Can a Texas county charge subdivision owners to fix their roads, and how?

Plain-English summary

A Texas House committee chairman asked how to read article 6702-3 of the civil statutes, which let a county commissioners court improve a road in (or an access road to) a subdivision in an unincorporated area and assess the cost against the owners of property in the subdivision. The statute required the court to find the improvement necessary for public health, safety, or welfare and to win a mailed-ballot vote of the affected owners, after notice and a public hearing. The chairman asked four practical questions about the money.

First, was the charge a tax or a fee? The Attorney General concluded it was neither in the ordinary sense: it was a "special assessment." A special assessment is levied under the taxing power but is not a "tax" as that word is normally used, so the statutory and constitutional rules that govern taxation do not apply to it. Second, did the county tax assessor-collector have to collect it? No. Because a special assessment is not governed by property-tax law and article 6702-3 said nothing about the tax assessor-collector, that official had no necessary role. In the absence of statutory guidelines, the commissioners court had to work out the collection details and could delegate them in any reasonable way to any county official, employee, or contractor, which could include the tax assessor-collector if the court chose.

Third, could the assessment be figured against property value, like a property tax? The statute said only that the court could assess the cost "pro rata," which sets no particular formula. The commissioners court had to choose a method that fairly determined the value of the improvement to each owner and produced an equitable distribution; courts had upheld assessments based on front footage, area, or property value. The right formula was for the commissioners court to set, with special regard for the particular benefits each owner would gain from the improvement. Fourth, could the cost of the election and of collecting and reporting the assessment be folded into the total billed to owners? No. Article 6702-3 let the court assess only "the costs of the improvement," which the statute defined as the construction, reconstruction, or repair of the road. The opinion concluded that election and collection costs could not be added to the construction costs assessed against the property owners.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Article 6702-3 of Vernon's Texas Civil Statutes has been recodified into the Transportation Code since this opinion, so confirm the current statute before relying on any procedure described here.

Background and statutory framework

Article 6702-3 applied only to a subdivision (or part of one) in an unincorporated area, and to access roads in unincorporated areas. It defined "improvement" as the construction, reconstruction, or repair of a road, and let the commissioners court order a county improvement and assess all or part of the cost "pro rata" against the subdivision's property owners if the court found the work necessary for public health, safety, or welfare and a majority of voting record owners approved by mailed ballot. The court first had to give notice and hold a public hearing, then mail each owner a ballot and a return envelope within ten days of the hearing.

On the tax-versus-fee question, the opinion classified the levy as a special assessment, levied under the taxing power but not a "tax" in the ordinary statutory and constitutional sense, so taxation principles did not apply. Higgins v. Bordages, 31 S.W. 52 (Tex. 1895); City of Wichita Falls ex rel. L.E. Whitham & Co. v. Williams, 26 S.W.2d 910 (Tex. 1930); Phelps v. Thurber Brick Co., 62 S.W.2d 596 (Tex. Civ. App.—Galveston 1933); see Wichita County Water Improvement Dist. No. 2 v. City of Wichita Falls, 323 S.W.2d 298, 300 (Tex. Civ. App.—Fort Worth 1959, writ ref'd n.r.e.); City of Dallas v. Atkins, 223 S.W. 170 (Tex. 1920); City of Cisco v. Varner, 16 S.W.2d 265, 266 (Tex. Comm'n App. 1929); but see County of Harris v. Boyd, 7 S.W. 713 (Tex. 1888). Because property-tax law did not govern and the statute gave the tax assessor-collector no role, the opinion concluded that official had no necessary involvement, and the commissioners court had to set the collection details and could delegate them reasonably to any county official, employee, or contractor.

On the formula, the opinion explained that "pro rata" has no meaning except by reference to some rule or standard. Hendrie v. Lowmaster, 152 F.2d 83, 85 (6th Cir. 1945); see Chenoweth v. Nordan & Morris, 171 S.W.2d 386, 387 (Tex. Civ. App.—San Antonio 1943, writ ref'd w.o.m.). The value of the improvement to each owner had to be set by a method that fairly determined it and produced an equitable distribution. Dallas County Levee Dist. No. 2 v. Looney, 207 S.W. 310, 312 (Tex. 1918). Courts had sustained assessments based on front footage, area, and property value. See Smith v. City of Houston, 693 S.W.2d 753, 754-55 (Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.); Cook v. City of Addison, 656 S.W.2d 654, 656-58 (Tex. App.—Dallas 1983, writ ref'd n.r.e.); City of Houston v. Alnoa G. Corp., 638 S.W.2d 515, 517 (Tex. App.—Houston [1st Dist.] 1982, writ ref'd n.r.e.). With no statutory direction, the precise formula was for the commissioners court, with special regard for the particular benefits accruing to each owner.

On the last question, the opinion held that because article 6702-3 authorized assessing only "the costs of the improvement," and "improvement" meant the construction, reconstruction, or repair of the road, the statute did not permit assessing owners for the cost of holding the election or of collecting and reporting the results.

Common questions

Was the road charge a tax?
No. The opinion concluded it was a "special assessment," which is levied under the taxing power but is not a tax in the ordinary sense, so property-tax rules did not apply to it.

Did the county tax assessor-collector have to collect it?
No. The opinion found that official had no required role. The commissioners court decided how to collect and could delegate the job to any reasonable official, employee, or contractor, including the tax assessor-collector if it chose.

Could the assessment be based on property value?
It could, but it did not have to be. "Pro rata" fixed no formula, so the commissioners court chose the method (front footage, area, or value), with special regard for the benefit each owner received.

Could the county add the cost of the election and collection to the bill?
No. The statute allowed assessing only "the costs of the improvement," meaning construction, reconstruction, or repair. Election and collection costs could not be added to the amount assessed against owners.

Citations

• V.T.C.S. art. 6702-3
• Higgins v. Bordages, 31 S.W. 52 (Tex. 1895)
• City of Wichita Falls ex rel. L.E. Whitham & Co. v. Williams, 26 S.W.2d 910 (Tex. 1930)
• Phelps v. Thurber Brick Co., 62 S.W.2d 596 (Tex. Civ. App.—Galveston 1933)
• Wichita County Water Improvement Dist. No. 2 v. City of Wichita Falls, 323 S.W.2d 298 (Tex. Civ. App.—Fort Worth 1959, writ ref'd n.r.e.)
• City of Dallas v. Atkins, 223 S.W. 170 (Tex. 1920)
• City of Cisco v. Varner, 16 S.W.2d 265 (Tex. Comm'n App. 1929)
• County of Harris v. Boyd, 7 S.W. 713 (Tex. 1888)
• Hendrie v. Lowmaster, 152 F.2d 83 (6th Cir. 1945)
• Chenoweth v. Nordan & Morris, 171 S.W.2d 386 (Tex. Civ. App.—San Antonio 1943, writ ref'd w.o.m.)
• Dallas County Levee Dist. No. 2 v. Looney, 207 S.W. 310 (Tex. 1918)
• Smith v. City of Houston, 693 S.W.2d 753 (Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.)
• Cook v. City of Addison, 656 S.W.2d 654 (Tex. App.—Dallas 1983, writ ref'd n.r.e.)
• City of Houston v. Alnoa G. Corp., 638 S.W.2d 515 (Tex. App.—Houston [1st Dist.] 1982, writ ref'd n.r.e.)
• 60 Tex. Jur. 3d Public Improvements §§ 10, 22 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0126
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0126.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 16, 1992

Honorable Allen Ross Hightower
Chairman
Committee on Environmental Affairs
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-126

Re: Authority of a county to improve certain subdivision roads and assess the cost of repairs against subdivisions (RQ-330)

Dear Representative Hightower:

You have requested our opinion regarding the proper construction of article 6702-3, V.T.C.S., which authorizes a commissioners court to improve a road in a subdivision and assess the costs against the owners of real property within the subdivision. That statute provides:

(a) This article applies only to a subdivision or a part of a subdivision in an unincorporated area of the county. To the extent that this article authorizes the improvement of an access road to a subdivision, this article applies only to an access road in an unincorporated area of the county.

(b) In this article, "improvement" means the construction, reconstruction, or repair of a road.

(c) The commissioners court of a county may order that the county improve a road in a subdivision or an access road to a subdivision to comply with any county standards for roads and assess all or part of the costs of the improvement pro rata against the owners of real property in the subdivision if:

   (1) the commissioners court determines that the improvement is necessary for the public health, safety, or welfare of the residents of the county; and

   (2) a majority of those record owners of real property in the subdivision who are voting vote by mailed ballot in favor of the county improvement and assessment.

(d) Before ordering an improvement and assessment under this article, the commissioners court must give notice of the proposed improvement and assessment and must hold a public hearing on the question . . .

(e) Within 10 days after the date of the public hearing, the commissioners court shall send by certified mail to each owner of real property in the subdivision a ballot on the question and a return addressed, stamped envelope for the return of the completed ballot to the county clerk . . .

You first ask whether "revenue raised through this process" should be "classified as a tax or a fee."

The levy authorized by article 6702-3 is known as a "special assessment." Although a special assessment is levied under the taxing power, it is not a "tax" as that word is ordinarily used in statutory and constitutional law. See Higgins v. Bordages, 31 S.W. 52 (Tex. 1895); City of Wichita Falls ex rel. L.E. Whitham & Co. v. Williams, 26 S.W.2d 910 (Tex. 1930); Phelps v. Thurber Brick Co., 62 S.W.2d 596 (Tex. Civ. App.—Galveston 1933). As a result, statutory and constitutional principles applicable to taxation have no application to special assessments. See, e.g., Wichita County Water Improvement Dist. No. 2 v. City of Wichita Falls, 323 S.W.2d 298, 300 (Tex. Civ. App.—Fort Worth 1959, writ ref'd n.r.e.); City of Dallas v. Atkins, 223 S.W. 170 (Tex. 1920); City of Cisco v. Varner, 16 S.W.2d 265, 266 (Tex. Comm'n App. 1929). But see County of Harris v. Boyd, 7 S.W. 713 (Tex. 1888). See generally 60 TEX. JUR. 3d Public Improvements § 10, at 14-15 (1988).

You also ask whether the county tax assessor-collector is authorized to collect these assessments, and if he is not, what official should collect them and how should he do so. Since a special assessment is not governed by property tax law, and since article 6702-3 makes no provision for collection by the county tax assessor-collector, we must conclude that official has no necessary involvement in the assessment and collection process. The statute says merely that, if a majority of those casting ballots favor the improvement, the commissioners court shall "assess the costs of the improvements against the real property owners." V.T.C.S. art. 6702-3(e). In our opinion, the commissioners court, in the absence of statutory guidelines, must determine the details of the collection process. That body may delegate such duties in any reasonable manner and to any county official, employee or contractor, including the county tax assessor-collector.

Your next question is whether the assessment may "be calculated using a flat rate against the value of the property as property taxes are calculated for the individual property owner." Article 6702-3 declares that the commissioners court may "assess all or part of the costs of the improvement pro rata against the owners of real property in the subdivision." Id. art. 6702-3(c) (emphasis added). The term "pro rata" does not specify a particular formula. It has no meaning unless referable to some rule or standard. Hendrie v. Lowmaster, 152 F.2d 83, 85 (6th Cir. 1945); see Chenoweth v. Nordan & Morris, 171 S.W.2d 386, 387 (Tex. Civ. App.—San Antonio 1943, writ ref'd w.o.m.). The value of the improvement to each property owner should be arrived at by some method that will provide fairly for its determination and guarantee an equitable distribution of the assessment. Dallas County Levee Dist. No. 2 v. Looney, 207 S.W. 310, 312 (Tex. 1918). Assessments have been made on the basis of such factors as front footage, area, and property value. See, e.g., Smith v. City of Houston, 693 S.W.2d 753, 754-55 (Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.); Cook v. City of Addison, 656 S.W.2d 654, 656-58 (Tex. App.—Dallas 1983, writ ref'd n.r.e.); City of Houston v. Alnoa G. Corp., 638 S.W.2d 515, 517 (Tex. App.—Houston [1st Dist.] 1982, writ ref'd n.r.e.); Dallas County Levee Dist. No. 2 v. Looney, 207 S.W. at 312; see generally 60 TEX. JUR. 3d Public Improvements § 22, at 27-29 (1988). In the absence of statutory direction, the precise formula should be determined by the commissioners court, with special regard for the particular benefits which will accrue to each owner as a result of the improvement.

Your last question is whether "the cost of the election, along with the cost of the collecting and reporting activity," may "be added to the road construction costs in order to determine total cost of the project." Article 6702-3(c) authorizes the commissioners court to assess only "all or part of the costs of the improvement." "Improvement" is defined in the statute as "the construction, reconstruction, or repair of a road." V.T.C.S. art. 6702-3(b). In our opinion, the statutory language does not permit the assessment to the property owners of the costs of holding the election and collecting the assessment. Thus, we conclude that neither the cost of the election nor the cost of collecting and reporting the results may be added to road construction costs in determining the total amount to be assessed against the property owners.

                               SUMMARY

      A commissioners court which orders improvements to a road in an unincorporated area of the county as the result of an election held under article 6702-3, V.T.C.S., may delegate the details of the process of collecting the assessment against the affected property owners, and it may also determine the precise formula for calculating the assessment, with special regard for the particular benefits which will accrue to each property owner. The costs of holding the election and collecting the revenues may not be assessed against the property owners.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General