Supreme Court of Texas
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No. 21-0173
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Builder Recovery Services, LLC,
Petitioner,
v.
The Town of Westlake, Texas,
Respondent
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On Petition for Review from the
Court of Appeals for the Second District of Texas
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Argued March 23, 2022
JUSTICE BLACKLOCK delivered the opinion of the Court.
Builder Recovery Services, LLC (BRS) hauls trash away from
construction sites. The Town of Westlake is a general-law municipality
in which BRS operates. BRS disputes the Town’s authority to impose a
percentage-of-revenue license fee on companies like BRS. As explained
below, we agree with BRS that the fee exceeds the Town’s authority.
The judgment of the court of appeals is reversed, and the case is
remanded to the court of appeals.
I.
BRS collects and removes solid waste from construction sites. It
provides dumpsters for use during construction, and it hauls loaded
dumpsters to landfills. BRS is paid by private customers such as
construction contractors engaged in residential new construction or
remodeling.
BRS wants to operate in the Town of Westlake, a general-law
municipality of around 2,000 residents near Fort Worth. The Town has
long had a “franchise agreement” with Republic Services, a private
waste management company that performs regular residential and
commercial trash collection for the Town’s residents. Republic pays the
Town an annual fee of 12% of its gross revenue generated in the Town.
Republic also performs construction-site waste hauling, the same
service provided by BRS. For a time, BRS could not operate in the Town
because only Republic was authorized to do so.
The Greater Fort Worth Builders Association sent the Town a
letter questioning the Town’s legal authority to make Republic the
exclusive provider of construction trash-hauling services. BRS and the
Town’s staff attempted to agree to the terms of a proposed ordinance
that would implement a licensing scheme under which BRS could
operate. No agreement was reached.
The Town then enacted Ordinance 851, which governs solid waste
disposal services in the Town. Some of Ordinance 851’s provisions
recodified existing regulations applicable to Republic and its customers.
The Ordinance also included a new Article III, which applied to
construction trash haulers like BRS. Article III required such
2
companies to obtain a license to operate in the Town. It required
licensees, among other things, to identify their vehicles and containers,
maintain their vehicles and containers in good repair, maintain
insurance and other paperwork, and submit certain reports to the Town.
Licensees were also required to pay a monthly license fee of 15% of their
gross revenue generated within the Town. After the Ordinance was
adopted, BRS began operating in the Town, but it did not obtain a
license or pay the fee. The Town cited BRS for operating without a
license in violation of Ordinance 851. BRS responded by filing this suit.
BRS alleged that the Town, as a general-law municipality, lacks
statutory authority to require BRS to obtain a license to haul
construction waste and lacks statutory authority to impose a licensing
fee based on a percentage of BRS’s revenue. BRS further contended that
the fee is an unconstitutional occupation tax prohibited by article VIII,
section 1 of the Texas Constitution. 1 BRS also alleged that Ordinance
851 is preempted by section 361.0961 of the Health and Safety Code,
which prohibits local ordinances that (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”; or (2) “assess a fee or deposit
on the sale or use of a container or package.” TEX. HEALTH & SAFETY
CODE § 361.0961(a)(1), (3). 2
1 See Lowenberg v. City of Dallas, 261 S.W.3d 54 (Tex. 2008) (explaining
that fees charged by municipalities can amount to unconstitutional occupation
taxes).
2See City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586 (Tex. 2018)
(analyzing the preemptive effect of section 361.0961).
3
The district court denied BRS’s request for a temporary
injunction. The parties then agreed that BRS would place the unpaid
fees in escrow pending resolution of the case. After a bench trial, the
district court stated its view that the 15% fee was invalid under section
361.0961. 3
At a later hearing, the Town informed the court that it had
amended the Ordinance to decrease the license fee from 15% to 3% of
gross revenue. The amended Ordinance was labelled Ordinance 901.
The amended Ordinance states that “the primary purpose of the fees
authorized and adopted by this ordinance is for regulation” and “the
primary purpose of this ordinance is not to raise revenue.” It later states
that the 3% fee “is imposed with the objective of recovering the
administrative costs of regulation, enforcement, monitoring, and the
associated impact to infrastructure resulting from solid waste transport
services.”
The district court rendered a declaratory judgment, which rejects
most of BRS’s arguments but declares that the 15% license fee “is invalid
and unlawful” under section 361.0961(a)(3) of the Health and Safety
Code. The court awarded attorney’s fees of $8,523 to BRS. Both sides
appealed. The court of appeals affirmed in part and reversed in part.
