Texas Attorney General Opinion: GA-0788 Page: 4 of 6
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The Honorable Tommy Williams - Page 4
section 395.024 applies with equal force to the purposes for which an impact fee credit may be
granted and applied under section 395.019(2). See id.; see also Request Letter at 2 (because "impact
fees can only be spent for the purposes imposed, it could be argued that impact fee credits may only
be granted for the impact fees corresponding to the category of the capital improvement project").
In other words, it could be argued that credit for the cost of a category of a capital
improvement-such as oversizing of a water line--may be granted only to reduce impact fees for
the same category of capital improvement, i.e., water impact fees. Otherwise, an impact fee imposed
for one category of capital improvement (water impact fees) would effectively be used to pay for a
different category of capital improvement (wastewater improvement), contrary to section 395.024.
While this limiting effect of section 395.024 on section 395.019(2) has a certain logic, we
cannot say that the Legislature clearly intended to generally limit the grant or application of impact
fee credit to the same category of capital improvement. Cf Galbraith Eng 'g Consultants, Inc., 290
S.W.3d at 867 (explaining that, when construing a statute, the "primary objective is to give effect
to the Legislature's intent as expressed in the statute's language"). Again, neither section 395.019(2)
nor section 395.024 or any other provision in chapter 395 expressly limits a governmental entity's
grant of an impact fee credit with respect to capital improvements generally or with respect to the
categories of water and wastewater improvements specifically. TEX. Loc. GOV'T CODE ANN.
395.019(2), .024 (Vernon 2005); see Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d
864, 866 (Tex. 1999) ("[I]t is a fair assumption that the Legislature tries to say what it means, and
therefore the words it chooses should be the surest guide to legislative intent."). In fact, section
395.019(2) authorizes developers' costs to be credited against "impact fees otherwise due from the
new development" TEX. Loc. GOV'T CODE ANN. 395.019(2) (Vernon 2005). The impact fees
attributable and due from a new development are calculated and assessed as a single amount per
service unit in the development. See id. 395.001(6), (10), .014(a)(4)-(7), .015. When the
Legislature has intended to limit the application of a credit for developer costs in chapter 395, it
appears to have done so expressly. See id. 395.023 (providing that "[a]ny construction of,
contributions to, or dedications of off-site roadway facilities agreed to or required ... shall be
credited against roadway facilities impact fees otherwise due from the development") (emphasis
added).
It is'an established principle of statutory construction that "'every word of a statute must be
presumed to have been used for a purpose. Likewise,... every word excluded from a statute must
also be presumed to have been excluded for a purpose."' Laidlaw Waste Sys. (Dallas), Inc. v. City
of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) (quoting Cameron v. Terrell & Garrett, Inc., 618
S.W.2d 535, 540 (1981)). As explained by the Texas Supreme Court, this principle of statutory
construction "is related to a more general rule that courts should not insert words in a statute except
to give effect to clear legislative intent." Id (citing Hunter v. Fort Worth Capital Corp., 620 S.W.2d
547, 552 (Tex. 1981)). In chapter 395, we do not perceive a clear legislative intent, with the noted
exception above, to limit the grant or application of credits to any specific category of capital
improvements. Therefore, we cannot effectively add such limiting words to the statute by construing
section 395.019(2) to require a political subdivision to limit application of a credit to the same
category of impact fees.(GA-0788)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0788, text, July 28, 2010; (https://texashistory.unt.edu/ark:/67531/metapth275684/m1/4/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.