Untitled Texas Attorney General Opinion

April 19,1999

The Honorable Bill G. Carter Opinion No. E-0035
Chair, Committee on Urban Affairs
Texas House of Representatives Re: Whether a home-rule municipality may adopt
P.O. Box 2910 an ordinance requiring residential construction
Austin, Texas 78768-2910 contractors to use the franchisee selected by the
city for weekly residential and commercial
garbage removal (RQ-1215)

Dear Representative Carter:

Your predecessor as Chair of the House Committee on Urban Affairs, Representative
Fred Hill, asked this office whether a home-rule municipality may adopt an ordinance requiring
residential construction contractors to have construction debris hauled by the franchisee selected by
the city for weekly residential and commercial garbage removal. In answering this question, we
have assumed that the municipal ordinance applies only to contracts between residential construction
contractors and private solid-waste-hauling firms that are executed after the adoption of the
ordinance. See Tex. Att’y Gen. LO-97-037, at 3. Because amunicipality has comprehensive powers
to regulate garbage collection, we conclude that it may adopt the ordinance Representative Hill
described.

Representative Hill’s question arose from a situation in the City of Lewisville. According
to his letter to this offtce, the City of Lewisville, a home-rule city, see THE DALLAS MORNING NEWS,
1998-1999 TEXAS ALMANAC 436,440 (Mary G. Ramos ed., 1997), recently adopted a waste-hauling
franchise agreement ordinance granting an exclusive franchise to Texas Waste Management,
Inc. (“TWM”). The agreement includes, he stated, “an exclusive rights provision that requires
construction contractors to use TWM roll-off trash collection bins.“’ Letter from Honorable

‘In a letter to this off&, the City of Lewisville suggests a different characterization of its franchise ordinance.
See Letter from Mr. Ronald J. Neiman, City Attorney, City of Lewisville, to Ms. Sarah J. Shirley, Office of the Attorney
General (Dec. 15, 1998) (on tile with Opinion Committee). The city states that its ordinance:

m pickup trucks, pickup truck and trailer, dump trucks, dump !nxk and trailer,
semitractor and trailer, or any combination thereof to collect, haul, and dispose of
construction solid waste from a dwelling unit construction site as long as there is not a
container such as a roll-off container on the properly.

(continued...)
The Honorable Bill G. Carter - Page 2 (X-0035)

Fred Hill, Texas House of Representatives, to Honorable Dan Morales, Attorney General, at 1
(Oct. 14,1998) (on tile with Opinion Committee). Representative Hill described roll-off trash bins
as “the commonly seen trash receptacles used by commercial businesses, restaurants, and
multifamily communities.” Id. He suggested that this exclusive-rights provision constrains the
construction contractors and increases their costs:

Although not all construction projects need a roll-off trash bin, for those
times when a bin is needed for the project, residential construction
contractors want a choice. Residential construction contractors feel that
construction site debris collection, hauling and disposal is a solid waste
activity where competition makes sense and benefits small business
operations.

Id. On the other hand, the City of Lewisville apparently contends that this type of exclusive-rights
provision is “a common element of municipal solid waste franchise agreements.” Id. at 2.

We conclude that an exclusive-rights agreement such as your predecessor described is within
the city’s authority. “The legislature and the courts have long recognized the importance of garbage
disposal to the enhancement of health and safety. The enforcement of a comprehensive garbage
collection plan [by a municipality] is clearly within the police power granted to all municipalities.”
Grothues v. City of Helotes, 928 S.W.2d 725, 729 & n.6 (Tex. App.-San Antonio 1996, no writ)
(and cases cited therein); Tex. Att’y Gen. LO-97-037, at 1-2 (quoting Grothues). Indeed, Health and
Safety Code section 364.034 explicitly permits a municipality, among other public entities, to
require persons within its jurisdiction to use a particular solid-waste-disposal service. See TEX.
HEALTH& SAFETYCODE ANN. 5 364.034 (Vernon 1992); see also id $5 361.003(34), (35);
364.003(3), (5) (Vernon 1992 & Supp. 1999) (defining “public agency” and “solid waste”). The
term “person” includes corporations, partnerships, and other legal entities. Cf: id. $ 361.003(23)
(Vernon Supp. 1999) (defining “person”). In addition, a municipality has extensive power to
regulate, by proper ordinance, building construction that occurs within its limits. Scunlun v. Home
Ins. Co., 79 S.W.2d 186, 188 (Tex. Civ. App.-Beaumont 1935, writ ref’d); accord City of Tyler v.
Ingrum, 164 S.W.2d516,519(Tex. ~~~~)(~~~~~~~~EuGENEMcQuILLIN,THELAwOFMUNICIPAL
CORPORATIONS $ 1016, at 282 (2d ed.)); Town ofRenner v. Wiley, 458 S.W.2d 516,521 (Tex. Civ.
App.-Dallas 1970, no writ); Newton v. Town of Highland Park, 282 S.W.2d 266,278 (Tex. Civ.
App.-Dallas 1955, writ ref d n.r.e.); see Kirschke v. City of Houston, 330 S.W.2d 629, 633 (Tex.
Civ. App.-Houston 1959, writ ref d n.r.e.), (quoting 9 EUGENEMCQUILLIN,THELAW OFMUNICIPAL
CORPORATIONS 5 26.200, at 479) (stating that municipality has power to issue building permits); cf:

‘(...continued)
Id. at 2. “Thus,” the city continues, a residential construction contractor may “haul away the debris” him- or herself or
“contract with a third party, but roll-off containers. cannot be kept on the property and used for disposal by someone
other than Texas Waste Management, the franchisee.” Id. In the city’s view, consequently, the question should be
whether it may “grant an exclusive franchise for solid waste collection and require that all roll-off containers and roll-
off collection work be provided by the franchisee.” Id. Our conclusion in this opinion responds to the question as
Representative Hill framed it, but we believe it also responds to the less extreme situation and question the city presents.
The Honorable Bill G. Carter - Page 3 (JC-0035)

Exparte Cramer, 136 S.W. 61, 62 (Tex. Crim. App. 1911) (stating that municipality has power
to regulate installation of electrical apparatus). See generally TEX. LOC. GOV’T CODE ANN.
$5 211.001 - 230.018 (Vernon 1988 & Supp. 1999) (concerning municipal authority to regulate land
use, structures, businesses, and related activities).

Where public interest is involved, individuals’ rights often yield to overriding
public interests and are often regulated under the police power of the state.
Thus, a government entity often regulates the contractual relations between
parties and restricts the right to contract where it is reasonably necessary to
protect the general public. The enforcement of such restrictions is a
necessary function of municipal governments to promote the common
welfare of the greater metropolitan area.

Grothues, 928 S.W.2d at 731 (citations omitted); accord Browning-Ferris, Inc. v. City of Leon
Valley, 590 S.W.2d 729,731-33 (Tex. Civ. App.-San Antonio 1979, writ ref dn.r.e.); cf Tex. Att’y
Gen. Op. No. DM-401 (1996) at 2 (concluding that independent school district must comply with
municipal ordinance authorizing single vendor to collect garbage within municipal limits). In
addition, this office previously has determined that a private solid-waste-hauling company probably
has no vested right to collect waste in a particular area. See Tex. Att’y Gen. LO-97-037, at 2; see
also City of San Antonio v. Bee-Jay Enters., Inc., 626 S.W.2d 802, 804 (Tex. App.-San Antonio
1981, no writ). We know of no statute that precludes a home-rule city from adopting the solid-
waste-disposal ordinance Representative Hill described.

We limit our opinion to the state law issues your predecessor raised. We do not address the
purely local question ofwhether the city’s charter permits the city to adopt the ordinance. See also
Tex. Att’y Gen. Op. No. JM-846 (1988) at 1; Tex. Att’y Gen. LO-93-042, at 1. Although we do not
have a copy of the city’s charter, we have received a brief suggesting that the city’s ordinance
violates article 10, section 10.05 ofthe city’s Home Rule Charter, which apparently provides: “[N]o
grant, contract, or franchise, to construct, maintain or operate a public utility for or in Lewisville,
Texas, and no renewal or extension of such grant, contract or franchise, shall be exclusive.” See
Letter from Mr. Jeffrey A. Morrison, Bush & Morrison, P.C., on behalf of the Home Builders
Association of Greater Dallas, to Ms. Liz Robinson, Chair, Opinion Committee, Office of the
Attorney General (Jan. 7, 1999) (on tile with Opinion Committee). Not having the charter before
us, and in deference to municipal officials authority to construe their municipality’s ordinances and
charters, we decline to comment on whether the ordinance is consistent with the city charter. See
Tex. Att’y Gen. LO-94-008, at 2 n.1 (declining to issue opinion in deference to city attorney, who
bears primary responsibility for construing city charter).

Representative Hill alleged no other legal or procedural improprieties with respect to the City
of Lewisville’s solid-waste-disposal ordinance, and we therefore presume it is valid. See City of
Brookside ViZlage v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982) (stating that municipal ordinance
is presumed valid); John v. State, 577 S.W. 2d 483,485 (Tex. Crim. App. [Panel Op.] 1979) (stating
that municipal exercise of legislative power is presumed to be valid); Grothues, 928 S.W.2d at 730.
The Honorable Bill G. Carter - Page 4 (JC-0035)

SUMMARY

A home-rule municipality may adopt an ordinance requiring residential
construction contractors to use the hanchisee selected by the city for weekly
residential and commercial garbage removal to collect and haul customary
debris from a construction site.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General