Honorable Jack Fields - . 

Opinion NO. ww-218 

1957 

County Attorney 

calhoun county Re : Whether or not the CommlssionPort ,Lavaca, Texas em I Court of Calhoun County 

is subject to a requirement of 

a city ordinance for the payment of fees, charges or assessments for permits for the demolition of the old buildings and 

the construction of a new buildDear Mr. Fields : ai. 

You have requested the opinion of this Department on 

the folloving question: 

Whether or not the Commissioners ‘Court of 

Calhoun County is subject to a requirement of a 

city ordinance for the payment of fees, charges 

or assessments for permits for the demolition 

of the old buildings and the construction of a 

new building. 

In your very able brief that you submitted in connection with this question, you advise us that the facts are as 

follows : Calhoun County is preparing to construct a new courthouse to be ‘located upon property purchased in fee some forty 

years ago such property not being a part of any city-owned 

square. b-l e City of Port Lavaca desires to make periodic progress inspections of the courthouse construction to enforce conformity with the City Building Code, pursuant to the police 

powers of the municipal corporation. The city contends that it 

is entitled to the payment of certain fees in exchange for the 

issuance oi the Building and Inspection permits, such fees to 

be used by the City to defray the cost of the progress lnspections. It is the position of Calhoun County that such charge 

is in effect a tax against the county, In violation of the provisions of Section 9, Article X,1 of the Texas Constitution, 

which provides : 

“The properties of counties, cities, and towns 

owned and held only for public purposes, D o 0 shali 

be exempt from forced sale and from taxation, o . .* 
Honorable Jack Fields, page 2 NW-218) 

You further advise that the City of Port Lavaca 

adopts the view that since their ordinance for building permits 

is levied against the contractor, rather than against the 

County, and that since the permit fee is to be paid by the contractor, the charge in this instance Is not actually to be assessed against, nor paid by the County. This contention is insupportable in the light of the language found In the advertisement for bids and In the proposed contract as follows: 

"In determining the total amount of bid the 

bidder shall not Include any costs of city fees 

for permits for building but the same shall be 

the responsibility of the County if the same be 

a legal charge against the County. O O .* 

Article III, Section 48, Texas Constitution, states 

as follows: 

"The Legislature shall not have the right to 

levy taxes or Impose burdens upon the people, except to raise revenue sufficient for the economical administration of the government, O e *e 

Article 1175 (81, Vernon's Civil Statutes, gives HOE 

Rule cities power to provide for the mode and method for assessing taxes against any person or corporation. A tharge or fee, 

if for the purpose of raising revenue, Is a ;tax 9 and is levied 

under the general taxing power. Harris Coun Y vO Sh ooerd 

Tex. 291 S.W.2d 721, 723. Generally, where a ice isper 

actedsolely for revenue purposes, and its payment gives the 

right to carry on business without further conditions, such fee 

is a "tax*. Brrpe undel County Commissioners vO @g&& 182 

Md. 514, 34 A.2d 1% The courts of other jurisdictions i&e 

held that as an Incident to its power to enact valid inspection 

laws, a State may Impose a reasonable fee to defray expenses of 

inspection. Such fee is not a wtaxe and the fixing of the 

amount of the fee is a legislative power, which may be delegated 

when it seems advantageous to do so. manee v. Flann Y 176 

Term. 125, 318 SeW.2d 441, 4% In jurisdictions wherErtie 

matter has been considered, the courts are almost uniform in 

holding that *taxes* are burdens of a pecuniary nature imposed 

for defraying the cost of governmental functions, whereas, 

charges are sustainable as "fees- where they are imposed to defray the cost of ; par;;;ular service rendered for a specific 

t rseo 

&won a ithg 264 Mist, 736, 124 N,Y.S.2d 473p 

We are of the view that's permit fee which Is limited to 

an amount which does not exceed the cost of the inspection, and 

is assessed for the sole purpose of defraying the cost of such 

inspection by the City of Port Lavaca, is not a tax. 
Honorable Jack Fields, page 3 (W-218) 

We are primarily concerned with the question of 

whether a municipal corporation can Impose any regulatory 

strictions upon county buildings. It is well established . . . . _ .__ _ 

rein 

tnls state tnat a county 1s a subdlvlslon of the state, and 

as such is a projection of the state on a local scale. QQdress Countv 

Jones v. AlexzAder 

State, 127 Tex. 343, 92 S.W.2d 1011 (1936); 

9 122 Tex. 328, 59 S.W.2d 1080 (1933). It 

has been argued, therefore, that a city cannot exercise police 

power over the state nor wer the subdlvislons thereof. 

In 9 &m.Jw. 202, Ruildines, Section 6, it is said: 

"The courts are not entirely agreed as to 

the applicability of municipal building regulations to buildings erected within the municipal 

limits, by or under the authority of the State, 

or by a county or other political subdivision 

of the state. According to well-reasoned cases9 

a county in erecting buildings within the limits 

of a municipal corporation must comply with such 

proper building regulations as the municipality 

pursuant to its police power has Imposed. . 0 0 

However 

1 

a legislative grant of police power to 

a munic pal corporation will not be deemed a 

cession of the legislature's prerogative to govern for itself the institutions of the state 

which may be located within such municipality, 

unless it may be clearly gathered from the latter 

act that such was the legislative intent. D o *e 

We are advised that the City of Port Lavaca operates 

under a Home Rule charter. Article 1175 (341, Vernon's Civil 

Statutes, in delegating certain police power to Home Rule cities, provides that such cities may enforce ordinances necessary 

to "protect health, life and property. a 0 0w This provision 

is an express legislative grant, by the State, of police power 

to all cities operating under a Home Rule charter to adopt and 

enforce all ordinances, which are necessary for the purposes 

specified. We are of the view that the duty to erect a county 

courthouse rests upon the relation of the county to the State. 

Its use concerns the public at large, for the whole state is 

interested in the enforcement of the law in each county and the 

county acts in the building of the courthouse as an agency of 

the state. Police power is granted to the municipal corporation by virtue of Article 1175 (34) Vernon's Civil Statutes. 

If the regulation imposed by the city to "protect health, life 

and property . . .e is to be uniform in Its protection, we can 

perceive of no good reason why the county should not be amenable to the reasonable police regulations which the city imposes in the interest of general welfare. Cook Countv v. Citv 
1 - 

-. - 

I’,. . , 

Honorable Jack Fields, page 4 Ww-218) 

nf Chl~ 311 Ill. 234, 142 N.E. 512 (1924). It can be argued that ihe state has committed the control of the county 

buildings to the county, and that the county has preempted the 

field of regulations to the exclusion of the city within whose 

boundaries the buildings may be located. It is true that the 

state may confer upon the commissioners' court of a county such 

power of regulation and control as to exclude some of the broad 

police jurisdiction which would normally lie in the city, In 

this instance, however, the only power which the Legislature 

has conferred upon the county is that set forth in Article 2351 

(7) Vernon's Civil Statutes, wherein it states: 

"Each commissioners court shall: 

jails"ini ill necessary public buildings. 0 0 *e 

Rwlde and keep in repair courthouses, 

We are of the opinion that the above quoted statute 

is so general as not to vest sole police jurisdiction with regard to regulation of county buildings with the county commissioners' court. Even if the above provision is given the broadest application permitted by its language, it is not so explicit 

as to infer that the county should have exclusive police jurisdiction of such buildings. While it is well settled that the 

county is an agency of the state, it is likewise a creature of 

~~~..~;~ vested with only such powers as conferred upon it by 

0 It would be Incorrect to hold that the county is a 

part of the state In the exercise of police power for reasonable 

regulatory and inspection purposes in this instance. We, therefore, think it inescapable that police power delegated to the 

city in this Instance, must be construed, as between the county 

and the city, as a delegation of a power to the latter, which 

the former is expected to observe. Cook County v. City of Ch&- 

!aKQ, if!uus 

Consequently, the problem resolves itself into a question of whether the inspection here involved is a reasonable 

regulation by the municipal corporation in the exercise of its 

police powers. It is well established that any regulatory measures exercised by a city by virtue of police power are exercised only in pursuance of a legislative grant of such police 

power by the State. Brewer v. State9 113 Tex.0.R. 52.2, 24 S.W. 

2d 409; Port Worth and D.C. Rv. Co, v0 215 S.W.2d 407 

(Tex.Civ.App. 1948 error ref. n.r.e.1 

Amma 9 

9 

Where the subject matter of a city ordinance is within 

the police, power of a city, such city has broad discretion in 

deciding what is necessary and 

222 S,W.2d 646 (Tex.Civ.App. 1 9f 

roper. e 

9, error ref,) It has been held' 
- r 

. . . 

L a ..1 

Honorable Jack Fields, page 5 W-218) 

that the supervision of the construction, maintenance and repair of buildings fall within the scope of the police power 

which is inherent in the State, and has been delegated to the 

city. Newton v. Town of Hleh 

(Tex.Clv.App. 1955, error ref 

9 282 S.W.2d 266, 278 

This power may be delegated by the State to municipal corporations and such authority 

when delegated comes within the police power of a city. m 

139 Tex. 600, 164 S.W.2d 516; U.&v of E& 

225; 107 S.W.2d 872; also see McQulllin 

1016. 

9 2d Ed., Vol 3, pe 286, Section 

Ordinances enacted by a city requiring the payment of 

fees for the issuance of permits and allowing inspection of construction within the corporate limits of the city by the city 

inspectors to insure compliance with the City Building Code, 

constitute a valid exercise of the police power of such city to 

adopt measures to protect life and property, Ex 

62 Tex.Cr.61, 136 S.W. 61. 

_8arte, 

We conclude that the fee required by ordinance of the 

City of Port Lsvaca, Texas, for the Issuance of a building permit, enabling progress Inspection of county owned construction 

is not a tax and does not violate Article III, Section 48 of the 

Texas Constitution. Further, it is our view that such charge 

is valid in the proper exercise by the city of its police power. 

It must be remembered, of course9 that t.he reasonableness of 

any such regulatory measure, enacted under the police jurisdiction of a municipal corporation, ultimately depends upon the 

facts which exist in each particular case. 

SUMMARY 

The Commissioners' Court of Calhoun County Is 

subject to a requirement of an ordinance of the City 

of Port Lavaca, Texas, for the payment of fees, 

charges or assessments for permits for the demolition of old buildings and for the construction of a 

new building, where such fees constitute a reasonable 

charge to defray the cost incurred by the City in 

having progress inspections made. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

BHT:pf:wb 

ByB.(/6!w, 

B. H. Timmins, Jr. 

Assistant 
Honorable Jack Fields, page 6 (WW-218) 

Geo. P. Blackburn, Chairman 

W. V. Geppert 

J. C..Davls, Jr. 

John Reeves 

Wm. R. Hemphill 

Lonny Zvlener 

Ralph R. Rash 

REVIRWED FOR TRE ATTORNEY GENERAL. 

BY: James N. Ludlum