Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 19,2010
The Honorable Elizabeth Murray-Kolb Opinion No. GA-0821
Guadalupe County Attorney
10 I East Court Street, Suite 104 Re: Whether a political subdivision, including a
Seguin, Texas 78155-5779 home-rule city, is required to pay impact fees imposed
by another political subdivision under chapter 395,
Local Government Code (RQ-0885-GA)
Dear Ms. Murray-Kolb:
You ask whether a political subdivision, including a home-rule city, is required to pay impact
fees imposed by another political subdivision under chapter 395, Local Government Code.' A
chapter 395 impact fee is "a charge or assessment imposed by a political subdivision against new
development" for capital improvement or facility expansion "necessitated by and attributable to the
new development." TEX. LOc. GOy'T CODE ANN. § 395.001(4) (West 2005). You are concerned
about impact fees that a conservation and reclamation district has assessed on new development by
the City of Schertz, a home-rule city, and which may be imposed on planned new development by
Guadalupe County. Request Letter at 1-2.
Local Government Code section 395.022(a) provides that "[p jolitical subdivisions and other
governmental entities may pay impact fees imposed under this chapter." TEX. Loc. GOy'T CODE
ANN. § 395.022(a) (West Supp. 2010) (emphasis added). In 1993, this office determined that this
language authorizes political subdivisions to pay impact fees, but does not grant them the choice to
payor not pay such fees. Tex. Att'y Gen. LO-93-060, at 2-3. You question the continued viability
ofthe opinion's conclusion because ofthe Code Construction Act's definition of the word "may,"
added in 1997. Request Letter at 2-6 (citing Texas Government Code section 311.016(1)-(2». You
also contend that chapter 395 should not be construed as requiring home-rule cities to pay impact
fees in light of home-rule cities' broad powers. !d. at 4-5.1 We disagree for several reasons.
ISee Request Letter at I (available at http://www.texasattorneygeneraI.gov).
2We assume without deciding that the particular impact fees you describe are exclusively governed by Local
Government Code chapter 395. Compare TEx. Loc. GOV'T CODE ANN. § 395.080(a)(2) (West 2005) (stating that
chapter 395 does not apply to impact fees approved by the Texas Natural Resource Conservation Commission (now
renamed the Texas Commission on Environmental Quality)), with TEx. WATER CODE ANN. § 49.2!2(d) (West Supp.
(continued ... )
Ms. Elizabeth Murray-Kolb - Page 2 (GA-082l)
First, when the Legislature amended section 395.022 in 2007, it did not alter the language
construed in Attorney General Letter Opinion LO-93-060 but, rather, created an exception,
applicable only to certain school districts, from the requirement to pay an impact fee. TEX. Loc.
GOV'TCODEANN. § 395.022(b) (WestSupp. 2010); SENATE RESEARCH CTR., BILL ANALYSIS, Tex.
S.B. 883, 80th Leg., R.S. (2007) (Statement of Intent). Second, in a 2008 opinion, we reiterated that
a political subdivision's payment of properly imposed impact fees is mandatory except for the school
districts exempted by statute. Tex. Att'y Gen. Op. No. GA-0637 (2008) at 3. Finally, chapter 395
expressly defines "political subdivision" to include municipalities which, in turn, includes home-
rule municipalities. See TEX. Loc. GOV'T CODE ANN. § 395.001(7) (West 2005); id. § 1.005(3)
(West 2008). We conclude that chapter 395 does not give political subdivisions or governmental
entities, other than school districts in some instances, the discretion to not pay impact fees as
required under the chapter.
'( ... continued)
renamed the Texas Commission on Environmental Quality», with TEx. WATER CODE ANN. § 49.212(d) (West Supp.
2010) (stating that "[n]otwithstanding any provision oflaw to the contrary, a [chapter 49] district that charges a fee that
is an impact fee as described in Section 395.001(4), Local Government Code, must comply with Chapter 395, Local
Government Code").
Ms. Elizabeth Murray-Kolb - Page 3 (GA-082l)
SUMMARY
Local Government Code chapter 395 does not give political
subdivisions or governmental entities, other than school districts in
some instances, the discretion to not pay impact fees as required
under the chapter.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee