The Attorney General of Texas
JIM MATTOX AugJst 14, 1985
Attorney General
Supreme Court Building
Honorable Charles F. Aycock Opinion No. JM-338
P. 0. BOX 12646 Parmer County Attorney
Austin, TX. 76711. 2546 P. 0. Box 286 Re: Whether the city of Bovina
5121475-2501 Fawell, Texas 79:t25 charge home owners and
-Y
Telex 9101674-1367
business owners a flat fee
Telecopier 51214750266
for maintenance of a police
department
714 Jackson, Suite 700
Dallas, TX. 75202-4506 Dear Mr. Aycock:
2t41742.6944
You ask whether the city of Bovina , a city incorporated under the
4624 Alberta Ave., Suite 160 general laws, may assess a $6 charge against all home owners and
El Paso. TX. 799052793 business owners in Ilovina. The charge would appear on monthly utility
9151x73-3464 bills, and the proceeds would be used to finance the city's police
department. You also ask whether the city could discontinue utility
1w1 Texas, Suite 700
services to persons who do not pay the charge.
Houston, TX. 77002.3111
7131223.5666 The facts set out in your letter make clear that the $6 charge is
intended to raise revenue, not to cover the expenses of providing
utility services. Thus. in imposing the charge, the city is acting in
606 Broadway, Suite 312
its governmental capacity, not in its proprietary capacity. See
Lubbock, TX. 79401-3479
606/747-5236
Batten V. City of Houston, 373 S.W.2d 525 (Tex. Civ. App. - House
1963, writ ref'd n.r.e.1 (explaining that when a municipality
furnishes utility sl:l?vices,
it acts in its proprietary capacity and is
4309 N. Tenth, Suite S obliged to serve jts customers at reasonable and nondiscriminatory
McAllen. TX. 76501.1665
5121662.4547
rates). Because any charge or fee imposed by a municipality for the
purpose of raising 'revenueis considered a "tax," we must characterize
our inquiry as whether the city of Bovina has ,authority to use the
200 Main Plaza. Suite 400 method of taxation YOU describe. County of Harris V. Shepperd, 291
San Antonio, TX. 76205-2797
S.W.2d 721 (Tex. 19,ji).
512/225-4191
Municipalities functioning under the general laws have no
An Equal Opportunityl inherent power to tz.:(.They possess only those taxing powers that the
Affirmative Action Employer legislature or the constitution expressly grants them. Vance V. Town
of Pleasanton, 261 S.W. 457, 458 (Tex. Civ. App. - San Antonio 1924).
holding approved, :277 S.W. 89 (Tex. Comm'n App. 1925, judgmt.
adopted). The basi: method of taxation by Texas municipalities is the
ad valorem tax. 22 I. Singer, Texas Practice 5871 (1976). Sl?e
V.T.C.S. arts. 1026 and 1027. The Texas Legislature has a=
authorized general law municipalities to use various other methods of
taxation. See, e.g~-, V.T.C.S. arts. 1028, 1031, 1066~. We find no
statutory authority, however, for the method of taxation that you
describe in your letter. Thus, the $6 charge against all home owners
p. 1543
Honorable Charles F. Aycock - Page 2 (~~-338)
and business owners is not zl proper method for raising revenue to
support the police department.
In view of our response to your first question, we do not address
your second question.
EUMMARY
--
A general law ~~xlcipality has no authority to
raise revenue by chz:rgingeach home owner and each
business owner in Btmina a flat fee.
JIM NATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinges
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1544