utilities;
(3) a bond requized under Section 212.0106, if applicable, is filed with the
municipality; and
(4) it conforms to any rules adtrptcd under Section 212.002.
:. Loc. Gov't Code Ann. § 212.010 (West Supp. 1995).
7


municipality regulates much more than the design and construction of toads via the plat, it is
reasonable for a municipality to require a plat even if no roads are planned.'
We also note that under Travis County's interpretation, developers of lots greater
than five acres, which have acorns to roads but do not plan public imptovemenu, would be
errempt from the platting requirement within city limits but not within counties. Gives the
relatively greater authority of cities as opposed to counties, that result would be anomalous.
Finally, we consider section 232.001(f). It provides that in certain counties the
owner of a tract of ]arid who "divides the tract into two or more parts to lay out suburban lots
or building lots for resale of five acres or less must have a plat of the subdivision prepared."
Tex. Loc. Gov't Code Ann. ˘ 232.001(f) (West Supp. 1995). In this subsection, the I.egislatu:s
created a category of development that requires a plat for any division of land into low of five
aces or less, regardless of the intent to lay out streets. Section 232.001(fj is part of legislation
designed to promote the development of water resources and to increase the availability of water
in certain economically distressed counties. See generally Act of May 28, 1989, 71st Leg.,
R.S., ch. 624, ˘ 1.01, 1989 Tex. Gen. Laws 2063, 2063-64. And, if a plat is required under
section 232.001(f), the affected county has additional powers under sections 232.0035,
232.0036, 232.0046, 232.0047 and 232.0049 to require the developer to provide water and
sewer service. Once again, the population subject to the Platting requirement is consistent with
' Travis County quotes extensively from Prrdsion Sheet Mtwl A~jg. v. Yates, 794 S.W.2d
545, 552 (Tex. App.-Dallas 1990, writ denied), regarding the purposes of § 212.004. The
discussion of the purposes of ˘ 212.004 is irrelevant to a consideration of the purposes of §
212.032 sintx counties have been delegated far fewer powers wader chapter 232 than were cities
under chapter 212.
8

(-


the platting requirements to be enforced. Once again, the Legislature demonstrated that it could,
were it inclined to, draft legislation that required plats in any subdivision.
Based on the plain language of section 232.001, its apparent purpose, and our
comparison of it to sections 212.004(a) and 232.001(f), we hold that Travis bounty may not
requite an owner who subdivides but who does not lay out streets, alleys, sgaazes, parks, or
other parts of the tract intended to be dedicated to public use or for the use of purchasers or
owners of lots fronting on or adjacent to the streets, alleys, squares, pazks, or other parts to
prepare a plat.
Accordingly, we sustain Elgin Bank's single point of error. We reverse the trial
court's judgment, render judgment that Travis County may not require Elgin Bank to plat the
property under these circumstances, and remand to the trial wurt the issue of attomey's fees.'0
Before Justices Powers, Jones and Kidd
Reversed and Remanded In Part; Reversed and Rendered in Part
Filed: August 16, 1995
Publish
ro F1gin Bank pleaded for attorney's fees in their motion for summary judgment. The Texas
Supreme Court recently held that the Declaratory judgment Act waives governmental immunity
for awards of attorney's fees. Texas Educ. dgency v. Leeper,~ 893 S.W.2d 432, 444-46 (1'ez.
1995).
9
COMMISSIONERS' COURT AGENDA REQUEST
*PLEASE FURNISH ONE ORIGINAL AND FIVE COPIES OF THIS REQUEST AND
DOCUMENTS TO BE REVIEWED BY THE COURT
MADE BY: Ilse Bailev
MEETING DATE: November 13. 1995
OFFICE ('ounry Arrnrnpy'a office
TIME PREFERRED: Anv
SUBJECT: (PLEASE BE SPECIFIC) Cnnei Aprati nn anA Ai crneei nn of a„rhnr; Ding
Kerr nttnty AttnrnPV to file Amirnc Cnriap hri pf in rho Tcvac Rnrrom
Court in support of Travis County's position in its appeal of E1Qin Bank
o_ Tra+_~ig COLritV Ca,tse Nn_ n3-94-OOFi fig-CV rp QarAi ng int prnrcYati nn nP _
statues regarding county control of subdivision plats.
EXECUTIVE SESSION REQUESTED: YES ,,dNO
PLEASE STATE REASON FOR EXECUTIVE SESSION r.; *i ~ ,-; nn
ESTIMATED LENGTH OF PRESENTATION: 10 minutes
PERSONNEL MATTER - NAME OF EMPLOYEE:
NAME OF PERSON ADDRESSING THE COURT: Ilse Bailev
Time for submitting this request for Court to assure that the matter is posted in accordance
with Article 6252-17 is as follows:
~ Meetings held on second Monday: 12:00 P.M. previous Wednesday
* Meetings held on Thursdays: 5:00 P.M. previous Thursday
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON : Ld
All Agenda Requests will be screened by the County Judge's Office to determine if
adequate information has been prepared for the Court's form ai consideration and action
at time of Court meetings. Your cooperation will be appreciated and contribute towards
your request being addressed at the earliest opportunity. See Agenda Request
Guidelines.
~~i34~a ~l
Item 2.11
Consideration and discussion of
authorizing Kerr County Attorney
to file Amicus Curiae brief in the
Texas Supreme Court in support of
Travis County's position in its
appeal of Elgin Bank v. Travis County.
Cause No. 03-94-000669-CV, regarding
interpretation of statues regarding
Count~~ Control on subdivision plats.
November 13, X95
Vol U, Paae 204