Laredo Merchants Association v. City of Laredo, Texas ( 2016 )

Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-15-00610-CV
LAREDO MERCHANTS ASSOCIATION,
Appellant
v.
CITY OF LAREDO,
Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2015CVQ001077-D3
Honorable Beckie Palomo, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: August 17, 2016
I respectfully dissent because when section 361.0961 of the Solid Waste Disposal Act is
construed within the context of the entire statute, the SWDA does not preempt the City of Laredo’s
Checkout Bag Reduction ordinance.
The majority construes section 361.0961 as prohibiting a type of source reduction that
reduces the generation of municipal solid waste. See TEX. HEALTH & SAFETY CODE ANN.
§ 361.0961 (West 2016). This construction is unreasonable because it contradicts “the state’s goal,
through source reduction, to eliminate the generation of municipal solid waste.” See id.
§ 361.022(a). When we consider the legislature’s intent in enacting the SWDA, the manner in
Dissenting Opinion 04-15-00610-CV
which the legislature consistently used the term “container,” and the legislature’s placement of
section 361.0961 within the SWDA’s overall structure, section 361.0961 may reasonably be
construed in harmony with the state’s goal of promoting source reduction. More specifically,
“container” in section 361.0961 may reasonably be construed as referring only to solid waste
containers used to store, transport, process, or dispose of solid waste. Because the Ordinance does
not apply to solid waste containers, the SWDA and the Ordinance may both be given effect.
I. Does the SWDA preempt the Ordinance?
An ordinance is unenforceable to the extent that it is inconsistent with a state statute
preempting that particular subject matter. BCCA Appeal Grp., Inc. v. City of Hous., No. 13-0768,
2016 WL 1719182, at *2 (Tex. Apr. 29, 2016). The mere entry of the state into a field of legislation
does not necessarily preempt all related municipal ordinances, especially when the municipal
ordinance is “ancillary to and in harmony with the general scope and purpose of the state
enactment.” Id. A statute that may reasonably be construed as not conflicting with a challenged
ordinance must be given that construction so both the statute and the ordinance may be given
effect. See id. To determine whether a statute preempts an ordinance, a court must construe the
statute. See id. at *3.
A court’s primary objective when construing statutes is to give effect to legislative intent.
Id. To determine legislative intent, a court first looks to the plain meaning of the text as the sole
expression of legislative intent, unless a different meaning is apparent from the context. Id. A court
must “view[] the statute as a whole, not just as specific provisions in isolation.” Id. at *6. “[O]ne
provision will not be given a meaning out of harmony or inconsistent with other provisions,
although it might be susceptible of such a construction if standing alone.” Barr v. Bernhard, 562
S.W.2d 844, 849 (Tex. 1978). “[Absent] language clearly indicating a contrary intent, a word or
-2-
Dissenting Opinion 04-15-00610-CV
phrase used in different parts of a statute is presumed to have the same meaning throughout, and
where the meaning in one instance is clear, this meaning will be attached in all other instances.”
Sw. Props., L.P. v. Lite-Dec of Tex., Inc., 989 S.W.2d 69, 71 (Tex. App.—San Antonio 1998, pet.
denied); see Brown v. Darden, 121 Tex. 495, 500, 50 S.W.2d 261, 263 (1932). A court should
“avoid ascribing one word a meaning so broad that it is incommensurate with the statutory
context.” See Greater Hous. P’ship v. Paxton, 468 S.W.3d 51, 61 (Tex. 2015). A court’s
construction of a statute should also be consistent with its underlying purpose and the policies it
promotes. N.W. Nat’l Cty. Mut. Ins. Co. v. Rodriguez, 18 S.W.3d 718, 721 (Tex. App.—San
Antonio 2000, pet. denied).
Additionally, a court’s construction of a statutory provision should be consistent with the
statute’s organizational structure. See TIC Energy & Chem., Inc. v. Martin, — S.W.3d —, No. 15-
0143, 2016 WL 3136877, at *6-7 (Tex. June 3, 2016) (noting “the structure of the subchapter in
which sections . . . reside is instructive”). Sections should not be viewed in isolation, but in context
of surrounding sections. See id. A court should “thus begin by looking at the structure of [the
statute] and the placement of [the section] within it.” See Cont’l Cas. Ins. Co. v. Functional
Restoration Assocs., 19 S.W.3d 393, 398 (Tex. 2000); see, e.g., Lumbermens Mut. Cas. Co. v.
Manasco, 971 S.W.2d 60, 63 (Tex. 1998) (reaching a construction of a section “[b]ased on the
wording and placement of [the section] in the statutory framework”).
A. How did the legislature structure the SWDA?
The SWDA, codified as chapter 361 of the Health & Safety Code, generally governs solid
waste management. See TEX. HEALTH & SAFETY CODE ANN. §§ 361.001-.992 (West 2016). The
SWDA declares it the public policy of the state to eliminate the generation of municipal solid waste
through source reduction. Id. § 361.022(a). For municipal solid waste that is generated, the
-3-
Dissenting Opinion 04-15-00610-CV
SWDA’s purposes are “to safeguard the health, welfare, and physical property of the people and
to protect the environment by controlling the management of solid waste.” Id. § 361.002(a). The
SWDA’s twenty-four subchapters aim to further the state’s public policy and the underlying goals
of the statute. See id. §§ 361.001-.992.
To further its municipal source reduction goals, subchapter B establishes the Texas
Commission on Environmental Quality’s Office of Pollution Prevention, which “direct[s] and
coordinate[s] all [TCEQ] source reduction and waste minimization activities.” Id. § 361.0216. The
TCEQ has three such activities under the SWDA. First, subchapter B requires the TCEQ to develop
a public awareness program “to encourage participation in source reduction, composting, reuse,
and recycling.” Id. § 361.0202(a). As part of this program, the TCEQ may “consult with
individuals, businesses, and manufacturers on source reduction techniques and recycling.” Id.
§ 361.0202(b)(1). Second, subchapter N requires the TCEQ to measure progress toward the state’s
source reduction and waste minimization goals and to incentivize composting and recycling
programs. Id. §§ 361.422(a), (c); 361.423-.430. Subchapter N defines “source reduction” as:
[A]n activity or process that avoids the creation of municipal solid waste in the state
by reducing waste at the source and includes:
(A) redesigning a product or packaging so that less material is ultimately
disposed of;
(B) changing a process for producing a good or providing a service so that
less material is disposed of; or
(C) changing the way a material is used so that the amount of waste
generated is reduced.
Id. § 361.421(9). Third, subchapter Q addresses industrial source reduction, defined by reference
to federal law, and waste minimization for generators of industrial solid waste. Id. §§ 361.131(4);
361.501(7), (11); 361.504(a).
-4-
Dissenting Opinion 04-15-00610-CV
Contemplating that source reduction will not entirely eliminate municipal solid waste, the
SWDA confers responsibility upon the TCEQ “for the management of municipal solid waste” and
requires the TCEQ to “coordinate municipal solid waste activities.” Id. § 361.011(a); id. § 361.022
(requiring source reduction and waste minimization “to the extent technologically and
economically feasible”). The SWDA governs the management of various forms of solid waste,
including municipal waste, industrial waste, medical waste, and hazardous waste. See id.
§ 361.003(12), (16), (18-a), (20), (35). The SWDA’s subchapters governing solid waste
management provide the TCEQ’s and local governments’ powers and duties; the TCEQ’s permit
and regulatory system for solid waste facilities; enforcement procedures; environmental
remediation; diversion of materials from solid waste streams; land-use restrictions and
designations; and liability and immunity therefrom. See id. §§ 361.001-.992.
B. Where did the legislature place section 361.0961 within the SWDA’s overall structure?
The first and lengthiest subchapter regarding the TCEQ’s specific responsibilities under
the SWDA relates to the TCEQ’s permitting and regulation of solid waste facilities. See id.
§§ 361.061-.126. Subchapter C, “Permits,” generally authorizes the TCEQ to “require and issue
permits authorizing and governing the construction, operation, and maintenance of the solid waste
facilities used to store, process, or dispose of solid waste under this chapter.” Id. § 361.061.
Subchapter C also requires the TCEQ to ensure its permitting and regulation of solid waste
facilities are compatible with local solid waste management plans. Id. § 361.062. Several sections
in subchapter C relate to the use of containers to store, transport, process, and dispose of solid
waste and authorize the TCEQ to regulate and permit such activities. See, e.g., id.
§§ 361.0905(e)(8), 361.091(a). 1
1
Pursuant to its authority under the SWDA, the TCEQ has adopted numerous rules pertaining to solid waste containers
and the packaging of solid waste, and regulating how solid waste is stored and packaged in those containers. See, e.g.,
-5-
Dissenting Opinion 04-15-00610-CV
Also contained in subchapter C is the section at issue, section 361.0961, which provides:
(a) A local government or other political subdivision may not adopt an ordinance,
rule, or regulation to:
(1) prohibit or restrict, for solid waste management purposes, the sale or use
of a container or package in a manner not authorized by state law;
(2) prohibit or restrict the processing of solid waste by a solid waste facility,
except for a solid waste facility owned by the local government, permitted
by the commission for that purpose in a manner not authorized by state law;
or
(3) assess a fee or deposit on the sale or use of a container or package.
30 TEX. ADMIN. CODE §§ 330.3(34) (Texas Comm’n on Envtl. Quality) (defining “container” as “Any portable device
in which a material is stored, transported, or processed.”); 330.7(c)(1) (granting permits by rule for persons that
compact and transport waste in enclosed containers to a Type IV facility under certain conditions based, in part, on
information regarding container size); 330.7(c)(2) (granting permits by rule for transporters using enclosed containers
to collect and transport brush, construction or demolition wastes, and rubbish along special collection routes); 330.7(e)
(requiring ash from incinerated animals to “be stored in an enclosed container that will prevent release of the ash to
the environment”); 330.15(e)(6) (generally prohibiting containers of liquid waste except those containers “similar in
size to that normally found in household waste” or “designed to hold liquids for use other than storage”); 330.133(f)(1)
(requiring Type IV landfills that accept rubbish to establish a written procedure to ensure no containers with any
putrescible wastes are accepted); 330.133(g) (generally prohibiting Type IV landfills from accepting wastes from
completely enclosed containers); 330.169 (regulating Type IV landfills’ acceptance of waste in enclosed containers
based on whether the container has all required approvals and/or permits and is accepted at designated times on
designated days); 330.171(c)(3)(E)-(G) (regulating the particular types of containers and packaging of containers used
to contain regulated asbestos-containing material (RACM)); 330.209(a) (requiring the use of storage containers “of
an adequate size and strength, and in sufficient numbers, to contain all solid waste generated in the period of time
between collections”); 330.209(c) (requiring certain waste and recycled materials to be stored in enclosed containers);
330.211 (requiring all solid waste containing food waste to “be stored in covered or closed containers that are
leakproof, durable, and designed for safe handling and easy cleaning”); 330.213 (requiring citizen’s collection stations
to be provided “with the type and quantity of containers compatible with areas to be served”); 330.245(c) (requiring
all solid waste to “be stored in odor-retaining containers and vessels”); 330.671(a)(1) (subjecting those who deliver
waste in enclosed containers to a Type 4 facility to certain fees); 330.991(a)(3) (permitting controls to minimize matter
emissions “includ[ing] loading and storing in enclosed containers”); see also §§ 326.17 (requiring health-care related
facilities to identify and segregate medical waste prior to packaging the medical waste); 326.19(a) (requiring
generators of medical waste to “place the container which contains medical waste in an outer container that is rigid,
leak resistant, impervious to moisture, of sufficient strength to prevent tearing and bursting under normal conditions
of use and handling, and sealed to prevent leakage”); 326.21 (requiring labeling of medical waste containers);
326.41(c)(2) (permitting large quantity generators that treat their own medical waste to identify certain treated waste
“by the use of color-coded, disposable containers”); 326.43 (regulating hospitals’ packaging of medical waste);
326.53(b)(6)(A)(iii) (granting registration by rule for transporters of medical waste and requiring the transportation
unit to “carry spill cleanup equipment including . . . leak-proof containers or packaging materials”); 326.53(b)(15)
(prohibiting transporters of medical waste from accepting containers of waste that are leaking or damaged “unless or
until the shipment has been repackaged”); 326.53(b)(19) (requiring transporters of medical waste to repackage
containers damaged in a traffic accident); 326.55(a), (b)(6)(A) (granting registration by rule for mobile treatment units
conducting on-site treatment of medical waste and requiring such units to carry “leak-proof containers or packaging
materials”); 326.75(d)(3) (requiring containers of medical waste that are mechanically handled to “be designed to
prevent spillage or leakage during storage, handling, or transport”).
-6-
Dissenting Opinion 04-15-00610-CV
Id. § 361.0961(a). Section 361.0961 “does not prevent a local government or other political
subdivision from complying with federal or state law” or “limit the authority of a local government
to enact zoning ordinances.” Id. § 361.0961(b), (c).
C. When we consider the legislature’s placement of section 361.0961 within subchapter C,
may section 361.0961 be reasonably construed as not conflicting with the Ordinance?
The issue is not whether the SWDA and the Ordinance may be construed as conflicting
with each other, but whether they may reasonably be construed as not conflicting with each other
and both given effect. See BCCA Appeal Grp., Inc., 2016 WL 1719182, at *2. We must determine
whether section 361.0961, which provides that cities “may not . . . adopt an ordinance . . . to
prohibit or restrict, for solid waste management purposes, the sale or use of a container or package
in a manner not authorized by state law,” can be given no other reasonable construction than one
that conflicts with the Ordinance, which makes it “unlawful for any commercial establishment to
provide checkout bags to customers.” Laredo, Tex., Code of Ordinances § 33-455; accord BCCA
Appeal Grp., Inc., 2016 WL 1719182, at *2. Section 361.0961 would preempt the Ordinance only
if section 361.0961 and the Ordinance applied to the same containers in irreconcilable conflict
with each other. See State v. DeLoach, 458 S.W.3d 696, 698 (Tex. App.—San Antonio 2015, pet.
ref’d) (citing RCI Entm’t, Inc. v. City of San Antonio, 373 S.W.3d 589, 596 (Tex. App.—San
Antonio 2012, no pet.)).
The legislature consistently used the term “container” in subchapter C of the SWDA to
refer to solid waste containers used to store, transport, process, or dispose of solid waste or to
those containing solid waste:
 The definition of “disposal,” which is used in the subchapter C, describes solid waste
in terms of being “containerized or uncontainerized,” TEX. HEALTH & SAFETY CODE
ANN. § 361.003(7);
-7-
Dissenting Opinion 04-15-00610-CV
 Subchapter C, “Permits,” authorizes the TCEQ to “act on an application to renew a
permit for storage of hazardous waste in containers, tanks, or other closed vessels” in
specified circumstances, id. § 361.088(e)(1);
 Subchapter C confers responsibility upon the TCEQ for regulating medical waste and
mandates that TCEQ adopt permit requirements “related to . . . the storage of
waste . . . to ensure the use of sufficient containers between collections,” id.
§ 361.0905(e)(8);
 Subchapter C generally prohibits some permitted landfills from “accept[ing] solid
waste that is in a completely enclosed container or enclosed vehicle,” id. § 361.091(a);
and
 Subchapter C authorizes a permit holder to accept certain solid waste when it has “been
transported to the land application unit in a covered container with the covering firmly
secured at the front and back,” id. § 361.121(l). 2
Because the legislature consistently used the term “container” in subchapter C to refer to
solid waste containers used for storing, transporting, processing, or disposing of solid waste, the
word “container” in section 361.0961 may reasonably be construed to have the same meaning. See
Brown, 121 Tex. at 500, 50 S.W.2d at 263; Sw. Props., L.P., 989 S.W.2d at 71. Construing
“container” in section 361.0961 as any container that might become solid waste is out of harmony
and inconsistent with the manner in which the legislature used “container” in all other instances in
subchapter C. Thus, “container” in section 361.0961 may reasonably be construed as limited to
solid waste containers used to store, transport, process, or dispose of solid waste. See Barr, 562
S.W.2d at 849 (noting courts may not give “one provision . . . a meaning out of harmony or
inconsistent with other provisions, although [the provision] might be susceptible of such a
construction if standing alone.”). This is in contrast to chapter 369 of the Health & Safety Code
2
In promulgating rules to enforce chapter 361, the TCEQ has defined and used the term “container” consistent with
this limited construction of section 361.0961. See 30 TEX. ADMIN. CODE § 330.3(34) (defining “container” as
including “portable device[s] in which a material is stored, transported, or processed”). With the exception of discarded
containers that were used to contain certain chemicals, the TCEQ also consistently uses the term “container” to refer
to solid waste containers. See id. §§ 330.03(20), (25), (44), (111), (146), (147), (148)(g), (148)(k), (157), (158), (162);
330.7(c), (c)(1)(A), (c)(2), (e)(3), (i)(1)(E)(iii); 330.11(e)(5); 330.15(e)(6); 330.133(f)(1), (g); 330.155; 330.169;
330.171(c)(3)(E)-(H), (c)(5); 330.209(a), (c); 330.211; 330.213(a); 330.245(c); 330.671(a)(1); 330.991(a)(3)(A).
-8-
Dissenting Opinion 04-15-00610-CV
and section 361.425(a)(1), which clearly relate to containers that might become solid waste. See
TEX. HEALTH & SAFETY CODE ANN. § 361.425(a)(1); id. §§ 369.001-.003 (West 2016).
Given the SWDA’s structure and the placement of section 361.0961 within it, the purpose
of section 361.0961 may reasonably be understood as preventing local governments from
interfering with the availability and the proper use of solid waste containers and the TCEQ’s
permitting and regulation of solid waste facilities’ activities and medical waste management. See
Cont’l Cas. Ins. Co., 19 S.W.3d at 398; Lumbermens Mut. Cas. Co., 971 S.W.2d at 63. Subchapter
C authorizes the TCEQ to regulate and issue permits for solid waste facilities. See TEX. HEALTH
& SAFETY CODE ANN. §§ 361.061-.126. Some provisions of subchapter C relate to the
containerization of solid waste within the TCEQ’s permitting and regulatory scheme and are
intended to ensure the availability and the proper use of solid waste containers for storing
hazardous waste at facilities and medical waste between collections. See, e.g., id. §§ 361.088(e)(1),
361.0905(e)(8), 361.091(a), 361.121(l). Subsection C also requires the TCEQ to ensure
compatibility between its waste management plans and local governments’ waste management
plans. Id. § 361.062(a). Thus, section 361.0961 may reasonably be construed as prohibiting local
governments from banning or restricting the sale or use of solid waste containers for the storing,
transporting, processing, and disposal of solid waste because doing so might create a patchwork
of local regulations that compromise the TCEQ’s state-wide permitting and regulatory scheme.
The TCEQ’s permitting and regulatory authority is in no way compromised by the
Ordinance. Although the Ordinance restricts the use of checkout bags, the Ordinance expressly
excludes waste bags that are intended for use as solid waste containers. See Laredo, Tex., Code of
Ordinances §§ 33-454, 33-457. The Ordinance expressly excludes waste bags in the definition of
“checkout bags” and exempts “packages of multiple bags intended for use as garbage.” Id. The
-9-
Dissenting Opinion 04-15-00610-CV
Ordinance’s restriction on the use of checkout bags does not restrict the use of any solid waste
containers or containers used to store, transport, process, and dispose of solid waste or medical
waste. See id. Therefore, the Ordinance does not interfere with the availability or the proper use of
solid waste containers or the TCEQ’s permitting and regulation of solid waste facilities or medical
waste management.
D. Does construing section 361.0961 in isolation yield a reasonable construction?
Construing “container” in section 361.0961 as any container that might become solid
waste requires viewing section 361.0961 in isolation. The majority construes “container” by
referring to dictionary definitions and does not address subchapter C’s provisions that
demonstrate “a different meaning is apparent from the context.” See BCCA Appeal Grp., Inc.,
2016 WL 1719182, at *3 (noting courts do not rely on the plain meaning of the text as the sole
expression of legislative intent when a different meaning is apparent from the context). When
the SWDA is viewed as a whole, it becomes apparent that such a construction is not reasonable.
See id. at *6 (noting courts must construe statutes as a whole and may not construe provisions
in isolation ).
The majority’s construction contradicts the SWDA’s express declaration that it is the
public policy goal of the state to eliminate the generation of solid waste “through source
reduction.” See TEX. HEALTH & SAFETY CODE ANN. § 361.022(a). “Source reduction” includes
“changing a process for . . . providing a service so that less material is disposed of.” Id.
§ 361.421(9)(B). The Ordinance requires commercial establishments to change the process for
providing checkout services so that fewer checkout bags are disposed of. See Laredo, Tex., Code
of Ordinances §§ 33-451, 33-455. By holding that section 361.0961 preempts the Ordinance, the
majority construes section 361.0961 as prohibiting a type of source reduction, the purpose of which
- 10 -
Dissenting Opinion 04-15-00610-CV
is to reduce solid waste generated by the discarding of checkout bags. Id. §§ 33-451. The majority’s
construction of section 361.0961 in isolation is not reasonable because a court’s construction of a
statute should be consistent with the statute’s underlying purpose and the policies it promotes. See
N.W. Nat’l Cty. Mut. Ins. Co., 18 S.W.3d at 721.
The Laredo Merchants Association argues section 361.0961 is a “carve out” to the state’s
public policy goal of eliminating the generation of municipal solid waste through source reduction.
Merchants’ argument has no merit or support under a holistic construction of the SWDA. No other
provision of the SWDA expressly prohibits or regulates, or authorizes the TCEQ to prohibit or
regulate, municipal source reduction. See TEX. HEALTH & SAFETY CODE ANN. §§ 361.001-
361.992. The SWDA’s provisions relating to source reduction require the TCEQ to develop a
public awareness program and to establish rules to measure state-wide source reduction. See id.
§§ 361.0202(b), 361.0216, 361.422(a), (c). When measuring municipal source reduction, the
SWDA permits the TCEQ to consider “community source reduction,” including changes in
processes for providing consumer services so that less material is used. Id. §§ 361.421(9)(B),
361.422(c). The SWDA expressly contemplates municipal source reduction being community
efforts—and the SWDA’s preferred alternative to solid waste management—to achieve the state’s
declared public policy goal of eliminating the generation of solid waste. See id. §§ 361.022(a),
361.422(c).
Unlike the provisions of the SWDA that expressly relate to municipal source reduction,
section 361.0961 is placed within the framework of subchapter C relating to permits. Subchapter
C does not contain any reference to “source reduction” or any provision relating to source
reduction. See id. §§ 361.061-.126. When a court construes a statute, the court must account for
the statute’s structure and the relevant section’s placement within the statute. See Cont’l Cas. Ins.
- 11 -
Dissenting Opinion 04-15-00610-CV
Co., 19 S.W.3d at 398; Lumbermens Mut. Cas. Co., 971 S.W.2d at 63. Subchapter C relates to the
TCEQ’s permitting and regulation of solid waste facilities, coordinating TCEQ and local
governments’ management plans, and local governments’ powers and duties relating to the
TCEQ’s permitting and regulatory scheme for those facilities. See TEX. HEALTH & SAFETY CODE
ANN. §§ 361.061-.126. Subchapter C also regulates (and authorizes the TCEQ to regulate) “the
handling, transportation, storage, and disposal of medical waste” that is generated by health care-
related facilities. See id. §§ 361.003(18-a), 361.0905. Subchapter C’s scope is limited to regulating
solid waste facilities’ activities and the management of medical waste. See id. §§ 361.061-.126. If
section 361.0961 is viewed in its statutory context, it may reasonably be construed—like all other
sections in subchapter C—as pertaining to medical waste management and the activities of solid
waste facilities and not to municipal source reduction. See Greater Hous. P’ship, 468 S.W.3d at
61; Cont’l Cas. Ins. Co., 19 S.W.3d at 398; Lumbermens Mut. Cas. Co., 971 S.W.2d at 63. Thus,
Merchants’ argument requires viewing section 361.0961 in complete isolation and not within the
framework of subchapter C and the entire context of the SWDA. The Supreme Court of Texas has
rejected this method of construing a statute to determine whether it preempts an ordinance. See
BCCA Appeal Grp., Inc., 2016 WL 1719182, at *2
II. CONCLUSION
Section 361.0961 of the SWDA may reasonably be construed as applying to solid waste
containers used to store, transport, process, or dispose of solid waste, particularly those used by
solid waste facilities and those used in medical waste management. This construction is supported
by the manner in which the legislature consistently used the word “container” and the legislature’s
placement of section 361.0961 within the SWDA’s statutory structure. The majority does not
- 12 -
Dissenting Opinion 04-15-00610-CV
account for this context. The majority’s construction also contradicts the state’s public policy goal
of encouraging source reduction to reduce the generation of municipal solid waste.
The Ordinance does not conflict with the SWDA. Instead, the Ordinance advances the
state’s public policy goal by requiring commercial establishments to change the process by which
they provide checkout services to customers. Simply stated, the Ordinance does not apply to solid
waste containers. Instead, by promoting source reduction, the Ordinance is ancillary to and in
harmony with the general scope and the purpose of the SWDA. See id. Because I conclude section
361.0961 may be reasonably construed as not conflicting with the Ordinance, I would hold the
SWDA does not preempt the Ordinance. See id. at *2-3.
Luz Elena D. Chapa, Justice
- 13 -