Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 19,2005
The Honorable Frank J. Corte Jr. Opinion No. GA-0297
Chair, Committee on Defense Affairs
and State-Federal Relations Re: Whether Local Government Code section
Texas House of Representatives 214.212(c)(l), which permits a municipality
Post Office Box 2910 to adopt local amendments to the International
Austin, Texas 78768-2910 Residential Code, limits the municipality to
adopting only amendments that are equivalent to
or more stringent than the standards of the
International Residential Code (RQ-0256-GA)
Dear Representative Corte:
You ask whether Local Government Code section 214.212(c)(l), which permits a
municipality to adopt local amendments to the International Residential Code (the “IRC”), limits the
municipality to adopting only amendments that are equivalent to or more stringent than the standards
of the International Residential Code.’
In 2001, the Seventy-seventh Legislature enacted Local Government Code section 214.212,
which adopted the lRC as the municipal residential construction code for Texas, in Senate Bill 365.
See Act ofMay2,2001,77thLeg.,R.S., ch. 120,§ 1,200l Tex. Gen. Laws 238,23839. TheHouse
Research Organization explained the IRC in its bill analysis of the House companion bill to Senate
Bill 365:
Over the course of the 20th century, three non-profit
organizations . developed separate sets of building codes that are
used throughout the United States. In 1994, these three groups
formed the International Code Council (ICC) and promulgated a
single national model construction code, the International Building
Code (RX). One section of the IBC is the International Residential
Code (IRC), which provides rules for the construction and repair of
one- and two-family dwellings.
‘See Letter from Honorable Frank J. Carte Jr., Chair, Committee on Defense Affairs and State-Federal
Relations, Texas House of Representatives, to Honorable Greg Abbott, Texas Attorney General at 1 (Aug. 9,2004) (on
file with the Opinion Committee, also avaikzble af http://m.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Frank J. Corte Jr. - Page 2 (GA-0297)
HOUSECOMM.ON LAND & RESOURCE MGMT., HOUSERESEARCHORG., BILL ANALYSIS,Tex.
C.S.H.B. 2411,77th Leg., R.S. (2001).
Before section 214.212 was enacted, Texas cities were not required to use any particular
building code, and this fact required builders to understand and comply with multiple building codes,
which caused confusion and delays throughout the construction process. See SENATECOMM.ON
BUSINESS& COMMERCE,BILLANALYSIS, Tex. S.B. 365,77th Leg., R.S. (2001) (Enrolled version).
Section 214.212, therefore, requires the IRC as it existed on May 1, 2001 to be the sole municipal
building code of Texas. See TEX. Lot. GOV’TCODEANN. 5 214.212(a) (Vernon Supp. 2004-05).
Specifically, section 214.212 provides:
(a) To protect the health, safety, and welfare, the International
Residential Code, as it existed on May 1, 2001, is adopted as a
municipal residential building code in this state.
(b) The International Residential Code applies to all construction,
alteration, remodeling, enlargement, and repair of residential
structures in a municipality.
(c) A municipality may establish procedures:
(1) to adopt local amendments to the International
Residential Code; and
(2) for the administration and enforcement of the
International Residential Code.
(d) A municipality may review and consider amendments made by
the International Code Council to the International Residential Code
after May 1,200 1.
Id. 5 214.212 (emphasis added).
With respect to your question, section 214.212 permits a municipality to “establish
procedures to adopt local amendments to the International Residential Code.” Id.
5 214.212(c)(l). You inform us that “[tlhis wording has been interpreted inconsistently by different
municipalities in adopting local amendments to various sections of the [IRC].” Request Letter,
supra note 1, at 1. Apparently, some municipalities have adopted amendments to the IRC that have
resulted in less stringent residential building standards than the May 1, 2001 version initially
requiredbysection214.212.’ Youargue that thelegislativeintentbehind section214.212’~ adoption
*See Brief from Jay Dyer, Director of Regulatory Affairs, Texas Association of Builders, to Honorable Greg
Abbott, Texas Attorney General at 2 (Sept. 17,2004) [hereinafter TAB Brief].
The Honorable Frank J. Corte Jr. - Page 3 (GA-0297)
was to “establish[ ] a uniform minimum level of residential building standards.” Id. at 2 (emphasis
added). You also argue that the Property Code supports the idea that section 214.212 establishes a
uniform minimum level of residential building standards because the Property Code’s relevant
provisions refer to the IRC of section 214.212 as the foundation on which all residential building
standards and statutory warranties are based in Texas. See id.; see alsoTEX. PROP. CODE ANN.
5s 428.004,430.001 (Vernon Supp. 2004-05). You ask, consequently, for a clarification of section
214.212. See Request Letter, supra note 1, at 1.
In construing a statute we are charged with determining and giving effect to the legislature’s
intent. See City ofSun Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). This is
accomplished by establishing the “plain and common meaning of the statute’s words.” Id.
Generally, if a statute’s meaning is unambiguous, we interpret the statute according to its plain
meaning. See id. However, we determine legislative intent from the entire act and not just isolated
portions. See id.; see also TEX.GOV’TCODEANN. 5 3 11.023 (Vernon 1998) (regardless ofwhether
a statute is considered ambiguous, a court may consider, inter alia, the circumstances under which
the statute was enacted and the legislative history). With these rules guiding our discussion, we now
turn to your question.
The Local Government Code does not define the term “amendments.” We construe words
and phrases according to the rules of grammar and common usage, unless the words and phrases
have acquired a technical or particular meaning. See TEX. GOV’TCODEANN. 5 3 11,011 (Vernon
1998). Our research does not indicate that the term “amendments” has acquired a technical or
particular meaning. As such, we construe this term according to its common usage. Black’s Law
Dictionary defines “amendment”as “[an alteration] by modification, deletion, or addition.” BLACK'S
LAW DICTIONARY74 (5th ed. 1979). This definition does not create any ambiguity in section
214.212. Therefore, an interpretation of section 214.212 based on its plain language permits
municipalities to alter, modify, delete, or add provisions to the International Residential Code as it
existed on May 1, 2001. The legislature in adopting section 214.212, under this analysis, did not
indicate the intent to limit the substance of a municipality’s local amendment.
This analysis is consistent with the legislature’s use of the “local amendment” scheme in
another statute adopted during the same legislative session in which section 214.212 was adopted.
See TEX. HEALTH& SAFETYCODE ANN. 4 388.003 (Vernon Supp. 2004-05). A brief sent in
response to your request informs us that section 388.003 of the Health and Safety Code establishes
a statutory scheme similar to that of section 214.212, but adds limiting language that controls the
effect a local amendment can have. See TAB Brief, supru note 2, at 4; see also TEX. HEALTH&
SAFETYCODEANN. 5 388.003 (Vernon Supp. 2004-05).
Specifically, section 388.003 adopts the JRC’s energyefficiencychapter andthe International
Energy Conservation Code as they existed on May 1, 2001 to be the energy codes in Texas for
certain types of residential, commercial, and industrial construction. See TEX. HEALTH& SAFETY
CODEANN. § 388.003(a)-@) (Vernon Supp. 2004-05). Section 388.003, subsection (d) authorizes
a municipality to “establish procedures to adopt local amendments to the International Energy
Conservation Code and the energy efficiency chapter of the International Residential Code.” Id,
The Honorable Frank J. Cork Jr. - Page 4 (GA-0297)
4 388003(d) (emphasis added). However, section 388.003 contains the limitation that “[l]ocal
amendments may not result in less stringent energy efficiency requirements in nonattaimnent areas
and in affected counties than the energy efficiency chapter of the International Residential Code or
International Energy Conservation Code.” Id. § 388003(e) (emphasis added).
