Case Information
*1 The Attorrwy General of Texas July 17, 1986 JIM MATTOX
Attorney General Mr. Llas B. "Bubba" Siteen Opinion No. JM-523 Supreme Court Building P. 0. BOX 12546 Executive Director Austin, TX. 7671% 2546 State Purchasing and General Re: Whether the city of Austin 512,4752501 Commiss:.on may assess a capital recovery Services Telex 9101674-1367 P. 0. Box 13047, Cal'itol Station fee on state construction pro- Telecopier 512/475-0268 Austin, Texas 787:.1. jects 714 Jackson, Suite 700 Dear Mr. Steen: Dallas. TX. 752024506 214/74&3344
You ask whethlnr a home rule city may legally assess capital recovery fees against state construction projects. The city requires 4624 AlbeRa Ave., Suite 164 that the owner of any new construction must pay a capital recovery fee El Paso. TX. 799052793 at the time a water t:ap is purchased. The amount of the fee is deter- 9151533-3464 mined by the size and type of water meter required for the project.
The fees are intentled to include both the actual costs of providing pl Texas. Suite 700 new service to a specific site and the estimated proportional cost of ston, TX. 77002~3111 building and maintaining the general water infrastructure to meet the I ,Y223-5866 collective demands o:E all new development. You assert that the city
may not assess these fees against state construction projects. 604 Broadway, Suite 312 Lubbock. TX. 79401.3479 [80617476236] Maverick County Watlz: Control and Improvement District No. 1 v. State, The question ,p:cesented is one raised but left unanswered in
456 S.W.2d 204 (Tel:. Civ. App. - San Antonio 1970. writ ref'd) and Attorney General Opinion l&-551 (1982). A central question in 4309 N. Tenth, Suite S Maverick involved the nature of the charges -- whether they constl- McAllen, TX. 76601-1665 512,662-4547 tuted a tax or a special assessment. Special assessments differ from
general taxes insof,sr as special assessments are levied only on land, the amount based on the benefits conferred to the land; a special 200 Main Plaza, Suite 400 assessment is uniqw as to time and locality. See generally 456 S.W.2d San Antonio, TX. 762052797 204, note 4 (cases cited therein); Londerholm V. City of Topeka, 443 5121225-4191 P.2d 240 (Kan. 196,s). The Maverick court held that state statutes clearly exempt stat,e property from taxation by a water control and An Equal Opportunity/ improvement district so long as the state holds full legal title to Affirmative Action Employer the property. 456 S.W.2d at 206 (relying on article 7150, V.T.C.S.,
now replaced by Tex. Prop. Code 111.11); see also Tex. Const. art. XI, 59; City of Beaumo:z: v. Fertitta, 415 S.W.2d 902 (Tex. 1967). The court acknowledged 1:hat the legal ramifications of special assessments differ from those of a tax, noting Wichita County Water Improvement District No. 2 v. l:ity of Wichita Falls, 323 S.W.2d 298 (Tex. Civ. APP . - Fort Worth r359. writ ref'd n.r.e.) in which the court held __ that a city was 1:table for special assessments levied by a water
Mr. Lias B. "Bubba" Steen - Page 2 (JM-523)
district. The court in Wichita County reasoned that a special assess- ment is not a tax withinthe meaning of constitutional and statutory provisions exempting public property from taxation. 323 S.W.2d at 300. The Maverick court found it unnecessary to determine whether a special assessment is a tax for those purposes because it adopted the common law rule that a polil:ical subdivision of the state cannot levy a special assessment against state property without express legisla- tive authority. 456 S.W.;:d at 206-07. Attorney General Opinion MW-551 applied this reasoning to a home rule city and decided that a home rule city may not legally levy a drainage fee against state-owned property.
On the other hand, home rule cities have full authority to do anything the legislature could authorize them to do. Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975). Accordingly, as a &neral rule, it is necessary to look to legislative limitations on the power of home rule cities rather than to specific grants of pow=::.. Id. The Maverick court dealt with a water control and improvement district, a political subdivision which holds only the powers granted to it expressly or by necessary implica- tion by the constitution or statutes of this state. A home rule city’s powers, however, are limited to the area of Its jurisdictfon. The issue at hand has state-wide implications. Attorney General Opinion MW-551 applied the 'zaverick case to a home rule city but did not address the different le:vels of power held by home rule cities and special districts. The sources cited by the Maverick court, however, suggest that its holding was intended to be broad. See 456 S.W.2d at 207. note 6 (cases cited therein). Levying special assessments against the state requires authorization from the state legislature. See & Accordingly, we conclude that the Maverick rule applies to n political subdivisions, including home rule cities.
Nevertheless, the impact of Maverick is limited. The court stated:
Even if it be ,assumed that a county or munici- pality is subject to special assessments levied by another political subdivision of the State, it does not necessarily follow that a subordinate political subdivision can impose an involuntary monetary obligation on the sovereign. It is generally held that, in the absence of clear legislative authorisa- don. a political :subdivision of the State has no power to levy a special assessment against State property. [Footnote omitted]. We adopt this view at least in a case where, as here, the sovereign is neither making no; contemplating any use of the allegedly benefittid land and has neither received *3 Mr. Lias B. "Bubba" Steen - 'Page 3 (JM-523)
nor requested the services rendered by the assessing agency. (Emphasis added).
456 S.W.2d at 207. Similarly, Attorney General Opinion MW-551 emphasized that it did not purport to address a situation where the state acted in a manner that indicated a willingness to pay a fee. In the question presented, the :state is requesting water service from the city.
Maverick stands for the proposition that the city cannot impose an involuntary monetary &ligation on the state without express legislative authorization. Accordingly, the city cannot treat state property in the same manner as private property with regard to special assessments for local improvements. It does not follow, however, that the city cannot charge the state for the actual cost of extending service which the state expressly requests. As indicated previously, the fees in question are intended to include both the actual costs of providing new water service to a specific site and the estimated proportional cost of build:_ng the general infrastructure. To the extent that the city can dc:termine the actual costs, both general and specific, attributable to faxtending service to the state, we do not believe that Maverick prevarnts the city from requiring the state to pay those costs as a cond::tion of extending service. The city may not, however, assess the s1:ate for its pro-rata share of the cost of local improvements which provide benefits that are too general to specifically apportion to each user.
Further, we emphasize that any "exemption" for state property from special assessments by political subdivisions is limited to property used exclusively for public purposes. It is well-settled in Texas that the constitutLona1 and statutory exemption of state property from taxes applies only when the nrouerty is used exclusivelv for public purposes,. See Satterlee V. - Gulf Coast Waste Disposal Authority, 576 S.W.2d 77nTex. 1978); State V. Houston Lighting and Power Co., 609 S.W.2d 263 (Tex. Civ. App. - Corpus Christi 1980. writ ref'd7r.e.); Attorney C,eneral Opinion MW-430 (1982); see also -- Central Appraisal District of Erath County V. Pecan Valley Facilities, Inc., 704 S.W.2d 86 (Tex. App. - Eastland 1985. no writ). We belfeve that the courts of this state would apply similar restrictions to the common law "exemption" from special assessments announced in the Maverick case. This conclusion finds support in the sources relied upon in Maverick. For example, one such source states the general rule as follows:
Apart from constitutional or statutory authori- zation public property . . . used for public purposes is not liable to special assessment for local improvement:;.. . . . (Emphasis added).
Mr. Lias B. "Bubba" Steen - Page 4 (JM-523)
14 McQuillin, Municipal Corporations (3d. ed., rev. 1970) §38.73 (cited in Maverick County, 456 S.W.2d at 207, note 6).
SUMMARY Without express constitutional or legislative authorization, a 'home rule city may not levy against state property which special assessmen:s; is used solely fo,c public purposes. This general rule, however, i.oes not prevent a city from c requiring the state to pay the actual costs
attributable to extending service to the state when the state recuests
JIM MATTOX Attorney General of Texas JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General