Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 20, 2010
The Honorable C. R. (Kit) Bramblett Opinion No. GA-0770
Hudspeth County Attorney
Post Office Box 221528 Re: Whether a utility company that contracts with
EI Paso, Texas 79913-1528 a county to collect the fees for the county's solid
waste disposal service may suspend its own utility
service for nonpayment of the solid waste disposal
fee (RQ-0837-GA)
Dear Mr. Bramblett:
You ask us to opine on the meaning of subsection 364.034(d), Health and Safety Code. I You
tell us that Hudspeth County (the "County"), which collects and disposes of solid waste in the area,
would like to contract with the Esperanza Water Service Company, Inc. (the "Company") to have
the Company collect the County's fees for the solid waste disposal services. See Request Letter
at 1. You inform us that there is a question about whether, under subsection 364.034(d), the
Company could suspend the Company's water service to a customer for nonpayment ofthe County's
solid waste disposal fee. See id
Under chapter 364, the County Solid Waste Control Act, a county may offer solid waste
disposal service in its territory. TEx. HEALTH & SAFETY CODE ANN. § 364.034(a)(I) (Vernon SUpp.
2009); see id § 364.001 (Vernon 2001) (providing short title). A county is authorized to "require
the use of the [solid waste disposal] service" by persons in its territory and to "charge fees for the
service." Id § 364.034(a)(2)-(3) (Vernon Supp. 2009). Chapter 364 authorizes a county to provide
the solid waste disposal service itself or to enter into an operating agreement to have another person
provide the service. See id § 364.013 (Vernon 2001). Additionally, chapter 364 provides three
alternatives by which a county can collect the solid waste disposal fee: (1) collect the solid waste
disposal fee itself, (2) contract with an entity that is providing the solid waste disposal service for
the county to collect the fee, or (3) contract with another private or public entity for the collection
of the solid waste disposal fee. Id § 364.034(b)-(c) (Vernon Supp. 2009). Under the scheme
established by chapter 364, the entity collecting the solid waste disposal fee does not have to provide
the solid waste disposal service. Compare id § 364.013 (Vernon 2001) (authorizing a county
IRequest Letter at 1 (available at http://www.texasattorneygeneral.gov); see also TEX. HEALTH& SAFETY CODE
ANN. § 364.034(d) (Vernon Supp. 2009).
The Honorable C. R. (Kit) Bramblett - Page 2 (GA-0770)
to contract with another entity for the provision of solid waste disposal service), with id §
364.034(b)(3), (c) 01ernon Supp. 2009) (authorizing a county to contract with another entity solely
for the collection of the solid waste disposal fee). The subject of your request, subsection
364.034(d), provides:
To aid enforcement of fee collection for the solid waste disposal
service:
(1) a county or the public or private entity that has
contracted with the county to provide the service may suspend
service to a person who is delinquent in payment of solid
waste disposal service fees until the delinquent claim is fully
paid; and
(2) a public or private utility that bills and collects solid
waste disposal service fees under this section may suspend
service of that utility, in addition to the suspension of solid
waste disposal service, to a person who is delinquent in the
payment of the solid waste disposal service fee until the
delinquent claim is fully paid.
Id § 364.034(d).
The issue raised by your request requires us to construe subsection 364.034(d)(2). When
construing a statute, the primary objective is to "ascertain and give effect to the Legislature'S intent
as expressed by the language ofthe statute." CityofRockwallv. Hughes, 246 S.W.3d621, 625 (Tex.
2008). To determine that intent, we look to the plain and common meaning of the words of the
statute. See id When the statutory language is clear and unambiguous, we construe the statute as
written. See City ofHouston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006). In addition, "words and
phrases shall be read in context and construed according to the rules of grammar and common
usage." TEx. GOV'T CODE ANN. § 311.011(a) (Vernon 2005).
