DAN MORALES 

ATTORSEI GESERAL 

QPffice of tty TZlttornep @eneral 

s35tate of IEexas 

June 16,1992 

Honorable Allen Ross Hightower 

Chairman 

Committee on Environmental Affairs 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78768-2910 

Opinion No. DM-126 

Re: Authority of a county to improve 

certain subdivision roads and assess 

the cost of repairs against subdivisions (RQ-330) 

Dear Representative Hightower: 

You have requested our opinion regarding the proper construction of article 

6702-3, V.T.C.S., which authorizes a commissioners court to improve a road in a 

subdivision and assess the costs against the owners of real property within the 

subdivision. That statute provides: 

(a) This article applies only to a subdivision or a part of a 

subdivision in an unincorporated area of the county. To the 

extent that this article authorizes the improvement of an access 

road to a subdivision, this article applies only to an access road 

in an unincorporated area of the county. 

(b) In this article, “improvement” means the construction, 

reconstruction, or repair of a road. 

(c) The commissioners court of a county may order that the 

county improve a road in a subdivision or an access road to a 

subdivision to comply with any county standards for roads and 

assess all or part of the costs of the improvement pro rata 

against the owners of real property in the subdivision if: 

(1) the commissioners court determines that the 

improvement is necessary for the public health, safety, 

or welfare of the residents of the county; and 

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Honorable Allen Ross Hightower - Page 2 t DM- 12 6 ) 

(2) a majority of those record owners of real property 

in the subdivision who are voting vote by mailed ballot 

in favor of the county improvement and assessment. 

(d) Before ordering an improvement and assessment under 

this article, the commissioners court must g&e notice of the 

proposed improvement and assessment and must hold a public 

hearing on ,the question . . . 

(e) Within 10 days after the date of the public hearing, the 

commissioners court shall send by certified mail to each owner 

of real property in the subdivision a ballot on the question and a 

return addressed, stamped envelope for the return of the 

completed ballot to the county clerk.. . 

You first ask whether “revenue raised through this process” should be “classified as a 

tax or a fee.” 

The levy authorized by article 67023 is known as a “special assessment.” 

Although a special assessment is levied under the taxing power, it is not a “tax” as 

that word is ordiiy used in statutory and constitutional law. See H&ins v. 

Bwdager, 31 S.W. 52 (Tex. 1895); Ciry of WKhita Falls for use of LE. Whitman & Co. 

v. Wiuiams, 26 S.W.2.d 910 (Tex. 1930); .Phelps v. lXudzr Brick Co., 62 S.W.2d 596 

(Tex. Civ. App.-Galveston 1933). As a result, statutory and constitutional 

principles applicable to taxation have no application to special assessments. See, 

eg., Wchita County Water Impnnwnent Dirt. No. 2 v. C@ of Wichita Falls, 323 

S.W.2d 298,300 (Tex. Civ. App.-Fort Worth 1959, writ ref d n.r.e.); City of Dallas v. 

Atkins, 223 SW. 170 (Tex. 1920); Circa v. Vwner, 16 S.W.2d 265,266 (Tex. Comm’n 

App. 1929). But see Hanis County v. Bcyd, 7 S.W. 713 (Tex. 1888). See genes@ 60 

TEX. JUR. 3d Public Zmprmwmmts 0 10, at M-15 (1988). 

You also ask whether the county tax assessor-collector is authorized to 

collect these assessments, and if he is not, what official should collect them and how 

should he do so. Since a special assessment is not governed by property tax law, and 

since article 67CG3 makes no provision for collection by the county tax assessorcollector, we must conclude that official has no necessary involvement in the 

assessment and collection process. The statute says merely that, if a majority of 

those casting ballots favor the improvement, the commissioners court shall “assess 

the costs of the improvements against the real property owners.” V.T.C.S. art. 

P- 656 
Honorable Allen Ross Hightower - Page 3 (DM- 12 6 1 

67023(e). In our opinion, the commissioners court, in the absence of statutory 

guidelines, must determine the details of .the collection process. That body may 

delegate such duties in any reasonable manner and to any county official, employee 

or contractor, including the county tax assessor-collector. 

Your next question ls whether the assessment may “be calculated using a flat 

rate against the value of the property as~property taxes are calculated for the 

individual property owner.” Article 67023 declares that the commissioners court 

may “assess all or part of the costs of the improvement pro r&u against the owners of 

real property in the subdivision.” Id. art. 67023(c) (emphasis added). The term 

“pro rata” does not specify a particular formula. It has no meaning unless referable 

to some rule or standard. Hendrie v. Lawmuster, 152 F2d 83r 85 (6th Cir. 1945); see 

Chenoweth v. Nodan & Morris, 171 S.W.2d 386,387 (Tex. Civ. App.-San Antonio 

1943, writ refd w.o.m.). The value of the improvement to each property owner 

should be arrived at by some method that will provide fairly for its determination 

and guarantee an equitable distribution of the assessment. Lkrllas County Levee 

Dirt. No. 2 v. L-ooney, 207 S.W. 314 312 (T’ex. 1918). Assessments have been made 

on the basis of such factors as front footage, area, and property value. See, e.g.. 

Smith v. C@ of Houston, 693 S.W.2d 753, 754-55 (Ten App.-Houston [14th Diit.] 

1985, writ ref d n.r.e.); Cook v. City of Addison, 656 S.W.2d 654 656-58 (T’ex. App.- 

Dallas 1983, writ refd n.r.e.); City of Houston v. Abwa G. C&p, 638 S.W.2d 515,517 

(Tex. App.-Houston [lst Dist.] 1982, writ ref d n.r.e.); Dallar County Levee Dirt. No. 

2 v. Lamey, 207 S.W. at 312; see general& 60 TEX. JUR. 3d Public Improvements S 22, 

at 27-29 (1988). In the absence of statutory direction, the precise formula should be 

determined by the commissioners court, with special regard for the particular 

benefits which will accrue to each owner as a result of the improvement. 

Your last question is whether “the cost of the election, along with the cost of 

the collecting and reporting activity,” may “be added to the road construction costs 

in order to determine total cost of the project.” Article 6702-3(c) authorizes the 

commissioners court to assess only “all or part of the costs of the improvement.” 

“Improvement” is defined in the statute as “the construction, reconstruction, or 

repair of a road.” V.T.C.S. art. 6702-3(b). In our opinion, the statutory language 

does not permit the assessment to the property owners of the costs of holding the 

election and collecting the assessment. ‘Ibus, we conclude that neither the cost of 

the election nor the cost of collecting and reporting the results may be added to 

road construction costs in determining the total amount to be assessed against the 

property owners. 

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Honorable Allen Ross Hightower - Page 4 t DM- 12 6 ) 

A commissioners court which orders improvements to a 

road in an unincorporated area of the county as the result of an 

election held under article 67023. V.T.C.S., may delegate the 

details of the process of collecting the assessment against the 

affected property owners, and it may also determine the precise 

fortnula for calculating the assessment, with special regard for 

the particular benefits which will accrue to each property owner. 

The costs of holding the election and collecting the revenues 

may not be assessed against the property owners. 

DAN MORALES 

Attorney General of .Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLBR 

Deputy Assistant Attorney General 

RENEAHIcKs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Rich Gilpin 

Assistant Attorney General 

p. 658