                                The Attorney           General of Texas

JIM MATTOX                                        AugJst   14,   1985
Attorney General



Supreme Court Building
                               Honorable Charles F. Aycock              Opinion No. JM-338
P. 0. BOX 12646                Parmer County Attorney
Austin, TX. 76711. 2546        P. 0. Box 286                            Re: Whether the city of Bovina
5121475-2501                   Fawell, Texas    79:t25                       charge home owners    and
                                                                        -Y
Telex 9101674-1367
                                                                        business owners a flat fee
Telecopier   51214750266
                                                                        for maintenance of a police
                                                                        department
714 Jackson, Suite 700
Dallas, TX. 75202-4506         Dear Mr. Aycock:
2t41742.6944

                                    You ask whether the city of Bovina , a city incorporated under the
4624 Alberta Ave., Suite 160   general laws, may assess a $6 charge against all home owners and
El Paso. TX. 799052793         business owners in Ilovina. The charge would appear on monthly utility
9151x73-3464                   bills, and the proceeds would be used to finance the city's police
                               department. You also ask whether the city could discontinue utility
1w1 Texas, Suite 700
                               services to persons who do not pay the charge.
Houston, TX. 77002.3111
7131223.5666                        The facts set out in your letter make clear that the $6 charge is
                               intended to raise revenue, not to cover the expenses of providing
                               utility services. Thus. in imposing the charge, the city is acting in
606 Broadway, Suite 312
                               its governmental capacity, not in its proprietary capacity. See
Lubbock, TX. 79401-3479
606/747-5236
                               Batten V. City of Houston, 373 S.W.2d 525 (Tex. Civ. App. - House
                               1963, writ ref'd n.r.e.1 (explaining that when a municipality
                               furnishes utility sl:l?vices,
                                                           it acts in its proprietary capacity and is
4309 N. Tenth, Suite S         obliged to serve jts customers at reasonable and nondiscriminatory
McAllen. TX. 76501.1665
5121662.4547
                               rates). Because any charge or fee imposed by a municipality for the
                               purpose of raising 'revenueis considered a "tax," we must characterize
                               our inquiry as whether the city of Bovina has ,authority to use the
200 Main Plaza. Suite 400      method of taxation YOU describe. County of Harris V. Shepperd, 291
San Antonio, TX. 76205-2797
                               S.W.2d 721 (Tex. 19,ji).
512/225-4191

                                    Municipalities functioning under the general laws have no
 An Equal Opportunityl         inherent power to tz.:(.They possess only those taxing powers that the
 Affirmative Action Employer   legislature or the constitution expressly grants them. Vance V. Town
                               of Pleasanton, 261 S.W. 457, 458 (Tex. Civ. App. - San Antonio 1924).
                               holding approved, :277 S.W. 89 (Tex. Comm'n App. 1925, judgmt.
                               adopted). The basi: method of taxation by Texas municipalities is the
                               ad valorem tax.    22 I.   Singer, Texas Practice 5871 (1976). Sl?e
                               V.T.C.S. arts. 1026 and 1027.       The Texas Legislature has a=
                               authorized general law municipalities to use various other methods of
                               taxation. See, e.g~-, V.T.C.S. arts. 1028, 1031, 1066~. We find no
                               statutory authority, however, for the method of taxation that you
                               describe in your letter. Thus, the $6 charge against all home owners



                                                             p. 1543
Honorable Charles F. Aycock - Page 2    (~~-338)




and business owners is not zl proper method for raising revenue to
support the police department.

     In view of our response to your first question, we do not address
your second question.

                              EUMMARY
                              --
             A general law ~~xlcipality has no authority to
          raise revenue by chz:rgingeach home owner and each
          business owner in Btmina a flat fee.




                                          JIM     NATTOX
                                          Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinges
Jennifer Riggs
Nancy Sutton
Sarah Woelk




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