Can a Texas water district charge you a sewer fee if you refuse to connect to its system?

Plain-English summary

A House committee chair asked whether the Lower Valley Water District could charge a fee to property owners in its service area who chose not to connect to the District's wastewater system. The District, a municipal utility district created under the conservation amendment of the Texas Constitution, had received state economic-assistance funds to build sewer service in El Paso County and had adopted a "minimum rate fee" of $15 per month for customers not connected to a sewer main capable of serving their property. The fee was meant as an incentive to connect and a disincentive to refusing the system.

The Attorney General concluded the District could impose the fee. Chapter 49 of the Water Code lets a district "adopt and enforce all necessary charges, fees, or rentals, in addition to taxes, for providing or making available any district facility or service." The opinion concluded that the availability of sewer connections is a "service" that is "made available" to property owners, and that the statute does not require a district to actually furnish service before charging; making the service available is enough. So by making its sewer connections available, the District met the statutory condition for imposing a necessary fee.

The opinion drew a line it would not cross. Whether $15 per month was a "necessary" amount required resolving questions of fact, and the opinion said determining and resolving fact questions is not appropriate in the attorney general opinion process. So it answered the legal question (the District has authority to charge a necessary availability fee) but expressly left the factual question (whether this particular amount was necessary) unanswered.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Lower Valley Water District and similar districts (what the opinion held for them): The opinion held that a district has statutory authority under Water Code section 49.212(a) to charge a necessary fee to property owners who could connect to its sewer system but refuse, because availability of the connection is a service made available to them.

Property owners in the service area (what the opinion held for them): The opinion held that a district may charge such owners a fee for the availability of sewer service even though they decline to connect; it did not, however, decide whether the District's particular $15 monthly amount was necessary.

The House committee (what the opinion did not decide): The opinion expressly declined to decide whether the $15 figure was a "necessary" fee, calling that a question of fact outside the opinion process.

Common questions

Can a water district make you pay for sewer service you don't use?
The opinion concluded a district may charge a necessary fee to a property owner who is able to connect to its sewer system but refuses, because Water Code section 49.212(a) lets it charge for "making available" a service, not just for furnishing it.

Does the district have to actually hook up your property before it can charge you?
No. The opinion concluded the statute does not require a district to actually furnish service before charging; making the connection available is enough.

Did the Attorney General approve the $15 monthly amount?
No. The opinion concluded whether that specific amount was "necessary" was a fact question it could not resolve in the opinion process.

Why could this district require connection and charge a fee at all?
The opinion explained that because a political subdivision in the county had received state financial assistance for sewer service, Water Code section 17.934 let the District provide a sanitary sewer system and require property owners to connect, and the funding board required the District to exercise that authority.

Background and statutory framework

The Lower Valley Water District was created as a special-law district in 1985 under article XVI, section 59 of the Texas Constitution, and in 1989 its enabling legislation converted it to a municipal utility district under chapter 54 of the Water Code. Chapter 17 of the Water Code, also amended in 1989, provides grants and loans to political subdivisions in "eligible" counties to address health hazards from inadequate water and sewer service in the colonias. Section 17.934 lets a political subdivision in a county that has received such assistance provide a sanitary sewer system and require property owners to connect, and lets the Texas Water Development Board condition assistance on the subdivision exercising that authority. The Board adopted a rule, 31 Texas Administrative Code section 363.510, requiring assistance recipients to require served property owners to connect, and it required the District to exercise its section 17.934 authority.

The fee question turned on chapter 49, which contains general provisions for districts created under article XVI, section 59. Section 49.212(a) lets a district "adopt and enforce all necessary charges, fees, or rentals, in addition to taxes, for providing or making available any district facility or service." Reading "service" in that context (and consulting a dictionary definition covering the laying-on of water, waste disposal, and similar facilities), the opinion concluded that availability of sewer connection is a service made available to property owners, and that a district need not actually furnish the service before charging. The opinion relied on its consistent position, citing JC-0020 (1999), M-187 (1968), and O-2911 (1940), that the attorney general opinion process cannot resolve fact questions, so it left open whether the $15 monthly amount was "necessary."

Citations

Statutory and regulatory provisions:

• Tex. Water Code Ann. §§ 17.923, 17.934, 49.212(a) (Vernon 2000)
• 31 Tex. Admin. Code § 363.510 (2000)
• Tex. Const. art. XVI, § 59

Prior opinions:

• Tex. Att'y Gen. Op. Nos. JC-0020 (1999), M-187 (1968), O-2911 (1940)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0278
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0278.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

August 31, 2000

The Honorable Bill G. Carter
Chair, Committee on Urban Affairs
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0278

Re: Whether the Lower Valley Water District may assess a fee to its service area property owners who opt not to connect to the District's wastewater system (RQ-0221-JC)

Dear Representative Carter:

You have requested our opinion as to whether the Lower Valley Water District may assess a fee to its service area property owners who opt not to connect to the District's wastewater system. For the reasons set forth below, we conclude that it may do so.

The Lower Valley Water District was created as a special law district in 1985 under the authority of the conservation amendment, article XVI, section 59 of the Texas Constitution.[1] Pursuant to this law, the District is authorized, inter alia, to:

purchase, construct, acquire, own, lease, operate, maintain, repair, improve, and extend inside and outside its boundaries, at any location whatsoever, in the sole discretion of the authority, land and any interest in land, any and all works, improvements, facilities, plants, equipment, and appliances incident, helpful, or necessary to provide for the collection, transportation, processing, disposition, and control of domestic, industrial or commercial wastes.[2]

In 1989, the District's enabling legislation was amended to convert the District to a municipal utility district under chapter 54 of the Water Code.[3]

The legislature also amended chapter 17 of the Water Code in 1989, which provides for grants and loans to political subdivisions of the state, including municipal utility districts, located in an "eligible" county.[4] This legislation was intended to address the "serious and unacceptable health hazards" resulting from the lack of adequate water and sewer services in the colonias.[5] An eligible county was defined as one whose per capita income averaged twenty-five percent below and whose unemployment rate averaged twenty-five percent above the state average for three consecutive years and that was located adjacent to an international border.[6] According to the brief filed by the attorney for the District, "El Paso County has been determined to be an affected county," and the District "is located in El Paso County."[7] Furthermore, the District has been the recipient of chapter 17 economic assistance funds from the Texas Water Development Board (the "Board").[8]

Section 17.934 of the Water Code provides:

(a) Notwithstanding any other law, a political subdivision that is located in a county in which a political subdivision has received financial assistance under this subchapter or under subchapter F, Chapter 15, of this code may:

(1) provide for a sanitary sewer system; and

(2) require property owners to connect to the sewer system.

(b) The [Texas Water Development] [B]oard may require, as a condition for granting an application for financial assistance under this subchapter to a political subdivision for construction of sewer services, that the applicant exercise its authority under this section.

TEX. WATER CODE ANN. § 17.934 (Vernon 2000). Pursuant to its authority under this statute, the Board has adopted a rule requiring "[a]ny applicant receiving financial assistance from the board for the construction of wastewater system improvements [to] require property owners that are to be served by such wastewater system improvements to connect to the applicant's sewer system." 31 TEX. ADMIN. CODE § 363.510 (2000). The brief from the District's attorney indicates that the Board has, as a condition of providing financial assistance, required the District to exercise its authority under section 17.934.[9]

The District's brief explains that the District has "adopted a 'minimum rate fee' as an incentive to connect to the District's system and a disincentive to refusing to use the system."[10] An addendum to the rate order establishing sewer rates and related fees states:

A minimum rate of $15.00 per month will be charged customers not connected to an existing sewer main in the street which is capable of serving the wastewater needs of the customer's property.[11]

You ask whether the District is authorized to impose this minimum fee on property owners who are able to connect to the District's sewer system, but have refused to do so.[12]

Chapter 49 of the Water Code contains general provisions applicable to all districts created under the authority of article XVI, section 59 of the Texas Constitution. One of its provisions permits a district to "adopt and enforce all necessary charges, fees, or rentals, in addition to taxes, for providing or making available any district facility or service." TEX. WATER CODE ANN. § 49.212(a) (Vernon 2000) (emphasis added). In our opinion, it is clear that availability of and connection to the sewer system provided for by section 17.934 constitutes a "service" that is "made available" to the property owners of the District. "Service," in the context contemplated by subsection 49.212(a), means "[t]he supply or laying-on of gas, water, etc., through pipes from a reservoir; the apparatus of pipes, etc., by which this is done. Also applied to other facilities, such as electricity, waste disposal, etc., esp. provided for domestic use." XV OXFORD ENGLISH DICTIONARY 37 (2d ed. 1989). Furthermore, subsection 49.212(a) does not require that a district actually furnish sewer service before it may charge a fee. Rather, a district need merely make the service available to the property owner. In our opinion, by "making available" its sewer connections, the District has fulfilled the statutory requirement for imposing a necessary fee. Whether the amount of the fee contemplated by the District—$15.00 per month—is necessary requires the resolution of factual matters that are not appropriate to an attorney general's opinion.[13]

We conclude that the Lower Valley Water District is authorized to assess a necessary fee to its service area property owners who are able to connect to the District's sewer system but have refused to do so.

SUMMARY

The Lower Valley Water District is authorized to assess a necessary fee to its service area property owners who are able to connect to the District's sewer system but have refused to do so.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee

[1] See Act of May 27, 1985, 69th Leg., R.S., ch. 780, 1985 Tex. Gen. Laws 2666 (originally created as the El Paso County Lower Valley Water District Authority); see also Act of May 12, 1995, 74th Leg., R.S., ch. 206, 1995 Tex. Gen. Laws 1949 (changing name to Lower Valley Water District).

[2] Act of May 27, 1985, 69th Leg., R.S., ch. 780, § 10, 1985 Tex. Gen. Laws 2666, 2670.

[3] See Act of May 27, 1989, 71st Leg., R.S., ch. 528, 1989 Tex. Gen. Laws 1740.

[4] See Act of May 28, 1989, 71st Leg., R.S., ch. 624, §§ 2.14-.21, 1989 Tex. Gen. Laws 2063-64, 2072-82.

[5] Id. § 1.01 at 2063. See also Brief from Kemp Smith, Attorneys at Law, to Elizabeth Robinson, Chair, Opinion Committee, Office of the Attorney General (June 22, 2000) (on file with Opinion Committee).

[6] See Act of May 28, 1989, 71st Leg., R.S., ch. 624, § 2.21, sec. 17.883, 1989 Tex. Gen. Laws 2063, 2078 (now TEX. WATER CODE ANN. § 17.923 (Vernon 2000)).

[7] Brief from Kemp Smith, Attorneys at Law, to Elizabeth Robinson, Chair, Opinion Committee, Office of the Attorney General, at 4 (June 22, 2000) (on file with Opinion Committee).

[8] See id. at 4-5.

[9] See id. at 5.

[10] Id. at 8.

[11] Id. (Exhibit B).

[12] Letter from Honorable Bill G. Carter, Texas State Representative, District 91, Chair, Committee on Urban Affairs, to Honorable John Cornyn, Texas Attorney General (Apr. 12, 2000) (on file with Opinion Committee).

[13] See Tex. Att'y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process); M-187 (1968) at 3 ("[T]his office is without authority to make factual determinations."); O-2911 (1940) at 2 ("[T]his presents a fact question which we are unable to answer.").