Case Information
*1 QMfice of tty Plttornrp Qkncral &ate of tkias February 25.1993 -\TTORSLI CESERAL Opinion No. DM-204 Honorable Allen Ross Hi&tower Chainnan Re: Authority of a county to
Committee on Corrections improve certain subdivision roads and Texas House of Representatives assess the cost of repairs against P.O. Box 2910 subdivisions (RQ-457) Au* Texas 78768-2910 Dear Representative Hi&tower:
You have requested our opinion regmiing the proper construction of article 6702-3, V.T.C.S., in fhrther clarification of Attorney General Opiion DM-126 (1992). Article 6702-3, V.T.C.S., which authorizes a wmmissioners court to improve a road in a subdivision and assess the wsts a&nst the owners of real property within the subdivision, provides:
(a) This article applies only to a subdivision or a part of a subdivision in an uninwrporated area of the county. To the extent that this article authorizes the improvement of an access road to a ddivisio~ this article applies only to an access road in an unincorporated area of the county.
(b) In this article, “improvement” means the wnstruction, reconstmctio~ or repair of a road.
(c)ThewmmissionerscoWofawuntymayorderthatthe county improve a road in a subdivision or an access road to a subdivisiontowmplywithanycountysta&rdsforroadsandassess aUorpartofthewstsoftheim~prorataa@stthe owners of real property in the subdivision if: (I) the wmmissioners court determines that the improvement is rmxssq for the public health, safety, or welfare of the residents of thecwnty.and
(2) a majority of those record owners of real property in the ~b&i.&n who are voting vote by mailed ballot in fivor of the wuaty improvement and assessment.
(a) Before ordering an improvement and assessment under this article, the wmmissioners wurt must @ve notice Of the proposed *2 Honorable Allen Ross Hightower - Page 2 (DM-204)
improvement and assessment and must hold a public hearing on the question.
(e) Within 10 days a&r the date of the public hearing, the wmmissioners court shall send by certified mail to each owner of real property in the subdivision a ballot on the question and a return addressed, stamped envelope for the return of the completed ballot to t.hCWUmyCkk....
In Attorney General Opinion DM-126, we concluded that a wmmissioners court which orders improvements to a road in an uninwrporated area of the county as the result of an election held under article 6702-3, V.T.C.S.. may delegate the details of the process of wllecting the essessmentagainsttheafkctedpropertyownas.andthatitmayako determine the precise formula for calculating the assessm~withspecialregardforthe partiwlar benefits which will accrue to each property owner. We also concluded that the. wstsofboldingtheelection~dw~~themaatesmaynotbeaJsarsadagainstthe Propaty-.
In clarification ofAttorney General Opinion DM-126, you ikst ask whether “each recorded. plat[t]ed, subdivision [is] to be treated as an autonomous entity as to the [a]mount of awsment and wunting wtes.” Wederstmdyoutoaskwhetherthe statute permits the wmmissioners court to hold an election on an impmvement and assessment among real property owners in two or more subdivisions. We wnclude that it doea not. The statute repeatedly refkrs to *a subdivision” and “the subdivision.” Clearly, the. wmmksioners court must propose separate assessments and hold sepamte elections in each subdivision.
You also ask at what point after a &division wtes to participate in an assessment may be recorded. improvementalienagainsttherealpropertytosecurcan Sections (s) and (h) of article 6702-3 provide as follows: an assessmalt lmder this alticl~ tbe
(P)h m wmmissionerswurtmayprovidethetinqternqandwnditionsof payment and de&k of the F ncepwtJ= wmmissioners court may not require the payment of any interest on all-.
09 All -tshaUbesecuredbyalienagainstthereal propertyoftheapsessedpropextyowner. ThelienshaubeefFective 6om the date that written notice of the assessment is 6led for record and recorded in the office of the county clerk of the wunty in which the tuwssed property is located. Such written notice shall be in ~~lefonnaadwntainthedolloramountofthe~tbe legaldescriptionofthepropertyasses&andthenameandaddms *3 Honorable Allen Ross Hightower - Page 3 (DM-204)
of each property owner. The lien securing the assessment &nil be infbior only to tax liens and to bona fide mortgage liens recorded prior to the efktive date of the assessment lien. Each property owner shall be personally liable for the amoml of the m.
Although section (h) requires that a lien secure an assessment, it does not specify when such a lien shall be rewrded. Section (g) gives the wmmissioners court broad discretion to “provide the time, terms, and wnditions of payment and dcfblt of [an] assessment.’ We believe that section (B) gives the wmmissioners court the authority to dctamine when the.lienwillberewrdedatteran assessmenthasbeenapprovedbyasubdivision. See&o Attorney General Opiion DM-126 at 3 (“the wmmissioners wurt, in the absence of statutory guidelines, must determine the details of the wllcction process”).
Nact,you~howthewwnissionaswurtrhouldproceedintheevanM rpprwed assessment is not suaiciellt to wmplete the improvement. In partiadar, you ask whether the work on the improvement should be stopped, and how wmpletion of the project should be fimded. The statute daes not dimctly address this particular scenario. Section (c) author&s the wmmisioners court to “assess ull ur pmt of the wsts of [an] improvement” against the real property owners in a subdivision. (Bmphasis added.) Thus, the statute appears to contemplate that the wmmissioners court has the option of iimding pt of an improvement from other sources. Therefore, we believe that the wmmissioners court may opt to wntinue work on the improvement and to pay for such work with non- .asmment iimds. Tha statute would also appear to authorize the wmmissioners court to assessmcllt to wmplete the project and to hold a new election according to proposea- the StatuMy requiranaas clearly, howevcr~ the real propaty owners calmot be charged foradditiond wstsaboveihe maximumrssessmengwitbwttheirapproval.’
Finalh/.youasLwhatwstsmaykMsessedrgaiasttherealpropertyownasrside fhnn costs for actual wnstmction of w. You * for aample, whether sewiceusedtodeterminethe -OlllOlUlilltaestarpaws,WStSformgineaing required impro~ or charges for bid publications may be included in the asmsmaa Article 6702-3(c) authohxes the wmmissioners court to assess only “all or part of tbc costs of the impmvcment.” ” hlpl-OVUIlUlt”iSdC6llCdhthCSt8tUte~’thCWMlUCti~ rewnstruction, or repair of a road.” V.T.C.S. rrt. 6702-3(b). In Attorney General Opinion DM-126, we wncluded that this statutov language does oot pennit tbe wmmissioners court to include in the llssessmcnt thewstsofholdingthc&ctionand wllecting the assessmmt. We did so because the statute clearly does not authoke the wmmissioners court to assess red property owners for administrative wsts assoc&d with~~~whichwwldnotbtinarmdifmimprovcmmtwaefuadcdby *4 Honorable Allen Ross Hightower - Page 4 W-204)
other means. The detemrination whether the particular costs raised in your query are asscsable improvement wsts or nonasesable administrative costs involves questions of fact which are not amenable to the opinion process and should be resolved by the wmmissionas wurt in the iirst instance.
SUMMARY Article 6702-3. V.T.C.S.. mquims the wmmissioners wurt to propose sepmte assessments and hold scpamtc dectiom in each subdivision. Section (8) of article 6702-3 gives the wmmissioners wurttheauthoritytodetaminewhenthelienwillberewrdedafter 8nassessmenthasbeenapprovedbyasubdivision. Ifthewstsofan itnprovement exceed the maximum assessmen& the wlmnissioners court may complete the improvement with n-t ftmda or proposeh new assessment to wmplete the project and hold a new dection according to the statutory m The dckmhtion whe&erparticularwstsamassesmbleimprovnmntwstsor nomuss&le admhhnk wsta involves questions of fact which arenotamenabletotheophionpmcusandshouldberuolvedby thCWlIllIliSSiOUGfSWUltiUthCfUStinstcma.
Attorney General of Texas WILL PRYOR
FiiAMistrntAttO~Genart
MARYKELLER
DeputyAsdatmtAttomeyoeneral
RENEAHKxs
Special Assistant Attorney Gcnual
MADELEINE B. JOHNSON
Chair, Opinion Committee