Untitled Texas Attorney General Opinion

KEN.PAXTON
ATTORNEY GENERAL OF TEXAS

May 11, 2017

The Honorable Marco A. Montemayor Opinion No. KP-0148
Webb County Attorney
1110 Washington Street, Suite 301 Re: Applicability of the International Energy
Laredo, Texas 78040 Conservation Code to new school district
building construction after November 1, 2016
(RQ-0141-KP)

Dear Mr. Montemayor:

Your question concerns.the applicability of the International Energy Conservation Code.
Specifically, you ask

[w]hether all new school district building construction begun after
November 1, 2016 require[s] adherence to the latest published
edition of the International Energy Conservation Code, which
applies to commercial buildings, as provided under Texas Health &
Safety Code § 388.003(b) and as promulgated by Texas
Administrative Rule under Title 34, Chapter 19, rule§ 19.53(b)[.] 1

Chapter 388 of the Health and Safety Code establishes Texas's building energy
performance standards .. See TEX. HEALTH & SAFETY CODE §§ 388.001-.012. It contains
legislative findings regarding the need for an effective building energy code to reduce pollutants
and to ensure reliable and affordable energy for residents and businesses in Texas's unique climate,
which typically requires more energy for cooling than for heating. See id. § 388.00l(a)-(b).
Subsection 388.003(a) expressly adopts specified energy efficiency provisions of the International
Residential Code for single-family residential construction. See id. § 388.003(a). Subsection
388.003(b), about which you ask, adopts the "International Energy Conservation Code as it existed
on May 1, 2001, ... as the energy code for use in this state for all other residential, commercial,
and industrial construction." Id. § 388.003(b). Subsection 388.003(b) also expressly grants the
State Energy Conservation Office ("SECO") authority to "adopt and substitute.for that energy code
the latest published edition of the International Energy Conservation Code" based on certain
findings. Id.; see also 34 TEX. ADMIN. CODE§ 19.53(b) (2017) (Comptroller of Pub. Accounts,
Tex. Bldg. Energy Performance Standards) (adopting, effective November 1, 2016, the 2015
version of the International Energy Conservation Code). In addition, chapter 388 authorizes

1
Letter from Honorable Marco A. Montemayor, Webb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen.
at I (Nov. I 0, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Marco A. Montemayor - Page 2 (KP-0148)

municipalities to adopt local amendments. TEX. HEALTH & SAFETY CODE§ 388.003(d); see also·
id. § 388.003(e) (limiting, in many instances, a municipality's adoption oflocal amendments that
"result in less stringent energy efficiency requirements" than provided by the International Energy
Conservation Code).

In light of potential differing governing codes in different municipalities, the rules of the
Texas Education Code regarding construction standards for school facilities provide direction to
school districts. See 19 TEX. ADMIN. CODE§ 61.1036(f)(l)-(f)(2) (2017) (Tex. Educ. Agency,
Comm'rs Rules Concerning Sch. Facilities); see also TEX. EDUC. CODE§ 46.008(a) (requiring the
Texas Education Commissioner to establish standards for the adequacy of school facilities). A
school district in an area that adopted a local construction code must comply with that code. 19
TEX. ADMIN. CODE§ 61.1036(f)(l) (2017). A school district in an area that has not adopted a local
construction code "shall adopt and use the building code and related ... energy conservation code
from the latest edition of the family of International Codes as published by the ICC."2 Id.
§ 61.1036(f)(2)(A). Thus, the specific code applying to a particular school district will depend on
the local adoption of restrictions, and we cannot provide a blanket answer that will apply to all
school districts. However, we can advise you about the 2015 International Energy Conservation
Code's applicability to school building construction in those jurisdictions that adopted the 2015
International Energy Conservation Code or where it governs by default. With respect to these
jurisdictions, you ask whether school buildings are "other residential, commercial, or industrial
buildings" within the scope of subsection 388.003(b). See Request Letter at 3.

You explain that school buildings are neither "other residential" construction nor
"industrial" construction and question whether the school buildings are "commercial"
construction. See id. at 3-4. As chapter 388 does not define the term "commercial," we look to
the common or particular meaning of that undefined term. See TEX. Gov'T CODE § 311.011 (b)
("Words and phrases that have acquired a technical or particular meaning, whether by legislative
definition or otherwise, shall be construed accordingly."). The term "commercial establishment"
and related terms such as "commercial" may have a broad or narrow meaning depending on the
context. See Tex. Att'y Gen. L0-90-16 (1990) at 2. Here, the relevant building code, the
International Energy Conservation Code, which the Legislature expressly adopted, contains a
particular definition of the term. The International Energy Conservation Code defines
"commercial building" to mean "all buildings that are not included in the definition of 'residential
building.'" Int'I Code Council, Int'I Energy Conservation Code 2015, § C202 ("General
Definitions");3 see also TEX. Loe. Gov'T CODE § 214.211(5)(A) (defining "commercial" in a
similar context to mean "a building for the use or occupation of people for: (A) a public
purpose .... "). Thus, because a public school building is not a residential building, it falls within
the scope of "commercial" construction for purposes of the International Energy Conservation
Code and likely also for purposes of chapter 388.

2
The ICC refers to the International Code Council. 19 TEX. ADMIN. CODE§ 61.1036(a)(14)(8) (2017).

3
Available at http://codes.iccsafe.org/I-Codes.html (last visited Mar. 29, 2017).
The Honorable Marco A. Montemayor - Page 3 (KP-0148)

Citing several sources of legislative history, you suggest this conclusion is contrary to the
Legislature's intent as represented by the statements of various legislators. See Request Letter at
4. You assert that the 2013 amendments to chapter 388 were "meant to address energy efficiency
standards in residential construction and not commercial construction." Id. The cardinal rule of
statutory construction is to ascertain the Legislature's intent, and the "truest manifestation of what
legislators intended is what lawmakers enacted, the literal text they voted on." Alex Sheshunoff
Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006). Texas courts recognize that
"[s]tatements made during the legislative process by individual legislators or even a unanimous
legislative chamber are not evidence of the collective intent of the majorities of both legislative
chambers that enacted a statute." Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011). Wary
of isolated statements of legislators, the Texas Supreme Court acknowledges that the statute itself
"constitutes the law; it alone represents the Legislature's singular will, and it is perilous to equate
an isolated remark or opinion with an authoritative, watertight index of the collective wishes of
181 individual legislators, who may have 181 different motives and reasons for voting the way
they do." Klein v. Hernandez, 315 S.W.3d 1, 11 (Tex. 2010). Thus, a Texas court is unlikely to
rely on such statements to limit the applicability of the 2015 International Energy Conservation
Code to only residential construction contrary to the statute's plain language. See TEX. HEALTH
& SAFETY CODE§ 388.003(b); see also Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278,
284 (Tex. 1999) (stating that "legislative history cannot be used to alter or disregard the express
terms of a code provision").
The Honorable Marco A. Montemayor - Page 4 (KP-0148)

SUMMARY

A court would likely find that school buildings are
commercial construction within the scope of subsection 388.003(b)
of the Health and Safety Code.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee