ATTORNEY GENERAL ISSUES IMPACT FEE OPINION
The Texas attorney general recently issued an opinion, GA-0637, regarding: (1) which fees constitute “impact fees;” and (2) whether a school district may agree to pay impact fees in light of several laws and a previous attorney general opinion.
Chapter 395 of the Local Government Code, the impact fee statute, clearly defines what constitutes an “impact fee.” The League, in its written comments on the opinion request, argued that whether any particular fee is an impact fee requires an examination of the fee and what it is used for. In other words, the answer to the question involves an examination of the facts, and the attorney general is prohibited from reviewing facts in the opinion process. The opinion noted that fact issues cannot be resolved in an opinion, and the attorney general refused to make any conclusions regarding that portion of the request.
The request also asked for clarification of S.B. 883, a 2007 bill that exempts school districts from paying impact fees unless the school district’s board of trustees agrees to do so. A prior law, Section 11.168 of the Education Code, provides that a school district “may not enter into an agreement authorizing the use of school district…resources for…improvements to real property not owned…by the district.”
A previous attorney general opinion, GA-0496 (2006), construed Section 11.168 relative to Local Government Code Chapter 395. At the time the opinion was released, the law required a school district to pay impact fees. The issue in GA-0496 was whether a school district was prohibited under Section 11.168 from paying impact fees because the expenditure would indirectly involve the use of school resources to improve real property not owned by the district. GA-0496 concluded that cities imposed impact fees at that time, and there was no “agreement” to pay them. That opinion confirmed that cities at that time could continue to collect impact fees from school districts.
The crux of the latest opinion request was this: Does the older provision prohibiting schools from agreeing to use their resources for offsite improvements trump the ability of a school district board of trustees to agree to pay under S.B. 883?
GA-0637 (the most recent opinion) concluded that such an interpretation would violate rules of statutory construction and that all of the statutory provisions can be harmonized. Essentially, the opinion concludes that a school district board of trustees may agree to pay municipal impact fees if it so desires.