Untitled Texas Attorney General Opinion ( 2001 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
April 13,200l
The Honorable Jose R. Rodriguez Opinion No. JC-0367
El Paso County Attorney
500 East San Antonio, Room 203 Re: Whether a county may charge an applicant
El Paso, Texas 79901 for a plat revision the costs of issuing notice of the
proposed revision (RQ-0309-JC)
Dear Mr. Rodriguez:
Under section 232.041 (b) of the Local Government Code, a commissioners court must issue
notice of an application to revise a subdivision plat. You ask if a county may charge an applicant
the costs to issue that notice.’ We conclude that a county may not do so because a commissioners
court lacks express authority to charge for such costs, and implied authority is insufficient.
To provide a context for your inquiry, we discuss the power of a county and the statute at
issue, section 232.041of the Local Government Code, in that order. It is settled law that a county
has only those powers specifically conferred by the constitution or by statute. See Canales v.
Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). As we stated in LO-98-118, a county must have
specific authority to charge a fee. See Tex. Att’y Gen. LO-98-l 18, at 1. As a result, implied
authority is an insufficient basis for a county to charge a fee. See id.; see also Tex. Att’y Gen. Op.
No. M-346 (1985) at 3-4. Thus, if a commissioners court is not expressly authorized to charge a
fee on behalf of a county, it may not do so.
Under subchapter B of chapter 232 of the Local Government Code, a person with residential
subdivided land subject to the subdivision controls of the county where the land is located may make
a written application to the county commissioners court for perrnission to revise the plat filed with
the county clerk. See TEX. LOC. GOV’T CODE ANN. 4 232.041 (a) (Vernon 1999). An application to
revise a plat is subject to approval by the commissioners court. See id. 5 232.041(b). Before
approving an application, the commissioners court must provide notice of the application in a
newspaper of general circulation. See id. (stating that the notice must include the time and location
that the court will consider the application and any protests to the revision of a plat and state the
publishing requirements). Further, the commissioners court must provide notice to nondeveloper
owners by “certified or registered mail, return receipt requested, at the owner’s address in the
subdivided tract . . . [i]f all or part of the subdivided tract has been sold to nondeveloper owners.”
‘See Letter from Honorable JosC R. Rodriguez, El Paso County Attorney, to Honorable John Comyn, Texas
Attorney General, at 1 (Nov. 7,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Jose R. Rodriguez - Page 2
Id. While detailed and expansive, subchapter B of chapter 232 of the Local Government Code does
not contain a fee provision to replat a subdivision. CJ id. $5 232.028(g) (Vernon Supp. 2001)
(allowing a commissioners court to impose a fee for a certificate for a subdivision that straddles the
extraterritorial jurisdiction line of a municipality); 232.0305 (Vernon 1999) (allowing a
commissioners court to impose fees upon subdividers of property for certain inspections).
You ask if a county may impliedly charge a fee to cover the commissioners court’s expenses
to issue notice under section 232.041(b). See Request Letter, supra note 1, at 2. In your letter, you
point out that, although a county has a statutory duty to provide notice under section 232.041(b),
“there is no express provision that allows a county to require the applicant to cover the costs of
issuing such notice.” Id. But you rely on the general rule that express authority is not needed to
issue an order if it is reasonably necessary for a commissioners court to act in accordance with
statutory or constitutional authority. See id. Based on this rule, you assume that a county may
impliedly charge a fee. See id. We disagree. First, as we have said, our prior opinions establish that
implied authority is not sufficient authority to charge a fee and that such authority must be express.
Second, even if implied authority could be sufficient to charge a fee in some cases, we do not believe
that subchapter B of chapter 232 of the Local Government Code implies this authority. A
commissioners court may accomplish its statutory duty to issue notice without charging an applicant
for the costs of issuing the notice.
While section 118.011 (c) of the Local Government Code provides a county clerk with
authority to charge and collect a reasonable fee “for performing other duties prescribed or authorized
by statute for which a fee is not prescribed,” it does not provide the necessary authority for a
commissioners court to charge the costs of notice here. TEX. LOC. GOV’T CODEANN. 0 118.01 l(c)
(Vernon Supp. 2001). As we stated earlier, it is settled law that express authority is required for a
court to charge a fee and that implied authority is insufficient. Section 118.011 (c) expressly
authorizes a county clerk-not the commissioners court-to charge a reasonable fee for performing
duties prescribed by statute. This statue does not authorize a county clerk to charge a fee for a duty
imposed on the commissioners court or for duties the clerk may perform on behalf of the
commissioners court. While the county clerk is the clerk of the commissioners COUI%,~ we do not
believe a clerk’s authority to charge a reasonable fee extends to a commissioners court. Rather, an
authorizing statute must plainly state that a commissioners court may charge a reasonable fee. When
the legislature intends for a commissioners court to have the authority to charge a fee, it expressly
provides that authority. See, e.g., id. 80 383.027(a) (Vernon 1999) (noting that a county may require
a petitioner for a county development district to pay costs of notice associated with the formation
of district); 235.005 (providing a commissioners court with authority to develop a fee schedule,
setting and charging fees, for inspection and issuance of a building permit under chapter 235 of the
Local Government Code); 38 1.003(c) (authorizing a commissioners court to collect fees if the court
contracts “with a local workforce development board for . . . services authorized by Chapter 2308,
Government Code”); TEX. GOV’T CODE ANN. 8 1473.232 (Vernon 2000) (authorizing a
commissioners court to impose and collect fees for services and information provided to others for
*See TEX. CONST.art. V, 0 20.
The Honorable Jose R. Rodriguez - Page 3
use of the county crime detention facility). Allowing a county clerk to charge fees under this statute
would expand section 118.011 (c) to permit counties to charge an unlimited number of fees through
their county clerk. See Glasscock Underground Water Conservation Dist. v. Pruitt, 915 S.W.2d 577,
581 (Tex. App.-El Paso 1996, no pet.) (requiring courts to consider consequences of statutory
construction); TEX. GOV’T CODE ANN. $9 3 11.023(5) (Vernon 1998) (construing statutes, a court
may consider the consequences of a particular construction); 3 11.021 (Vernon 1998) (presuming
intent for a just and reasonable result in the enactment of a statue). In the absence of any precedent,
we decline to construe section 118.011 (c) expansively.
To conclude, while a commissioners court may have broad discretion over county business
generally, a commissioners court may not impliedly charge fees. Here, there is no express authority
for a commissioners court to charge a fee on behalf of a county. We therefore conclude that without
express constitutional or statutory authority, a county may not charge an applicant for the costs of
issuing notice of a plat revision.
The Honorable Jose R. Rodriguez - Page 4
SUMMARY
Because it has no express constitutional or statutory authority
to do so, a county may not charge an applicant for a plat revision for
the costs of issuing notice of the proposed revision under Local
Government Code section 232.041 (b).
Yo sve truly
4JQi!i
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
SUSAN D. GUSKY
Chair, Opinion Committee
Polly McCann Pruneda
Assistant Attorney General - Opinion Committee