                                          The Attorney             General of Texas
                                                           December 31, 1982
MARK WHITE
Attorney General

                                         Honorable William P. Clements, Jr.    Opinion No. MW-551
Supreme      Court Building              Governor of Texas
P. 0. Box 12546
Austin, TX. 76711- 2546
                                         State Capitol                         Re:   Whether state agencies
512/475-2501                             Austin, Texas   78711                 must pay a drainage fee imposed
Telex    9101674-1367                                                          by the city of Austin to fund a
Telecopier     5121475~0266                                                    Drainage Utility System

1607 Main St., Suite 1400
                                         Dear Governor Clements:
Dallas,   TX. 75201.4709
2141742.6944                                  You have asked whether state agencies which control state-owned
                                         property located within the city limits of the city of Austin must pay
                                         a drainage fee which was recently approved by the city. The following
4624 Alberta       Ave., Suite     160
El Paso, TX.       79905,2793
                                         details concerning this fee are set forth in a brief which was sent to
9151533-3464                             us by one of the affected agencies:

                                                     As we understand the subject drainage fee
1220 Dallas Ave.. Suite           202
                                                  imposed by the city of Austin, such fee would
Houston,   TX. 77002-6966
7 13/650-0666
                                                  apply to all land located within the city and
                                                  would be calculated at a given rate on a per acre
                                                  (or fractional per acre) basis. The rate would
606 Broadway,         Suite 312                   vary as to whether the property upon which it is
Lubbock.  TX.        79401.3479
                                                  imposed is (1) residential, (2) improved, or (3)
6061747-5236
                                                  colmnercial,but the rate under each category would
                                                  be constant. This fee would be multiplied times
4309 N. Tenth. Suite 6                            the number of acres owned and would be charged by
McAllen,    TX. 76501-1665                        adding one-twelfth (1/12th) of the total to the
5121662-4547                                      city of Austin electricity and water bill sent to
                                                  the owner of the property each month.          The
200 Main Plaza, Suite 400                         proceeds from this fee would be used exclusively
San Antonio,  TX. 76205-2797                      in an attempt to keep the various creek and
5121225.4191                                      streambeds within the city limits flowing freely.
                                                  The question to be determined in the opinion
 A,, Equal      Opportunity/                      request is whether this fee may be validly
 Affirmative      Action     Employer             assessed against state-owned property.

                                              One of the questions raised by these facts is whether this
                                         "drainage fee" is a utax" or a "special assessment." See, e.g., City
                                         of Wichita Falls v. Williams, 26 S.W.2d 910 (Tex. 1930) (distinction
                                         between tax and special assessment).       In some instances, the
                                         characterization of a monetary exaction as a "tax" or a "special
                                         assessment" will determine whether it may be validly imposed. See.




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Honorable William P. Clements, Jr. - Page 2 (MW-551)




*,    Wichita County Water Improvement District No. 2 v. City of
Wichita Falls, 323 S.W.2d 298 (Tex. Civ. App. - Fort Worth 1959, writ
ref'd n.r.e.) (because exaction was an "assessment" rather than a
"tax," water improvement district could levy it against land owned by
city within confines of district). In the present instance, however,
we conclude that, regardless of whether this "drainage fee" is
characterized as a "tax" or a "special assessment," it way not be
imposed against state-owned property located in the city of Austin.
We therefore need not decide how to characterize this fee.

     In Maverick County Water Control and Improvement District No. 1
v. State, 456 S.W.2d 204 (Tex. Civ. App. - San Antonio 1970, writ
ref'd), the water district appealed from a trial court judgment which
declared that certain land owned exclusively by the Veterans' Land
Board, a state agency, was "free of all liens and claims for taxes or
other charges."    Id. at 205.    The "other charges" consisted of
assessments and water delivery charges. The court of civil appeals
affirmed the trial court's judgment. It held (1) that the land in
question was exempt from ad valorem taxes under article 7150,
V.T.C.S., (since repealed; see now Property Tax Code section 11.11);
and (2) that the land was not subject to special assessments levied by
the water district for local improvements. In connection with the
latter holding, it stated:

            Although the power of a governmental agency to
         levy special assessments for local improvements is
         generally recognized to be an exercise of the
         taxing power, there are numerous decisions holding
         that a special assessment is not a 'tax' in the
         sense in which that word is ordinarily used. We
         do not think it necessary to consider the question
         whether such an assessment is a tax within the
         meaning of constitutional provisions exempting
         property from taxation in a case where, as here, a
         political subdivision created by the sovereign is
         attempting to impose a monetary exaction upon its
         creator.

            Even if it be assumed that a county or
         municipality is subject to special assessments
         levied by another political subdivision of the
         State, it does not necessarily follow that a
         subordinate political subdivision can impose an
         involuntary monetary obligation on the sovereign.
         It is generally held that, in the absence of clear
         legislative authorization, a political subdivision
         of the State has no power to levy a special
         assessment against State property. We adopt this
         view at least in a case where, as here, the




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        Honorable William P. Clements, Jr. - Page 3    (~~-551)




                  sovereign is neither making nor contemplating any
                  use of the allegedly benefitted land and has
                  neither received nor requested the services
                  rendered by the assessing agency.       (Emphasis
                  added).

        456 S.W.2d at 206-07.

             We need not, in this instance, attempt to determine the precise
        reach of the Maverick County court's holding regarding the validity of
        special assessments against state-owned property.      This much, at
        least, appears clear:      where there is no "clear legislative
        authorization" for a particular special assessment against state-owned
        property, and where the state has done nothing to indicate its
        willingness to be subjected to such assessment, the assessment is
        impermissible, because it would result in an "involuntary monetary
        obligation on the sovereign." 456 S.W.2d at 207. It should be
        emphasized that the Texas Supreme Court refused writ of error in the
        Maverick County case without reservation.

             Our attention has not been directed to any statute which provides
        "clear legislative authorization" for the city of Austin to levy its
        drainage fee against state-owned property within its boundaries. We
        have found no such statute on our own. Nor have we been advised of
        any actions on the part of the state which indicate its willingness to
        pay this fee. We therefore conclude that, under the facts that we
        have been given, even if this drainage fee is characterized as a
        "special assessment," it may not be assessed against state-owned
        property located within the city limits of the city of Austin. We
        think it is clear that if the fee is in fact a "tax," it may not be
        levied against that property. See Prop. Tax Code 911.11.

                                     SUMMARY

                     State agencies which      control state-owned
                  property within the city limits of the city of
                  Austin are exempt from a drainage fee which was
                  recently approved by the city.




                                                 MARK      WHITE
                                                 Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General




                                           p. 2009
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Honorable William P. Clements, Jr. - Page 4   (MW-551)




RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
George Warner
Bruce Youngblood




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