Austin toll agency says new Paxton opinion on fee cap doesn’t apply


A 2017 state law sets a $48-a-year cap on late fees for those who don’t pay tolls on TxDOT-operated roads.

A legislator in September asked AG Ken Paxton if the fee cap covers other operators of Texas tollways.

Paxton said yes, but Central Texas toll officials Monday said his ruling is narrow and does not apply to them.

The $48 annual limit on administrative fees for late payment of tolls, imposed by the Legislature last spring and set to take effect Thursday, applies not only to Texas Department of Transportation tollways but also to those operated by other toll agencies, Texas Attorney General Ken Paxton said in an opinion issued Monday.

But that opinion is nonbinding. And officials with the Central Texas Regional Mobility Authority, which operates four of Austin’s nine tollways with two more under construction, read Paxton’s opinion to say that the fee cap does not cover its roads.

“That ruling does not apply to us,” said Mike Heiligenstein, the mobility authority’s executive director. He said the mobility authority’s operations are governed by a section of the Texas Transportation Code not cited in Paxton’s opinion. He said that processing late toll payments costs the agency $31 in each case, approximately the fee the authority charges for each toll not paid within 30 days.

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“I don’t feel we’re taking a position” on the ruling, Heiligenstein said. “It is the opinion of the AG. And why throw yourself under the bus, if the AG doesn’t throw you under the bus?”

But at least some gray area remains about the reach of the new toll fee limit.

“The jury is still out on that,” said state Rep. Joe Pickett, D-El Paso, who in September had requested the opinion from Paxton. Pickett, formerly chairman of the House Transportation Committee, said he had spoken to TxDOT officials Monday after the opinion was released, and “I think the general counsel at TxDOT is not sure.”

“I really think it applies to everyone, because at some point you have to have TxDOT’s permission to charge a toll on the system,” Pickett said.

In Central Texas, TxDOT owns and operates four tollways — Texas 130 from Georgetown to Mustang Ridge, MoPac Boulevard (Loop 1) north of Parmer Lane, Texas 45 North and Texas 45 Southeast — and no one disputes that the fee cap passed by the Legislature in May will apply to those roads.

RELATED: Scoffing at tolls now carries a lower cost

The mobility authority operates North MoPac south of Parmer, 183-A, U.S. 290 East and Texas 71 East, and is building toll lanes on U.S. 183 South and Texas 45 Southwest. Even within that group, there are distinctions:

• 183-A is not technically part of the state highway system, although it connects to U.S. 183 and Texas 45 North, which are.

• TxDOT constructed Texas 71 East and last year assigned its operation (and profits, if any) to the mobility authority.

• With MoPac and U.S. 290 East, the authority designed, constructed and operates the roads, and that will be the case with the two still under construction.

TxDOT officials, while emphasizing that the cap applies to its tollways, declined Monday to speculate on what the Paxton ruling might mean to the others.

“TxDOT is reviewing this opinion and will have further comment once we have completed our analysis,” spokesman Bob Kaufman said in an email.

RELATED: Will the low fine cap encourage more to bypass paying tolls?

The Legislature last spring had passed the fee cap, a reaction to years of public complaints about sometimes staggeringly large bills sent to those who didn’t pay and were assessed $100 or more for each unpaid toll.

Pickett said he might send a follow-up letter to Paxton requesting clarification.

Regardless of whether the fee cap applies, those who fail to pay still owe the underlying tolls and could be assessed court costs in some cases.

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