On its face, the language of subsection 364.034(d)(2) authorizes a "public or private utility
that bills and collects solid waste disposal service fees" to suspend "service of that utility" for
nonpayment of the solid waste disposal fee. TEx. HEALTH & SAFETY CODE ANN. § 364.034(d)(2)
01ernon Supp. 2009). By its ordinary usage, the term "that" refers back to a specific thing
previously mentioned. See NEW OXFORD AMERICAN DICTIONARY 1756 (2001 ) (defining the term
''that'' to mean "referring to a specific thing previously mentioned, known, or understood"); see also
TEx. GOV'T CODE ANN. § 311.011(a) (Vernon 2005) (providing "words and phrases shall be read
in context and construed according to the rules of grammar and common usage"). In subsection
364.034(d)(2), the thing previously mentioned is the public or private utility that is collecting the
solid waste disposal fees on behalf of a county. Thus, the "service of that utility," which service may
be suspended, is the utility service of the public or private entity collecting the fees on behalf of a
county. The language of subsection 364.034(d)(2) patently distinguishes the "service of that utility"
The Honorable C. R. (Kit) Bramblett - Page 3 (GA-0770)
from the solid waste disposal service by providing that the suspension of service of that utility is "in
addition to the suspension of solid waste disposal service." TEx. HEALTH & SAFETY CODE ANN. §
364.034(d)(2) 0'emon Supp. 2009). The language of subsection 364.034(d)(2) indicates that a
utility collecting a county's solid waste disposal fee may suspend its own utility service for
nonpayment of a county's solid waste disposal fee. 2
Our determination is bolstered by the legislative history of subsection 364.034(d)(2). See
TEx. GOV'T CODE ANN. § 311.023 (3) 0'emon 2005) (including legislative history in list of factors
that may be considered in construing statutes); see also Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex.
2000) (citing section 311.023 and considering legislative history, among other things, to construe
a statute); Tex. Att'y Gen. Op. No. GA-0728 (2009) at 2-3 (considering legislative history in
construction of statute). Subsection 364.034(d)(2) was added to chapter 364 in 2001 by Senate Bill
352. Act of May 24, 2001, 77thLeg.,R.S.,ch.1238,2001 Tex. Gen. Laws 2915, 2915-16. Thebill
summary accompanying Senate Bill 352 describes the bill as authorizing "a utility that bills and
collects the fees to suspend the utility service it provides, in addition to the suspension of solid waste
disposal service by the entity providing that service to a person who is delinquent in paying the
disposal fee." Enrolled Bill Summary, Tex. S.B. 352, 77th Leg., R.S. (2001) (emphasis added).3
Senator Truan, who sponsored Senate Bill 352, described the bill as adding an "effective
enforcement mechanism to compel payment" of solid waste disposal service fees. Hearings on S.B.
352 before the Sen. Natural Resources Comm., 77th Leg., R.S. (Feb. 27, 2001) (statement of Sen.
Truan).4 Senator Truan stated:
A contract with a utility may require the billing of the solid waste
disposal fee within the bill for the other utility service. It may permit
the contracting utility to suspend service of the utility to a person who
is delinquent in payment of the solid waste disposal service fee. That
means that if someone does not pay his trash bill, the lights go out.
And that's the essence of providing some teeth in order to have the
collection of trash and the payment of fees.
2The Company at issue here tells us that it is a privat~ly held water utility regulated by the Texas Commission
on Environmental Quality (TCEQ) "subject to the TCEQ's Utility Regulations found in Chapter 291." Briefattached
to Request Letter from Ralph Wm. Richards, Attorney at Law, at 2. Suspension of the utility service of the Company
is expressly authorized by the TCEQ's rules. See 30 TEX. ADMIN. CODE § 291.88(a)(2)(F) (2009) (authorizing
discontinuance of utility service for "failure to pay solid waste disposal fees collected under contract with a county");
cf. City ofBreckenridge v. Cozart, 478 S.W.2d 162, 164-65 (Tex. Civ. App.-Eastland 1972, writ rer d n.r.e.)(flnding
no constitutional impediment to a home rule city's ordinance authorizing the discontinuation of a person's city water
service for the person's failure to pay the city's garbage collection fee).
3Available at http://www.capitol.state.tx.us/BillLookup/BillSummary.aspx?LegSess=77R&Bill=SB352 (last
visited Apr. 12,2010).
4Available at http://www.senate.state.tx.us/avarchive/?yr=2001&mo=02 (archived recording of the February
27,2001 public hearing) (last visited Apr. 12,2010).
The Honorable C. R. (Kit) Bramblett - Page 4 (GA-0770)
Id. The foregoing legislative material reveals a legislative intent to authorize the suspension of
utility service other than the solid waste disposal service as an added enforcement mechanism to
compel payment of a county's solid waste disposal fee.
We conclude that subsection 364.034(d)(2), Health and Safety Code, authorizes a utility
company contracting with a county to collect the· fees for the county's solid waste disposal service
to suspend its own utility service for nonpayment ofthe county's solid waste disposal fee.
The Honorable C. R. (Kit) Bramblett .:. Page 5 (GA-0770)
SUMMARY
Subsection 364.034(d)(2), Health and Safety Code, authorizes
a utility company contracting with a county to collect the fees for the
county's solid waste disposal service to suspend its own utility
service for nonpayment of the county's solid waste disposal fee.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee