Untitled Texas Attorney General Opinion ( 2012 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
July 31,2012
Mr. J ody Anderson, President Opinion No. GA-0959
Angelina & Neches River Authority
Post Office Box 387 Re: Whether a local election under section 1502.055,
Lufkin, Texas 75902 Government Code, is required before a municipality
may sell its sewage collection system and treatment
plant to a river authority: Possible conflict with
chapter 30, Water Code (RQ-I041-GA)
Dear Mr. Anderson:
You ask about the application of chapter 30 of the Water Code and its relationship to section
1502.055 of the Government Code. l As background, you tell us that the City of Huntington ("City")
and the Angelina & Neches River Authority ("ANRA") are in negotiations regarding the sale of the
City's sewage collection system and treatment plant. See Request Letter at 1. You state that the City
"wishes to sell these assets to ANRA and have ANRA operate and maintain the sewage treatment
and collection system." Id. You indicate that the "City has expressed concerns that [section]
1502.055 requires that [a] local election be held whereby the sale of the treatment plant and the
collection system is approved, or rejected, by the voters." Id. You argue, however, that chapter 30
of the Water Code permits the sale without an election. See id. at 1,3. You thus seek our opinion
on whether, in light of section 30.035 of the Water Code, an election is necessary for a municipality
to sell its sewage collection system and treatment plant. See id. at 3.
Subsection 1502.055(a) of the Government Code provides that "[u]nless authorized by a
majority vote of the qualified voters of the municipality, a municipality may not sell a utility system,2
park, or pool." TEX. GOV'T CODE ANN. § 1502.055(a) (West Supp. 2011) (footnote added).
Subsection 1502.055(a) thus makes a municipality's authority to sell its utility system contingent
upon a successful election. See Radford v. City of Cross Plains, 86 S.W.2d 204,205 (Tex. 1935)
(reco gnizing that an action taken under the purview of subsection 1502.055 (a)' s predecessor wi thout
an election is void).
ISee Letter from Mr. lody Anderson, President, Angelina & Neches River Auth., to Honorable Greg Abbott,
Tex. Att'y Gen. at 1 (Feb. 8,2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").
2A "utility system" is "an electric, water, sewer, solid waste disposal, drainage utility, or natural gas system."
TEX. GOV'T CODE ANN. § 1502.001(3) (West 2000). We assume for purposes of this opinion that the City's sewage
collection system and treatment plant is a utility system.
Mr. Jody Anderson - Page 2 (GA-0959)
Chapter 30 of the Water Code is the Regional Waste Disposal Act, and its stated purpose is
"to authorize public agencies to cooperate for the safe and economical collection, transportation,
treatment, and disposal of waste in order to prevent and control pollution of water in the state." TEX.
WATER CODE ANN. §§ 30.001 (West 2008) (providing short name), .002 (stating purpose). Section
30.035 provides that "[n]o election is required for the exercise of any power under this chapter
except for" a provision unrelated to your question. /d. § 30.035. Thus, by its terms, section 30.035
of the Water Code eliminates the need for an election in connection with the exercise of any power
granted in chapter 30. See id.; see also id. § 30.004(b) (providing that "[n]o other law or charter
provision which limits, restricts, or imposes additional requirements on matters authorized by this
chapter shall apply to any action or proceeding under this chapter unless expressly provided to the
contrary in this chapter"), R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water,
336 S.W.3d 619, 628 (Tex. 2011) ("We ordinarily construe a statute so as to give effect to the
Legislature's intent as expressed in its plain language."). The powers enumerated in chapter 30 are
granted primarily to districts. 3 For example, chapter 30 authorizes a district to "acquire, ... operate,
and maintain one or more disposal systems." TEX. WATER CODE ANN. § 30.021 (West 2008). And
a district "may contract ... to purchase or sell ... any waste collection, transportation, treatment,
or disposal facilities or systems." [d. § 30.022.
However, some authority in chapter 30 is granted to a public agency, which includes a
municipality. See id. § 30.003(3) (defining "public agency" to include "any district, city,4 or other
political subdivision or agency of the state which has the power to own and operate waste collection,
transportation, treatment, or disposal facilities or systems") (footnote added). "A public agency may
make contracts with a district under which the district will make a disposal system5 available to the
public agency and will furnish waste collection, transportation, treatment, and disposal systems to
the public agency .... " [d. § 30.027 (footnote added). In addition, the contract under section 30.027
may provide for the "sale or lease to or use by a district of all or part of a disposal system owned or
to be acquired by the public agency." [d. § 30.028(a)(4). Reading these provisions together, we
believe chapter 30 grants a municipality the specific authority to sell its disposal system to a district.
And pursuant to section 30.035, it may do so without an election. See id. § 30.035. Yet an election
prior to any sale of a municipality's utility system is exactly what is required under section 1502.055
of the Government Code. Thus, the two provisions appear to conflict.
3A "district" for purposes of chapter 30 is "any district or authority created and existing under Article XVI,
Section 59 or Article III, Section 52 of the Texas Constitution, including any river authority." TEX. WATER CODE ANN.
§ 30.003(2) (West 2008); see also TEX. SPEC. DIST. CODE ANN. §§ 8501.051 (West 2011) (creating ANRA as a
conservation and reclamation district), 8501.151(1) (granting ANRA powers of a conservation and reclamation district,
including powers expressly authorized in Section 59, Article XVI, Texas Constitution).
4A '''city' means any incorporated city or town, whether operating under general law or under its home-rule
charter." TEX. WATER CODE ANN. § 30.003(1) (West 2008).
5 A "disposal system" is "any system for disposing of waste, including sewer systems and treatment facilities."
!d. § 30.003( 10). Again, for purposes of this opinion, we assume the City's sewage collection system and treatment plant
is a disposal system under chapter 30.
Mr. lody Anderson - Page 3 (GA-0959)
When two statutes appear to conflict, courts seek to harmonize them so that all provisions
are fully effective. See La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558,565
(Tex. 1984) ("Generally, courts are to construe statutes so as to harmonize with other relevant laws,
if possible."). Conflicting statutes can often be reconciled by reading the more specific statute as an
exception to the more general one. See City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex. 2008).
"In such circumstances, the special provision or statute is regarded as though it were an exception,
removing something from the operation of general law." Brazoria Cnty. v. Tex. Comm 'n on Envtl.
Quality, 128 S.W.3d 728, 738 (Tex. App.-Austin 2004, no pet.) (citing Forwood v. City of Taylor,
214 S.W.2d 282, 286 (Tex. 1948)). These two provisions can be harmonized if section 30.035, as
it pertains to a municipality's disposal system, is treated as a specific exception to the general rule
in subsection 1502.055(a). In other words, a municipality must generally conduct an election prior
to selling a utility system, unless the municipality is selling a disposal system to a district as provided
by sections 30.027 and 30.028(a)(4) of the Water Code, in which case an election is not required.
Moreover, such a harmonized construction of the two provisions comports with the purpose of
chapter 30 of the Water Code, which is to promote cooperation among public agencies for the
efficient treatment and disposal of waste in the state. See TEX. WATER CODE ANN. § 30.002 (West
2008) (stating purpose of the Regional Waste Disposal Act); see also id. § 30.004(b) (providing that
"[n]o other law or charter provision which limits, restricts, or imposes additional requirements on
matters authorized by this chapter shall apply to any action or proceeding under this chapter unless
expressly provided to the contrary in this chapter").
Thus, we conclude that a municipality must generally hold an election pursuant to subsection
1502.055(a) of the Government Code before selling a utility system. However, by virtue of section
30.035 of the Water Code, no such election is required when a municipality sells a disposal system
to a river authority under chapter 30 of the Water Code.
Mr. Jody Anderson - Page 4 (GA-0959)
SUMMARY
Generally, a municipality must hold an election pursuant to
subsection 1502.055(a) of the Government Code before selling a
utility system. However, by virtue of section 30.035 of the Water
Code, no such election is required when a municipality sells a
disposal system to a river authority under chapter 30 of the Water
Code.
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee