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 a plat revision the costs of issuing notice of the 

proposed revision (RQ-0309-JC) 

Dear Mr. Rodriguez: 

Under section 232.041 (b) of the Local Government Code, a commissioners court must issue 

notice of an application to revise a subdivision plat. You ask if a county may charge an applicant 

the costs to issue that notice.’ We conclude that a county 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 a county to charge a fee. See id.; see also Tex. Att’y Gen. Op. 

No. M-346 (1985) at 3-4. Thus, if a commissioners court is not expressly authorized to charge a 

fee on behalf of a county, it may not do so. 

Under subchapter B of chapter 232 of the Local Government Code, a person with residential 

subdivided land subject to the subdivision controls of the county where the land is located may make 

a written application to the county commissioners court for perrnission to revise the plat filed with 

the county clerk. See TEX. LOC. GOV’T CODE ANN. 4 232.041 (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 a plat 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 of the subdivided tract has been sold to nondeveloper owners.” 

‘See Letter from Honorable JosC R. Rodriguez, El Paso 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 of chapter 232 of the Local Government Code does 

not contain a fee provision to replat a subdivision. CJ id. $5 232.028(g) (Vernon Supp. 2001) 

(allowing a commissioners court to impose a fee for a certificate for a subdivision that straddles the 

extraterritorial jurisdiction line of a municipality); 232.0305 (Vernon 1999) (allowing a 

commissioners court to impose fees upon subdividers of property for certain inspections). 

You ask if a county may impliedly charge a fee to cover the commissioners court’s expenses 

to issue notice under section 232.041(b). See Request Letter, supra note 1, at 2. 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 a fee. See id. We disagree. First, as we have said, our prior opinions establish that 

implied authority is not sufficient authority to charge a fee and that such authority must be express. 

Second, even if implied authority could be sufficient to charge a fee 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 to issue 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 a reasonable fee “for performing 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 of notice here. TEX. LOC. GOV’T CODE ANN. 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 a county clerk-not the commissioners court-to charge a reasonable fee for performing 

duties prescribed by statute. This statue does not authorize a county clerk to charge a fee for a duty 

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 a reasonable fee extends to a commissioners court. Rather, an 

authorizing statute must plainly state that a commissioners court may charge a reasonable fee. When 

the legislature intends for a commissioners court to have the authority to charge a fee, it expressly 

provides that authority. See, e.g., id. 80 383.027(a) (Vernon 1999) (noting that a county may require 

a petitioner 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 of a building permit under chapter 235 of the 

Local Government Code); 38 1.003(c) (authorizing a commissioners court to collect fees if the 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 

*See TEX. CONST. art. V, 0 20. 
The Honorable Jose R. Rodriguez - Page 3 

use of the county crime detention facility). Allowing a county clerk to charge fees under this statute 

would expand section 118.011 (c) to permit counties to charge an unlimited number of fees 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 CODE ANN. $9 3 11.023(5) (Vernon 1998) (construing statutes, a court 

may consider the consequences of a particular construction); 3 11.021 (Vernon 1998) (presuming 

intent for a just and reasonable result in the enactment of a statue). In the absence of any precedent, 

we decline to construe section 118.011 (c) expansively. 

To conclude, while a commissioners court may have broad discretion over county business 

generally, a commissioners court may not impliedly charge fees. Here, there is no express authority 

for a commissioners court to charge a fee on behalf of a county. We therefore conclude that without 

express constitutional or statutory authority, a county may not charge an applicant for the costs of 

issuing notice of a plat revision. 
The Honorable Jose R. Rodriguez - Page 4 

SUMMARY 

Because it has no express constitutional or statutory authority 

to do so, a county may not charge an applicant for a plat 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