Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
October 14,2005
The Honorable Dib Waldrip Opinion No. GA-0366
Coma1 County Criminal District Attorney
150 North Seguin, Suite 307 Re: Whether, under an agreement entered into
New Braunfels, Texas 78 130 pursuant to section 242.00 1(d)(4)(B) of the Local
Government Code, a county may assess a
municipal drainage charge under chapter 402,
subchapter C of the same code in connection
with the approval of a plat for a subdivision in
the municipality’s extraterritorial jurisdiction
(RQ-0334-GA)
Dear Mr. Waldrip:
Your office asks whether, under an agreement entered into pursuant to section
242.00 1(d)(4)(B) of the Local Government Code, a county may assess a municipal drainage charge
under chapter 402, subchapter C of the same code in connection with the approval of a plat for a
subdivision in the municipality’s extraterritorial jurisdiction.’ See TEX. LOC. GOV’T CODEANN.
5 242.001(d)(4)(B) (Vernon Supp. 2004-05); see id. 5 402.045 (Vernon 1999).
I. A Municipality’s and a County’s Joint Authoritv to Remlate Subdivisions in the
Municipalitv’s Extraterritorial Jurisdiction
A municipality and the county in which the municipality is located each have jurisdiction
over plats and subdivisions of land within the municipality’s extraterritorial jurisdiction. See La
Cour Du Roi, Inc. v. Montgomery County, 698 S.W.2d 178,186 (Tex. App.-Beaumont 1985, writ
ref’d n.r.e.); Tex. Att’y Gen. Op. No. JC-0518 (2002) at 2. Local Government Code chapter 212
provides a municipality with general authority to regulate plats and subdivisions, including those
within the municipality’s extraterritorial jurisdiction, see TEX. LOC. GOV’T CODEANN. 5 § 2 12.002
(Vernon 1999), .003 (Vernon Supp. 2004-05), and counties have general authority to regulate
subdivisions within their boundaries under chapter 232 of the same code, see id. $5 232.001(a),
.002(a). See Tex. Att’y Gen. Op. No. GA-0230 (2004) at l-2 (summarizing municipal and county
authority to regulate subdivisions).
‘See Letter from Geoffrey I. Barr, Chief Civil Assistant Coma1 County District Attorney, to Honorable Greg
Abbott, Texas Attorney General (Apr. 4,2005) (on file with Opinion Committee, also available at http://www.oag.
state.tx.us) [hereinafter Request Letter].
The Honorable Dib Waldrip - Page 2 (GA-0366)
Local Government Code chapter 242 recognizes that a municipality and a county share
jurisdiction in the municipality’s extraterritorial jurisdiction and attempts to resolve inconsistencies
between the municipality’s and the county’s subdivision requirements. Section 242.001 prohibits
both a municipality and a county from regulating subdivisions and approving related permits in the
municipality’s extraterritorial jurisdiction. See TEX. LOC.GOV’T CODEANN. 5 242.001(c) (Vernon
Supp. 2004-05). The municipality and the county must “enter into a written agreement” that
allocates “the authority to regulate subdivision plats and approve related permits in the
extraterritorial jurisdiction” in one of four ways: by agreeing to grant exclusive jurisdiction to one
or the other of them; by dividing the area so that the municipality regulates a part and the county
regulates the remainder; by entering into an interlocal agreement under which the municipality and
the county adopt one set of regulations; or by consolidating the regulations into a single set. See id.
9 242.001(c)-(d). Your question concerns this final “consolidation” alternative set forth in section
242.001(d)(4)(B), un d er which a municipality and a county may establish
a single set of consolidated and consistent regulations related to plats,
subdivision construction plans, and subdivisions of land as authorized
by Chapter 212, Sections 232.001-232.005, Subchapters B and C,
Chapter 232, and other statutes applicable to municipalities and
counties that will be enforced in the extraterritorial jurisdiction.
Id. 5 242.001(d)(4)(B). H aving set out section 242.001(d)(4)(B), we examine the scope of a
municipality’s authority to adopt a municipal drainage utility system under chapter 402.
II. Municipal Authoritv to Establish a Drainage Utility System and to Levy DrainaPe
Chawes
Chapter 402, subchapter C, the Municipal Drainage Utility Systems Act (the “Act”),
authorizes a municipality to establish a drainage utility system. See id. 5 402.045 (Vernon 1999);
see also id. 5 402.041 (“Short Title”). “Drainage,” for the Act’s purposes, means facilities such as
bridges, catch basins, culverts, pipes, and treatment works “whether natural or artificial, or using
force or gravity, that are used to draw off surface water from land, carry the water away, collect, store
or treat the water, or divert the water into natural or artificial watercourses.” Id. 8 402.044(3)
(Vernon Supp. 2004-05). A municipal drainage utility system’s service area generally may include
land within the municipality’s extraterritorial jurisdiction. See id. 8 402.044(8) (Vernon 1999).
After adopting a system, “the municipality may levy a schedule of drainage charges” to be
paid by the owners of properties that benefit from the drainage utility system. See id. fj8 402.045(d),
.047(a). In general, unless a particular lot or tract is exempt by statute, the owner “may not use
the drainage system for the lot or tract” without paying “the full, established, drainage charge.” Id.
5 402.047(d); see also id. 402.053 (“Exemptions”). The municipality may “bill drainage charges,
identified separately, with the municipality’s other public utility billings,” id. 9 402.048(a), and must
segregate drainage utility system income from other municipal monies, see id. tj 402.049.
The Honorable Dib Waldrip - Page 3 (GA-0366)
III. Analysis: Whether an Apreement Entered Into Under Section 242.001(d)(4)(B), Local
Government Code, Mav Authorize a County to Assess Drainage Chawes
You suggest that a county may assess drainage charges for a municipal drainage utility
system in a municipality’s extraterritorial jurisdiction under an interlocal agreement entered into
pursuant to section 242.001(d)(4)(B). See Request Letter, supra note 1, at 2. You assert that the
authority to assess drainage charges under the Act is “a subdivision related permitting activity,” id.,
and therefore may be part of “a single set of consolidated and consistent regulations related to plats,
subdivision construction plans, and subdivisions of land” under section 242.001 (d)(4)(B). TEX. LOC.
GOV’T CODEANN. 5 242.001 (d)(4)(B) (V emon Supp. 2004-05); see Request Letter, supra note 1,
at 2.
Because you specifically refer to the authority to “assess” drainage charges, as opposed to
authority merely to collect drainage charges, we do not consider whether a county may collect
drainage charges that the municipality has assessed under the Act. The term “assess” implies a
valuation of property and a corresponding calculation of the amount of the charge to be paid by the
property owner. CJ Amaimo v. Carter, 212 S.W.2d 950,955 (Tex. Civ. App.-Beaumont 1948, writ
ref d n.r.e.) (stating that the term “levy,” which is synonymous with “assess,” means an official
valuation and a determination of the amount of tax to be imposed); BLACK’SLAW DICTIONARY111
(7th ed. 1999) (defining “assessment” to mean “[dletermination of the rate or amount of something,
such as a tax . . . .“; “[ilmposition of something, such as a tax . . . , according to an established rate
77
. . . . )-
Chapter 242 does not further clarify which regulations are “related to plats, subdivision
construction plans, and subdivisions of land” for purposes of section 242.001(d)(4)(B). Nor have
we found any judicial or attorney general opinions that construe the phrase. In addition, the Act does
not indicate, expressly or implicitly, that the adoption of a municipal drainage utility system,
including the levy of drainage charges, is such a regulation. Given this vacuum, we closely examine
section 242.001(d)(4)(B)‘s plain language to attempt to assign meaning to the phrase.
The phrase must be read in context and in light of the statute as a whole. See TEX. GOV’T
CODEANN. 8 3 11 .Ol l(a) (Vernon 2005) (“Words and phrases shall be read in context . . . .“); City
of San Antonio v. City of Boerne, 111 S.W.3d 22,25 (Tex. 2003) (stating that a court will “‘read [a]
statute as a whole and interpret it to give effect to every part”‘) (quoting State v. Gonzalez, 82
S.W.3d 322, 327 (Tex. 2002)); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)
(stating that a court must not “give one provision a meaning out of harmony or inconsistent with
other provisions. . . .“). Our goal is to effectuate the legislative intent, relying solely on the statute’s
plain language if at all possible. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d
864, 866 (Tex. 1999) (stating that the words the legislature chooses “should be the surest guide to
legislative intent”).
The type of regulation that may be the subject of an agreement under section
242.001 (d)(4)(B) is one “related to plats, subdivision construction plans, and subdivisions of land.”
TEX. Lot. GOV’T CODEANN. 5 242.001(d)(4)(B) (V emon Supp. 2004-05). Chapters 212 and 232,
The Honorable Dib Waldrip - Page 4 (GA-0366)
which section 242.00 1(d)(4)(B) explicitly names as authorizing regulations related to plats,
subdivision construction plans, and subdivisions of land, pertain specifically to the regulation of
subdivisions by municipalities and counties, respectively. See id. chs. 212, 232 (Vernon 1999 &
Supp. 2004-05). Under section 212.002, which the Texas Supreme Court has determined provides
a city with zoning authority, see Quick v. City ofAustin, 7 S. W.3d 109,12 1 (Tex. 1998), a municipal
governing body may adopt rules “governing plats and subdivisions of land . . . to promote the health,
safety, morals, or general welfare of the municipality and the safe, orderly, and healthful
development of the municipality.” TEX. LOC.GOV’T CODEANN. 8 212.002 (Vernon 1999); see also
id. 5 2 12.003(a) (Vernon Supp. 2004-05) (permitting a municipality generally to extend ordinances
adopted under section 2 12.002 to its extraterritorial jurisdiction). A municipality must approve a plat
that, among other things, “conforms to” both the municipality’s “general plan . . . and its current and
future . . . public utility facilities” and the municipality’s “general plan” for extending itself “and its
roads, streets, and public highways . . . in its extraterritorial jurisdiction, taking into account access
to and extension of sewer and . . . the instrumentalities of public utilities.” Id. 5 212,010(a)(1)-(2)
(Vernon 1999).
Chapter 232 requires, in general, “[tlhe owner of a tract of land located outside” municipal
limits to have a plat prepared if the owner divides the land into two or more parts “to lay out” a
subdivision, lots, or parts of the tract that would be dedicated to public use or for lot-owners’ use.
Id. 9 232.001(a). The county must approve a plat that meets chapter 232’s requirements. See id.
5 232.002(a)-(b) (V emon Supp. 2004-05). A county has express authority to “adopt reasonable
specifications to provide adequate drainage for each street or road in a subdivision” and to “adopt
reasonable specifications that provide for drainage in the subdivision to . . . efficiently manage the
flow of stormwater runoff’ and to “coordinate subdivision drainage with the general storm drainage
pattern for the area,” among other things. Id. $232.003(5), (8). In short, chapters 212 and 232 relate
specifically to subdivisions and the platting process.
Chapter 402, by contrast, relates neither specifically to plat-related regulations nor
specifically to subdivisions. Chapter 402 relates to a drainage system-a public utility-that serves
territory the boundaries of which are not tied to the subdivision boundaries. Subdivision property
owners must pay the drainage charge levied under chapter 402 unless section 402.053 exempts them,
but they are affected just as other benefitted property owners throughout the service area are affected.
In addition, a drainage utility system is classified as a public utility and is not limited geographically
to subdivisions. And the fact that the municipality has express authority to “bill drainage charges
. . . with the municipality’s other public utility billings” indicates that a county may not assess a
drainage charge, on the municipality’s behalf, as part of the plat approval process under section
242,001(d)(4). Id. 8 402.048(a) (Vernon 1999).
We thus conclude that a drainage charge levied in accordance with chapter 402 is not
a regulation “related to plats, subdivision construction plans, and subdivisions of land.” Id.
9 242.001 (d)(4)(B) (V emon Supp. 2004-05). An agreement entered into in accordance with section
242.001(d)(4) therefore may not assign to a county the authority to assess a drainage charge for a
municipal drainage system adopted under the Act.
The Honorable Dib Waldrip - Page 5 (GA-0366)
IV. Analysis: Whether an Interlocal Contract Entered Into Under Section 791.011(a),
Government Code, May Authorize a County to Assess DrainaPe Chawes
You suggest that, if a county may not assess the drainage charge under an interlocal
agreement executed in accordance with section 242.001(d)(4)(B), it may do so under the Interlocal
Cooperation Act, Government Code chapter 79 1. See Request Letter, supra note 1, at l-2; see also
TEX. GOV’T CODEANN. ch. 791 (Vernon 2004). The contracting authority Local Government Code
section 242.001 (d)(4)(B) and Government Code chapter 79 1 provide is cumulative. See Tex. Att’y
Gen. Op. No. JC-05 18 (2002) at 8-9. The Interlocal Cooperation Act authorizes local governments,
including counties and municipalities, to contract with each other for the performance of certain
“governmental functions and services.” TEX. GOV’T CODEANN. § 791 .Ol l(a) (Vernon 2004); see
id. 9 791.003(4)(A) (defining “local government”). The phrase “governmental functions and
services” is defined to include “streets, roads, and drainage.” Id. 8 791.003(3)(c).
An interlocal contract may be entered into under chapter 791 to “provide a governmental
function or service that each party to the contract is authorized to perform individually.” Id. 5
791 .Ol 1(c)(2); accord Tex. Att’y Gen. Op. No. GA-0225 (2004) at 5. “Conversely,” as this office
recently has stated, chapter 791 “does not authorize a local government to contract for services it is
not authorized to perform individually.” Tex. Att’y Gen. Op. No. GA-0225 (2004) at 5.
A county has no individual authority to establish a drainage utility system or to assess
benefitted property owners for drainage charges. Accordingly, an interlocal contract entered into
pursuant to chapter 791 may not authorize a county to assess drainage charges on behalf of a
municipality with a drainage utility system.
The Honorable Dib Waldrip - Page 6 (GA-0366)
SUMMARY
An agreement between a county and a municipality entered
into pursuant to Local Government Code section 242.001 (d)(4)(B),
which provides for a consolidated and consistent set of regulations
related to plats, subdivision construction plans, and subdivisions
of land in the municipality’s extraterritorial jurisdiction, may not
authorize the county to assess a drainage charge on behalf of the
municipal drainage utility system. In addition, an interlocal contract
between a county and a municipality entered into under Government
Code chapter 79 1 may not authorize the county to assess a drainage
charge on behalf of the municipal drainage utility system.
Very truly yours,
eneral of Texas
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Kyrnberly K. Oltrogge
Assistant Attorney General, Opinion Committee