Untitled Texas Attorney General Opinion

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable William P. Clements, Jr. Opinion No. MW-551
Supreme Court Building Governor of Texas
P. 0. Box 12546
Austin, TX. 76711- 2546
State Capitol Re: Whether state agencies
512/475-2501 Austin, Texas 78711 must pay a drainage fee imposed
Telex 9101674-1367 by the city of Austin to fund a
Telecopier 5121475~0266 Drainage Utility System
1607 Main St., Suite 1400
Dear Governor Clements:
Dallas, TX. 75201.4709
2141742.6944 You have asked whether state agencies which control state-owned
property located within the city limits of the city of Austin must pay
a drainage fee which was recently approved by the city. The following
4624 Alberta Ave., Suite 160
El Paso, TX. 79905,2793
details concerning this fee are set forth in a brief which was sent to
9151533-3464 us by one of the affected agencies:
As we understand the subject drainage fee
1220 Dallas Ave.. Suite 202
imposed by the city of Austin, such fee would
Houston, TX. 77002-6966
7 13/650-0666
apply to all land located within the city and
would be calculated at a given rate on a per acre
(or fractional per acre) basis. The rate would
606 Broadway, Suite 312 vary as to whether the property upon which it is
Lubbock. TX. 79401.3479
imposed is (1) residential, (2) improved, or (3)
6061747-5236
colmnercial,but the rate under each category would
be constant. This fee would be multiplied times
4309 N. Tenth. Suite 6 the number of acres owned and would be charged by
McAllen, TX. 76501-1665 adding one-twelfth (1/12th) of the total to the
5121662-4547 city of Austin electricity and water bill sent to
the owner of the property each month. The
200 Main Plaza, Suite 400 proceeds from this fee would be used exclusively
San Antonio, TX. 76205-2797 in an attempt to keep the various creek and
5121225.4191 streambeds within the city limits flowing freely.
The question to be determined in the opinion
A,, Equal Opportunity/ request is whether this fee may be validly
Affirmative Action Employer assessed against state-owned property.
One of the questions raised by these facts is whether this
"drainage fee" is a utax" or a "special assessment." See, e.g., City
of Wichita Falls v. Williams, 26 S.W.2d 910 (Tex. 1930) (distinction
between tax and special assessment). In some instances, the
characterization of a monetary exaction as a "tax" or a "special
assessment" will determine whether it may be validly imposed. See.
p. 2007
Honorable William P. Clements, Jr. - Page 2 (MW-551)
*, Wichita County Water Improvement District No. 2 v. City of
Wichita Falls, 323 S.W.2d 298 (Tex. Civ. App. - Fort Worth 1959, writ
ref'd n.r.e.) (because exaction was an "assessment" rather than a
"tax," water improvement district could levy it against land owned by
city within confines of district). In the present instance, however,
we conclude that, regardless of whether this "drainage fee" is
characterized as a "tax" or a "special assessment," it way not be
imposed against state-owned property located in the city of Austin.
We therefore need not decide how to characterize this fee.
In Maverick County Water Control and Improvement District No. 1
v. State, 456 S.W.2d 204 (Tex. Civ. App. - San Antonio 1970, writ
ref'd), the water district appealed from a trial court judgment which
declared that certain land owned exclusively by the Veterans' Land
Board, a state agency, was "free of all liens and claims for taxes or
other charges." Id. at 205. The "other charges" consisted of
assessments and water delivery charges. The court of civil appeals
affirmed the trial court's judgment. It held (1) that the land in
question was exempt from ad valorem taxes under article 7150,
V.T.C.S., (since repealed; see now Property Tax Code section 11.11);
and (2) that the land was not subject to special assessments levied by
the water district for local improvements. In connection with the
latter holding, it stated:
Although the power of a governmental agency to
levy special assessments for local improvements is
generally recognized to be an exercise of the
taxing power, there are numerous decisions holding
that a special assessment is not a 'tax' in the
sense in which that word is ordinarily used. We
do not think it necessary to consider the question
whether such an assessment is a tax within the
meaning of constitutional provisions exempting
property from taxation in a case where, as here, a
political subdivision created by the sovereign is
attempting to impose a monetary exaction upon its
creator.
Even if it be assumed that a county or
municipality 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 authorization, a political subdivision
of the State has no power to levy a special
assessment against State property. We adopt this
view at least in a case where, as here, the
p. 2008
. .
Honorable William P. Clements, Jr. - Page 3 (``-551)
sovereign is neither making nor contemplating any
use of the allegedly benefitted land and has
neither received nor requested the services
rendered by the assessing agency. (Emphasis
added).
456 S.W.2d at 206-07.
We need not, in this instance, attempt to determine the precise
reach of the Maverick County court's holding regarding the validity of
special assessments against state-owned property. This much, at
least, appears clear: where there is no "clear legislative
authorization" for a particular special assessment against state-owned
property, and where the state has done nothing to indicate its
willingness to be subjected to such assessment, the assessment is
impermissible, because it would result in an "involuntary monetary
obligation on the sovereign." 456 S.W.2d at 207. It should be
emphasized that the Texas Supreme Court refused writ of error in the
Maverick County case without reservation.
Our attention has not been directed to any statute which provides
"clear legislative authorization" for the city of Austin to levy its
drainage fee against state-owned property within its boundaries. We
have found no such statute on our own. Nor have we been advised of
any actions on the part of the state which indicate its willingness to
pay this fee. We therefore conclude that, under the facts that we
have been given, even if this drainage fee is characterized as a
"special assessment," it may not be assessed against state-owned
property located within the city limits of the city of Austin. We
think it is clear that if the fee is in fact a "tax," it may not be
levied against that property. See Prop. Tax Code 911.11.
SUMMARY
State agencies which control state-owned
property within the city limits of the city of
Austin are exempt from a drainage fee which was
recently approved by the city.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 2009
. -
Honorable William P. Clements, Jr. - Page 4 (MW-551)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
George Warner
Bruce Youngblood
p. 2010