640 S.W.3d 543 (Tex. App.—Fort Worth 2021). It affirmed the portions
of the judgment favoring the Town. Id. at 573. As to the district court’s
decision regarding the invalidity of the 15% license fee, the court of
3 From the bench, the court stated that it was “only going to make one
finding at this time, and that is that the 15% license fee for the . . . collection
of temporary solid waste from construction sites is unlawful and invalid under
Section 361.0961 of the Texas Health and Safety Code.”
4
appeals held that BRS’s challenge to the fee was moot because the Town
had replaced the 15% fee with a new 3% fee. Id. at 573–74.
II.
A.
Municipalities “represent no sovereignty distinct from the state
and possess only such powers and privileges as have been expressly or
impliedly conferred upon them.” Wasson Ints., Ltd. v. City of
Jacksonville, 489 S.W.3d 427, 430 (Tex. 2016) (quoting Payne v. Massey,
196 S.W.2d 493, 495 (Tex. 1946)). “Texas law recognizes three types of
municipalities: home-rule municipalities, general-law municipalities,
and special-law municipalities.” Town of Lakewood Village v. Bizios,
493 S.W.3d 527, 530 (Tex. 2016). “Home-rule municipalities derive their
powers from the Texas Constitution and possess the full power of
self-government and look to the Legislature not for grants of power, but
only for limitations on their power.” Id. at 531 (internal quotation marks
omitted).
General-law cities, like the Town of Westlake, possess only “those
powers and privileges that the State expressly confers upon them.” Id.
(quoting Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637,
645 (Tex. 2004)). In addition to their expressly granted powers,
general-law cities have “only such implied powers as are reasonably
necessary to make effective the powers expressly granted.” Id. at 536
(quoting Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d
945, 947 (Tex. 1940)). The reasonable necessity of an implied power will
not be lightly assumed. To the contrary, we have held that a general-law
city’s implied powers are limited to those that are “indispensable” to
5
carrying out expressly granted powers. Mann, 142 S.W.2d at 947.
Stated another way, “[a] municipal power will be implied only when
without its exercise the expressed duty or authority would be rendered
nugatory.” Foster v. City of Waco, 255 S.W. 1104, 1106 (Tex. 1923). Any
reasonable doubt about an implied power’s existence is resolved against
it. Bizios, 493 S.W.3d at 536.
We begin with BRS’s argument that the Town lacked statutory
authority to require BRS to pay a percentage-of-revenue fee in exchange
for a license to conduct business in the Town. Before reaching the merits
of that issue, however, we must address the Town’s contention that
BRS’s challenge to the fee became moot when the Town decreased the
fee from 15% to 3% of gross revenue. If the claim has been mooted by
intervening events, we have no power to resolve it. State ex rel. Best v.
Harper, 562 S.W.3d 1, 6 (Tex. 2018) (observing that when a case becomes
moot, the court loses jurisdiction over it).
“A case is moot when either no ‘live’ controversy exists between
the parties, or the parties have no legally cognizable interest in the
outcome.” City of Krum v. Rice, 543 S.W.3d 747, 749 (Tex. 2017). The
Town argues that BRS’s claims regarding the 15% fee became moot
when the Town lowered the rate to 3%. The court of appeals concluded
that the Town’s repeal of the 15% fee “moots BRS’s challenge to the fee’s
validity as BRS’s challenge is predicated on the amount of the fee.” 640
S.W.3d at 548. BRS, however, contends that, regardless of the rate, the
Town lacks authority to impose a percentage-of-revenue licensing fee.
BRS has pursued this argument in the district court, in the court of
appeals, and in this Court. Although some of BRS’s objections to the fee
6
regard the fee’s amount, BRS has consistently maintained that any
percentage-of-revenue fee is unlawful regardless of the amount. A claim
that a percentage-of-revenue fee of any size is unlawful is not mooted by
an intervening adjustment to the size of the fee. The parties’ dispute in
this regard is just as “live” under the 3% fee as it was under the 15% fee.
In addition, BRS at times paid the 15% fee into escrow under an
agreement with the Town. As far as we are aware, those fees remain in
escrow, and BRS can only recover them if it succeeds in demonstrating
that the Town lacked authority to impose them. Thus, because of the
parties’ escrow agreement, BRS continues to have a legally cognizable
interest in the legality of the 15% fee even though it has been replaced
with a lower fee. For both of these reasons, BRS’s claim that the Town
lacks authority to impose a percentage-of-revenue fee is not moot.
Turning to the merits of that claim, an initial distinction should
be drawn between the licensing fee imposed on BRS and the franchise
fee imposed on Republic. Republic is the Town’s conventional
residential and commercial trash-hauling franchisee. The Town’s
relationship with Republic is governed by an exclusive franchise
agreement as described in section 364.034 of the Health and Safety
Code. Republic is not a party to this case, and nothing in our decision
should be construed to comment on the rights of the Town, of Republic,
or of similarly situated parties operating under section 364.034 or under
franchise agreements. Instead, we address the Town’s authority under
section 363.111 of the Health and Safety Code, the primary statutory
provision on which the Town relies for its authority to charge licensing
fees to companies like BRS.
7
Section 363.111 authorizes municipalities, including general-law
municipalities, to “adopt rules for regulating solid waste collection,
handling, transportation, storage, processing, and disposal.” TEX.
HEALTH & SAFETY CODE § 363.111(a). To begin with, this statutory
grant of authority does not expressly authorize any fee at all. Section
363.111 might impliedly authorize a regulatory fee, but this would be
the case only if the implied power to charge a fee is “indispensable,”
Mann, 142 S.W.2d at 947, to the express power to “adopt rules for
regulating solid waste collection.” The Town contends that its statutory
authority to regulate must include both the power to require regulated
companies to obtain a license and the power to charge a regulatory fee
to recover the cost to the Town of administering the regulations.
We can assume, without deciding, that the Town is empowered to
require construction trash haulers like BRS to obtain a permit or license
as a reasonably necessary component of the Town’s express power to
regulate solid waste collection. There is authority for this proposition. 4
But we need not comment further on it, because even if the Town may
impose a licensing requirement, the dispositive issue before us is
4 See Ex parte Wade, 146 S.W. 179, 182 (Tex. Crim. App. 1912) (“It is
generally received doctrine that the power granted to a municipality to
regulate or to prohibit includes the power to license as a means to those ends.”);
Flores v. State, 33 S.W.3d 907, 916 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d) (“Regulation of conduct may include the requirement that [the regulated
person] hold a permit issued by the municipality.”); Ex parte Mata, 925 S.W.2d
292, 294 (Tex. App.—Corpus Christi–Edinburg 1996, no pet.) (“Historically
governments have granted licenses, charters and permits of various types as
aids in regulating the activities of its citizens and others who conduct
endeavors within the jurisdiction. . . . The license or permit is a means of the
government to assure that certain criteria are met by the one who wishes to
conduct those activities.”).
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whether the Town has authority to charge the kind of licensing fees it
has charged. For the following reasons, we conclude that it does not.
We must begin with another assumption—that the express power
to regulate includes an implied power to charge regulatory fees. Even if
that is the case, such fees would have to be tethered to the Town’s costs
of administering the regulation. Only if a fee is calibrated to cover
regulatory costs can there be any argument that the power to charge the
fee is “indispensable” to the power to regulate. Mann, 142 S.W.2d at
947.
The Town contends that its percentage-of-revenue fee—in both its
15% and its 3% iteration—covers only the cost to the Town of regulating
construction trash haulers like BRS. But regardless of how much money
a percentage-of-revenue fee is generating at any given point in time,
such a fee is tethered only to the market price of trash-hauling services,
not to the Town’s cost of regulating. The Town does not regulate the
price of trash hauling. 5 How much BRS charges its customers to haul
their trash is none of the Town’s concern, and this privately negotiated,
fluctuating amount has nothing to do with how much money the Town
needs to administer its trash-hauling regulations. A more conventional,
volume-based fee under which the Town charged fixed amounts per
license application or per construction site, for instance, could be
calibrated to offset staffing or paperwork expenses incurred by the Town
because of the regulation. 6 But a floating, percentage-of-revenue fee will
5 We express no view on whether it could lawfully do so.
6 In Lowenberg, we distinguished between a city’s “administrative costs
of collecting fire safety information on commercial buildings and incorporating
9
fluctuate based on economic forces having nothing to do with the Town’s
internal costs.
Moreover, a percentage-of-revenue fee resembles—at least in its
mode of calculation—a traditional business tax assessed based on
revenues. We see no way in which the power to charge such a “fee” is
indispensable to the power to regulate. From the perspective of the
fee-payer, a revenue-based licensing fee is difficult to distinguish from
an unconstitutional occupation tax. 7 Because it fluctuates based on
it in a database,” which were valid, internal regulatory costs recoverable
through a regulatory fee, and the “costs of fire prevention in commercial
buildings,” which were costs of providing a public service, not the costs of
administering a regulation. 261 S.W.3d at 58. At trial, the Town’s manager
testified that the fee was designed to cover “administrative and oversight” costs
as well as “damage to any public or other private properties” and “damage to
Town streets” and “Town infrastructure.” The Town also took the position that
the fee could be used to cover general capital improvement costs for the Town’s
streets. Our decision in Lowenberg, however, draws a line between (1) internal
“administrative costs” the City expends implementing the regulation itself; and
(2) external costs caused by or related to the regulated activity. Id. We need
not address the parties’ evidentiary dispute about the amount of the fee,
however, because we conclude that the implied power to charge
percentage-of-revenue licensing fees is not indispensable to the express power
to regulate trash hauling.
7 Our precedent on article VIII, section 1 of the Texas Constitution
distinguishes between valid regulatory fees and unconstitutional occupation
taxes based on whether, from the perspective of the government, “the primary
purpose of the fees . . . is the raising of revenue.” Hurt v. Cooper, 110 S.W.2d
896, 899 (Tex. 1937). Because we need not address whether the
percentage-of-revenue fees charged to BRS are unconstitutional occupation
taxes, we need not assess the fee’s legality by focusing on the purpose for which
the Town imposed it. Viewing the matter from BRS’s perspective, the ease
with which companies like BRS could mistake these fees for unconstitutional
taxes gives us additional reason to doubt that the power to charge revenue-
based fees of this nature can be necessarily implied from the generic power to
regulate trash hauling.
10
market forces having nothing to do with the Town’s regulatory expenses,
and because it resembles a business tax in its calculation method, a
percentage-of-revenue fee is different in kind from cost-recovery fees a
general-law city might validly charge incident to its power to regulate
trash hauling. We find it unlikely that the Legislature’s grant to
general-law cities of the generic authority to regulate trash hauling
carries with it an implied power to impose a revenue-based charge of
this nature. And even if that question is not free from doubt, any doubt
about the existence of a general-law city’s implied power must be
resolved against the city. Bizios, 493 S.W.3d at 536. We hold that the
Town’s express power under section 363.111 to regulate trash hauling
does not include an implied power to charge percentage-of-revenue
licensing fees. 8
The Town also argues that the fee was authorized by section
363.113 of the Health and Safety Code, which provides that “each
municipality shall review the provision of solid waste management
services in its jurisdiction and shall assure that those services are
8 We have previously held that regulatory fees, “when only in an amount
reasonably necessary to fund the State’s regulation of that industry, are not
[unconstitutional] occupation taxes.” Tex. Boll Weevil Eradication Found., Inc.
v. Lewellen, 952 S.W.2d 454, 461 (Tex. 1997). BRS argues that the Town’s fees
are unconstitutional occupation taxes because they generate more revenue
than is reasonably necessary to fund the Town’s regulation. Because we
conclude that the Town lacks statutory authority to impose the kind of fees it
has imposed, we need not consider whether the constitution also prohibits the
fees or whether the amount the fees generated at the time of trial was correctly
calibrated to cover the City’s costs. Our resolution of the statutory question
thus has the added benefit of avoiding the constitutional question, which we
should always do where possible. See In re B.L.D., 113 S.W.3d 340, 349 (Tex.
2003).
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provided to all persons in its jurisdiction by a public agency or private
person.” We see no basis in this provision for an implied power to charge
a percentage-of-revenue licensing fee. The Town’s case is strongest
under section 363.111, and for the reasons already explained, we do not
understand that provision to carry with it the implied authority the
Town seeks. Any grant of such authority flowing from section 363.113
would be even more oblique. Resolving doubts against a general-law
city’s implied authority, section 363.113 does not authorize the Town to
charge revenue-based licensing fees to trash haulers like BRS.
B.
Having held the licensing fee invalid because it exceeds the
Town’s statutory authority, we must assess what remains of the Town’s
regulatory scheme in the absence of the fee. As described above, Article
III of the Ordinance included the licensing requirement, the
percentage-of-revenue licensing fee, and various regulations governing
trash haulers’ activities. BRS challenges all three elements of Article
III, and we hold that the percentage-of-revenue licensing fee exceeds the
Town’s authority.
Although much of the parties’ briefing and all of the amicus
involvement focuses on the percentage-of-revenue fee, the parties do not
address whether the rest of the Ordinance is severable from the fee. In
general, the invalid portion of an ordinance or statute should be severed
from the rest of the enactment, which remains in effect without the
severed portion, “unless all the provisions are connected in
subject-matter, dependent on each other, operating together for the
same purpose, or otherwise so connected in meaning that it cannot be
12
presumed the legislature would have passed the one without the other.”
Rose v. Drs. Hosp., 801 S.W.2d 841, 844 (Tex. 1990) (quoting W. Union
Tel. Co. v. State, 62 Tex. 630, 634 (1884)).
Here, the percentage-of-revenue fee was, by all accounts, an
integral part of the Town’s attempt to regulate construction trash
hauling. From the beginning, the fee was a key issue in discussions
between BRS and the Town about enactment of the Ordinance. The
Town makes no argument that the other provisions of Article III should
remain operative if the fee is declared invalid. Indeed, the Town’s
primary defense of the fee is that its power to charge a fee is
indispensable to its ability to regulate trash hauling at all. Every
indication in the record is that the fee and the regulatory scheme were
negotiated and enacted as a package deal. It therefore appears unlikely
that the Town—contrary to its protestations of the fee’s
indispensability—would have enacted the other provisions of Article III
in the absence of the fee. In particular, the prospect that the licensing
requirement remains viable in the absence of its accompanying fee
seems remote. Nevertheless, the Ordinance contains a severability
clause, and “[w]hen an ordinance contains an express severability
clause, the severability clause prevails when interpreting the
ordinance.” City of Houston v. Bates, 406 S.W.3d 539, 549 (Tex. 2013).
If the remainder of the Ordinance is severable from the invalid
fee, we would need to address whether the Town’s authority to “adopt
rules for regulating” trash hauling includes the power to require trash
haulers to obtain a license. We would also need to address whether the
Ordinance, in whole or in part, is preempted by section 361.0961.
13
For several reasons, we decline to reach these remaining issues.
First, neither party has addressed the severability question at all.
Second, the parties’ positions on other questions cast doubt on the extent
to which their dispute over the Ordinance’s other provisions survives the
fee’s invalidity. For example, the Town emphasizes the fee’s importance
to its efforts to regulate trash hauling and gives no indication that it
wishes to preserve the rest of the Ordinance if the fee cannot stand.
BRS, for its part, suggests that if the fee and license requirements are
removed, it would not object if some other regulations remain in place. 9
Third, resolving the remaining issues would require us to definitively
answer substantial questions of law that may not be essential to this
case’s resolution. See State v. One (1) 2004 Lincoln Navigator, VIN #
5LMFU27RX4LJ28242, 494 S.W.3d 690, 701 (Tex. 2016) (“[J]udicial
restraint counsels against deciding unnecessary issues.”). We will
remand the case to the court of appeals, where the parties may address
the severability question in the first instance, in light of our decision
today. 10
9 BRS states that it “does not dispute that the Town can regulate
various aspects of BRS’ business operations if they are applied equally and
fairly to all building construction trades across the board.” Further, “BRS is
not opposed to the City regulating BRS like it does other building contractors
and requiring compliance with generally applicable public, health and safety
regulations.” Similarly, at oral argument, BRS maintained that while it was
challenging “licensure and a percentage of revenue fee,” it was not taking the
position that, if it prevails, “there’s going to be no regulation of trash collection
or disposal” by BRS.
10BRS asks that we remand the case to the district court to reassess
attorney’s fees. “Where the extent to which a party prevailed has changed on
appeal, our practice has been to remand the issue of attorney fees to the trial
14
III.
The Town of Westlake lacks authority as a general-law
municipality to impose a percentage-of-revenue licensing fee on
construction trash-hauling companies like BRS. The judgment of the
court of appeals is reversed, and the case is remanded to the court of
appeals for further proceedings consistent with this opinion.
James D. Blacklock
Justice
OPINION DELIVERED: May 20, 2022
court for reconsideration of what is equitable and just.” Morath v. Tex.
Taxpayer & Student Fairness Coal., 490 S.W.3d 826, 885 (Tex. 2016). After
the court of appeals resolves any issues the parties present for further review
on remand, it may consider whether BRS’s success on appeal warrants remand
for reassessment of attorney’s fees.
15