OFFICE OF THE ATTORNEY GENERAL

. STATE OF TEXAS

JOHN CORNYN

April 13,200l

The Honorable Jose R. Rodriguez El Paso County Attorney 500 East San Antonio, Room 203 El Paso, Texas 79901 Opinion No. JC-0367
Re: Whether a county may charge an applicant for aplat revision the costs ofissuing notice ofthe proposed revision (RQ-0309-JC)
Dear Mr. Rodriguez: Under section 232.041 (b) ofthe Local Government Code, acommissioners court must issue notice of an application to revise a subdivision plat. You ask if acounty may charge an applicant the costs to issue that notice.’ We conclude that acounty may not do so because a commissioners court lacks express authority to charge for such costs, and implied authority is insufficient.
To provide a context for your inquiry, we discuss the power of a county and the statute at issue, section 232.041of the Local Government Code, in that order. It is settled law that a county has only those powers specifically conferred by the constitution or by statute. See Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). As we stated in LO-98-118, a county must have specific authority to charge a fee. See Tex. Att’y Gen. LO-98-l 18, at 1. As a result, implied authority is an insufficient basis for acounty to charge afee. See id.; see also Tex. Att’y Gen. Op. No. M-346 (1985) at 3-4. Thus, if acommissioners court is not expressly authorized to charge a fee on behalf of acounty, it may not do so. Under subchapter B ofchapter 232 ofthe Local Government Code, aperson with residential subdivided land subject tothe subdivision controls ofthe county where the land islocated may make awritten application to the county commissioners court for perrnission to revise the plat filed with the county clerk. See TEX.LOC.GOV’T CODEANN.4232.041 (a) (Vernon 1999). An application to revise a plat is subject to approval by the commissioners court. See id. 5 232.041(b). Before approving an application, the commissioners court must provide notice of the application in a newspaper of general circulation. See id. (stating that the notice must include the time and location that the court will consider the application and any protests to the revision of aplat and state the publishing requirements). Further, the commissioners court must provide notice to nondeveloper owners by “certified or registered mail, return receipt requested, at the owner’s address in the subdivided tract
. . . [i]f all or part ofthe subdivided tract has been sold to nondeveloper owners.”

‘SeeLetter from Honorable JosCR.Rodriguez, ElPaso County Attorney, to Honorable John Comyn, Texas Attorney General, at 1(Nov. 7,200O) (on file with Opinion Committee) [hereinafter Request Letter].The Honorable Jose R. Rodriguez - Page 2

Id. While detailed and expansive, subchapter B ofchapter 232 ofthe Local Government Code does not contain a fee provision to replat a subdivision. CJ id. $5 232.028(g) (Vernon Supp. 2001) (allowing acommissioners court to impose afee for acertificate for asubdivision that straddles the extraterritorial jurisdiction line of a municipality); 232.0305 (Vernon 1999) (allowing a commissioners court to impose fees upon subdividers ofproperty for certain inspections).
You ask ifacounty may impliedly charge afee to cover the commissioners court’s expenses to issue notice under section 232.041(b). See Request Letter, supra note 1,at2. In your letter, you point out that, although a county has a statutory duty to provide notice under section 232.041(b), “there is no express provision that allows a county to require the applicant to cover the costs of issuing such notice.” Id. But you rely on the general rule that express authority is not needed to issue an order if it is reasonably necessary for a commissioners court to act in accordance with statutory or constitutional authority. See id. Based on this rule, you assume that a county may impliedly charge afee. See id. We disagree. First, aswe have said, our prior opinions establish that implied authority is not sufficient authority to charge afee and that such authority must be express. Second, even ifimplied authority could be sufficient to charge afee in some cases, we do not believe that subchapter B of chapter 232 of the Local Government Code implies this authority. A commissioners court may accomplish its statutory duty toissue notice without charging an applicant for the costs of issuing the notice. While section 118.011 (c) of the Local Government Code provides a county clerk with authority to charge and collect areasonable fee “forperforming other duties prescribed or authorized by statute for which a fee is not prescribed,” it does not provide the necessary authority for a commissioners court to charge the costs ofnotice here. TEX.LOC.GOV’TCODEANN. 0 118.01 l(c) (Vernon Supp. 2001). As we stated earlier, it is settled law that express authority is required for a court to charge a fee and that implied authority is insufficient. Section 118.011 (c) expressly authorizes acounty clerk-not the commissioners court-to charge areasonable fee forperforming duties prescribed by statute. This statue does not authorize acounty clerk to charge afee for aduty imposed on the commissioners court or for duties the clerk may perform on behalf of the commissioners court. While the county clerk is the clerk of the commissioners COUI%,~ we do not believe a clerk’s authority to charge areasonable fee extends to acommissioners court. Rather, an authorizing statute must plainly state that acommissioners court may charge areasonable fee. When the legislature intends for a commissioners court to have the authority to charge afee, it expressly provides that authority. See, e.g., id. 80 383.027(a) (Vernon 1999) (noting that acounty may require apetitioner for a county development district to pay costs of notice associated with the formation of district); 235.005 (providing a commissioners court with authority to develop a fee schedule, setting and charging fees, for inspection and issuance ofabuilding permit under chapter 235 ofthe Local Government Code); 381.003(c) (authorizing acommissioners court to collect fees ifthe court contracts “with a local workforce development board for

. . .services authorized by Chapter 2308, Government Code”); TEX. GOV’T CODE ANN. 8 1473.232 (Vernon 2000) (authorizing a commissioners court to impose and collect fees for services and information provided to others for

*SeeTEX.CONST.

art.V,020.The Honorable Jose R. Rodriguez - Page 3

use ofthe county crime detention facility). Allowing acounty clerk to charge fees under this statute would expand section 118.011 (c) to permit counties to charge an unlimited number offees through their county clerk. See Glasscock Underground Water Conservation Dist. v.Pruitt, 915 S.W.2d 577, 581 (Tex. App.-El Paso 1996, no pet.) (requiring courts to consider consequences of statutory construction); TEX.GOV’T CODEANN. $9 311.023(5) (Vernon 1998) (construing statutes, a court may consider the consequences of aparticular construction); 311.021 (Vernon 1998) (presuming intent for ajust and reasonable result in the enactment of astatue). In the absence of any precedent, we decline to construe section 118.011 (c) expansively.
To conclude, while acommissioners court may have broad discretion over county business generally, acommissioners court may not impliedly charge fees. Here, there isno express authority for acommissioners court to charge afee on behalf ofacounty. We therefore conclude that without express constitutional or statutory authority, a county may not charge an applicant for the costs of issuing notice of aplat revision.The Honorable Jose R. Rodriguez - Page 4

SUMMARY
Because ithas no express constitutional or statutory authority to do so, acounty may not charge an applicant for aplat revision for the costs of issuing notice of the proposed revision under Local Government Code section 232.041 (b). Yo sve truly 

# 4JQi!i

JOHN CORNYN Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General SUSAN D. GUSKY Chair, Opinion Committee Polly McCann Pruneda Assistant Attorney General - Opinion Committee