Ken Paxton

Frequently Asked Questions - Residential Subdividers in Border-Area (Subchapter B) Counties

What laws will I have to follow to subdivide my land near the Texas-Mexico border?

It depends upon where the land is located.

If the land is inside a city's limits or its extraterritorial jurisdiction (ETJ), the city will apply state laws (especially Chapter 212 of the Local Govt. Code) and the city's subdivision rules. For a residential subdivision, if the city has received EDAP funding from the state, the city will also apply the Model Subdivision Rules of the Texas Water Development Board (TWDB).

If the land is outside city limits, the county will apply state law, especially Chapter 232 of the Local Govt. Code. For a residential subdivision, the county will apply Subchapter B of Chapter 232 (a special colonias-prevention law) as well as the Model Subdivision Rules of the TWDB.

Note that land within a city's ETJ is subject to both city and county regulations. In the event of a conflict, the more stringent provision prevails.

Whom do I talk to about subdividing my land?

It depends upon the location of the land.

If the land is inside a city's limits or its extraterritorial jurisdiction (ETJ), talk with the city planning department or city engineer. The city planning commission or the city council has final authority over plat approval.

If the land is outside city limits, you need to talk with the county official who oversees subdivision platting. Depending upon the county, it may be the county planner, county inspector, county judge, or county engineer. The commissioners court has the final authority over plat approval.

You will need to hire an engineer to prepare the plat.

Is there a lot size I need to be aware of for laws to apply?

If the subdivision lots are larger than five acres, then some of the colonias-prevention laws do not apply.

In particular, the Model Subdivision Rules apply to an entire subdivision if the plat creates two or more lots of five acres or less intended for residential purposes. On the other hand, if all lots (except at most one lot) are larger than five acres in size, then the Model Rules do not apply. Likewise, the special provisions enforced by cities under Local Govt. Code § 212.0105 do not apply if all the lots but one are larger than five acres.

If all the lots in a subdivision are larger than five acres, each part has access, and no public improvement is being dedicated, then the subdivision is exempt from city platting requirements under Local Govt. Code § 212.004.

Subchapter B of Chapter 232, Local Govt. Code, the main colonias-prevention law enforced by the county, applies when land is divided into two or more lots that are "intended primarily for residential use." This law presumes that lots of five acres or less are residential. A new provision effective Sept. 1, 2003, states that Subchapter B does not apply if every lot in the subdivision is 10 acres or larger. Thus, the statute provides no definitive guidance when a subdivision's lots are larger than 5 acres but smaller than 10 acres. Each county has discretion to determine that lots of some size larger than five acres are so large that they are not "intended primarily for residential use," making Subchapter B inapplicable. Check with your local county officials to find out whether the county has established a cut-off for Subchapter B at something less than 10 acres.

What are the Model Rules?

The Model Rules, also called the Model Subdivision Rules, are special colonias-prevention rules enforced by counties and most cities in the border area, and by several economically distressed counties elsewhere in Texas. Among other matters, they require persons creating residential lots to include special information on the subdivision plats and to pay for water and sewer services for new developments.

Do I pay for water meters for my subdivision?

Under Texas's colonias-prevention laws, the subdivider is generally responsible for paying not only for water lines in the streets but also for water meters, water rights acquisition fees, membership fees, and all other charges for initiating water service.

What if there is no water supplier to provide water to my proposed subdivision?

The subdivision lots must be provided with drinking water meeting state standards. Under the Model Rules, if there is no existing public water system to connect to, the subdivider may establish a retail public utility and obtain a certificate of convenience and necessity (CCN) from the TCEQ. Or the subdivision lots may be served by individual wells, provided there is water of sufficient quantity and quality. If wells are used, the subdivider must pay for the wells. If the well water must be treated to meet state standards, then the plat must identify an suitable locally-available water filter or treatment system and its costs (to purchase, install, and maintain).

Do I pay for septic systems for my subdivision?

If sewer service is to be provided by on-site sewage facilities (OSSF) like septic systems on the lots, then the subdivider is generally responsible for installing the septic systems. The systems can be installed prior to plat approval, or the subdivider can promise (though a Subdivision Construction Agreement with the city or county) to install them by a certain date and must back up the promise with a financial guarantee like a bond or letter of credit.

Do I pay for roads to be surfaced?

Both the city and the county enforce standards for road construction, which may include requiring that roads be paved. The subdivider is responsible for building roads within the subdivision.

May I sell lots or advertise lots for sale before I obtain approval of a plat of the subdivision?

Various laws prohibit selling or even advertising unplatted lots by the subdivider (that is, the person who created the lots). This includes a written promise to "reserve" a lot for later sale.

Under Property Code § 12.002, a plat must be approved and recorded before you may use a subdivision lot's description in a deed or a contract for deed delivered to the purchaser.

For a residential subdivision outside city limits, Subchapter B of Chapter 232, Local Govt. Code, prohibits selling or even offering to sell a lot until the plat has been properly approved.

The Model Subdivision Rules also forbid conveyance of a lot until the plat has been legally approved and recorded.

May I subdivide my land if part of it sits in a floodplain?

Yes, but under Subchapter B the plat must describe the area in the floodplain and contain a restrictive covenant prohibiting the construction of housing in the floodplain unless it qualifies for flood insurance. The floodplain includes any area in the 100-year floodplain that is susceptible to flooding from any source (for example, the area in drainage channels created in the process of developing the land) as well as the 100-year floodplain identified by FEMA under the National Flood Insurance Act.

Should I use contracts for deed or warranty deeds in selling lots?

This is your choice. Note, however, that using a contract for deed typically makes the transaction subject to the various requirements in Subchapter D of Chapter 5, Property Code, and, if the seller is the subdivider and the lot is outside city limits, requirements in Local Govt. Code § 232.033. Some of these requirements apply for years -- until the contract is paid off and the deed is recorded.

May I sell lots for commercial use without platting?

If residential use is prohibited on the plat and in the deeds, then the subdivision does not have to meet the special colonias-prevention laws. However, a plat for a non-residential subdivision must still be approved by the city (for land inside the city or its extraterritorial jurisdiction) and/or the county (for land outside city limits), unless the subdivision qualifies for a specific exemption from platting under state law or under a city or county exception.

May a new subdivision include some lots for residential use and others for commercial use?

Yes, as far as the colonias-prevention laws are concerned. These laws typically presume that a lot of five acres of less is residential. But the presumption is there so that subdividers will be required to provide water and sewer services to the lots. The presumption does not require that the lots actually be used for residences. Of course, an on-site sewage facility (like a septic system) designed for a residence may not be suitable for a business use.

Sometimes a subdivider will choose to prohibit non-residential uses through a restriction placed on the plat. Also, a city's zoning ordinance may limit property to residential use.