    OFFKEOFTHEATTORNEY
                    GENERAL.
                          STATE
                              OFTEXAS
    JOHN    CORNYN




                                              August 3 1,200O



The Honorable Bill G. Carter                              Opinion No. JC-0278
Chair, Committee on Urban Affairs
Texas House of Representatives                            Re: Whether the Lower Valley Water District
P.O. Box 2910                                             may assess a fee to its service area property
Austin, Texas 78768-29 10                                 owners who opt not to connect to the District’s
                                                          wastewater system (RQ-0221-JC)

Dear Representative    Carter:

         You have requested our opinion as to whether the Lower Valley Water District may assess
a fee to its service area property owners who opt not to connect to the District’s wastewater system.
For the reasons set forth below, we conclude that it may do so.

         The Lower Valley Water District was created as a special law district in 1985 under the
authority of the conservation amendment, article XVI, section 59 of the Texas Constitution.’
Pursuant to this law, the District is authorized, inter ah, to:

                 purchase, construct, acquire, own, lease, operate, maintain, repair,
                 improve, and extend inside and outside its boundaries, at any location
                 whatsoever, in the sole discretion of the authority, land and any
                 interest in land, any and all works, improvements, facilities, plants,
                 equipment, and appliances incident, helpful, or necessary to provide
                 for       the collection, transportation, processing, disposition, and
                 control of domestic, industrial or commercial wastes.’

In 1989, the District’s enabling legislation was amended to convert the District to amunicipal            utility
district under chapter 54 of the Water Code.)




        ‘See Act of May 27, 1985,69th Leg., R.S., ch. 780, 1985 Tex. Gen. Laws 2666 (originally created as the El
Paso County Lower Valley WaterDistrictAuthority);seealsoActofMay      12,1995,74thLeg.,R.S.,   ch. 206, 1995 Tex.
Gen. Laws 1949 (changing name to Lower Valley Water District).

        2Act of May 27, 1985,69th   Leg., RX, ch. 780.5    10, 1985 Tex. Gen. Laws 2666,267O

        ‘See Act of May 27,1989,71st   Leg., R.S., ch. 528,1989   Tex. Gen. Laws 1740.
The Honorable Bill G. Carter - Page 2                        (X-0278)




         The legislature also amended chapter 17 of the Water Code in 1989, which provides for
grants and loans to political subdivisions of the state, including municipal utility districts, located
in an “eligible” county.4 This legislation was intended to address the “serious and unacceptable
health hazards” resulting from the lack of adequate water and sewer services in the coloni~s.~ An
eligible county was defined as one whose per capita income averaged twenty-five percent below and
whose unemployment         rate averaged twenty-five percent above the state average for three
consecutive years and that was located adjacent to an international border.6 According to the brief
filed by the attorney for the District, “El Paso County has been determined to be an affected county,”
and the District “is located in El Paso County.“’ Furthermore, the District has been the recipient of
chapter 17 economic assistance funds from the Texas Water Development Board (the “B~ard”).~

           Section 17.934 of the Water Code provides:

                        (a) Notwithstanding any other law, a political subdivision that is
                    located in a county in which a political subdivision has received
                    financial assistance under this subchapter or under subchapter F,
                    Chapter 15, of this code may:

                             (1) provide for a sanitary sewer system; and

                             (2) require property owners to connect to the sewer system

                         (b) The [Texas Water Development] [Bloard may require, as a
                    condition for granting an application for financial assistance under
                    this subchapter to a political subdivision for construction of sewer
                    services, that the applicant exercise its authority under this section.

TEX. WATER          ANN. 5 17.934 (Vernon 2000). Pursuant to its authority under this statute, the
                  CODE
Board has adopted a rule requiring “[alny applicant receiving financial assistance from the board for
the construction of wastewater system improvements         [to] require property owners that are to be
served by such wastewater system improvements to connect to the applicant’s sewer system.” 31
TEX. ADMIN. CODE § 363.5 10 (2000). The brief from the District’s attorney indicates that the Board




           ‘See Act of May 28, 1989,71st     Leg., R.S., ch. 624, 65 2.14-.21,   1989 Tex. Gen. Laws 2063-64,2072-82.

         sId. 5 1 .Ol at 2063. See also Brief fromKemp Smith, Attorneys at Law, to Elizabeth Robinson,      Chair, Opinion
Committee, Off& of the Attorney General (June 22.2000) (on tile with Opinion Committee).

       %eActofMay28,            1989,7lstLeg,R.S.,ch.624,§        2.21,s~.   17.883,1989Tex.   Gen.Laws2063,2078        (now
TEX. WATERCODEANN.           5 17.923 (Vernon 2000).

           ‘Brief from Kemp Smith, Attorneys at Law, to Elizabeth Robinson,        Chair, Opinion Committee,   Office of the
Attorney    General, at 4 (June 22,200O) (on tile with Opinion Committee).

           ?Yee id. at 4-5
The Honorable Bill G. Carter - Page 3                     (JC-0278)




has, as a condition of providing       financial assistance, required the District to exercise its authority
under section 17.934.9

         The District’s brief explains that the District has “adopted a ‘minimum rate fee’ as an
incentive to connect to the District’s system and a disincentive to refusing to use the system.“‘0 An
addendum to the rate order establishing sewer rates and related fees states:

                  A minimum rate of $15.00 per month will be charged customers not
                  connected to an existing sewer main in the street which is capable of
                  serving the wastewater needs of the customer’s property.”

You ask whether the District is authorized to impose this minimum fee on property owners who are
able to connect to the District’s sewer system, but have refused to do so.”

         Chapter 49 of the Water Code contains general provisions applicable to all districts created
under the authority of article XVI, section 59 of the Texas Constitution,        One of its provisions
permits a district to “adopt and enforce all necessary charges, fees, or rentals, in addition to taxes,
for providing or making available any district facility or service.” TEX. WATER CODE ANN.
5 49.212(a) (Vernon 2000) (emphasis added). In our opinion, it is clear that availability of and
connection to the sewer system provided for by section 17.934 constitutes a “service” that is “made
available” to the property owners of the District. “Service,” in the context contemplated by
subsection 49.212(a), means “[t]he supply or laying-on of gas, water, etc., through pipes from a
reservoir; the apparatus of pipes, etc., by which this is done. Also applied to other facilities, such
as electricity, waste disposal, etc., esp. provided for domestic use.” XV OXFORD ENGLISH
DICTIONARY 37 (2d ed. 1989). Furthermore, subsection 49.212(a) does not require that a district
actually furnish sewer service before it may charge a fee. Rather, a district need merely make the
service available to the property owner.         In our opinion, by “making available” its sewer
connections, the District has fulfilled the statutory requirement for imposing a necessary fee.
Whether the amount of the fee contemplated by the District-$15.00             per month-is   necessary
requires the resolution of factual matters that are not appropriate to an attorney general’s opinion.13




         ?See id. at 5.

         “Id. at 8.

         “Id. (Exhibit B)

          ‘2Letter from Honorable Bill G. Carter, Texas State Representative, District 91, Chair, Committee on Urban
Affairs, to Honorable John Comyn, Texas Attorney General (Apr. 12,200O) (on tile with Opinion Committee).

          “See Tex. Att’y Gen. Op. Nos. JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions
cannot be done in opinion process); M-187 (1968) at 3 ( “[T]his oftice is without authority to make               factual
determinations.“);  O-291 1 (1940) at 2 (“[Tlhis  presents a fact question which we are unable to answer.“).
The Honorable Bill G. Carter - Page 4           (X-0278)




         We conclude that the Lower Valley Water District is authorized to assess a necessary fee to
its service area property owners who are able to connect to the District’s sewer system but have
refused to do so.



                                       SUMMARY


                       The Lower Valley Water District is authorized to assess a
               necessary fee to its service area property owners who are able to
               connect to the District’s sewer system but have refused to do so.




                                              Attorney General of Texas



 ANDY TAYLOR
 First Assistant Attorney General

 CLARK KENT ERVIN
 Deputy Attorney General - General Counsel

 SUSAN D. GUSKY
 Chair, Opinion Committee

 Rick Gilpin
 Assistant Attorney General - Opinion Committee
