Does the $6 cap on unpaid toll fees apply to companies running Texas toll lanes, not just TxDOT?

Plain-English summary

In 2017, Senate Bill 312 changed how much the Texas Department of Transportation can tack onto a toll bill when a driver does not pay on time. The old rule let the Department add an administrative fee of up to $100; the new rule, in Transportation Code section 228.0547(b), caps that fee at $6 and limits a person to no more than $48 in administrative fees over a 12-month period. The fee provision says it applies to "the department." But on some toll projects, the Department contracts the work out to other entities, and a separate statute gives those entities the Department's powers. A House committee chair asked the AG whether the new fee cap binds those contracting entities too, or only the Department itself.

The AG traced the statutory chain. Operating a toll lane under section 228.007(b) starts with a Texas Transportation Commission order authorizing the Department to charge tolls on state-highway lanes. The Department may then contract with one of several listed entities (a regional tollway authority, a transit authority, a coordinated county transportation authority, a regional mobility authority, a county, or a transportation corporation) to design, construct, operate, or maintain the toll lane and charge tolls. Section 228.059 provides that such an entity has, with regard to toll collection and enforcement, "the same powers and duties as the department" under chapter 228.

Because the $6 administrative-fee cap in section 228.0547(b) is part of the Department's toll-collection and enforcement authority, the AG concluded it is one of the "powers and duties" that section 228.059 hands to a contracting entity. So an entity operating a toll lane under section 228.007(b) is likewise limited to adding an administrative fee of no more than $6 to what a driver owes and charging that driver no more than $48 in administrative fees in any 12-month period.

Currency note

This opinion was issued in 2018. 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.

What the opinion meant for those who asked

The requesting committee chair and the Legislature (as the opinion described them): The opinion confirmed that the Senate Bill 312 administrative-fee cap is not confined to the Department. Through section 228.059, the same limits attach to entities that contract with the Department to operate a toll lane under section 228.007(b).

Entities operating state toll lanes under contract (as the opinion described them): The opinion treated such entities as bound by the same $6-per-invoice cap and $48-per-12-months ceiling on administrative fees that apply to the Department, because section 228.059 gives them the Department's toll-collection and enforcement powers and duties.

Drivers using these toll lanes (as the opinion described them): The opinion's reading meant that the administrative fee a contracting operator could add for an unpaid toll was subject to the same statutory caps as the Department's, rather than a higher or uncapped charge.

Common questions

Does the $6 unpaid-toll fee cap apply only to TxDOT?
No. The AG concluded the cap in section 228.0547(b) also applies to an entity that contracts with the Department to operate a toll lane under section 228.007(b), because section 228.059 gives that entity the Department's toll-collection and enforcement powers and duties.

What are the actual limits?
Under section 228.0547(b), the administrative fee added to an unpaid toll invoice may not exceed $6, the fee must be set by rule at an amount not exceeding the cost of collecting the toll, and a person may not be charged more than $48 in administrative fees in a 12-month period.

Why do contracting entities get the same limits?
Because section 228.059 says an entity operating a toll lane under section 228.007(b) has, for toll collection and enforcement, "the same powers and duties as the department" under chapter 228. The AG read the fee cap as part of those powers and duties.

What changed with Senate Bill 312?
The AG noted that Senate Bill 312 capped the administrative fee at $6 and deleted the prior provision (former section 228.055(b)) that had allowed a fee of up to $100.

Background and statutory framework

Senate Bill 312 (Act of May 27, 2017, 85th Leg., R.S., ch. 533, §§ 31, 74, 2017 Tex. Gen. Laws 1439) capped the Department's administrative fee on an unpaid toll invoice at $6 (codified at Tex. Transp. Code § 228.0547(b)) and deleted the former $100-fee provision (§ 228.055(b)). Operating a toll lane under section 228.007(b) begins with a Texas Transportation Commission order authorizing the Department to charge tolls on state-highway lanes (§ 228.007(a); the Commission governs the Department under §§ 201.201, 201.102). The Department may then contract with a listed entity to design, construct, operate, or maintain the toll lane and charge tolls (§ 228.007(b)(2)).

Section 228.059 provides that an entity operating a toll lane under section 228.007(b) has, with regard to toll collection and enforcement, the same powers and duties as the Department under chapter 228. Section 228.0547(b) limits the Department to an administrative fee not exceeding $6, set by rule at no more than the cost of collecting the toll, and no more than $48 in administrative fees per 12-month period. Reading these provisions together, the AG concluded that the fee cap is part of the Department's toll-collection and enforcement powers and duties, so it applies equally to an entity that contracts with the Department to operate a toll lane.

Citations

Statutes:

• Tex. Transp. Code §§ 201.102, 201.201, 228.007(a), 228.007(b), 228.007(b)(2), 228.0547(b), 228.055(b), 228.059
• Act of May 27, 2017, 85th Leg., R.S., ch. 533, §§ 31, 74, 2017 Tex. Gen. Laws 1439

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0184
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0184.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 26, 2018

The Honorable Joseph C. Pickett Opinion No. KP-0184
Chair, Committee on Environmental Regulation
Texas House of Representatives Re: Extent to which the administrative fee
Post Office Box 2910 provisions of subsection 228.0547(b) of the
Austin, Texas 78768-2910 Transportation Code apply to an entity
operating a toll lane pursuant to subsection
228.007(b) of the Transportation Code
(RQ-0178-KP)

Dear Representative Pickett:

     Your question concerns Senate Bill 312 which, among other things, imposed a cap on the administrative fee the Texas Department of Transportation (the "Department") may add to an unpaid toll invoice stemming from a person's use of a toll project on a state highway. [1] See Act of May 27, 2017, 85th Leg., R.S., ch. 533, § 31, 2017 Tex. Gen. Laws 1439, 1450 (codified at TEX. TRANSP. CODE § 228.0547(b)) (authorizing the Department to "add an administrative fee, not to exceed $6, to the amount the person owes" if the person does not pay the initial toll invoice); see also id. § 74, 2017 Tex. Gen. Laws 1439, 1462 (deleting TEX. TRANSP. CODE § 228.055(b), which previously allowed the Department to impose an administrative fee "not to exceed $100"). You explain that although the new limited administrative fee provision "expressly applies only to the [D]epartment," other entities in particular circumstances have "the same powers and duties" as the Department with regard to toll collection and enforcement. Request Letter at 1. Specifically, section 228.059 of the Transportation Code provides that "[a]n entity operating a toll lane pursuant to Section 228.007(b) has, with regard to toll collection and enforcement for that toll lane, the same powers and duties as the department under [chapter 228]." TEX. TRANSP. CODE § 228.059; see also Request Letter at 1. With the new limited administrative fee provisions in mind, you ask to what extent such provisions constitute "powers and duties" of the Department that "apply ... to an entity operating a toll lane pursuant to Section 228.007(b)" of the Transportation Code. Request Letter at 1.

   The operation of a toll lane pursuant to subsection 228.007(b) begins with an order by the Texas Transportation Commission [2] pursuant to subsection 228.007(a) authorizing the Department "to charge a toll for the use of one or more lanes of a state highway." TEX. TRANSP. CODE § 228.007(a). Once the authorization order is in place, the Department has the option to

             enter into an agreement with a regional tollway authority described in Chapter 366, a transit authority described in Chapter 451, 452, or 453, a coordinated county transportation authority under Chapter 460, a regional mobility authority under Chapter 370, a county acting under Chapter 284, or a transportation corporation: (1) to design, construct, operate, or maintain a toll lane under this section; and (2) to charge a toll for the use of one or more lanes of a state highway facility under this section.

Id. § 228.007(b)(2) (emphasis added). An entity with which the Department contracts pursuant to subsection 228.007(b)(2) has "the same powers and duties" as the Department "with regard to toll collection and enforcement." Id. § 228.059. Section 228.0547 addresses the Department's authority over toll collection and enforcement on state highway toll projects. If a person fails to pay for his or her use of a toll lane in a timely manner after receiving an invoice, the Department "may add an administrative fee, not to exceed $6, to the amount the person owes." Id. § 228.0547(b). The Department "(1) must set the administrative fee by rule in an amount that does not exceed the cost of collecting the toll; and (2) may not charge a person more than $48 in administrative fees in a 12-month period." Id. The enforcement power of an entity operating a toll lane pursuant to section 228.007(b), therefore, is likewise limited to adding an administrative fee not exceeding $6 to the amount a person owes and charging that person not more than $48 in administrative fees in a 12-month period.

                                 SUMMARY

                  The administrative fee provisions of subsection 228.0547(b) of the Transportation Code are powers and duties of the Department of Transportation that apply to an entity that contracts with the Department pursuant to subsection 228.007(b) of the Transportation Code to operate a toll lane.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Joseph C. Pickett, Chair, House Comm. on Envtl. Regulation, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 11, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] The Texas Transportation Commission ("Commission") governs the Department. TEX. TRANSP. CODE § 201.201; see also id. § 201.102 (referring to "the policy-making responsibilities of the commission and the management responsibilities of the director and staff of the department").