JIM MAlTOX 

Attorney General 

Supreme Court Buildlng 

P. 0. Box 12548 

Austin. TX. 7871% 2548 

5121475-2501 

Telex eio/a74-1387 

Telecopier 512/475-0288 

714 Jackson, Suite 700 

Da,,as,TX. 752024508 

2141742-8944 

4824 Alberta Ave.,Sulte la0 

El Paso, TX. 793052793 

1Wl Texas. Suite 700 

Houston,TX. 770029111 

713/22X&86 

SW Broadway, Suite 312 

Lubbock, TX. 794013479 

aw747-5238 

4309 N. Tenth, Suite B 

McAllen,TX. 78501-1685 

51216524547 

200 Main Plaza, Suite 400 

San Antonio, TX. 782052797 

512l2254191 

An Equal OpportunitYI 

Affirmative Action Employer 

The Attorney General of Texas 

April 11, 1986 

Eonorabla Robert E, Bell 

Criminal District Mxornay 

115 W. Main, Room '205 

Edna, Texas 7795’1 

Dear Mr. Bell: 

Opinion No. JR-473 

Re: Application fees for solid 

waste disposal permits 

You advise us that Jackson County has applied to the Texas 

Departmant of HeaLth for a solid waste permit. The Department of 

Health has refu6e.d to process Jackson County's application until 

Jackson County pays the application fees set by the Department of 

Health. Under the rules in effect at the tine Jackson County 

submitted its application, the required fees were $200 for Part A of 

the application and $12,000 for Part B of the application. See Tex. 

Dept. of Health, 10 Tax. Reg. 3286 (1985) (codified at 2E.A.C. 

5325.63) (fees effective from September 1, 1985, through December 30, 

1985). You state that these fees seem to have no rational relation to 

the Department of 'Iealth's expenses in processing your application. 

The legislature has granted the Department of Health authority 

over issuance of solid waste permits to certain entities. V.T.C.S. 

art. 4477-7. In setting a fee schedule for applications for solid 

waste permits, the Department of Health acted pursuant to a legislative delegation of rule-making power set out in arttcle 4477-7, 

section 4(k) (I), V.!P.C.S.. which provides: 

The department shall charge a fee for the 

filing with the department and revlw by the 

departmeat. of a permit application under this 

section. A fee schedule shall be adopted by rule 

that shall be reasonably related to one or more of 

the follmring factors: 

A. t'he population served; 

B. t'hac volume of waste to be handled; 

C. t'he type and size of the facility; or 

D. the cost of the review of the permit 

application. 

The legislature also provided that application fees as well as 

annual permit fees should be set in an amount that would generate 

sufficient revenue to meet the expenses of administering section 4 of 

article 4477-7. which provides for the issuance and overseeing of 

solid waste permits. 

p. 2163 
Honorable Robert E. Bell - !?age 2 (JM-473) 

The legislature has aut.hority to delegate to au agency power to 

carry out a legislative purpose. State ex rel. Grimes County Taxpayers Association V. Texas Municipal Power Agency, 565 S.W.2d 258, 

273 (Tex. Civ. App. - H&ton [lst Dist.] 1978, no writ). The 

legislature must e&ablish reasonable standards to guide the entity, 

but such standards may be broad where conditions must be considered 

that cannot be conveniently :Lnvestigated by the legislature. - Id. 

In this instance the Lagislature set out specific guidelines for 

the Departmant of Bealth ta use in setting fees, and it directed that 

total fees collected should cover the department's expenses in the 

permit process. You do not question the propriety of the legislative 

delegation. gather, you question whether the Department of Health 

complied with the requiremsnts of article 4477-7, section 4(k)(l). 

The fees that the De~,artment of Health set pursuant to article 

4477-7 purport to be bac.ed on the standards established by the 

legislature: 

5325.63. Permit Application Fees. 

(a) Types of applications. 

(1) New applLcations. With sach application 

for a permit to construct or operate a municipal 

solid waste procsssing or disposal facility. the 

applicant shall mbmit a nonrefundable application 

fee to the departmmt. The fee may be submitted 

in two parts, with the first part due with submission of Part A of the application and the 

second part due 3ctth submission of Part B or site 

developmant plar. of the application. The fee 

shall be based ,011 the tables under subparagraph 

(A) and subparagr.aph (B) of this paragraph which 

are graduatad in ;a manner to consider me or more 

of the following factors: tha population served; 

the volume of wmte to be handled; the type and 

size of the faci:.ity; or the cost of the review of 

the permit application. 

(a) Part A al>plication fee schedule. 

Type of Facilzsy Application Fee 

I 

II 

III 

IV 

V 

VI 

VII 

VIII 

Ix 

$ 200 

$ 100 

8 50 

$ 100 

$ 100 

$ 100 

$ 100 

N/A 

$ 100 

p. 2164 
Eouorable Robert E. Bell - Page 3 LJM-473) 

(B) Part B r,ite development plan application 

fee schedule. 

P.R n/sit* rlw.,,-t nr dpp1iurioa In lcbdol* 

I TYPa I ?Oo..l?OD. I &Dliutioo Pe. bud 00 "..L. 

;i 

. 

I 

tWe cannot say. as a matter of law, that these fees are 

unreasonable. Whether the7 actually bear a reasonable relationship to 

the cost of processing applications and issuing permits is a question 

of fact. We are not able to render opinions on questions of fact. 

SUMMARY 

Whether the fees promulgated in 25 T.A.C., 

section 325.63 (effective September 1, 1985, 

through Decambex 30. 1985) are proper is a fact 

question which I:annot be reached in the opinion 

process. . 

Attorney General of Texas 

JACK HIGRTOWEZ 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attoruey General 

ROBERT GRAY 

Special Assistant Attorney General 

p. 2165 
Ronorablc Robert E. Bell - P.agc 4 (JM-473) 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 2166