Untitled Texas Attorney General Opinion ( 2013 )

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ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 5, 20 13
The Honorable Ruth Jones McClendon Opinion No. GA-0988
Chair, Committee on Rules and Resolutions
Texas House of Representatives Re: Whether a county may provide mandatory solid
Post Office Box 2910 waste disposal services, by contract or otherwise, in
Austin, Texas 78768-2910 an area of the county that is within the
extraterritorial jurisdiction of a municipality but that
is not receiving such service from the municipality
(RQ-1081-GA)
Dear Representative McClendon:
You ask whether a county may provide mandatory solid waste disposal services, by contract
or otherwise, in an area of the county that is within the extraterritorial jurisdiction ("ETJ") of a
municipality but that is not receiving such service from the municipality.' According to your letter,
there are areas in municipal ETJs where neither the municipality nor the county provide solid waste
services. Request Letter at 1. You ask first about a county's authority to provide such services under
section 364.034 of the Health and Safety Code (the "Code"), particularly in light of language
concerning county authority in section 364.011 of the Code. !d. at 1-2.
When construing a statute, courts attempt to give effect to the Legislature's intent as
expressed in the statute's plain language. R.R. Comm'n ofTex. v. Tex. Citizens for a Safe Future &
Clean Water, 336 S.W.3d 619,628 (Tex. 2011). Section 364.034 provides that a "public agency or
a county may: (1) offer solid waste disposal service to persons in its territory; [and] (2) require the
use of the service by those persons.'' TEX. HEALTH & SAFETY CODE ANN. § 364. 034( a) (West 20 10).
A municipality is a "public agency" under the statute. !d. § 364.003(3). Thus, section 364.034
authorizes both a municipality and a county to offer solid waste disposal services to persons in "its
territory."
While section 364.034 does not expressly state which entity or entities may provide solid
waste services in an ETJ, the section recognizes that more than one entity may be authorized to
provide solid waste disposal services in the same area. To resolve the potential conflict created by
overlapping authority, subsection (e) provides that the section does not apply to persons who
1
See Letter from Honorable Ruth Jones McClendon, Chair, House Comm. on Rules & Resolutions, to Honorable
Greg Abbott, Tex. Att'y Gen. at 1 (Aug. 31 , 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter") .
The Honorable Ruth Jones McClendon - Page 2 (GA-0988)
document that they already receive solid waste services from another entity. Id. § 364.034(e).
Subsection (e) further allows a municipality to grant a franchise or enter into a contract for services
that supercedes, inside the municipality's "boundaries," any other contract or franchise. Id. Thus,
in isolation, section 364.034 suggests that a county may be authorized to provide mandatory solid
waste disposal services to a person in a municipality's ETJ who does not receive such service from
the municipality.
However, statutory provisions are not to be construed in isolation, but instead must be read
in the context of the statutory scheme in which they appear. See Tex. Workers' Camp. Ins. Fund v.
Del Indus., Inc., 35 S.W.3d 591,593 (Tex. 2000). As you note, chapter 364's only reference to an
ETJ appears in section 364.011(a) of the Code, which provides that,
[s]ubject to the limitation provided by Sections 361.151 and 361.152
(Solid Waste Disposal Act), a commissioners court by rule may
regulate solid waste collection, handling, storage, and disposal in
areas of the county not in a municipality or the extraterritorial
jurisdiction of a municipality.
TEX. HEALTH&SAFETYCODEANN. § 364.011(a) (West 2010) (emphasis added); see also Request
Letter at 2. It is difficult to envision that a county could offer mandatory solid waste disposal
services in a municipality's ETJ in a manner that would not constitute "regulat[ion of] solid waste
collection, handling, storage, and disposal." TEX. HEALTH & SAFETY CODE ANN. § 364.01l(a)
(West 2010). Such regulation in a municipality's ETJ would violate the plain terms of section
364.011. Thus, while section 364.034 authorizes a county to provide mandatory solid waste disposal
services in its territory, section 364.0 11limits that authority by denying a county authority to regulate
in a municipality's ETJ.
Regardless of a county's independent authority to provide mandatory solid waste disposal
services in a municipality's ETJ, chapter 364 elsewhere authorizes a county to provide such services
by agreement with the pertinent municipality. The stated purpose of chapter 364 "is to authorize a
cooperative effort by counties, public agencies, and other persons for the safe and economical
collection, transportation, and disposal of solid waste." Id. § 364.002. Section 364.031 expressly
authorizes cooperative contracts:
A public agency may contract with another public agency or
a private contractor for the other public agency or private contractor
to:
(1) make all or part of a solid waste disposal system
available to a public agency, a group of public agencies, or other
persons; and
The Honorable Ruth Jones McClendon - Page 3 (GA-0988)
(2) furnish solid waste collection, transportation,
handling, storage, or disposal services through the other public
agency's or private contractor's system.
!d. § 364.031 (a). Both counties and municipalities are "public agencies" under chapter 364. See id.
§§ 364.003(3) (definitions), 364.013 (county authority), 364.034(e) (referring to a "public agency"
as including a county). Thus, chapter 364 authorizes a county to contract with a municipality for the
county to provide mandatory solid waste disposal services in an area of the county that is within the
municipality's ETJ. 2
2
Because we conclude that section 364.031 of the Health and Safety Code authorizes a contract between a
county and a municipality for the county to provide solid waste disposal services in the municipality's ETJ, we do not
address whether the Inter local Cooperation Act would also authorize such a contract. See TEx. Gov'T CODE ANN. §
791.011 (West 2012); see also Request Letter at 2. For the same reason, we do not address your question about
legislative action necessary for a county to provide solid waste disposal services in such an ETJ.
The Honorable Ruth Jones McClendon - Page 4 (GA-0988)
SUMMARY
While section 364.034 of the Health and Safety Code
authorizes a county to provide mandatory solid waste disposal
services in its territory, section 364.011 limits that authority by
denying a county authority to regulate in a municipality's ETJ.
Section 364.031 of the Health and Safety Code authorizes
cooperative agreements between a municipality and a county that
would permit' the county to provide mandatory solid waste disposal
services in an area of the county that is within the extraterritorial
jurisdiction of the municipality that is not receiving such services
from the municipality.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chairman, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee