Untitled Texas Attorney General Opinion ( 1988 )

May 13, 1988
Honorable D.C. Jim Dozier Opinion No. JR-902
Montgomery County Attorney
Courthouse Re: What constitutes an
Conroe, Texas 77301 "improvement district" for
purposes of article 1667,
V.T.C.S. (RQ-1253)
Dear Mr. Dozier:
You have asked questions concerning article 1667,
V.T.C.S. This statute, enacted in 1915 and most recently
amended in 1941, provides in relevant part:
In all counties which have or may have a
County Auditor and containing a population of
[llO,OOO] or more . . . and in which counties
there exists or in which there may be created
any improvement, navigation, drainage, or
road or irrigation district, or any other
character of district having for its purpose
the expenditure of public funds for improve-
ment purposes, or for improvements of any
kind whether derived from the issuance. of
bonds or through any character of special
assessment, the County Auditor shall exercise
such control over the finances of said dis-
trict as hereinafter provided. [See V.T.C.S.
art. 1668 et sea.]
You expressed concern about the effect of this statute on
certain districts in Montgomery County, which has a popula-
tion exceeding 110,000. Your letter states:
We find no clear authority defining the
'improvement districts' to which article
1667, V.T.C.S., on its face applies. Accor-
dingly, we ask the following questions:
1. What constitutes an 'improvement dis-
trict' as contemplated by the statute?
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Honorable D.C. Jim Dozier - Page 2 (JR-982)
2. Is an emergency communication district
created pursuant to article 1432e, V.T.C.S.,
an improvement district subject to the
financial control of the county auditor?
3. Is a county hospital district an im-
provement district subject to the financial
control of the county auditor?
4. Is a rural fire prevention district
created pursuant to article 2351a-6,
V.T.C.S., an improvement district subject to
the financial control of the county auditor?
5. Is the county entitled to reimburse-
ment from improvement districts under the
financial control of the county auditor for
the salaries of such additional assistant
auditors as may be required to perform the
duties imposed by article 1667?
In answer to your first question, we have found no precise
definition of "improvement district" in Texas statutory or
case law. However, definitions of "improvement" found
elsewhere may be useful.
Black's Law Dictionary (5th ed. 1979) defines an
improvement as:
A valuable addition made to property (usually
real estate) or an amelioration in its condi-
tion, amounting to more than mere repairs or
replacement, costing labor or capital, and
intended to enhance its value, beauty or
utility or to adapt it for new or further
purposes. . . . An expenditure to extend the
useful life of an asset or to improve its
performance over that of the original asset.
This definition essentially addresses the subject matter of
real estate, land or property. An improvement generally
involves a "permanent addition" or "betterment" of real
property that enhances its capital value and involves
expenditure of labor and money and is designed to make
property more useful or valuable. Richview Nursina Home v.
Minnesota Dewartment of Public Welfare, 354 N.W.2d 445, 458
(Minn. App. 1984). An improvement must be permanent and it
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Honorable D.C. Jim Dozier - Page 3 (-902)
must enhance the value of the premises for general purposes.
- Overcase v. Akra, 197 Mont. 76, 642 P.2d 1058, 1062 (1982).
An improvement involves a change in the condition of
property or real estate from a lesser developed stage to a
more developed stage. Improvement means the state of being
improved, especially enhanced in value of excellence. Mvra
Foundation v. Harvey 100 N.W.2d 435, 439, (N.D. 1959). In
order for an improv;ment to be made there must previously
have been something to be improved. An improvement con-
sists in the amelioration or betterins of certain wremises.
Provident Mutual Life Insurance Co; of Philadeiwhia v.
Douaherty, 125 N.J. Eq. 442, 6 A.2d 184, 187 (N-J. ch.
1939).
A definition of an improvement district that takes into
consideration the legal meaning of "improvementl' as it has
been traditionally interpreted by the courts will neces-
sarily imply a type of special district that is concerned
with the permanent enhancement or betterment of real
property to make it more useful or valuable. An improvement
district is thus concerned with the enhancement or better-
P
ment of real property from a lesser developed stage to a
more developed stage. This definition describes the intent
and purpose of the various types of special districts
that are mentioned in article 1667, V.T.C.S. Navigation,
drainage, road and irrigation districts are all basically
established in order to enhance the value of land by
increasing its usefulness.
The Texas Constitution includes two provisions that
pertain to the betterment or enhancement of land through the
establishment of special districts. These provisions are
found in article III, section 52, and article XVI, section
59. Article III, section 52 generally empowers counties,
cities, towns or other political corporations or sub-
divisions to issue bonds, levy and collect taxes for the
following purposes:
(1) The improvement of rivers, creeks and
streams to prevent overflows, and to permit
of navigation thereof, or irrigation thereof
or in aid of such purposes.
P (2) The construction and maintenance of
pools, lakes, reservoirs, dams, canals and
waterways for the purposes of irrigation,
drainage or navigation, or in aid'thereof.
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Honorable D.C. Jim Dozier - Page 4 (m-902)
(3) The construction, maintenance and
operation of macadamized, graveled or paved
roads and turnpikes, or in aid thereof.
Tex. Const. art. III, 552(b). This constitutional provision
relates to the general improvement of lands. Bonds may be
raised by a local government or by a special district.
Article XVI, section 59, of the Texas Constitution
specifically deals with the establishment of special
districts for conservation and reclamation purposes. It
provides that:
(a) The conservation and development of
all of the natural resources of this State,
including the control, storing, preservation
and distribution of its storm and flood
waters, the waters of its rivers and streams,
for irrigation, power and all other useful
purposes, the reclamation and irrigation of
its arid, semi-arid and other lands needing
irrigation, the reclamation and drainage of
its overflowed lands, and other lands needing
drainage, the conservation and development of
its forests, water and hydro-electric power,
the navigation of its inland and coastal
waters, and the preservation and conservation
of all such natural resources of the State
are each and all hereby declared public
rights and duties: and the Legislature shall
pass all such laws as may be appropriate
thereto.
(b) There may be created within the State
of Texas, or the State may be divided into,
such number of conservation and reclamation
districts as may be determined.to be essen-
tial to the accomplishment of the purposes of
this amendment to the constitution, which
districts shall be governmental agencies and
bodies politic and corporate with such powers
of government and with the authority to
exercise such rights, privileges and func-
tions concerning the subject matter of this
amendment as may be conferred by law.
Improvement districts that are established under
article III, section 59, and article XVI, section 59, are
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Honorable D.C. Jim Dozier - Page 5 (m-902)
classified as "natural resource special districts" by the
United States Census Bureau. The Census Bureau has esta-
blished twelve functional classifications for special
districts. These classifications are based on two criteria.
(1) The name of the entitv involved which
in many instances, such as for housing
authorities and hospital districts provide a
specific guide. . . .
(2) the function or functions reported as
being performed bv individual units. . . .
(Emphasis added.)
United States Census Bureau of the Census, Census of Govern-
ments: 1977, Vol. I, No. 1, Governmental Organization (U.S.
Government Printing Office, Washington D.C., 1977), at 5.
Using this criteria, the United States Census Bureau has
established a classification that includes twelve types of
special district. They are as follows:
(1) Natural Resources
P Soil Conservation
Drainage
Irrigation, Water Conservation
Flood Control
Other Natural Resources
(2) Fire Prevention
(3) Urban Water Supply
(4) Housing and Urban Renewal
(5) Cemeteries
(6) Sewerage
(7) School Building Authorities
(8) Parks and Recreation
(9) Highways
(10) Hospitals
(11) Libraries
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Honorable D.C. Jim Dozier - Page 6 (-902)
(12) Other Single-Function and Multi-Function
Districts
?
Since improvement districts are fundamentally concerned with
the amelioration or change in the character of land, they
generally fall within the "natural resources" type of
special district. Improvement districts serve very distinct
functions that are exclusively related to improvements in
land. In our opinion, an "improvement district" for pur-
poses of article 1667, V.T.C.S., pertains to a district
which is primarily concerned with the enhancement or
betterment of the land or other natural resources. Improve-
ment districts are distinguishable from fire prevention,
hospital and emergency communications districts.
Fire prevention districts are created under the
provisions of article III, section 48-d. This article
provides:
The Legislature shall have the power to
provide for the establishment and creation of
rural fire prevention districts and to
authorize a tax on the ad valorem property
-.
situated in said districts. . . .
These districts are created to combat fires in rural areas
through the purchase of modern fire-fighting equipment and
the hiring of necessary personnel.
Hospital districts are created under the provisions of
article XI, section 9, of the Texas Constitution. This
article states:
Sec. 9. The Legislature may by law pro-
vide for the creation, establishment, main-
tenance and operation of hospital dis-
tricts . . . providing that any district so
created shall assume full responsibility for
providing medical and hospital care for its
needy inhabitants. . . .
Providing medical facilities and services is the primary
purpose of a hospital district.
Emergency communication districts are created under the ?
provisions of the Emergency Telephone Number Act, article
1432~ of the Business Corporation Code. This act provides:
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Honorable D.C. Jim Dozier - Page 7 (JM-902)
Sec. 2. It is the purpose of this Act to
establish the number 9-l-l as the primary
emergency telephone number of use by certain
local governments in this state and to
encourage units of local government and
combinations of those units of local govern-
ment to develop and improve emergency com-
munication procedures and facilities in a
manner that will make possible the quick
response to any person calling the telephone
number 9-l-l seeking police, fire, medical,
rescue, and other emergency services.
. . . .
Sec. 5. An emergency communication dis-
trict may be created as provided by this Act.
There is nothing in the character or function of a
hospital, fire prevention or emergency communication
district that relates to the enhancement or betterment of
land. Their purpose is primarily to provide a distinct
service to a select population rather than to make permanent
changes to real property or land. Although it can be argued
that these districts result in general improvements for the
community at large, the courts have not traditionally
defined "improvement" in this manner. A definition of
"improvement district" that takes into consideration both
the legal definition of "improvement" and the United States
Census Bureau classification of special districts generally
excludes a hospital, fire prevention and emergency communi-
cation district from its meaning.
The auditing provisions of article 1672, V.T.C.S.,
apply to improvement districts and other similar districts
that make improvements to land such as navigation, irriga-
tion, drainage and road districts. They do not apply to
hospital, fire prevention and emergency communication
districts.
Finally, you ask whether a county is entitled to reim-
bursement by districts for salaries of assistants who aid in
the auditing functions performed by the county auditor
F- pursuant to article 1672. As you point out, former article
1673, V.T.C.S. (now repealed), authorized county auditors in
counties with a population in excess of 330,000 to apply for
assistants to help carry -out the duties imposed by article
1667 et sea. No current statute expressly authorizes
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Honorable D.C. Jim Dozier - Page 8 (-502)
assistants for these specific purposes. However, section
84.021 of the Local Government Code provides in part: ?
(a) From time to time the county auditor
may certify to the district judges a list
stating the number of assistants to be
ZErinted, the name, duties, qualifications,
experience of each appointee, and the
salary to be paid each appointee. The dis-
trict judges, after careful consideration of
the application for the appointment of the
assistants and after inquiry concerning the
appointees' qualifications, the positions
sought to be filled, and the reasonableness
of the requested salaries, shall prepare a
list of the appointees that the judges
approve and the salary to be paid each. The
judges shall certify this list to the commis-
sioners court, which shall order the salaries
to be paid on the performance of services and
shall appropriate an adequate amount of money
for this purpose.
h
Article 1672, V.T.C.S., provides that county auditors shall
receive for their services in auditing the affairs of
special districts within article 1667
such compensation as the commissioners court
may prescribe, which shall be paid by the
county out of the general fund and reoaid to
the county by such districts by warrants
drawn upon the proper funds of such district.
In such counties which have or may have as
many as five such districts, the compensation
allowed the county auditor for his services
on behalf of such districts shall be not less
than the sum of twelve hundred dollars per
annum, to be prorated among the districts in
such proportion as the commissioners court
may determine. (Emphasis added.)
Your letter states that article 1672 "does not on its
face authorize the payment of such assistants from funds to
be reimbursed by the improvement districts." We believe,
however, that such authority is at least implicitly con-
ferred by section 84.021 of the Local Government Code in
combination with article 1672, V.T.C.S. The former statute
permits the hiring of needed assistants, and the latter
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Honorable D.C. Jim Dozier - Page 9 @M-902)
authorizes compensation by special districts for the
r "services@* of county auditors in auditing the affairs of
such districts. In our opinion, the services contemplated
by article 1672 necessarily include the services of needed
assistants hired under the authority of section 84.021.
SUMMARY
The provisions of article 1667, V.T.C.S.,
do not
districtay~os;~t`` d``~=``~Yorc~m``=h~a````
prevent& district. These districts are not
"improvement districts" within the meaning of
article 1667, V.T.C.S.
Section 84.021 of the Local Government Code
and article 1672, V.T.C.S., entitle a county
to reimbursement from special districts for
the salaries of such additional assistant
auditors as may be required to perform the
duties imposed by article 1667.
J NzJ7t
Very truly yo
- &
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
,-
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