Can a Texas county make a plat-revision applicant pay for the cost of the required public notice?

Plain-English summary

The El Paso County Attorney asked whether a county may charge a person who applies to revise a subdivision plat for the costs the commissioners court runs up giving the notice the law requires before it can act. Under Local Government Code section 232.041, an owner of residential subdivided land may apply to the commissioners court to revise the plat on file, and before approving the application the court must publish notice in a newspaper of general circulation and, if part of the tract has been sold to non-developer owners, mail notice to them by certified or registered mail. The county attorney noted the statute imposes that notice duty but says nothing about making the applicant pay for it, and argued the county could charge the cost as an implied power reasonably necessary to carry out the duty.

The opinion concluded the county may not charge for the notice. The controlling rule is that a county has only the powers the constitution or statutes specifically confer, and (per prior opinions) a county must have express authority to charge a fee; implied authority is not enough. Subchapter B of chapter 232, though detailed, contains no fee provision for revising a plat, and the opinion noted that the court can perform its notice duty without charging the applicant. By contrast, when the legislature wants a commissioners court to be able to charge a fee, it says so expressly, as it did in several other statutes the opinion listed.

The opinion also rejected a fallback argument based on section 118.011(c), which lets a county clerk charge a reasonable fee for performing statutory duties for which no fee is set. That provision authorizes the county clerk, not the commissioners court, to charge, and the notice duty here belongs to the commissioners court. Reading section 118.011(c) to let a clerk charge for a commissioners court duty would let counties create an unlimited number of fees through the clerk, a consequence the opinion declined to adopt absent precedent. So without express constitutional or statutory authority, a county may not charge a plat-revision applicant for the costs of issuing the required notice.

Currency note

This opinion was issued in 2001. 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. The legislature can and does add fee authority to the Local Government Code, so a fee that was unauthorized in 2001 may have since been expressly authorized; verify the current statute before relying on this conclusion.

What the opinion meant for those who asked

The El Paso County Attorney and the commissioners court (what the opinion held for them): The opinion held that the county had no express authority to charge a plat-revision applicant for the cost of the required notice, and that implied authority and the county-clerk fee statute (section 118.011(c)) did not supply it, so the county could not impose the charge.

Plat-revision applicants and landowners (what the opinion held for them): The opinion held that an applicant could not be billed for the county's cost of publishing and mailing the statutory notice, because no statute expressly authorized that fee.

Other counties (what the opinion held for them): The opinion reaffirmed the general rule that a county needs express statutory or constitutional authority to charge any fee, so a commissioners court cannot rely on implied power to recover its costs.

Common questions

Can a county make me pay for the notice when I apply to revise a plat?
Under this opinion, no. The opinion concluded no statute expressly authorizes a county to charge a plat-revision applicant for the cost of the required notice.

Why can't the county just charge it as a cost of doing the work?
The opinion explained that a county must have express authority to charge a fee; implied authority, even for a reasonably necessary cost, is not sufficient.

Doesn't the county clerk's fee statute cover this?
No. The opinion concluded section 118.011(c) authorizes the county clerk, not the commissioners court, to charge a fee, and the notice duty here belongs to the commissioners court.

How do I know when a county is allowed to charge a fee?
The opinion noted that when the legislature intends a commissioners court to charge a fee, it says so expressly in the statute, pointing to several examples.

Background and statutory framework

A county has only the powers specifically conferred by the constitution or statute. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948). The opinion built on Letter Opinion 98-118 and Opinion M-346 for the rule that a county must have express authority to charge a fee and that implied authority is insufficient. Local Government Code section 232.041 lets an owner apply to revise a subdivision plat and requires the commissioners court to give published and (to non-developer owners) mailed notice before approving the application; subchapter B of chapter 232 contains no fee for replatting, in contrast to sections 232.028(g) and 232.0305, which do authorize specific fees.

The opinion distinguished the county-clerk fee statute, section 118.011(c), as running to the clerk rather than the commissioners court, and listed statutes where the legislature expressly gave a commissioners court fee authority (sections 383.027(a), 235.005, 381.003(c), and Government Code section 1473.232). It invoked the canons that courts consider the consequences of a construction and presume a just and reasonable result, Government Code sections 311.023(5) and 311.021; Glasscock Underground Water Conservation District v. Pruitt, 915 S.W.2d 577 (Tex. App.-El Paso 1996, no pet.), to reject an expansive reading that would let counties create unlimited fees through the clerk.

Citations

Statutory and constitutional provisions:

• Tex. Loc. Gov't Code Ann. § 232.041(a), (b) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. §§ 232.028(g) (Vernon Supp. 2001), 232.0305 (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 118.011(c) (Vernon Supp. 2001)
• Tex. Loc. Gov't Code Ann. §§ 383.027(a), 235.005, 381.003(c) (Vernon 1999)
• Tex. Gov't Code Ann. § 1473.232 (Vernon 2000)
• Tex. Gov't Code Ann. §§ 311.021, 311.023(5) (Vernon 1998)
• Tex. Const. art. V, § 20

Cases:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Glasscock Underground Water Conservation Dist. v. Pruitt, 915 S.W.2d 577 (Tex. App.-El Paso 1996, no pet.)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. M-346 (1985)
• Tex. Att'y Gen. LO-98-118

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0367
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0367.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

April 13, 2001

The Honorable Jose R. Rodriguez
El Paso County Attorney
500 East San Antonio, Room 203
El Paso, Texas 79901

Opinion No. JC-0367

Re: Whether a county may charge an applicant 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.

(Footnote: See Letter from Honorable Jose R. Rodriguez, El Paso County Attorney, to Honorable John Cornyn, Texas Attorney General, at 1 (Nov. 7, 2000) (on file with Opinion Committee) [hereinafter Request Letter].)

To provide a context for your inquiry, we discuss the power of a county and the statute at issue, section 232.041 of 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-98-118, 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 permission to revise the plat filed with the county clerk. See TEX. LOC. GOV'T CODE ANN. § 232.041(a) (Vernon 1999). An application to revise a plat is subject to approval by the commissioners court. See id. § 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." 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. Cf. id. §§ 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 CODE ANN. § 118.011(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 statute 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 court, 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. §§ 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); 381.003(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. § 1473.232 (Vernon 2000) (authorizing a commissioners court to impose and collect fees for services and information provided to others for 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. §§ 311.023(5) (Vernon 1998) (construing statutes, a court may consider the consequences of a particular construction); 311.021 (Vernon 1998) (presuming intent for a just and reasonable result in the enactment of a statute). In the absence of any precedent, we decline to construe section 118.011(c) expansively.

(Footnote: See TEX. CONST. art. V, § 20.)

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.

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).

Yours very truly,

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