Untitled Texas Attorney General Opinion ( 2018 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
February 26, 2018
·,
The Honorable Joseph C. Pickett Opinion No. KP-0184
Chair, Committee on Environmental Regulation
Texas House of Representatives Re: Extent to which the administrative fee
Post Office Box 2910 provisions of subsection 228.0547(b)-ofthe
Austin, Texas 78768-2910 Transportation Code apply to an entity
operating a toll lane pursuant to subsection
228.007(b) of the Transportation Code
(RQ-0178-KP)
Dear Representative Pickett:
Your question concerns Senate Bill 312 which, among other things, imposed a cap on the
administrative fee the Texas Department of Transportation (the "Department") may add to an
unpaid toll invoice stemming from a person's use of a toll project on a state highway. 1 See Act of
May 27, 2017, 85th Leg., R.S., ch. 533, § 31, 2017 Tex. Gen. Laws 1439, 1450 (codified at TEX.
TRANSP. CODE§ 228.0547(b)) (authorizing the Department to "add an administrative fee, not to
exceed $6, to the amount the person owes" if the person does not pay the initial toll invoice); see
also id. § 74, 2017 Tex. Gen. Laws 1439, 1462 (deleting TEX. TRANSP. CODE§ 228.055(b), which
previously allowed the Department to impose an administrative fee "not to exceed $100"). You
explain that although the new limited administrative fee provision "expressly applies only to the
[D]epartment," other entities in particular circumstances have "the same powers and duties" as the
Department with regard to toll collection and enforcement. Request Letter at 1. Specifically,
section 228.059 of the Transportation Code provides that"[a]n entity operating a toll lane pursuant
to Section 228.007(b) has, with regard to toll collection and enforcement for that ton lane, the same
powers and duties as the department under [chapter 228]." TEX. TRANSP. CODE§ 228.059; ,see
also Request Letter at 1. With the new limited administrative fee provisions in mind, you ask to
what extent such provisions constitute "powers and duties" of the Department that "apply ... to
an entity operating a toll lane pursuant to Section 228.007(b)" of the Transportation Code. Request
Letter at 1.
'See Letter from Honorab,e Joseph C. Pickett, Chair, House Comm. on Envtl. Regulation, to Honorable Ken·
Paxton, Tex. Att'y Gen. at 1 (Sept.' 11, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter").
The Honorable Joseph C. Pickett - Page 2 (KP-0184)
The operation of a toll lane pursuant to subsection 228.007(b) begins with an order by the
Texas Transportation Commission2 pursuant to subsection 228.007(a) authorizing the Department
"to charge a toll for the use of one or more lanes of a state highway." TEX. TRANSP. CODE
§ 228.007(a). Once the authorization order is in place, the Department has the option to
enter into an agreement with a regional tollway authority described
in Chapter 366, a transit authority described in Chapter 451,452, or
453, a coordinated county transportation authority under Chapter
460, a regional mobility authority under Chapter 370, a county
acting under Chapter 284, or a transportation corporation: (1) to
design, construct, operate, or maintain a toll lane under this section;
and (2) to charge a toll for the use of one or more lanes of a state
highway facility under this section.
Id·§ 228.007(b)(2) (emphasis added). An entity with which the Department contracts pursuant to
subsection 228.007(b)(2) has "the same powers and duties" as the Department "with regard to toll
collection and enforcement." Id § 228.059. Section 228.0547 addresses the Department's
authority over toll collection and enforcement on state highway toll projects. If a person fails to
pay for his or her use of a toll lane in a timely manner after receiving an invoice, the Department
"may add an administrative fee, not to exceed $6, to the amount the person owes." Id
§ 228.0547(b). The Department "(1) must set the administrative fee by rule in an amount that does
not exceed the cost of collecting the toll; and (2) may not charge a person more than $48 in
administrative fees in a 12-month period." Id The enforcement power of an entity operating a
toll lane pursuant to section 228.007(b), therefore, is likewise limited to adding an administrative
fee not exceeding $6 to the amount a person owes and charging that person not more than $48 in
administrative fees in a 12-month period.
2
The Texas Transportation Commission ("Commission") governs the Department. TEX. TRANSP. CODE
§ 201.20 I; see also id. § 20 I.I 02 (referring to "the policy-making responsibilities of the commission and the
management responsibilities of the director and staff of the department").
The Honorable 'Joseph C. Pickett - Page 3 (KP-0184)
SUMMARY
The administrative fee provisions of subsection 228.0547(b)
of the Transportation Code are powers and duties of the Department
of Transportation that apply to an entity that contracts with the
Department pursuant to subsection 228.007(b) of the Transportation
Code to operate a toll lane.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
BECKY P. CASARES
Assistant Attorney General, Opinion Committee