Untitled Texas Attorney General Opinion

The Attorney General of Texas
December 30, 1983
JIM MAllOX
Attorney General
Eouorablc Reynaldo S. Cantu Opinion No. JM-123
Criminal District Attorney
Cameron County Re: Play Cameron County enforce
Rail of Justice building regulations enacted to
974 E. Xarrison Street restrict developwnt in flood-
Brovusville, Texas 70520 prone areas by prohibiting
provisions of utility service
714 Jackeon. Suile 700
to mu-complying atructurae
,Dallar. TX. 75202-4506
2w742-Sv44
Dear Mr. Cantu:
You have requested an Attorney General Opinion on a question
arising from the following facts:
Since the passage of Cameron County’s building
regulations in 1971, the county has been denying
building permits to those individuals vhose
subdivisions and lots do not meet, tbe regulations
established by the county under federal and state
-
SW Broadway. malt. 312
enablrng regialation through the Eederal ,Plood
Lubbock. TX. 704013479 Insurance Program. Various utilities -have ,been
Sow747-52Ss .,(’ ,cooperating with the county In slso not providing
I;;~ :
service ‘,~to those households which have .,~not
receIved~bullding permits from the county.
4202 N. TwUh, Sult.8
McAllen. TX. 7Sm``. .' : Recently;‘houever.‘questions have arisen ae to
512MS2.4S47 ,‘.’ ”
whether or not the utilities can deny service to a
‘household just because~the county has not giveu it
200 MaIn PIaz& Suulte4w .:_
San Antonlo, TX. 7820527s7
‘a building permit. Our discussions vith the
512/2254191 utilities have not resolved this issue. and we
have agreed to seek an Attorney General’s Opinion
as to whether,or not Cameron County can prevent a
An Equal Opwftunltyl utility from providing service to an individual
Afllrmatlre Actlon EmpIoyar
who has been denied a building permit for failure
to comply with the county's building regulations.
We will first consider whether the utilities may voluntarily deny
service under the facts given.
P
Article 144612, section 58(a), V.T.C.S.. the Public Utility
Regulatory Act, provides that
p. 519
Ronorable Reynaldo S. Cantu - Page 2 (``-123)
[t]he holder of any certificate of public
convenience and ueceeeity shall serve every
consumer within its certlflcdrea and shall
render continuous and adequate service within the
area. (Emphasis added).
Certificates of convenience and necessity are issued to public
utilities pursuaot to sections 49-62 of the Public Utility Regulatory
Act. The public utilities in question provide, for example,
electricity, water, sewage disposal and natural gas. V.T.C.S. art.
1446~. $3(c). Unless the commission issues a certificate that the
convenience and necessity mill not be adversely affected, the holder
of a certificate shall not discontinue service except for:
(1) non-payment of charges;
co nonuee; or
(3) other similar reasons in the usual course of
business
V.T.C.S. art. 1446~. 158(b). Any discontinuance of service must be
subject to conditions prescribed by the commission. Id. ‘?
The commission has promulgated a rule permitting any utility to
decline to serve an applicant until he has complied vith the state and
municipal regulations. Rule 052.02.04.043(a) codified at 16 T.A.C.
123.33. Ewaver, municipality is defined as a “city, incorporated
- village orYi%m;“. .” -2 d -‘-- i@ude a county. Rule
052.01.00.012 codified at “F6 T.::. yil.2. The commission’e rule
052.02.04.043(a) also permits the utility to decline service to an
applicant who has not complied with the utility’s approved rules and
regulations filed with the coam~ission or an spplicant whose equipment
is hazfrdous or of such character that satisfactory service cannot be
given. Thus. the utility may voluntarily deny service to au
applicant. for the reasons set out in the co=ission rule. If the
Cameron County regulations guard against the same conditions expressed
in the utility’s approved regulations on file with the cotmniesion or
if they prohibit utility hook-ups to applicants with equipment
hazardous or unsatisfactory because of the danger of-being located in
a flood prone area, the utility may voluntarily comply with them.
1. Cameron County might approach the PUC about amending its rule
to include the county. ?
2. The utility could seek an amendment to its regulations to
deny service to buildings which lack permits required by local law.
. .
Honorable Reynaldo S. Csntu - Page 3 (JM-123)
If the utility cannot voluntarily refuse service to an individual
who has been denied a building permit for failure to comply with
county building regulations promulgsted pursuant to article lS81e-1,
V.T.C.S., and sections 16.311 through 16.319 of the Texas Water Code,
you wish to know vhether Cameron County may prevent the utilities from
providing such service.
The Public Utility Commisalon has general power to regulate
public utilities and to make rules reasonably required In the exercise
of this power. V.T.C.S. art. 1446~. 116. Section 17(e) of the act
vests in the coxw~ission exclusive jurisdiction over “electric, water,
and sewer utility rates. operations and services not within the
incorporsted limits of a municipality exercising exclusive original
jurisdiction . . . .” Section 18 of the act vests similar
jurisdiction in the commission over telecommunications utilities in
all areas of the state. This latter jurisdictional grant has been
construed broadly to include “the entire field of legislative
regulatfon of public utilities.” Southwestern Bell Telephone Company
v. City of Kountre. 543 S.W.2d 871 (Tex. Civ. App. - Beaumont 1976, no
writ). See also V.T.C.S. art. 1446~. 135.
Counties have only those powers and duties expressly granted or
necessarily implied from statutory and constitutional provisions.
Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Anderson v. Wood, 152
S.W.Zd 1084 (Tex. 1941); Attorney General Opinion R-374 (1974). The
commissioners court does not have general police powers.
_.- Commissioners’ Court v. Kaiu S.W.2& 840 (Tei. Civ. pp. -
Galveston T929, writYef’d)Z
Article 1581e-1. section 4. V.T.C.S.. authorizes counties
bordering on the Gulf of Mexico or the tidewater limits thereof
to enact and enforce regulations vhich regulate,
restrict, or control the management and use of
land, structures, and other development in flood,
or rising water prone, areas in such a manner as
to reduce the danger of. damage.caused by flood
losses. This power and authority may include, but
shall not be limited to, requirements for
flood-proofing of structures which are permitted
to remain in, or be constructed in. flood or
rising water prone. areas; regulations concerning
minimum elevation of any structure permitted to be
erected in, or improved in. such areas;
specifications for drainage; and any other action
which is feasible to minfmiie flooding and rising
P water damage.
p. 521
Honorable Reynaldo S. Cantu - Page 4 (Jli-123)
Article 15Sle-1, V.T.C.S., wss enacted in 1969 to enable coastal
counties to qualify for participation in the Nations1 Flood Insurance
Program. Acts 1969. 61et Leg., ch. 720, I1 at 2107; Attorney General
Opinion E-1024 (1977).
Sections 16.311 through 16.319 of the Water Code authorize a
number of polltical subdivisions including any county “to take all
necessary and reasonable actions to comply with the requirements and
criteria of the National Flood Insurance Program.” Specific powers
include, but are not limited to, the following:
(1) making appropriate land use adjustments to
constrict the development of land vhich is exposed
to flood damage and minimire damage caused by
flood losses;
(2) guiding the development of proposed future
construction. vhere practicable, away from
location which Is threatened by flood hazards;
(3) assisting in minimizing damage caused by
floods;
. . . .
(5) engaging in floodplain management and
adopting enforcing permanent land use and .control.~ __ _
measures consistent with the criteria established
under the National Flood Insurance Act;
(6) declaring property, when such is the case,
to be in violation of local laws, regulations, or
ordinances vhich are intended to discourage or
otherwise restrict land development or occupancy
in flood-prone areas and notifying the secretary,
or whomever he designates, of such property;
. . . .
(12) eatlsfying criteria adopted and
promulgated by the department pursuant to the
National Flood Insurance Program; and
(13) adopting permanent land use and control
measures with enforcement provisions which are
consistent with the criteria for land management
and use adopted by the secretary . . . .
Water Code 116.315.
p. 522
Ronorable Reynaldo S. Cantu - Page 5 (JR-123)
Article 1581e-1, V.T.C.S.. and sections 16.311 through 16.319 of
the Water Code must be construed in conformity vith their purpose --
that is. enabling counties and various other political subdivisions to
qualify for participation in the National Flood Insurance Program.
See Texas Liquor Control Board v. Falstaff Distributing Company. 369
E2d 483 (Tex. Civ. App. - Houston 1963. no writ). See also Code
Construction Act. V.T.C.S.. art. 5429b-2. 13.03(l) (in construinn a
statute, a court-may consider the object bo,ght~;o.b,~attained). &The
language and the purpose of these statutes do not require us to
conclude that counties have been given land regulation powers broader
than those necessary and reasonable to qualify for the National Flood
Insurance Program. Attorney General R-978 (1977). in considering
whether counties could enforce requirements in excess of the minimum
necessary to qualify for insurance under the federal program, stated
as follows:
the authorization of . . . [the predecessor of
section 16.3151 clearly is not an unconditional
grant of authority for political subdivisions to
enact land use regulations not otherwise
sanctioned by law. The regulations so enacted
must have as their purpose and effect compliance
with the requirements and criteria promulgated
pursuant to the National Flood Insurance Program.
The Public Utility Regulatory Act was enacted in 1975. subsequent to
article 1581e-1, V.T.Cu Acts 1975. 64th Leg., ch. 721 at 2327.
Thus, even if article 1581e-1. V.T.C.S., could be construed to
impliedly authorize counties to deny utili~ty hook-ups to consumers as
a means of enforcing land use regulations, that power would have been
repealed by the enactment of the Public Utility Regulatory Act. See
V.T.C.S. art. 1446~. 1f16. 17(e), 18. 35. 58; see also & 190
(express repqal of conflicting laws).
The denial of utility connections to non-complying construction
in a flood plain might be a means of "minimizing damage caused by
floods." Water Code 516;315(3). Hovever , we do not believe this
general authorization evinces a legislative intent to repeal
provisions of the Public Utility Regulatory Act requiring regulated
utilities to serve customers within the certified area or providing
that the Public Utility Commission has exclusive original jurisdiction
in unincorporated areas over telec~unicationr. water, sewer and
electric utilities. The comaiseion, in the exercise of its
Nle-making power, may define the limitations on a utility's duty to
serve every customer in its area. Neither article 1581e-1 nor section
16.315 of the Water Code authorize a county to do so. We conclude
that a county may not require a utility to deny service to an
individual or entity not in compliance with county flood control
ordinances or regulations.
p. 523
Honorable Reynaldo S. Cantu - Page 6 (JM-123)
SUMMARY
The Public Utility Realatory Act, article
1446~. V.T.C.S., and present regulations
promulgated thereunder, prevent Cameron County
from requiring utilities to deny service to
individuals or entities not in compliance with
county flood regulations.
b
Very trul yours.
*i&n /VW
cl
Attorney General of Texas
Tot4 GREEN
First Assistant Attorney General
DAVID R. RICSARDS
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
PROVED: _.__
COMMITEE
Rick Gilpin. Chairman
Jon Bible
Susan Garrison
Jim Floellinger
Fernando Rodriquez
Nancy Sutton