ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

May 3 1,2006 

The Honorable Kip Averitt 

Chair, Committee on Natural Resources 

Texas State Senate 

Post Office Box 12068 

Austin, Texas 787 1 l-2068 

Opinion No. GA-0434 

Re: Authority of the El Paso Water Utilities 

Public Service Board to set an impact fee for 

new development in the City of El Paso and its 

extraterritorial jurisdiction (RQ-04 17-GA) 

Dear Senator Averitt: 

Your predecessor as Chair of the Senate Committee on Natural Resources inquired whether 

the El Paso Water Utilities Public Service Board (the “Public Service Board”) may establish an 

impact fee for water and wastewater infrastructure needed for new development in the City of El 

Paso and its extraterritorial jurisdiction.’ 

The El Paso City Council created the Public Service Board in 1952 by adopting an ordinance 

under former article 1115, Revised Civil Statutes, now codified as Government Code section 

1 502.070.2 See EL PASO, TEX. ORDINANCE No. 752, tj 8 ( 1952);3 see also Act of May 1,1995,74th 

Leg., R.S., ch. 69, §§ l(5), 4, 1995 Tex. Gen. Laws 448,449 (defining Public Service Board and 

designating the City of El Paso, through its Public Service Board, as the regional water and 

wastewater planner). 

Government Code section 1502.070 provides that “[mlanagement and control of a utility 

system may be vested in . . . a board of trustees named in the proceedings adopted by the 

municipality and consisting of not more than five members, one of whom must be the mayor of 

the municipality.” TEX. GOV’T CODE ANN. $ 1502.070(a)(2) (V ernon 2000). It further states that 

*Letter from Honorable Ken Armbrister, Chair, Comrnittee on Natural Resources, Texas State Senate, to 

Honorable Greg Abbott, Attorney General of Texas (Nov. 152005) (on file with the Opinion Committee, also available 

at http://www.oag.state.tx.us) [hereinafter Request Letter]. 

2See Act effective 90 days after adjournment, 32d Leg., R.S., ch. 112,§ 4, 1911 Tex. Gen. Laws 230; repealed 

and recodzjied by Act of May 10, 1999, 76th Leg., R.S., ch. 227, $5 1, 28(c), 1999 Tex. Gen. Laws 3899, 3910; 

renumberedfrom Government Code § 1502.071 and amended by Act of May 20,1999,76th Leg., R.S., ch. 1064, § 22, 

1999 Tex. Gen. Laws 3899,391O. 

30n file with the Opinion Committee. 
The Honorab le Kip Averitt - Page 2 (GA-0434) 

(c) The proceedings of the municipality may specify the 

terms of office of the board of trustees, their powers and duties, the 

manner of exercising those powers and duties, the election of 

successor trustees, and any matter relating to the organization and 

duties of the board. On any matter not covered by the proceedings, 

the board of trustees is governed by the laws and rules governing the 

municipality’s governing body, to the extent applicable. 

Id. 8 1502.070(c); see generally EL PASO, TEX. ORDINANCE No. 752 (1952) (setting out various 

powers of the Public Service Board). 

Thus, pursuant to the 1952 ordinance and Government Code section 1502.070, the Public 

Service Board manages and controls the El Paso water and wastewater system. Since 1952, “the 

principal action by the City Council on behalf of the water utility was to approve the issuance of 

water and sewer financial bonds . . . . The Public Service Board approves its annual budget, sets 

rates and has complete autonomy over [the] water and sewer system servicing El Paso and El Paso 

County.” Request Letter, supra note 1, at 1. 

No provision in chapter 1502 authorizes the Public Service Board to establish impact fees 

or even refers to such fees; we therefore turn to Local Government Code chapter 395, which 

authorizes certain political subdivisions to establish impact fees. Section 395 .OO 1 defines “impact 

fee” as “a charge or assessment imposed by a political subdivision against new development in 

order to generate revenue for funding or recouping the costs of capital improvements or facility 

expansions necessitated by and attributable to the new development. ” TEX. Lot. GOV’T CODE ANN. 

5 395.001(4) (V ernon Supp. 2005). A “capital improvement” that may be funded by impact fees 

includes certain “water supply, treatment, and distribution facilities; [and] wastewater collection 

and treatment facilities” that “are owned and operated by or on behalf of a political subdivision.” 

Id. tj 395.001(l). 

A “political subdivision” within chapter 395 “means a municipality, a district or authority 

created under Article III, Section 52, or Article XVI, Section 59, of the Texas Constitution, or, 

for the purposes set forth by Section 395.079, certain counties described in that section.” Id. 

kj 395.001(7); see also id. 9 395.079(a) (impact fee for storm water, drainage, and flood control in 

a county with a population of 3.3 million or more or that borders a county with such population and 

certain districts and authorities created under Texas Constitution article XVI, section 59). A political 

subdivision within this definition may impose and collect impact fees in its service area that is within 

its corporate boundaries or extraterritorial jurisdiction and that will be served by the capital 

improvements or facility expansions. See id. § 395.001(9). To adopt an impact fee, a political 

subdivision must comply with the detailed procedures set out in subchapter C of chapter 395, 

which are designed to keep the public well informed of the political subdivision’s action. See id. 

5 395.04 1 (Vernon 1999). “Unless otherwise specifically authorized by state law or by this chapter, 

a governmental entity or political subdivision may not enact or impose an impact fee.” Id. 

. 

9 395.01 l(a). 
The Honorable Kip Averitt - Page 3 (GA-0434) 

The Public Service Board is not “a municipality, a district or authority created under Article 

III, Section 52, or Article XVI, Section 59, of the Texas Constitution,” or an entity within section 

395.079 and accordingly is not a “political subdivision” within chapter 395. See id. 5 395.001(7) 

(Vernon Supp. 2005). Chapter 395 confers the power to set impact fees on the City of El Paso, 

which must act by and through its governing body. See id. ch. 395 (Vernon 1999 & Supp. 2005); 

see also City of Coppell v. General Homes Corp., 763 S.W.2d 448,456 (Tex. App.-Dallas 1988, 

writ denied); Cook v. City ofAddison, 656 S.W.2d 650, 657 (Tex. App.-Dallas 1983, writ ref d 

n.r.e.) (a political subdivision of the state may act only by and through its governing body). A public 

service board, within its limited field of operation, is an agent of the city that established it under 

Government Code section 1502.070 or its predecessor. See Zacharie v. City of San Antonio, 952 

S.W.2d 56,59 (Tex. App.- San Antonio 1997, no writ); Mireles v. Deer Run Properties, Inc., 616 

S.W.2d 342,343 (Tex. Civ. App.- San Antonio 1981, no writ); San Antonio Indep. Sch. Dist. v. 

Water Works Bd. of Trustees, 120 S.W.2d 861,865 (Tex. Civ. App.Beaumont 1938, writ ref d); 

Tex. Att’y Gen. Op. Nos. DM-444 (1997) at n.7, JM-4 (1983) at 2. The powers of the Public Service 

Board are limited to those conferred upon it by Ordinance No. 752 and Government Code chapter 

1502. 

Moreover, the City Council may not delegate to the Public Service Board its authority to 

impose impact fees. Section 395.011 provides that “[ulnless otherwise specifically authorized by 

state law or this chapter, a governmental entity or political subdivision may not enact or impose an 

impact fee.” TEX. LOC. GOV’T CODE ANN. § 395.011 (Vernon 1999). This language indicates that 

only a governmental entity expressly authorized by statute may establish an impact fee. Furthermore, 

absent express authority a political subdivision may not delegate a statutorily-authorized power. See 

Newsom v. Adams, 45 1 S.W.2d 948,953 (Tex. Civ. App. -Beaumont 1970, no writ); Moody v. Tex. 

Water Comm’n, 373 S.W.2d 793, 797 (Tex. Civ. App. -Austin 1964, writ ref’d n.r.e.) (absent 

express legislative authority, a public office may delegate only ministerial tasks); see generally 

Lipsey v. Tex. Dep )t of Health, 727 S.W.2d 61, 64 (Tex. App.-Austin 1987, writ ref d n.r.e.) 

(considering implied statutory authority of an administrative agency to subdelegate a statutorilyauthorized function). Accordingly, a political subdivision may not delegate its authority to establish 

an impact fee to another governmental entity. 

The Public Service Board does not have authority to set impact fees. If, however, the El Paso 

City Council approves the imposition of impact fees for water and wastewater infrastructure in the 

city and its extraterritorial jurisdiction, it may delegate ministerial authority to the Public Service 

Board to collect those fees and spend them for authorized purposes pursuant to Local Government 

Code chapter 395, Ordinance No. 752, and the city ordinance approving the impact fees. See San 

Antonio Indep. Sch. Dist. v. City of San Antonio, 550 S.W.2d 262 (Tex. 1976) (city was authorized 

to delegate to city public service board ministerial duty of computing excess fuel charges according 

to a formula set by the city council). 
The Honorable Kip Averitt - Page 4 (GA-0434) 

SUMMARY 

The El Paso Water Utilities Public Service Board is not 

authorized to establish an impact fee for water and wastewater 

infrastructure for new development in the City of El Paso and its 

extraterritorial jurisdiction. Local Government Code chapter 395 

vests in the City of El Paso the sole authority to adopt such impact 

fees. If the El Paso City Council approves the imposition of impact 

fees for water and wastewater infrastructure in the city and its 

extraterritorial jurisdiction, it may delegate ministerial authority to the 

El Paso Water Utilities Public Service Board to collect those fees. 

BARRY R. MCBEE 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee