Judge strikes down El Paso's environmental services franchise fee

The city’s environmental services franchise fee charged on garbage collection bills is “unconstitutional and should be discontinued,” District Court Judge Patrick Garcia ruled Tuesday.

The $6 monthly franchise fee, which appears in water bills, was at the center of a lawsuit filed by former state Rep. Joe Pickett in March 2021.

In the lawsuit, Pickett alleged the city of El Paso was hiding tax increases in water bills, using a fee that purportedly is to pay for damages to streets caused by the city’s own sanitation trucks.

“It took four years to get to this point,” Pickett said Wednesday, adding he knew there was something wrong when he started reaching out to the city to get answers about the fee. “When they wouldn’t answer me, I knew they were hiding something.”

Garcia agreed.

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“Based on the evidence presented by a preponderance of the evidence, the franchise fee is unconstitutional and should be discontinued,” Garcia said in his ruling. “The franchise fee constitutes an impermissible tax, is an unconstitutional taking, and/or is not authorized by law. The ordinance is invalid as written and has not been followed by Defendant city of El Paso.”

The city did not respond to El Paso Matters’ request for comment, but issued a news release stating the city will appeal the judge’s ruling.

“As a home rule city, El Paso has historically implemented franchise fees to address the wear and tear caused by utility on our streets. Studies have demonstrated that large vehicles, such as those used by our Environmental Services Department for garbage collection, inflict significant damage to roadways,” the release states. “The City maintains that its financial practices and fee structures adhere to legal and budgetary standards.”

Budget documents show the city anticipated collecting about $13.8 million from the environmental services franchise fee in the next fiscal year and has collected about $55 million from the franchise fee since 2021. The 2025 budget resolution adopted by the City Council Tuesday shows the $6 fee is “to support the General Fund expenditures of the Streets and Maintenance department.”

Pickett sought damages of up to $100,000 and a declaratory judgment preventing the future application of the city of El Paso’s environmental service franchise fee to him or his property.

Garcia ruled that Pickett is entitled to damages for the $6 monthly fee, attorney’s fees in the amount of $33,107, appellate attorney’s fees, and if the city appeals, $37,500, court costs and prejudgment and postjudgment interest.

“I don’t get anything out of this, but if the city is required to not collect the $6 – that’s what I did,” Pickett said. “There’s no million-dollar settlement.”

Pickett, who served on the City Council in the early 1990s and then in the Texas House of Representatives from 1995 to 2019, said the issue goes beyond the franchise fee.

“It’s bigger than this. The city is a mess and there’s other fees,” he said. “There’s other issues that they are hiding from us.”

Pickett said governments will have to take heed of the court’s ruling. He also said even though the current City Council did not establish the fee, they were aware of the issues surrounding it and still kept it in place.

“No matter what happens from here on out, future city councils, county commissioners courts, political subdivisions are going to need to really discuss this, out in the open, be transparent, tell people what they’re doing – so for that, I’m proud to be a part of,” Pickett said.

The franchise fee varies by the type of property. City sanitation fees are collected in bills from El Paso Water, which provides water, wastewater and stormwater services in the city limits.

This article originally appeared on El Paso Times: Judge strikes down El Paso's environmental services franchise fee