When a Texas water district builds roads for a county to take over, who sets the construction standards and can the county delay acceptance with a warranty period?

Plain-English summary

The Bastrop County Water Control and Improvement District No. 2 has authority under chapter 11001 of the Special District and Local Laws Code to improve roads inside the district and then hand them over to Bastrop County to fold into the county road system. Senator Eddie Lucio, Jr., writing on behalf of former Senator Kirk Watson and the District, asked the Attorney General two questions about how that process works in the Tahitian Village subdivision: what construction standard applies, and whether the County must accept finished roads right away or may impose a warranty period first.

On the first question, the AG read section 11001.008(c). Its first sentence tells the County to apply, as a minimum, the standard it used to review similar plans when the subdivision was created. But Tahitian Village was platted in 1974, when the County had no such standards, so any new improvements necessarily exceed a standard that never existed. That pushes the analysis to the second sentence, which says that when improvements exceed the original standard, approval must be "based on good engineering practices" tied to a list of factors: vehicle and pedestrian safety, soil and terrain, watershed impacts, projected traffic use, and future maintenance. The statute does not dictate where the County's standard must come from, only that it fit those engineering considerations, so the AG concluded the County has discretion and may, if it chooses, apply the minimum standards it currently uses for new developments.

On the second question, the AG looked at section 11001.010(b), which says the county "shall accept" improvements that comply with current minimum County standards. Because "shall" ordinarily imposes a duty, the County cannot condition acceptance on a requirement that exceeds its current standards or that is unrelated to the listed good-engineering-practices factors. Within those bounds, though, the County may impose a one-year warranty period, so long as the warranty is itself a standard that does not exceed current County minimums and rests on those same engineering considerations. The AG added that whether a particular warranty period satisfies that test is a decision for the commissioners court in the first instance, subject to judicial review.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The cited sections of the Special District and Local Laws Code can be amended, so verify current law before relying on any specific rule mentioned here.

What the opinion meant for those who asked

The opinion answered the District's and the County's questions about a recurring friction point: how good the District's roads have to be before the County will take them, and how fast the County must take them. For the District, the practical reading at the time was that it had to build to the County's current minimum standards for new development (since no 1974-era standard existed for Tahitian Village), and that meeting those standards triggered a mandatory duty for the County to accept the roads. For Bastrop County and its commissioners court, the opinion confirmed real discretion over the approval standard and the ability to use a one-year warranty period like the one developers face, but only if the warranty was tied to current minimum standards and good engineering practices rather than something extra. The opinion expressly left the first-line judgment about any specific warranty period to the commissioners court, with the courts available to review it.

Common questions

Q: Who decides how well the water district's roads must be built?
A: Under the opinion, Bastrop County has discretion over the approval standard for District road improvements, as long as the standard is based on good engineering practices tied to the factors listed in section 11001.008(c). Where no original subdivision standard existed, the County may apply its current new-development minimums.

Q: Does the county have to accept the roads once they are finished?
A: Yes, if they comply. Section 11001.010(b) says the county "shall accept" complying improvements, which the AG read as a mandatory duty once the roads meet current minimum County standards based on good engineering practices.

Q: Can the county make the district wait through a warranty period?
A: Yes, the AG concluded, but with limits. A warranty period is allowed only if it is a standard that does not exceed the County's current minimums and is based on the good-engineering-practices factors in the statute.

Q: Who decides whether a particular warranty period is allowed?
A: The commissioners court decides in the first instance, and that decision is subject to judicial review.

Background and statutory framework

Chapter 11001 of the Special District and Local Laws Code structures the District's road work: improvements follow a master road plan approved by the County and the City of Bastrop for their respective jurisdictions (sections 11001.003 and 11001.005), the District conveys completed improvements to the City or County (section 11001.010(a)), and the District's road authority ends once everything is built and accepted (section 11001.013). The two provisions at the center of the request are section 11001.008(c), which sets the minimum-standard rule for reviewing subdivision construction, and section 11001.010(b), which obligates the county to accept complying improvements. The AG applied plain-language statutory construction, citing In re Xerox Corp. and Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, read "shall" as mandatory under Tex. Gov't Code section 311.016(2) and Perryman v. Spartan Tex. Six Capital Partners, construed the "such as" list of factors under Cty. of Harris v. Eaton, and noted the commissioners court's reviewable authority under Henry v. Cox.

Citations and references

Statutory provisions:

• Tex. Spec. Dist. Code ch. 11001 (Bastrop County Water Control and Improvement District No. 2)
• Tex. Gov't Code § 311.016 (statutory construction; "shall" imposes a duty)

Cases:

• In re Xerox Corp., 555 S.W.3d 518 (Tex. 2018)
• Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318 (Tex. 2017)
• Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110 (Tex. 2018)
• Cty. of Harris v. Eaton, 573 S.W.2d 177 (Tex. 1978)
• Henry v. Cox, 520 S.W.3d 28 (Tex. 2017)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0327
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0327.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 10, 2020

The Honorable Eddie Lucio, Jr.
Chair, Committee on Intergovernmental Relations
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. KP-0327

Re: Standards applicable to roads constructed by the Bastrop County Water Control and
Improvement District No. 2 under section 11001.008 of the Special District and Local
Laws Code (RQ-0333-KP)

Dear Senator Lucio:

On behalf of former Senator Kirk Watson and the Bastrop County Water Control and
Improvement District No. 2 (the “District”), you seek an attorney general opinion about the
standards applicable to roads constructed by the District under section 11001.008 of the Special
District and Local Laws Code. 1 The District states that it is a water control and improvement
district that has road improvement powers under chapter 11001 of the Special District and Local
Laws Code. Brief at 1. The District tells us that under chapter 11001 and the annual interlocal
agreement between the District and Bastrop County (the “County”), the District improves roads
within the District for the County to accept into the County system of roads. Id. at 2. The Request
Letter poses questions about requirements in two statutes, sections 11001.008 and 11001.010,
specifically concerning the Tahitian Village subdivision. 2 Senator Watson Letter at 1; Brief at 2-

3. The first question is whether “Section 11001.008 of the Special District and Local Laws Code

1
See Letter from Honorable Eddie Lucio, Jr., Chair, Senate Comm. on Intergov’tl Relations, to Honorable
Ken Paxton, Tex. Att’y Gen. at 1 (Feb. 10, 2020), attached letter from Honorable Kirk Watson, Senator, Tex. State
Senate, to Senator Eddie Lucio, Jr. at 1 (Feb. 5, 2020), and attached memorandum brief from Mary Beth O’Hanlon,
President, Bd. of Dirs., Bastrop Cty. Water Control & Improvement Dist. No. 2, to Senator Watson at
3 (Jan. 17, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0333KP.pdf
(“Request Letter,” “Senator Watson Letter,” and “Brief,” respectively). After you submitted the Request Letter,
Senator Watson resigned from the Senate. See Tex. Gov. Proclamation No. 41-3722 45 Tex. Reg. 2095 (2020)
(ordering a special election to fill the vacancy created February 25, 2029 by Senator Watson’s resignation and its
acceptance).
As the Request Letter presents questions only about statutes, we do not address any effect the interlocal
2

agreement might have on the District’s and the County’s duties.

require[s] new roads to be built under current standards applicable to new development in the
remainder of the County, or some lesser standard.” Senator Watson Letter at 1.

We construe a statute according to its plain language, respecting what it says and what it
does not say. See In re Xerox Corp., 555 S.W.3d 518, 527 (Tex. 2018) (stating that courts
“presume the Legislature selected statutory words, phrases, and expressions deliberately and
purposefully and was just as careful in selecting the words, phrases, and expressions that were
included or omitted”). Moreover, a statute must be read in the context of its place in the broader
statutory framework. See Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518
S.W.3d 318, 326 (Tex. 2017) (stating that courts “consider the context and framework of the entire
statute and meld its words into a cohesive reflection of legislative intent”). Thus, we review salient
provisions of chapter 11001. The chapter requires the District to make all road improvements
according to the District’s master road plan, which the governing bodies of the County and the
City of Bastrop (the “City”) must approve with respect to the improvements to be located in each
entity’s jurisdiction. TEX. SPEC. DIST. CODE §§ 11001.003(a), (c), .005. “The district shall convey
the completed improvements to the City of Bastrop or Bastrop County as appropriate.” Id.
§ 11001.010(a). Once the District completes all road improvements under the master plan and the
County and City accept the improvements, the District’s road district authority under the chapter
terminates. Id. § 11001.013.

Concerning County approval of road improvements, subsection 11001.008(c) provides:

In reviewing plans or specifications for construction in a
subdivision, the City of Bastrop or Bastrop County shall generally
apply, as a minimum standard, the standard the city or county
applied to review similar plans or specifications at the time the
subdivision was created. If the plans or specifications exceed that
minimum standard, the standard for approval shall be based on good
engineering practices related to subjects such as vehicle and
pedestrian safety, soil and terrain variables, watershed impacts,
projected traffic use, and future maintenance requirements.

Id. § 11001.008(c). The District informs us that the County did not have standards for subdivision
road plans and specifications for a specific subdivision, Tahitian Village, when that subdivision
was platted in 1974. Brief at 2. The District further states that in light of the absence of standards
in 1974, “the County has recently advised the District that it must design roads to meet the current
standards applicable to new subdivisions within Bastrop County.” Id. The District queries
whether, in lieu of meeting current County standards for new subdivisions, the statute allows the
District to make improvements meeting a lesser standard developed by a professional engineer
who takes into consideration the specified statutory considerations. Id. at 2–3.

Because pertinent County standards did not exist in 1974, any improvements will exceed
the nonexistent standards, and therefore will necessarily exceed the minimum standard as stated
in the first sentence of subsection 11001.008(c). However, the second sentence regulates the
standard the County may utilize to approve road improvements. See TEX. SPEC. DIST. CODE
§ 11001.008(c). The statute does not specify the source of the County’s standard of approval in

the event improvements exceed standards, if any, prevailing at the time a subdivision was created,
only that it “be based on good engineering practices” according to the considerations identified in
the statute. Id. Thus, the County has discretion about the approval standard it will utilize to
approve District road improvements provided the standard comports with the statute. See id. The
statute, in turn, requires only that the applicable standards be “based on good engineering practices
related to subjects such as vehicle and pedestrian safety, soil and terrain variables, watershed
impacts, projected traffic use, and future maintenance requirements” to approve the District’s road
improvements. Id. Consistent with that requirement, the County may, in its discretion, apply the
minimum standards it currently employs for new developments. 3

The second question is whether the County is “required under Section 11001.010 of the
Special District and Local Laws Code to accept roads constructed by the District that meet the
applicable standards immediately, or may they impose a delay or other ‘warranty period.’” Senator
Watson Letter at 1. The District states that “Bastrop County has determined that it will not accept
completed roads by the District until after the expiration of a one year ‘warranty period,’ being the
same warranty period applicable to the construction of new road improvements by developers of
residential subdivisions.” Brief at 3.

Subsection 11001.010(b) provides that the “county shall accept the improvements” that
comply with current County standards. TEX. SPEC. DIST. CODE § 11001.010(b) (emphasis added).
The word “shall” in a statute ordinarily means the statute imposes a duty, “unless the context in
which the word or phrase appears necessarily requires a different construction.” TEX. GOV’T CODE
§ 311.016(2); see also Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 131
(Tex. 2018) (“By its plain and common meaning, “shall” denotes mandatory action.”).
Accordingly, sections 11001.008 and 11001.010 require the County to accept District road
improvements once they comply with the current minimum County standards that are based on
good engineering practices as specified in the statutes. See TEX. SPEC. DIST. CODE
§§ 11001.008(c), .010(b). By its plain language, the statute does not authorize the County to
condition its approval on a requirement exceeding current standards or a standard unrelated to the
good engineering practices specified in the statute. See Cty. of Harris v. Eaton, 573 S.W.2d 177,
178–79 (Tex. 1978) (construing the phrase “such as” in a statute listing items as including items
“of the same kind or class as the ones expressly mentioned”). But the statutes leave it to the county
commissioners court to determine in the first instance, subject to judicial review, whether a
warranty period constitutes such a standard. See TEX. SPEC. DIST. CODE §§ 11001.008, .010; see
also Henry v. Cox, 520 S.W.3d 28, 37 (Tex. 2017) (discussing district court’s authority to review
commissioners court actions). Thus, the County may impose a warranty period on District road
improvements provided that the warranty period constitutes a standard that (1) does not exceed the
minimum standards the County currently prescribes in the County and (2) is based on good
engineering practices related to subjects such as vehicle and pedestrian safety, soil and terrain
variables, watershed impacts, projected traffic use, and future maintenance requirements.

3
This conclusion is bolstered by subsection 11001.010(b), which states that “[i]f the improvements comply
with the minimum standards the . . . county . . . prescribes for improvements in its jurisdiction, the . . . county shall
accept the improvements.” TEX. SPEC. DIST. CODE § 11001.010(b). The word “prescribes” in the present tense refers
to the minimum standards the County currently prescribes.

S U M M A R Y

Chapter 11001 of the Special District and Local Laws Code
requires the Bastrop County Water Control and Improvement
District No. 2 to improve roads for acceptance by Bastrop County
into the County system of roads. The County has discretion about
the standard it will utilize to approve District improvements,
provided the standard is based on good engineering practices
according to specified statutory considerations. The County may
impose a one-year warranty period on District road improvements,
provided that the warranty period constitutes a standard that (1) does
not exceed the minimum standards the County currently prescribes
in the County and (2) is based on good engineering practices related
to subjects such as vehicle and pedestrian safety, soil and terrain
variables, watershed impacts, projected traffic use, and future
maintenance requirements.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee