Could the Texas AG decide whether solid-waste permit application fees were improperly high?

Texas AG Opinion JM-473: Solid-Waste Permit Application Fees

Plain-English summary

Jackson County challenged the application fees that the Texas Department of Health required before processing the county's solid-waste permit application. The opinion recorded fees of "$200 for Part A" and "$12,000 for Part B." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0473.pdf

JM-473 concluded that the legislature had supplied specific standards for the fee schedule, including population served, waste volume, facility type and size, and review cost. It also directed that collected fees cover the department's expenses in administering the permit program. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0473.pdf

The opinion did not determine whether the department's fees actually met those standards. It said, "Whether they actually bear a reasonable relationship to the cost of processing applications and issuing permits is a question of fact," and the Attorney General could not resolve fact questions in the opinion process. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0473.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did JM-473 hold that the solid-waste application fees were reasonable?

No. It said, "We cannot say, as a matter of law, that these fees are unreasonable," but it also declined to decide whether they were proper because that depended on facts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0473.pdf

What standards governed the fee schedule?

The quoted statute required the schedule to be "reasonably related to one or more" of four factors: population served, waste volume, facility type and size, or the cost of reviewing the permit application. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0473.pdf

Could an agency receive delegated authority to set these fees?

Yes. JM-473 said the legislature could delegate authority to carry out a legislative purpose if it supplied reasonable standards, and it found specific guidelines in article 4477-7. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0473.pdf

Background and statutory framework

At the time, article 4477-7 gave the Department of Health authority over certain solid-waste permits. Section 4(k)(1) required an application fee and directed the department to adopt a fee schedule tied to listed statutory factors. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0473.pdf

The rules then in effect appeared in 25 T.A.C. section 325.63 and separated fees for Part A and Part B of a new permit application. The opinion treated compliance with the statutory relationship between fees and review costs as a factual issue rather than a legal issue it could decide. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0473.pdf

Citations and references

• article 4477-7, V.T.C.S.
• article 4477-7, section 4(k)(1), V.T.C.S.
• 25 T.A.C. section 325.63
• State ex rel. Grimes County Taxpayers Association v. Texas Municipal Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App. - Houston [1st Dist.] 1978, no writ)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0473.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0473
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0473.pdf

Original opinion text

Best-effort transcription from a scanned PDF via OCR. Minor errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

April 11, 1986

Honorable Robert E. Bell
Criminal District Attorney
115 W. Main, Room 205
Edna, Texas 77957

Opinion No. JM-473

Re: Application fees for solid waste disposal permits

Dear Mr. Bell:

You advise us that Jackson County has applied to the Texas Department of Health for a solid waste permit. The Department of Health has refused to process Jackson County's application until Jackson County pays the application fees set by the Department of Health. Under the rules in effect at the time Jackson County submitted its application, the required fees were $200 for Part A of the application and $12,000 for Part B of the application. See Tex. Dept. of Health, 10 Tex. Reg. 3286 (1985) (codified at 25 T.A.C. §325.63) (fees effective from September 1, 1985, through December 30, 1985). You state that these fees seem to have no rational relation to the Department of Health's expenses in processing your application.

The legislature has granted the Department of Health authority over issuance of solid waste permits to certain entities. V.T.C.S. art. 4477-7. In setting a fee schedule for applications for solid waste permits, the Department of Health acted pursuant to a legislative delegation of rule-making power set out in article 4477-7, section 4(k)(1), V.T.C.S., which provides:

The department shall charge a fee for the filing with the department and review by the department of a permit application under this section. A fee schedule shall be adopted by rule that shall be reasonably related to one or more of the following factors:

A. the population served;

B. the volume of waste to be handled;

C. the type and size of the facility; or

D. the cost of the review of the permit application.

The legislature also provided that application fees as well as annual permit fees should be set in an amount that would generate sufficient revenue to meet the expenses of administering section 4 of article 4477-7, which provides for the issuance and overseeing of solid waste permits.

The legislature has authority to delegate to an agency power to carry out a legislative purpose. State ex rel. Grimes County Taxpayers Association v. Texas Municipal Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App. - Houston [1st Dist.] 1978, no writ). The legislature must establish reasonable standards to guide the entity, but such standards may be broad where conditions must be considered that cannot be conveniently investigated by the legislature. Id.

In this instance the legislature set out specific guidelines for the Department of Health to use in setting fees, and it directed that total fees collected should cover the department's expenses in the permit process. You do not question the propriety of the legislative delegation. Rather, you question whether the Department of Health complied with the requirements of article 4477-7, section 4(k)(1).

The fees that the Department of Health set pursuant to article 4477-7 purport to be based on the standards established by the legislature:

§325.63. Permit Application Fees.

(a) Types of applications.

(1) New applications. With each application for a permit to construct or operate a municipal solid waste processing or disposal facility, the applicant shall submit a nonrefundable application fee to the department. The fee may be submitted in two parts, with the first part due with submission of Part A of the application and the second part due with submission of Part B or site development plan of the application. The fee shall be based on the tables under subparagraph (A) and subparagraph (B) of this paragraph which are graduated in a manner to consider one or more of the following factors: the population served; the volume of waste to be handled; the type and size of the facility; or the cost of the review of the permit application.

(A) Part A application fee schedule.

Type of Facility	Application Fee
I	$200
II	$100
III	$50
IV	$100
V	$100
VI	$100
VII	$100
VIII	N/A
IX	$100

(B) Part B site development plan application fee schedule.

We cannot say, as a matter of law, that these fees are unreasonable. Whether they actually bear a reasonable relationship to the cost of processing applications and issuing permits is a question of fact. We are not able to render opinions on questions of fact.

SUMMARY

Whether the fees promulgated in 25 T.A.C., section 325.63 (effective September 1, 1985, through December 30, 1985) are proper is a fact question which cannot be reached in the opinion process.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General