Untitled Texas Attorney General Opinion ( 1992 )


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  •                         QPffice of tty TZlttornep @eneral
    s35tateof IEexas
    DAN MORALES                            June 16,1992
    ATTORSEI
    GESERAL
    Honorable Allen Ross Hightower              Opinion No. DM-126
    Chairman
    Committee on Environmental Affairs          Re: Authority of a county to improve
    Texas House of Representatives              certain subdivision roads and assess
    P. 0. Box 2910                              the cost of repairs against subdivi-
    Austin, Texas 78768-2910                    sions (RQ-330)
    Dear Representative Hightower:
    You have requested our opinion regarding the proper construction of article
    6702-3, V.T.C.S., which authorizes a commissioners court to improve a road in a
    subdivision and assess the costs against the owners of real property within the
    subdivision. That statute provides:
    (a) This article applies only to a subdivision or a part of a
    subdivision in an unincorporated area of the county. To the
    extent that this article authorizes the improvement of an access
    road to a subdivision, this article applies only to an access road
    in an unincorporated area of the county.
    (b) In this article, “improvement” means the construction,
    reconstruction, or repair of a road.
    (c) The commissioners court of a county may order that the
    county improve a road in a subdivision or an access road to a
    subdivision to comply with any county standards for roads and
    assess all or part of the costs of the improvement pro rata
    against the owners of real property in the subdivision if:
    (1) the commissioners court determines that the
    improvement is necessary for the public health, safety,
    or welfare of the residents of the county; and
    p.   655
    Honorable Allen Ross Hightower - Page 2        t DM-12 6 )
    (2) a majority of those record owners of real property
    in the subdivision who are voting vote by mailed ballot
    in favor of the county improvement and assessment.
    (d) Before ordering an improvement and assessment under
    this article, the commissioners court must g&e notice of the
    proposed improvement and assessment and must hold a public
    hearing on ,the question . . .
    (e) Within 10 days after the date of the public hearing, the
    commissioners 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 the county clerk.. .
    You first ask whether “revenue raised through this process” should be “classified as a
    tax or a fee.”
    The levy authorized by article 67023 is known as a “special assessment.”
    Although a special assessment is levied under the taxing power, it is not a “tax”as
    that word is ordiiy      used in statutory and constitutional law. See H&ins v.
    Bwdager, 
    31 S.W. 52
    (Tex. 1895); Ciry ofWKhitaFalls for use of LE. Whitman & Co.
    v. Wiuiams, 26 S.W.2.d910 (Tex. 1930); .Phelps v. lXudzr Brick Co., 
    62 S.W.2d 596
    (Tex. Civ. App.-Galveston 1933). As a result, statutory and constitutional
    principles applicable to taxation have no application to special assessments. See,
    eg., Wchita County Water Impnnwnent Dirt. No. 2 v. C@ of Wichita Falls, 323
    S.W.2d 298,300 (Tex. Civ. App.-Fort Worth 1959, writ ref d n.r.e.); City of Dallas v.
    Atkins, 223 SW. 170 (Tex. 1920); Circa v. Vwner, 16 S.W.2d 265,266 (Tex. Comm’n
    App. 1929). But see Hanis County v. Bcyd, 
    7 S.W. 713
    (Tex. 1888). See genes@ 60
    TEX. JUR. 3d Public Zmprmwmmts0 10, at M-15 (1988).
    You also ask whether the county tax assessor-collector is authorized to
    collect these assessments, and if he is not, what official should collect them and how
    should he do so. Since a special assessment is not governed by property tax law, and
    since article 67CG3 makes no provision for collection by the county tax assessor-
    collector, we must conclude that official has no necessary involvement in the
    assessment and collection process. The statute says merely that, if a majority of
    those casting ballots favor the improvement, the commissioners court shall “assess
    the costs of the improvements against the real property owners.” V.T.C.S. art.
    P- 656
    Honorable Allen Ross Hightower - Page 3        (DM-12 6 1
    67023(e). In our opinion, the commissioners court, in the absence of statutory
    guidelines, must determine the details of .the collection process. That body may
    delegate such duties in any reasonable manner and to any county official, employee
    or contractor, including the county tax assessor-collector.
    Your next question ls whether the assessment may “be calculated using a flat
    rate against the value of the property as~property taxes are calculated for the
    individual property owner.” Article 67023 declares that the commissioners court
    may “assess all or part of the costs of the improvement pro r&u against the owners of
    real property in the subdivision.” 
    Id. art. 67023(c)
    (emphasis added). The term
    “pro rata” does not specify a particular formula. It has no meaning unless referable
    to some rule or standard. Hendrie v. Lawmuster, 152 F2d 83r 85 (6th Cir. 1945); see
    Chenoweth v. Nodan & Morris, 171 S.W.2d 386,387 (Tex. Civ. App.-San Antonio
    1943, writ refd w.o.m.). The value of the improvement to each property owner
    should be arrived at by some method that will provide fairly for its determination
    and guarantee an equitable distribution of the assessment. Lkrllas County Levee
    Dirt. No. 2 v. L-ooney,207 S.W. 314 312 (T’ex. 1918). Assessments have been made
    on the basis of such factors as front footage, area, and property value. See, e.g..
    Smith v. C@ of Houston, 
    693 S.W.2d 753
    , 754-55 (Ten App.-Houston [14th Diit.]
    1985, writ ref d n.r.e.); Cook v. City of Addison, 
    656 S.W.2d 654
    656-58 (T’ex.App.-
    Dallas 1983, writ refd n.r.e.); City of Houston v. Abwa G. C&p, 638 S.W.2d 515,517
    (Tex. App.-Houston [lst Dist.] 1982, writ ref d n.r.e.); Dallar County Levee Dirt. No.
    2 v. 
    Lamey, 207 S.W. at 312
    ; see general& 60 TEX. JUR. 3d Public Improvements S 22,
    at 27-29 (1988). In the absence of statutory direction, the precise formula should be
    determined by the commissioners court, with special regard for the particular
    benefits which will accrue to each owner as a result of the improvement.
    Your last question is whether “the cost of the election, along with the cost of
    the collecting and reporting activity,” may “be added to the road construction costs
    in order to determine total cost of the project.” Article 6702-3(c) authorizes the
    commissioners court to assess only “all or part of the costs of the improvement.”
    “Improvement” is defined in the statute as “the construction, reconstruction, or
    repair of a road.” V.T.C.S. art. 6702-3(b). In our opinion, the statutory language
    does not permit the assessment to the property owners of the costs of holding the
    election and collecting the assessment. ‘Ibus, we conclude that neither the cost of
    the election nor the cost of collecting and reporting the results may be added to
    road construction costs in determining the total amount to be assessed against the
    property owners.
    P. 657
    Honorable Allen Ross Hightower - Page 4      t DM- 12 6 )
    A commissioners court which orders improvements to a
    road in an unincorporated area of the county as the result of an
    election held under article 67023. V.T.C.S., may delegate the
    details of the process of collecting the assessment against the
    affected property owners, and it may also determine the precise
    fortnula for calculating the assessment, with special regard for
    the particular benefits which will accrue to each property owner.
    The costs of holding the election and collecting the revenues
    may not be assessed against the property owners.
    DAN      MORALES
    Attorney General of .Texas
    WILL PRYOR
    First Assistant Attorney General
    MARY KELLBR
    Deputy Assistant Attorney General
    RENEAHIcKs
    Special Assistant Attorney General
    MADELEINE B. JOHNSON
    Chair, Opinion Committee
    Prepared by Rich Gilpin
    Assistant Attorney General
    p. 658
    

Document Info

Docket Number: DM-126

Judges: Dan Morales

Filed Date: 7/2/1992

Precedential Status: Precedential

Modified Date: 2/18/2017