By contrast, section 214.212 does not contain the limiting language that section 388.003
does. If the legislature had intended section 214.212 to create a minimum building standard below
which municipalities could not go in adopting local amendments to the IRC, then the legislature
could have used the same language it used in adopting the sister scheme of section 388.003. The
legislature did not, and we must give meaning to this omission. C$ Meritor Auto., Inc. v. Ruan
Leasing Co., 44 S.W.3d 86,90 (Tex. 2001) (when the legislature has used a term in one section of
a statute and excluded it in another, a court will not imply the term where it has been excluded).
You also argue that provisions in the Property Code provide further support for your
contention that the legislature’s intent with section 214.212 was to establish minimum building
standards for Texas municipalities. See Request Letter, supra note 1, at 2. You cite to Property
Code chapters 428 and 430 as providing this support. See id.
You note that Property Code section 430.001 charges the Residential Construction
Commission with adopting statutory warranties and building and performance standards for
residential construction throughout the state. See id.; see also TEX.PROP.CODEANN. 3 430.001 (a)
(Vernon Supp. 2004-05). The Property Code further requires that the statutory warranties and
building and performance standards be in “substantial compliance with the nonelectrical standards
contained in the version of the [IRC] that is applicable under [section 430.001] Subsection (d).”
TEX.PROP.CODE ANN. 3 43O,OOl(c)(1) (Vernon Supp. 2004-05). And the applicable version ofthe
IRC for these purposes is the lRC version “applicable to nonelectrical aspects of residential
construction in the municipality under Section 214.212, Local Government Code.” Id. § 430.001
(d)( 1) (emphasis added). Property Code chapter 428, which describes a state-sponsored residential
construction dispute resolution process, relies on the statutory warranties and building and
performance standards created under section 430.001 to determine whether there is a construction
defect that must be remedied. See id. 4 428.004(c)(l) (re quiring a third-party inspector’s
recommendation to “address only the construction defect, based on the applicable warranty and
building and performance standards”).
You argue that “[a] failure to build to [the standards created under Property Code section
430.001] is considered a construction defect.” Request Letter, sup-a note 1, at 2. We understand
your argument to be premised on the idea that the Property Code’s reference to section 214.212’s
IRC is a reference to a static version of the IRC - presumably the May 1, 2001 version initially
adopted as the Texas residential municipal construction code.
For residential construction located in a municipality, the IRC that applies to the nonelectrical
aspects of residential construction for the purposes of the limited statutory warranties and building
and performance standards under Property Code section 430.001 is the version of the IRC applicable
to the construction in the municipality under section 214.212 of the Local Government Code. See
The Honorable Frank J. Corte Jr. - Page 5 (GA-0297)
TEX. PROP.CODEANN. 8 430.001(d)(l) (V emon Supp. 2004-05). The version of the RC that is
applicable in a municipality under section 214.212 is the JRC version that exists as amended, if at
all, bythemunicipality. SeeT~x. Lot. GOV’TCODEANN.5 214.212(c)(l) (Vernon Supp. 2004-05).
As we established, the legislature did not manifest the intent to create a static JRC version applicable
to all municipalities; rather the legislature designed section 214.212 to create one residential
construction code for ease ofreference, while granting municipalities substantial discretion to adapt
the JRC’s standards to meet local conditions. The Property Code was designed to adjust
automatically to a municipality’s local amendments to the JRC. Consequently, neither chapter 428
nor chapter 430 of the Property Code limit municipalities to maintaining uniform or more stringent
IFK standards.
In sum, section 214.212’s plain language does not limit the local amendments to the JRC
authorized under that section to be only amendments that result in more stringent building standards.
The Texas legislature did not intend for section 214.212 to create a minimum set of building
standards for Texas municipalities.
The Honorable Frank J. Corte Jr. - Page 6 (GA-0297)
SUMMARY
LocalGovemment Codesection214.212(~)(1), whichpermits
a municipality to adopt local amendments to the International
Residential Code, does not limit the municipality to adopting only
local amendments that are equivalent to or more stringent than the
standards of the International Residential Code.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WJLLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee