                        QPffice of tty TZlttornep @eneral
                                 s35tateof IEexas
DAN MORALES                            June 16,1992
 ATTORSEI
      GESERAL


     Honorable Allen Ross Hightower              Opinion No. DM-126
     Chairman
     Committee on Environmental Affairs          Re: Authority of a county to improve
     Texas House of Representatives              certain subdivision roads and assess
     P. 0. Box 2910                              the cost of repairs against subdivi-
     Austin, Texas 78768-2910                    sions (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




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                  (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 g&e 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 67023 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 ordiiy      used in statutory and constitutional law. See H&ins v.
Bwdager, 31 S.W. 52 (Tex. 1895); Ciry ofWKhitaFalls for use of LE. Whitman & Co.
v. Wiuiams, 26 S.W.2.d910 (Tex. 1930); .Phelps v. lXudzr 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,
eg., Wchita County Water Impnnwnent Dirt. No. 2 v. C@ 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 SW. 170 (Tex. 1920); Circa v. Vwner, 16 S.W.2d 265,266 (Tex. Comm’n
App. 1929). But see Hanis County v. Bcyd, 7 S.W. 713 (Tex. 1888). See genes@ 60
TEX. JUR. 3d Public Zmprmwmmts0 10, at M-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 67CG3 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.


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Honorable Allen Ross Hightower - Page 3        (DM-12 6 1




67023(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 ls 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 67023 declares that the commissioners court
may “assess all or part of the costs of the improvement pro r&u against the owners of
real property in the subdivision.” Id. art. 67023(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. Lawmuster, 152 F2d 83r 85 (6th Cir. 1945); see
Chenoweth v. Nodan & Morris, 171 S.W.2d 386,387 (Tex. Civ. App.-San Antonio
1943, writ refd 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. Lkrllas County Levee
Dirt. No. 2 v. L-ooney,207 S.W. 314 312 (T’ex. 1918). Assessments have been made
on the basis of such factors as front footage, area, and property value. See, e.g..
Smith v. C@ of Houston, 693 S.W.2d 753, 754-55 (Ten App.-Houston [14th Diit.]
1985, writ ref d n.r.e.); Cook v. City of Addison, 656 S.W.2d 654 656-58 (T’ex.App.-
Dallas 1983, writ refd n.r.e.); City of Houston v. Abwa G. C&p, 638 S.W.2d 515,517
(Tex. App.-Houston [lst Dist.] 1982, writ ref d n.r.e.); Dallar County Levee Dirt. No.
2 v. Lamey, 207 S.W. at 312; see general& 60 TEX. JUR. 3d Public Improvements S 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. ‘Ibus, 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.




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              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 67023. 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
         fortnula 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 KELLBR
Deputy Assistant Attorney General

RENEAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rich Gilpin
Assistant Attorney General




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