Untitled Texas Attorney General Opinion ( 2001 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
October 3,200l
The Honorable David Sibley Opinion No. JC-0419
Chair, Business and Commerce Committee
Texas State Senate Re: Applicability of section 43.076 1, Local
P. 0. Box 12068 Government Code, to business users of water and
Austin, Texas 78711 sanitary sewer services that have paid taxes to a
water district (RQ-0373-JC)
Dear Senator Sibley:
You have requested that this office interpret the provisions of section 43.0761 of the Local
Government Code, and in particular the statutory references to “household users” of water and
sanitary utility service and to “owners of taxable property within the district.” See TEX. Lot. GOV’T
CODE ANN. 8 43.0761 (Vernon 1999). The district at issue is defined by section 43.0761 (e) as “a
conservation and reclamation district of more than 10,000 acres that provides water and sanitary
sewer utility service to households and parts of which are located in two or more municipalities, one
of which has a population of more than 1.6 million.” Id. 43.0761(e).
As we understand it, your request is prompted by the concerns of the owner of a restaurant
and bar in Pasadena, Texas.* We are given to understand that while the restaurant owner is not a
“household user” of water and sewer services in the ordinary sense of the phrase, the restaurant is
taxable property in the district in question; that in fact its owner pays water and sewer taxes to the
district, but receives no services from the district; that she also pays the city of Pasadena for such
services; that the city has passed a resolution providing for the rebate to the relevant taxpayers of
certain funds paid to it by the district pursuant to section 43.076 1; that the district has not paid the
city the amount it received from the restaurant owner on the apparent ground that a restaurant is not
a household user; and that consequently, she has in effect paid twice for the same service.2 This
office does not find facts in the opinion process. However, no one appears to deny these assertions.
We will therefore assume them arguendo, but we caution that our assumption is by no means a
‘See Letter from Honorable David Sibley, Chair, Business and Commerce Committee, Texas State Senate, to
Honorable John Cornyn, Texas Attorney General, at 1 (Mar. 28,200l) (on file with Opinion Committee).
2See Letter from Bronwyn Zardanetta, Owner, Ernie’s Restaurant & Bar, Pasadena, Texas, to Robert Peeler,
Office of Honorable Mike Jackson, State Senator (Nov. 9,200O) (on file with Opinion Committee).
The Honorable David Sibley - Page 2 (JC-0419)
finding of fact. Further, while we mention these facts as illustrative, our concern here is not the
adjudication of any rights of the restaurant owner, but solely the question of statutory interpretation.
We are concerned essentially with the measure of payments owed under section 43.0761 (b) by the
water district to the city.
Section 43.076 1 of the Local Government Code provides, in relevant part:
(a) A district existing on September 1, 1997, that, within 10 years
after the date of its creation, has not provided water and sanitary
sewer utility service from its facilities to all household users in its
territory shall:
(1) provide water and sanitary sewer utility service from its
facilities to all household users in its territory not later than
September 1, 1998; or
(2) for that part of the district for which the district does not
provide water and sanitary sewer utility service, and for which a
municipality does provide those services, provide for periodic
payments, as described by Subsection (b), by the district to the
municipality that provides the services.
(b) Payments made under Subsection (a)(2) are operation and
maintenance expenses of the district and shall be made at least every
three months. The total annual amount of the payments may not
exceed the lesser of:
(1) the total annual cost to the municipality of providing the
water and sanitary sewer utility service, including both capital and
operation and maintenance costs and expenses; or
(2) the total annual amount of maintenance and operation
taxes and debt service or bond taxes paid to the district by the owners
of taxableproperty within the district that receive water and sanitary
sewer utility service from the municipality.
TEX. Lot. GOV’T CODE ANN. 8 43.0761(a), (b) (Vernon 1999) (emphasis added).
The Honorable David Sibley - Page 3 (JC-0419)
You have asked the meaning of the term “household user” in subsection (a). The term is not
defined by the statute, and accordingly the Code Construction Act requires us to construe it
“according to the rules of grammar and common usage.” TEX. G~v’T CODE ANN. 5 3 11 .Ol l(a)
(Vernon 1998). The Oxford English Dictionary defines “household” inter alia as “[tlhe inmates of
a house collectively; an organized family, including servants or attendants, dwelling in a house; a
domestic establishment.” VII OXFORD ENGLISHDICTIONARY 442 (2d ed. 1989). A “household” user
of water and sewer services would, accordingly, be a residential user of such services, rather than
a commercial establishment such as a restaurant.
We note that the phrase “household user” occurs in subsection (a) in the discussion of what
apparently now is a condition contrary to fact. That is, the water district in question could, until
September 1, 1998, have fulfilled its statutory obligations by providing water and sewer service to
all household users in the district. We assume, given that payments are now being made by the
district to the city of Pasadena, that the district did not do so.
The payments the district must make are calculated by one of two means. The district is,
pursuant to subsection (b), obligated to pay the city either the annual cost to the city of providing the
services, or the annual amount paid in taxes to the district by “the owners of taxable property” who
receive water and sewer services from the city.
While we agree with the district that a commercial establishment such as a restaurant and bar
is not within the ordinary meaning of “household user,” the phrase “household user” is not found
in subsection (b)‘s enumeration of the methods of calculating payment. See TEX. GOV'T CODE ANN.
9 43.0761(b) (V emon 1999). The provision of water and sanitary sewer services to household users
is the principal function of the district, as is clear from subsection (e)‘s definition of the district.
However, the district’s failure to carry out that function triggers its repayment obligations under
subsection (b); and in that subsection the legislature has chosen not to limit the obligation to
payments made by household users, but has used a more expansive term. It is “generally presumed
that every word in a statute is used for a purpose.” Bomar v. Trinity Nat ‘IL$e & Accident Ins. Co.,
579 S.W.2d 464,465 (Tex. 1979).
We cannot determine which of the two methods of calculation would yield a lesser amount
in the instant case, given that such a determination would require factual findings. However, should
subsection (b)(2) provide the proper measure, the district’s obligation according to the plain
language of the statute is to pay the municipality the total amount of taxes paid to the district by
“owners of taxable property,” not by “household users.”
“Property,” for the purposes of the Tax Code is defined as “any matter or thing capable of
private ownership.” TEX. TAX CODE ANN. $ 1.04( 1) (Vernon Supp. 2001) (“Title 1, Property Tax
Code”). Clearly a restaurant for these purposes may be taxable property. If the owner of the
restaurant and bar in question is an owner of taxable property and has in fact paid such taxes to the
The Honorable David Sibley - Page 4 (JC-0419)
district for water and sewer services, and those services have been provided not by the district but
by the city, then under subsection (b)(2) the district owes the city the total annual amount of such
payments.
SUMMARY
While a restaurant is not a “household user” of water and
sewer services, the owner of a restaurant may be an “owner of taxable
property” for the purposes of section 43.0761 of the Texas Local
Government Code. See TEX. Lot. GOV’T CODE ANN. 3 43.0761
(Vernon 1999). Accordingly, the measure of payment mandated by
section 43.0761 (b)(2) of the Local Government Code, which is not
limited to household users, includes such owners of taxable property
as a restaurant owner. See id. 8 43.0761 (b)(2).
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General, Opinion Committee