Dear Superintendent:
The Texas Attorney General issued an opinion today (GA-0637) regarding impact fees being imposed upon a school district by a municipality. The question was whether impact fees may be imposed upon school district property under chapter 395 of the Local Government Code. The other question was whether certain fees constitute an impact fee.
Texas Local Government Code Section 395.022(b) states "a school district is not required to pay impact fees imposed unless the board of the district consents to the payment of the fees...." The Attorney General concluded that the legislative intent was to exempt school districts from impact fees, unless the school district consents to paying the fee. Seems simple, right? Wrong.
There are some fees that are easily classified as an impact fee. There are other fees that may not be easily classified as an impact fee. Rather than give us a bright line rule, the Attorney General punted. The Attorney General stated "whether any particular fee constitutes an 'impact fee' under chapter 395 would require the resolution of facts and, as a result, cannot be determined in an attorney general opinion." What does this mean to you? It means if the city insists on charging a certain fee and calling it something other than an impact fee, then the issue may ultimately be decided by a court.
On a related issue, some municipalities have been telling school districts that they will withhold permits or utility services if the district does not pay impact fees. This practice may be prohibited as a result of this opinion.
If you have specific questions regarding the effect of this opinion, please call me at 1-866-605-2487. As always, you may view this letter and other school district legal news on our website at www.dubnerlaw.com.
