Untitled Texas Attorney General Opinion ( 2007 )

GREG A B B O T T
March 8,2007
The Honorable Eddie Lucio, Jr. Opinion No. GA-0528
Chair, Committee on International Relations
and Trade Re: Whether a seawall funded from assessments
Texas State Senate levied pursuant to Local Government Code,
Post Office Box 12068 chapter 372, subchapter A or B, may be built on
Austin, Texas 7871 1 privately-owned land (RQ-0528-GA)
Dear Senator Lucio:
You ask whether a seawall located on privately-owned property may be funded from
assessments levied under Local Government Code chapter 372, subchapter A or B.' See TEX.LOC.
GOV'TCODEANN.5 § 372.00 1-.03 0 (Vernon 2005) (subchapter A, entitled the Public Improvement
District Assessment Act), 372.04 1 (subchapter B, concerning the authority of improvement districts
in home-rule municipalities). A "seawall" is "a wall or embankment to protect the shore from
erosion or to act as a breakwater." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1054 (10th ed.
1993).
The City of Port Isabel ("the City"), a home-rule municipality, is considering the creation of
a public improvement district pursuant to Local Government Code chapter 372 to finance various
improvements. See Request Letter, supra note 1, at 2. The contemplated improvements include
street paving, sidewalks, storm drainage, water and sewer lines, street lights, a seawall, and dredging
and backfill, and most of these will be located on public property. See id. "The City believes the
seawall is a public necessity that will both protect the City's territory and prevent soil erosion from
harming the body of water." Id. The proposed seawall, however, "would be built on private
property along a body of water." Id. You wish to know whether improvements authorized by
chapter 372 must be located on public property, either real property owned in fee or an easement2
in privately-owned real property. See id.
'See Letter from Honorable Eddie Lucio, Jr., Chair, Committee on International Relations and Trade, Texas
State Senate, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Sept. 6, 2006) (on file with the Opinion
Committee, also available at http:llwww.oag.state.tx.us)[hereinafter Request Letter].
'An easement is a nonpossessory interest in land that authorizes the holder to use the property for particular
purposes. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). It confers upon the dominant
estate holder the right to use the land of the servient estate holder for a specific purpose. See Bickler v. Bickler, 403
S.W.2d 354, 359 (Tex. 1966).
The Honorable Eddie Lucio, Jr. - Page 2 (GA-0528)
Subchapters A and B provide for funding certain public improvements by assessment. An
assessment, or special assessment, is a special imposition on property in the vicinity of municipal
improvements to provide funding for the improvements. See City of Wichita Falls v. Williams, 26
S.W.2d 910,911-12 (Tex. 1930); see also BRYANA. GARNER,A DICTIONARY OF MODERN LEGAL
USAGE868 (2d ed. 1995). Although special assessments are levied under the taxing power, they
differ from a general property tax that is imposed throughout the taxing jurisdiction for the general
support of its government. See City of Wichita Falls, 26 S.W.2d at 9 12; Henry v. Kaufman County
Dev. Dist., 150 S.W.3d 498,504-05 (Tex. App.-Austin 2004, pet. dism'd by agr.). An assessment
is imposed only upon the property that is specially benefitted by the improvement, and its amount
is based on the special benefits accruing to the property. See City of Wichita Falls, 26 S.W.2d at
91 1; Henry, 150 S.W.3d at 505; see also City ofHouston v. Blackbird, 394 S.W.2d 159, 162 (Tex.
1965) (assessment for paving improvements).
It appears, and for purposes of this opinion we assume, that the proposed seawall can be an
authorized public improvement under chapter 372, subchapters A and B. See TEX.LOC.GOV'T
CODE ANN. $5 372.003(b) (Vernon 2005) (authorized improvements under subchapter A),
372.041(a) (authorized improvements under subchapter B).
To determine whether improvements authorized by chapter 372 must be located on public
property, either real property owned in fee or an easement in privately-owned real property, we first
consider a private owner's rights in his real property. A property owner may exclude others from
his property, although he may choose to relinquish a portion of the right to exclude by granting an
easement. See Marcus Cable Assocs., L. P. v. Krohn, 90 S.W.3d 697,700 (Tex. 2002). A city may
not use private property for public purposes unless the landowner consents to the use or the city
otherwise secures an appropriate interest in the land. In MGJCorp. v. City of Houston, for example,
the plaintiff who held an easement in a private parking lot sued the City of Houston to prevent city
police officers from parking in the lot. See MGJ Corp. v. City of Houston, 544 S.W.2d 171,173-74
(Tex. Civ. App.-Houston [ l st Dist.] 1976, writ ref d n.r.e.). Because the City of Houston had "no
valid claim of right to use the parking area jointly with the plaintiff, it [was] in the position of a
trespasser," and an injunction against Houston was a proper remedy to restrain the trespasses. Id.
at 175. Accordingly, the City of Port Isabel has no right to build a seawall on private real property.
The City must first acquire an appropriate interest in the real property.
Next, we consider a constitutional provision governing the expenditure of public funds.
Texas Constitution, article 111, section 52(a) provides in part:
Except as otherwise provided by this section, the Legislature
shall have no power to authorize any county, city, town or other
political corporation or subdivision of the State to lend its credit or to
grant public money or thing of value in aid of, or to any individual,
association or corporation whatsoever, or to become a stockholder in
such corporation, association or company.
TEX.CONST.art. 111, 5 52(a).
The Honorable Eddie Lucio, Jr. - Page 3 (GA-0528)
The purpose of article 111, section 52(a) is to prevent the use of public funds for private
purposes and to prevent the gratuitous grant of such funds or other public assets to individuals or
corporations. See Byrd v. City of Dallas, 6 S.W.2d 73 8,740 (Tex. 1928). A municipal expenditure
to accomplish an authorized municipal purpose is not, however, rendered unlawful because it
incidentally benefits a private person. See Brazos River Auth. v. Carr, 405 S.W.2d 689, 693-94
(Tex. 1966). For a municipal expenditure to comply with article 111, section 52(a), it must meet three
requirements: its predominant purpose must be to accomplish a public purpose and not to benefit
private parties; the city must retain sufficient control over the transaction to ensure that the public
purpose is accomplished and to protect the public's investment in it; and the public must receive a
return benefit. See Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp.
Comm 'n., 74 S.W.3d 377, 384 (Tex. 2002). The City may spend public funds and allocate other
resources to building a seawall that incidentally benefits private parties if the project complies with
these requirements.
Because the City must retain enough control over the project to ensure that the public purpose
is accomplished and the public interest protected, the City must acquire a sufficient interest in the
real property where the seawall will be built to prevent land owners from altering or removing it.
In addition, the City would likely need to acquire an interest in the land in order to inspect, maintain,
and repair the seawall at various times in the f ~ t u r e . ~
We conclude that the City may not build and fund a seawall under Local Government Code
chapter 372, subchapter A or B, on privately-owned property without obtaining an interest in the
property sufficient to enable the city to protect the public interest in the seawall.
3Several provisions of the Local Government Code could enable the City to acquire an interest in the seawall
to protect the public interest and ensure that the public purpose is accomplished. Chapter 372, subchapter A authorizes
a city to acquire real property in connection with a public improvement project under that subchapter. See TEX.LOC.
GOV'T CODEANN. 5 372.003(b)(12) (Vernon 2005). Furthermore, Local Government Code chapter 421, which
authorizes cities and counties on the Gulf Coast to build seawalls and impose a tax to pay for them, provides that the city
or county "may acquire property that is necessary for the establishment, construction, and maintenance of a seawall,
breakwater, levee, floodway, or drainway." Id. 5 421.004(a). Gulf Coast cities and counties may exercise the power
of eminent domain to acquire an easement or fee simple interest in real property. See id. 5 421.004(c). Finally,
landowners may donate real property or an interest in real property to a city for a public use. See Copeland v. City of
Dallas, 454 S.W.2d 279, 282-83 (Tex. Civ. App.-Dallas 1970, writ ref d n.r.e.).
The Honorable Eddie Lucio, Jr. - Page 4 (GA-0528)
S U M M A R Y
Texas Constitution article 111, section 52(a) requires a city that
builds a seawall on privately-owned land to maintain sufficient
control over it to ensure that the public purpose is accomplished and
to protect the public's interest in it. To carry out this duty, a city must
have an appropriate interest in the land on which a seawall funded
from assessments levied pursuant to Local Government Code, chapter
372, subchapter A or B will be located.
VeryJruly yours,
A t t o w e n e r a 1 of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee