                               ATTORNEY      GENERAL        OF TEXAS
                                       GREG       ABBOTT




                                        December-22,2006



The Honorable Jim Pitts                              Opinion No. GA-0496
Chair, Committee oneAppropriations
Texas House of Representatives                       Re: Education Code section 11.168 and its
Post Office Box 2910                                 effect on an independent       school district’s
Austin, Texas 78768-2910                             authority to build or pay for inhastructum for
                                                     new schools within the district (RQ-0503-GA)

Dear Representative   Pitts:

          You ask about Education Code section 11.168’ and its effect on an independent         school
district’s authority to build or pay for infrastructure for new schools within the district.2

         You inform us that in October 2005 voters in the Etis Independent School District (the
“District”) approved a bond package authorizing the District to construct a new junior high school
and 11 th- and 12th-grade center. Request Letter, supra note 2, at 1. You also inform us that the
voters approved the proposition with the understanding that a portion of the bond money would be
used for infrastructure improvements to land not owned or leased by the District that will provide
sufhcient water, sewer, and roadway upgrades to serve the new school development. See id The
District is apparently concerned, however, that using bond money for this purpose will violate
Education Code section 11.168.

        Section 11.168 of the Education Code provides that

                        [t]he board of trustees of a school district may not enter into
               an agreement authorizing the use of school district employees,
               property, or resources for the provision of materials or labor for the




        ‘Therearetwosections11.168inthe EducationCode.Inyourrequest,youquotet?omsection11.168thatwas
addedby HouseBill 1826duringthe Seventy-ninthLegislature’regular
                                                         s     session.SeeActof May27,2005,79tbLeg.,
R.S.,ch. 979,5 1,2005Tex.Gen.Laws3286,3286. Thus,in this opinion,our referenceto EducationCodesection
11,168is to this one.

        ‘Letteri?omHonorableJim Pitts, Chair,HouseCommitteeon Appropriations,to HonorableGregAbbott,
Attorney General of Texas (June 21, 2006) (on file with the Opinion Committee, also mailable at
http:i/w.oag.state.tx.us) [hereinafterRequestLetter].
~The Honorable Jim Pitts - Page 2                (GA-0496)




                design, construction, or renovation of improvements      to real property
                not owned or leased by the district.

TEX. EDUC. CODE ANN. 4 11.168 @‘emon 2006). This provision was adopted during the Seventy-
ninth Legislature’s regular sessio$ it has not been construed by a court or this office;

         Given the language in section 11.168, you first ask whether section 11.168 prohibits a schools
district from paying impact fees imposed by a municipality to help fund water, sewer, and roadways
necessary to serve new school development, when those improvements will not be made on land
owned or leased by the district. See Request Letter, supra note 2, at 1. Chapter 395 of the Local
Government Code authorizes political subdivisions, including municipalities, to impose impact fees
against new development “in order to generate revenue for funding or recouping the costs of capital
improvements or facility expansions necessitated by and attributable to the new development.” TEX.
Lot. GOV’T CODE ANN. 3 395.001(4) (V ernon 2005); see generally id. $5 395.001-.082. And the
infrastructure improvements for which an impact fee may be assessed against a school district for
new school development-we         are tolddo  not usually occur on district property but rather “along
city       or state highway rights-of-way.“4 Thus, you ask us to construe Education Code section
 11 .168 relative to Local Government Code chapter 395.

        In construing a statute, we must give effect to the legislature’s intent. See TEX. GOV’T CODE
ANN. $5 311.021, ,023 (Vernon 2005); Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.
 1999). To do so, we must first attempt to construe statutes according to their plain language, reading
the language according to the rules of grammar and common usage+nless it has acquired a technical
meaning. S~@TEX.GOV’TCODEA~. $311.011 (Vemon2005);Inre                     Canales, 52 S.W.3d698,702
(Tex. 2001).

           On its face, and as relevant here, section 11.168 prohibits a school district from entering into
 an agreement authorizing the use of school district resources and employees to improve real property
 not owned or leased by the district, TEX. EDUC. CODEANN. 5 11.168 (vemon 2006). Thus, for the
 prohibition to apply to a school district’s use of its resources, there must be, minimally, an agreement
 controlling that use. .There is no indication in section 11.168 that “agreement” has acquired a
 technical meaning. Therefore, we look to its common meaning. The term “agreement” has various
 meanings, however, and depending on its context, Texas courts use the term narrowly to refer to
 formal contracts or more broadly as evidence of consent between parties. See, e.g., Circle Double
  “C” Enters., Inc. v. Disco Elec., Inc., 782 S.W.Zd 299,301 (Tex. App.-Beaumont             1989, no writ)~
  (defining agreement as “the bargain of the parties in fact as found in their language or by implication
 from other circumstances”); McCorkel v. Dist. Trs. ofRobinson Springs Sch. Dist. No. 76, 121
  S.W.2d 1048,1052 (Tex. Civ. App.-Eastland           1938, no writ) (finding“agreement”to    be asynonym
  for consent but may not necessarily be a contract). But in its broadest sense it means “harmony or



         ‘Act of May27,2005,79thLeg.,R.S.,ch. 979 $ 1,200s Tex.Gen.Laws3286,3X36.

        %e Brief fromLydiaL. Perry,LawOfficesof RobertE. Luna,P.C.,to HonorableGregAbbott,Attorney
 Generalof Texas,at 2 (Aug.4, 2006)(on file withthe OpinionCommittee).
The Honorable. Jim Pitts - Page 3                (GA-0496)




accordance in opinion or feeling.” THENEW&FORD&bfERICANDICTIONARY          32 (2001). Therefore,
for section 11.168 to prohibit an independent school district from paying an impact fee-again,
minimally-an    impact fee has to evidence harmony or accordance in opinion or feeling.

         Turning to Local Government Code chapter 395, which authorizes impact fees, we note that
an impact fee is “a charge or assessment imposed by a political subdivision.” TEX. Lot. GOV’T~
CODEANN. 5 395.001(4) (Vernon 2005) (emphasis added). Indeed, the provisions detailing how
apolitical subdivision may assess an impact fee use the term “impose.” See, e.g., id. §§ 395.01 l(a)
(“Unless otherwise specifically authorized by state law or this chapter, a           political subdivision
may not enact or impose an impact fee.“), 395.012(a) (“An impact fee may be imposed                      .“).
Again, we find nothing that indicates “impose” has acquired a technical meaning, so we look to its
common meaning. In this respect, a Texas court has reviewed the common-usage definition of
“impose” and relied upon, among others, the Oxford English Dictionary’s definition, which defines
the term to mean “to lay on, as something to be borne, endured, or submitted to; to inflict
(something) on or upon; to levy or enforce authoritatively or arbitrarily.” City ofHouston v. Richard,
21 S.W.3d 586,589 (Tex. App.-Houston            [lst Dist.] 2000, no pet.) (quotingVI1 OXFORDENGLISH
DICTIONARY731 n.4 (2d ed. 1989)). Ultimately, the court found that “[i]n all of the definitions,
 ‘impose’ is associated with the act of placing a penalty or charge upon a person.” Id. In short, to
impose something-in        this case, an impact fee-is a unilateral action that does not involve harmony
or accordance in feeling or opinion. An impact fee, consequently, is not paid as a result of an
agreement. Thus, in answer to your first question, Education Code section 11.168 does not prohibit
an independent school district from paying impact fees imposed by a municipal corporation on the
district for the district’s new school development.

          You also ask whether an independent school district “can lease right-of-way for needed
water, sewer and roadway improvements which later, after construction, would be dedicated back
to the public for maintenance purposes and public use and the lease be terminated.” Request Letter,
supra note 2, at 1. Because you ask this question in the context,of Education Code section 11.168,
we understand you to be asking whether section 11.168 prohibits an independent school district from
leasing rights-of-way on which the district will make infrastructure improvements that will serve the
district’s new school development.

          By its plain language, section 11.168 places limits on an independent school district’s use
of its resources for the provision of materials or labor under certain circumstances. See TEX. EDUC.
CODE ANN. 5 11.168 (Vernon 2006). This provision is not relevant to an independent school
district’s authority to acquire land and improve it5 Moreover, the provision expressly contemplates
a district’s leasing land. See id. (“to real property not owned or leased’) (emphasis added). In
answer to your second question, then, section 11.168 does not prohibit a school district from leasing
right-of-way in order to make needed water, sewer, and roadway improvements on such property.




       ‘An independentschool districthas authorityto lease land and makeimprovementsto it, even wherethe
improvementswill remainwiththe landuponthe lease’stermination.SeeTex.Att’yGen.Op.No. GA-0321(2005).
The Honorable Jim Pitts - Page 4            (GA-0496)




                                     SUMMARY

                      Education Code section 11.168 does not prohibit an
              independent school district from paying impact fees imposed by a
              municipal corporation on the district for the district’s new school
              development.

                      Education Code section 11.168 does not prohibit           an
              independent school district from leasing land and improving it.




RENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WlTT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee
