,
The Attorney General of Texas
January 14, 1982
MARK WHITE
Attorney General
Honorable Neal Pfeiffer Opinion No.MW-424
Supreme Court Building
P. 0. BOX 12546 Criminal District Attorney
Austin, TX. 78711 Bastrop County He: Provision of street
512/475-2501 P. 0. Box 753 cleaning services by a general
Telex 9101674-1387
Bastrop, Texas 78602 law city and assessment of
Telecopier 512/4750266
fees therefor
1607 Main St., Suite 1400 Dear Mr. Pfeiffes:
Dallas, TX. 75201
214i7428944 You request our opinion as to whether a city incorporated under
the general law statutes of the state of Texas can provide street
4624 Alberta Ave., Suite 160
cleaning services and charge fees therefor. Additionally, you request
El Paso, TX. 79905 an opinion as to whether such a city can charge such fees to all
9151533.3464 residents, when the street cleaning services are restricted to the
downtown area of the city.
1220 Dallas Ave., Suite 202
Houston, TX. 77002 The city of Elgin, Texas, proposes to provide a street cleaning
713/650-0666 service for the downtown area only and charge fees to all residents
for such service.
606 Broadway, Suite 312
With respect to your first question, general law cities have only
Lubbock. TX. 79401
6061747-5236 such powers as are granted by statute or by necessary implication
therefrom. See Payne V. Massey, 196 S.W.2d 493, 495 (Tex. 1946);
Attorney General Opinion H-796 (1976). This is in contrast to the
4309 N. Tenth, Suite S
broad powers of home rule cities, which may exercise any power
McAllen. TX. 76501
incorporated in their charters that is not denied by the constitution
5121662-4547
or by statute. V.T.C.S. art. 1176.
200 Main Plaza, Suite 400 General law cities have H . ..exclusive control and power over the
San Antonio, TX. 76205 atreeta ... of the city .. . to ... clean and otherwise improve said
512/225-4191
streets..." V.T.C.S. art. 1016. HOWWCX, no statutory authority for
general law cities to charge fees for such service obtains unless such
An Equal OppOrtunityI provision is found in article 4477-8, section 13, V.T.C.S.
Affirmative Action Employer
*ction 13 states in pertinent part:
Any public agency or any county may offer solid
waste disposal service to persons within its
boundaries, may require the use of such service by
any or all such persons, may charge fees therefor,
and may establish said service as a utility
p. 1444
Honorable Neal Pfeiffer - Page 2 (MW-424)
separate from other utilities within its
boundaries....
The term "public agency" is defined in article 4477-8, section
3(e), V.T.C.S., to include "any city as defined herein." The word
"city" means any incorporated city or town in the state, whether
operating under general law or under its home rule charter. V.T.C.S.
art. 4477-8, 53(d). Therefore, a city such as Elgin is a public
agency under article 4477-8, V.T.C.S., empowered to offer a "solid
waste disposal service" to persons within its boundaries and charge
fees therefor.
The statutory definition of "solid waste" refers to the
definition found in article 4477-7, V.T.C.S., the Solid Waste Disposal
Act. V.T.C.S. art. 4477-8, 93(h).
Prior to the 1977 amendments to section 2 of article 4477-7,
V.T.C.S., that section defined "solid wastell and "municipal waste" as
follo"s:
(5) 'solid waste' means all putrescible and
nonputrescrible discarded or unwanted solid
materials, including municipal solid waste...
(6) 'municipal solid waste' means solid
waste resulting from or incidental to municipal,
community, trade, business and recreational
activities, including garbage, rubbish, ashes,
street cleanings, dead animals, abandoned
automobiles, and all other solid waste other than
industrial solid waste.
In 1977, the Sixty-fifth Legislature passed two bills amending
article 4477-7, section 2, V.T.C.S. Senate Bill No. 764, along with
other changes, excised the phrase "including municipal solid waste"
from the definition of "solid waste." The definition of "municipal
solid waste" was changed only by substituting the word "commercial"
for the words "trade, business."
On the other hand, in Senate Bill No. 1139 the definitions of
"solid waste" and "municipal solid waste" have the same wording as the
statute prior to the 1977 amendments. That is, the definition of
solid waste specifically includes municipal solid waste.
Both Senate Bill No. 764 and Senate Bill No. 1139 were finally
passed by the house on May 13, 1977. The senate concurred in house
amendments to both bills on May 17, 1977. The governor signed Senate
Bill No. 764 on May 30, 1977. It became effective on August 29, 1977.
p. 1445
Honorable Neal Pfeiffer - Page 3 (MW-424)
The governor signed Senate Bill No. 1139 on June 16, 1977. Its
effective date was set at September 1, 1977.
Two acts on the same subject passed by the same session of the
legislature must be reconciled and construed as one act. Wright v.
Broeter, 196 S.W.2d 82, 85 (Tex. 1946). If one act expressly repeals
the other or there is an irreconcilable repugnancy between them, the
provision approved last will prevail. Id. at 85.
The Texas Supreme Court has stated that:
...nothing short of expressions so plain and
positive as to force upon the mind an irresistible
conviction, or absolute necessity, will justify a
court in presuming, that it was the intention of
the legislature that their acts passed at the same
session, should abrogate and annul one another.
Cain v. State, 20 Tex. 355, 361 (1857).
Accordingly, Senate Bill No. 764 and Senate Bill No. 1139 must be
read together and reconciled, if possible. The acts are not
irresistibly repugnant.
The definition of "solid wasten in Senate Bill No. 764 states:
(5) 'solid waste' means all putrescible and
nonputrescible discarded or unwanted solid
materials, including garbage, refuse, sludge from
a waste treatment plant or air pollution control
facility, and other discarded material, including
solid, liquid, semisolid or contained gaseous
material resulting from industrial commercial,
mining and agricultural operations and from
community activities...
This definition is broad enough to include the items in the definition
of municipal solid waste. Consequently, street cleanings are within
the ambit of "solid waste." (Obviously, there is no clear legislative
intent to exclude "municipal solid waste" from the term "solid
waste"). It follows that a "solid waste disposal service" as used in
article 4477-8, section 13, V.T.C.S., may include the service of
street cleaning under these definitions.
You also ask if fees can be charged to all the residents of the
city if street cleaning services are provided for only a certain
section of the town, specifically the downtown area which presumably
is in greatest need of street cleaning.
p. 1446
,
Honorable Neal Pfeiffer - Page 4 (MW-424)
Under our reading of section 13, such a practice is precluded.
The statute plainly states that a public agency may offer solid waste
disposal service to persons within its boundaries and may require the
use of such service by any or all such persons and may charge fees
therefor. By use of the phrase "such persons" reference is made to
the persons to whom the service is offered. Thus, only those persons
to whom the service is offered, that is, who may actually have the
street abutting their home or business cleaned, may be charged a fee.
SUMMARY
General law cities may provide street
cleaning services and charge fees therefor under
article 4477-8, section 13, V.T.C.S. Only persons
who receive street cleaning services may be
charged such fees.
WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Douglas Fraser
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Douglas Fraser
Rick Gilpin
Jim Moellinger
p. 1447