Untitled Texas Attorney General Opinion ( 1996 )

@ffice of toe Bttontet,
gbtateof aexd$
June 13.1996
The Honorable Wamn Chisum OpinionNo. DM-401
chllir
Committoe on EnvironmentalRegulation Re: Whether an independent school
Texas House of Representatives district located within a municipality is
P.O. Box 2910 subject to a municipal ordinance governing
Austin, Texas 78768-2910 garbage collection (RQ-857)
Dear Rqresentative Chisum:
You ask whether the Pesadena Independent School District (the “school district”)
mua comply with an ordinance of the’City of Pasadena (the “city”) authorizing a single
vendor to colltct garbage within municipal limits. You state that the school district Lies
partially within the city and partially within the limits of three other municipalities. The
city has by ordinance contracted with a single company to cotlect and dispose of
commercial refuse within the city.1 The school district uses the garbage collection services
of the city’s franchisee within the city limits and contracts with a diierent vendor chosen
through competitive bidding for garbage collection within the rest of the district. You
state that the price charged for services within the city is more than twice as much as that
charged by the vendor used in the remainder of the district. The school district estimates
that. it could save approximately $20o,OtK1 a year if it wwc to choose a vendor through
competitive bidding for garbage collectionwithin city limits. You ask whether the school
district is bound by the franchise granted by the city and required to use the services of the
ftanchisee, regardless of cost.2
It is within the police power of a city to adopt ~rdhtanccs governing the removal of
grubage. Ci&of Breckenridgev. McMdh, 258 SW. 1099, 1101 (Tex. Civ. App.?Fort
.Wor& 1923, no writ); see also Ci@ ofBreckenridgeyv.Cozar~,478 S.W.Zd 162, 165
(Tex. Civ. App.--Eastland 1972. writ ref’d n.r.e.) (because of importance of waste
disposal, city could discontinue individual’swater service fix failureto pay garbage, and
sewer service charges); 56 AM. RJR.ZDMunfclpol Corpomtiom$458 (1971) (tendency
bkacdena,Tex..Ordi~yu`` 66461 (Juty29. 1986);ornmlkdby~de~,'l,'?en,~90-
201 (Oct. 10. 19%). 92-268(Jan. 1, 1993). The Pa&ens CityCode providesthat M activityor
cntc~pdre wjIlbc 6wmed“conuwrcial” whcwvcrlhc @sgc cellecdonpoll&s rrquircuse of avtain
containonoww6hy Iheoily. Passdens.Tut.;cock9 14-l (July25,1%7). ‘IIe prodsion relatingto fees
i%rmddcnrisland o~mmcreial garbagec&&n define“cemm&.al”‘``“all premisesfrom which
gatbsgc, refuse and trashandcollected,
excepttheredetinedas ‘r&denUal.“’ Id. 0 14-10(@(Z).
The Honorable Warren Chisum - Pago 2 (DM-40t)
of garbage to become source of annoysncc and cause of disease justifies stringent police
regulations regarding Ps removal). A city may grant an exclusiveftanchise and contract to
a private company to collect, haul, and dispose of all solid waste ma&al within the city:
Browning-Ferris, Inc.. v. C/fy of Leon Vaky, 590 S.W.Zd 729. 732 vex. Civ. App.--San
Antonio 1979, writ ref d n.r.e.).
A municipal exercise of police power to require minimum standards of
construction applies to a school district’s buildings, absent legislation on the particular
matter covered by the ordinance. Potf AflhuUxiep, Sch. Disf. v. City of Groves, 376
S.W.2d 330, 334 (Tex. 1964). Statutes authorizing the school board to maintain and
control the public schoolsJ and to comract for and superintend the Fonstnaction of
buildings’ do not prevail over municipal ordinances providing for standards of
construction, obtaining building permits, and inspection of the construction work by city
ofI%&. Id. at 334. “[T]he better rule. . , [is] that the school buildings of an independent
school district are subject to the reasonable ordinances of the city.” Id. The state chose to
t%lfillits duties to educate children through the local school districts and its duties to
protect the health, safety, and propeny of the people by delegating them to the cities. Id.
In puforming its duties, the city does not usurp the school district’s authority &Ithe area
of educati0n.s Id. If the city ordinance did not prevail over school district authority, the
schools might “be built so as to bc inconsistent with the city’s scheme of regulation and
inconsiderate of the cily’s peculiar problems of health and safety.” Id. at 335.
For the same reasons that a school district must comply @th city building
ordinances, we believe the school district must comply with the city ordinance on garbage
eokction that, you inquire .about.G The ordinance de&or from an exercise of the city’s
police power to protect the public health and safely. See McMuIien, ‘258 S.W. at IO11.
The problem of garbage disposal, and waste disposal is moreover “of paramount
fA~ ‘aiuq April 15. 1905.29th Leg., RS., ch. 124, 5 168, ,I905 Tew. Cicn. Lws 263. 308,
(w6ificd U V.T.C.S. 811.2780), ecod(fkd and repscrrCdby Act of June2. lY6Y. 61st LtS.. RS., ch. 889,
ace. 1. @2X%, ~a. 2(a). 1969 Tex. Gcn. Lawr 2135. 2954. 3024, nscod~prd and repeakd by Aa of
Msy 27,199s. 741h Leg., KS., sh. 260, soz. I.0 11.151, *cc. 58, 1995 Tex. Scss. Lsw SW. 2207,2227,
U98(~tvusiona~Bdus.codc~11.151@)).
,jJd. 0 84, al 284 (cadlfiai a1 V.T.C.S. M. 2752 (1925). rccod~ad and repealed by M Of
May 28, 1979. 66th Leg,, ch. 729. 00 7, 8, 1979 Tex. Gun. Laws 1795, 1796, repealed by Ad of
May 27.1995.744111 kg.. ch. 260. $I58(a)(l). 1995 Ten. Scss. Lsw Serv. 2207,249s).
‘A oiy my not WC Its zdng powas to wholly cxd1&6eftom 118tmumlsrios school RdUtlu
~sonably located thwc. Avstln I&p. Sch. D&L v. Clcy o/Sunsel Valley. 502 S.W.2d 670, 672 (-fur.
1973). The school dlswictk authority IO Iante rhool fbcllities everri&a the polla pxw of
mticipalilia lo zone km OUI.unless bc rchcd diPvla anion ir unrcasonsble or a nuissoo. CQ o/
Addim V. D~lk``f``dep.WI. Dlsr, 632 S.W.2d 771,772 flex. App.-Dallas 1982, wril r&d n.r.e.).
400n the badi of Porl Arthur Indrpndenr School DISPJCIv. Cfv qf Gmves, lhii diiw
ddcmhd that . muuidps``anti~mcklng ,ordlssncc spilled to county fadlitkr lccatcd withii the
municipality. Attorney dckal O$nion IM-737 (1987) at 2.
The Honorable Warron Chisum . page 3 (r*1-401)
importance.” C-I, 478 S.W.2d at i6S. No Education Code provision expressly
addresses garbage collectionfor school distticts. See Educ. Code ch. 44, sub& B (school
district purchasing procedures).7 A city may enact reasonable measures pursuant to its
poke power, and the determination of reasonableness is for the city council, subject to
judicial review. See generally Dorrthilv. &or Coun@,740 S.W.2d 16, 19 (Tex. App.-
El Paso 1987, writ denied). We believethat the courts would require the school district to
comply with the city garbage collection ordinance,assuming they found it reasonable. The
reasonableness of the ordinance is a fact question, which cannot be investigated or
resolved in an attorney general opinion. ..Thc cost of the service may be an element of
reasonableness, dependingon the other facts and circumstances of the case.
Chapter 364 of the Health and Safety Code. the County Solid Waste Control Act,
is also relevaut to your inquiry. The purpose of this act 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 to control pollution,” Health &
Safety Code 8 364.002. Since a “public agency”includes a municipality, id. 4 364.003(3),
the act in efkt codifies some of the powers of home-rule cities over the collection and
disposal of solid waste., See Cozarl, 478 S.W.2d at 165. A public agency may “(I) offer
solid waste disposal service to persons in its territory; (2) require the use of the service by
those persons; [and) (3) charge fets for the se&cc. . . .” Health & Sat&y Code
0 364.034. A “person” includes a “governmental subdivision.” Gov’t Code
8 311.005(2).* A school district is therefore a “person”within the above provision.9 The
city may offbr solid waste disposal service to persons in its territory-, including the school
district, and pursuant to section 364.034(2) of the Health and Safety Code may require the
ac.hool district to use that service for its facilities within the city’s boundaries.
Accordingly. the school district must comply with a ,reasonableordinance adopted under
this provision as long as the ordinance is hot inconsistent with other legislation specifically
%wlton44.03 t ofthe Educationcode.whichgovernspurcbsiugby a’schoeldisui& @asnot
in&da any provisionexpmsslyaddtessingthepurchaseofgarbage03llcction suvices. Thepnwisiensof
don 44.031 thacforc do not prcvallovertha city ordinance
with ~spat to schooldindct property
WithInthocity’sboulldalia.
%c County Solid Waste Conue~An (the ‘act”) ss adepteddenned“per``~” to rncsn“any
individusl,. . . politicpIs&divisioner gevemmentiagency..”ACIof May 29. 1971.62d Leg.. RS., ch.
516.0 2.1971 TWL &a. Lnwa1757.1758. In 1989. the actwasrcpealadandra-cnactedas cbaplcr364
of UICHealthand SafetyCode,as pan ef tha ongoingr&ion of the state’sgeneralstatuteswithout
``bslat~live&an&. SW Ad of Mcy IS, 1989,718l Leg., RS., ch 678, 85 I, 13, 1989 Tex. &IL Laws
2230, 2689. 3165. The wviscd law on&cd the wum law dcflnition of*ptton" boause ii was
~bslanlivolyidcnlimlto theddinkionof”pcreon”ia section31 l.C$S oflhe Oovcmmcnl Code. Siralth &
safklyccdc~364.003miror'$rlolc.
bvfs Y. hdep. sch. hf., 161 S.W.id’450, 4i2 flex. 1942)~ (school didrid ir poltticn!
oapodon or subdivision of srate);WIalw PortArthurbdcp. Sch.Dkt. v. C&yo/clrovu.~316S.W.24
330.333 (Tex.1964) (schooldisuictsarctndcpandent
politiel entitiescrealcdbyMate).”
Tbc Honorable Warren Chisum - Page 4 (DM-401)
governing this subject.10 Until the legislature expressly authorizes the school district to
choose its own ga&age collection service throughout the district, the district’s property
within the city is subjeot to the city ordinance.
SUMMARY
The Pasadena Independent School District must comply with an
ordiicc of the City of Pasadenaauthorizing a single vendor to
eolleet garbage within municipal limjts, assuming that the ordinance
is reasonable. The reasonableness of the ordinance involves the
resolution of f&t questions and therefore cannot be determined in an
attorney general opinion.
Yours very truly,
DAN MORALES
Attorney General ofTexas
JORGE VEOA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opiion Canmlttec
PropyeA by Susan L. Garrison
Assistant Attorney General
l@Yoa ho a& mom geadly wlNbcr a acpamte pdbkel entity Nch as a school disUiCt i6
6objoot lo s muaici~l ordimna ‘govunlng ga&sge colk4lon. We cnnnot provide 6 genkml answr
applicable to all polltlcal cntbk. bccau~ the mwdclpat ordlw wttl apply to a p.%ticulareMby only If
II ir wuidcnt w&b UK mkvant s~astuws.See C@Yof Gcrllonn v. CS?rSer Ciwnty 615 S.W.2d 321.322
(%a. Civ. Agap.-Qlor 19U1, no WrlO(city ordbunce unlawfuIly at@mptcd to Interfere titb ounty’s
etahdory authority to dtoom looalioa ddlcpossl Sicliby).