Does a Texas school district have to use the city's required garbage company inside city limits?

Plain-English summary

The Pasadena Independent School District straddles the City of Pasadena and three other cities. Pasadena had granted, by ordinance, an exclusive franchise to one company to collect commercial garbage inside the city. The school district used that franchisee for its buildings inside Pasadena, but for the rest of the district it hired a cheaper hauler chosen through competitive bidding. The franchisee's price inside the city ran more than double the bid price elsewhere, and the district estimated it could save about $200,000 a year if it could bid out the in-city work too. Representative Warren Chisum asked the Attorney General whether the district was bound by the city's franchise regardless of cost.

The office said the district must comply, assuming the ordinance is reasonable. Regulating garbage removal is a classic exercise of a city's police power, and a city may grant an exclusive franchise to one company to collect and dispose of solid waste within its limits. The controlling analogy was the Texas Supreme Court's decision in Port Arthur Independent School District v. City of Groves, which held that a school district's buildings inside a city are subject to the city's reasonable ordinances (there, construction and building-permit rules), because the state delegated education to school districts and health-and-safety protection to cities, and a city enforcing its rules does not invade the district's authority over education. The office saw garbage collection the same way: it flows from the same police power, and no Education Code provision carves school districts out of city garbage rules.

The County Solid Waste Control Act (chapter 364 of the Health and Safety Code) pointed the same direction. It lets a "public agency," which includes a municipality, offer solid waste service to persons in its territory and require them to use it. Because a "person" includes a governmental subdivision under the Government Code, a school district counts as a person, so a city may require the district to use the city's service for its in-city facilities. Until the legislature expressly lets a district pick its own hauler throughout its territory, the district's property inside the city is subject to the city ordinance.

The office was careful to stop where the law stopped. Whether this specific ordinance is reasonable is a fact question, and the office said it cannot investigate or resolve fact questions in an opinion. It noted that cost can be one element of reasonableness, depending on the rest of the facts, but it did not decide whether the price gap here made Pasadena's ordinance unreasonable. It also declined to give a blanket answer for every kind of political entity, because a city ordinance binds another government only when it is consistent with the statutes governing that government.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion construed the County Solid Waste Control Act (chapter 364 of the Health and Safety Code), school-district purchasing provisions of the Education Code, and the case law on city police power over school district property. These statutes have been amended since 1996, and later cases (and the Legislature) have continued to reshape the line between municipal authority and other local governments. Read this page for the office's 1996 reasoning, and verify the current Health and Safety Code and Education Code before relying on any specific provision.

What the opinion meant at the time

For school districts: The opinion meant a district's buildings inside a city were bound by the city's reasonable garbage ordinance, including an exclusive single-hauler franchise, even if the district could get a lower price by bidding the work out. The district could not unilaterally substitute its own hauler for in-city facilities.

For cities: The opinion meant a city's exclusive solid waste franchise reached school district property within city limits, grounded in the city's police power and the County Solid Waste Control Act, so long as the ordinance was reasonable.

For anyone challenging the cost: The opinion meant the office would not decide whether Pasadena's price (more than double the outside-city rate) made the ordinance unreasonable. Reasonableness, including the weight of cost, was a fact question for the city council in the first instance and the courts on review, not for an AG opinion.

For lawyers: The office extended Port Arthur Independent School District v. City of Groves from construction ordinances to garbage collection, relied on the County Solid Waste Control Act's "public agency"/"person" definitions (with a school district a "person" via Government Code section 311.005(2)), and flagged the limit that a municipal ordinance binds another political entity only when consistent with statutes specific to that entity (City of Gallatin v. Cherokee County).

Common questions

Can a Texas school district use its own garbage hauler inside city limits?
Under this opinion, not if the city has a reasonable ordinance, such as an exclusive franchise, governing garbage collection. The office concluded the district's buildings inside the city are subject to the city's garbage ordinance.

Does it matter that the city's hauler costs more?
The office did not treat higher cost as a trump card. It said cost can be one element in deciding whether an ordinance is reasonable, but whether this ordinance was reasonable was a fact question it could not resolve in an opinion.

Why does a city get to bind a separate government like a school district?
The office relied on the city's police power over garbage and on the County Solid Waste Control Act, which lets a "public agency" (a city) offer solid waste service and require "persons" in its territory to use it. A school district is a "person" because the term includes a governmental subdivision.

Did the Education Code give the district a way out?
No. The office found no Education Code provision expressly addressing garbage collection for school districts, and concluded the district's general purchasing statute (section 44.031) did not override the city ordinance for property inside the city.

Does this answer apply to every local government?
No. The office expressly declined to give a general answer for all political entities, because a municipal ordinance binds another entity only when it is consistent with the statutes that govern that entity.

Background and statutory framework

The office built the answer in two steps. First, the common-law police power: regulating the removal of garbage is within a city's police power (City of Breckenridge v. McMullen), the importance of waste disposal can justify strong measures (City of Breckenridge v. Cozart), and a city may grant an exclusive franchise to a single company to collect and dispose of all solid waste within its limits (Browning-Ferris, Inc. v. City of Leon Valley). The bridge to school districts came from Port Arthur Independent School District v. City of Groves, where the Texas Supreme Court held that a school district's buildings are subject to a city's reasonable ordinances absent legislation on the specific subject, reasoning that the state delegated education to districts and health-and-safety regulation to cities, so a city enforcing its ordinances does not usurp the district's role in education. The office applied that logic to garbage collection, noting that no Education Code provision (chapter 44, subchapter B governs district purchasing) addresses the subject, so the district's purchasing rules did not displace the city ordinance.

Second, the County Solid Waste Control Act, chapter 364 of the Health and Safety Code. Its stated purpose is a cooperative effort by counties, public agencies, and other persons for safe and economical solid waste handling. Because a "public agency" includes a municipality (section 364.003(3)), the act codifies some home-rule city powers over solid waste, and section 364.034 lets a public agency offer solid waste service to persons in its territory, require those persons to use it, and charge fees. A "person" includes a governmental subdivision (Government Code section 311.005(2)), and a school district is such a subdivision (Lewis v. Independent Sch. Dist. of Austin; Port Arthur ISD). So a city may require a school district to use the city's service for facilities within city limits, and the district must comply with a reasonable ordinance unless it conflicts with other legislation specifically on point.

The office then marked the boundaries of its answer. Reasonableness is for the city council subject to judicial review (Douthit v. Ector County), and it is a fact question that an AG opinion cannot investigate or resolve; cost may bear on reasonableness but the office did not weigh it here. And the office refused a categorical rule for all political entities, citing City of Gallatin v. Cherokee County, where a city ordinance unlawfully tried to interfere with a county's statutory authority to choose the location of a disposal facility, to show that a municipal ordinance reaches another government only when it squares with that government's own statutes. (A footnote also recorded that in Opinion JM-737 the office had applied Port Arthur ISD to hold that a municipal anti-smoking ordinance reached county facilities within the city.)

Citations

Statutory provisions discussed:

• Health and Safety Code ch. 364 (County Solid Waste Control Act), § 364.002 (purpose), § 364.003(3) ("public agency" includes a municipality), and § 364.034 (offer service, require use, charge fees)
• Government Code § 311.005(2) ("person" includes a governmental subdivision)
• Education Code ch. 44, subch. B (school district purchasing) and § 44.031 (purchasing procedures)

Cases cited:

• Port Arthur Independent School District v. City of Groves, 376 S.W.2d 330 (Tex. 1964) (school buildings subject to a city's reasonable ordinances)
• City of Breckenridge v. McMullen, 258 S.W. 1099 (Tex. Civ. App.-Fort Worth 1923, no writ) (garbage removal within city police power)
• City of Breckenridge v. Cozart, 478 S.W.2d 162 (Tex. Civ. App.-Eastland 1972, writ ref'd n.r.e.)
• Browning-Ferris, Inc. v. City of Leon Valley, 590 S.W.2d 729 (Tex. Civ. App.-San Antonio 1979, writ ref'd n.r.e.) (exclusive solid waste franchise)
• Austin Independent School District v. City of Sunset Valley, 502 S.W.2d 670 (Tex. 1973) (city may not zone school facilities out entirely)
• City of Addison v. Dallas Independent School District, 632 S.W.2d 771 (Tex. App.-Dallas 1982, writ ref'd n.r.e.)
• Douthit v. Ector County, 740 S.W.2d 16 (Tex. App.-El Paso 1987, writ denied) (reasonableness for city council, subject to judicial review)
• Lewis v. Independent Sch. Dist. of Austin, 161 S.W.2d 450 (Tex. 1942) (school district is a political subdivision of the state)
• City of Gallatin v. Cherokee County, 615 S.W.2d 321 (Tex. Civ. App.-Tyler 1981, no writ) (city ordinance may not interfere with county's statutory authority)

Attorney General opinion cited:

• JM-737 (1987) (municipal anti-smoking ordinance applied to county facilities within the city)

Authority cited:

• 56 Am. Jur. 2d Municipal Corporations § 458 (1971)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0401
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0401.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

June 13, 1996

The Honorable Warren Chisum
Chair
Committee on Environmental Regulation
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-401

Re: Whether an independent school district located within a municipality is subject to a municipal ordinance governing garbage collection (RQ-857)

Dear Representative Chisum:

You ask whether the Pasadena Independent School District (the "school district") must comply with an ordinance of the City of Pasadena (the "city") authorizing a single vendor to collect garbage within municipal limits. You state that the school district lies partially within the city and partially within the limits of three other municipalities. The city has by ordinance contracted with a single company to collect and dispose of commercial refuse within the city.[1] The school district uses the garbage collection services of the city's franchisee within the city limits and contracts with a different vendor chosen through competitive bidding for garbage collection within the rest of the district. You state that the price charged for services within the city is more than twice as much as that charged by the vendor used in the remainder of the district. The school district estimates that it could save approximately $200,000 a year if it were to choose a vendor through competitive bidding for garbage collection within city limits. You ask whether the school district is bound by the franchise granted by the city and required to use the services of the franchisee, regardless of cost.[2]

It is within the police power of a city to adopt ordinances governing the removal of garbage. City of Breckenridge v. McMullen, 258 S.W. 1099, 1101 (Tex. Civ. App.-Fort Worth 1923, no writ); see also City of Breckenridge v. Cozart, 478 S.W.2d 162, 165 (Tex. Civ. App.-Eastland 1972, writ ref'd n.r.e.) (because of importance of waste disposal, city could discontinue individual's water service for failure to pay garbage and sewer service charges); 56 Am. Jur. 2d Municipal Corporations § 458 (1971) (tendency of garbage to become source of annoyance and cause of disease justifies stringent police regulations regarding its removal). A city may grant an exclusive franchise and contract to a private company to collect, haul, and dispose of all solid waste material within the city. Browning-Ferris, Inc. v. City of Leon Valley, 590 S.W.2d 729, 732 (Tex. Civ. App.-San Antonio 1979, writ ref'd n.r.e.).

A municipal exercise of police power to require minimum standards of construction applies to a school district's buildings, absent legislation on the particular matter covered by the ordinance. Port Arthur Independent School District v. City of Groves, 376 S.W.2d 330, 334 (Tex. 1964). Statutes authorizing the school board to maintain and control the public schools[3] and to contract for and superintend the construction of buildings[4] do not prevail over municipal ordinances providing for standards of construction, obtaining building permits, and inspection of the construction work by city officials. Id. at 334. "[T]he better rule . . . [is] that the school buildings of an independent school district are subject to the reasonable ordinances of the city." Id. The state chose to fulfill its duties to educate children through the local school districts and its duties to protect the health, safety, and property of the people by delegating them to the cities. Id. In performing its duties, the city does not usurp the school district's authority in the area of education.[5] Id. If the city ordinance did not prevail over school district authority, the schools might "be built so as to be inconsistent with the city's scheme of regulation and inconsiderate of the city's peculiar problems of health and safety." Id. at 335.

For the same reasons that a school district must comply with city building ordinances, we believe the school district must comply with the city ordinance on garbage collection that you inquire about.[6] The ordinance derives from an exercise of the city's police power to protect the public health and safety. See McMullen, 258 S.W. at 1101. The problem of garbage disposal, and waste disposal, is moreover "of paramount importance." Cozart, 478 S.W.2d at 165. No Education Code provision expressly addresses garbage collection for school districts. See Educ. Code ch. 44, subch. B (school district purchasing procedures).[7] A city may enact reasonable measures pursuant to its police power, and the determination of reasonableness is for the city council, subject to judicial review. See generally Douthit v. Ector County, 740 S.W.2d 16, 19 (Tex. App.-El Paso 1987, writ denied). We believe that the courts would require the school district to comply with the city garbage collection ordinance, assuming they found it reasonable. The reasonableness of the ordinance is a fact question, which cannot be investigated or resolved in an attorney general opinion. The cost of the service may be an element of reasonableness, depending on the other facts and circumstances of the case.

Chapter 364 of the Health and Safety Code, the County Solid Waste Control Act, is also relevant to your inquiry. The purpose of this act is to "authorize a cooperative effort by counties, public agencies, and other persons for the safe and economical collection, transportation, and disposal of solid waste to control pollution." Health & Safety Code § 364.002. Since a "public agency" includes a municipality, id. § 364.003(3), the act in effect codifies some of the powers of home-rule cities over the collection and disposal of solid waste. See Cozart, 478 S.W.2d at 165. A public agency may "(1) offer solid waste disposal service to persons in its territory; (2) require the use of the service by those persons; [and] (3) charge fees for the service . . . ." Health & Safety Code § 364.034. A "person" includes a "governmental subdivision." Gov't Code § 311.005(2).[8] A school district is therefore a "person" within the above provision.[9] The city may offer solid waste disposal service to persons in its territory, including the school district, and pursuant to section 364.034(2) of the Health and Safety Code may require the school district to use that service for its facilities within the city's boundaries. Accordingly, the school district must comply with a reasonable ordinance adopted under this provision as long as the ordinance is not inconsistent with other legislation specifically governing this subject.[10] Until the legislature expressly authorizes the school district to choose its own garbage collection service throughout the district, the district's property within the city is subject to the city ordinance.

SUMMARY

The Pasadena Independent School District must comply with an ordinance of the City of Pasadena authorizing a single vendor to collect garbage within municipal limits, assuming that the ordinance is reasonable. The reasonableness of the ordinance involves the resolution of fact questions and therefore cannot be determined in an attorney general opinion.

Yours very truly,

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

Footnotes:

[1] Pasadena, Tex., Ordinance 66461 (July 29, 1986); amended by Ordinances 90-201 (Oct. 10, 1990), 92-268 (Jan. 1, 1993). The Pasadena City Code provides that an activity or enterprise will be deemed "commercial" whenever the garbage collection policies require use of a certain container owned by the city. Pasadena, Tex., Code § 14-1 (July 25, 1967). The provision relating to fees for residential and commercial garbage collection defines "commercial" as "all premises from which garbage, refuse and trash are collected, except here defined as 'residential.'" Id. § 14-10(g)(2).

[3] Act of April 15, 1905, 29th Leg., R.S., ch. 124, § 168, 1905 Tex. Gen. Laws 263, 308 (codified as V.T.C.S. art. 2780), recodified and repealed by Act of June 2, 1969, 61st Leg., R.S., ch. 889, sec. 1, § 23.26, sec. 2(a), 1969 Tex. Gen. Laws 2135, 2954, 3024, recodified and repealed by Act of May 27, 1995, 74th Leg., R.S., ch. 260, sec. 1, § 11.151, sec. 58, 1995 Tex. Sess. Law Serv. 2207, 2227, 2498 (current version at Educ. Code § 11.151(b)).

[4] Id. § 84, at 284 (codified at V.T.C.S. art. 2752 (1925), recodified and repealed by Act of May 28, 1979, 66th Leg., ch. 729, §§ 7, 8, 1979 Tex. Gen. Laws 1795, 1796, repealed by Act of May 27, 1995, 74th Leg., ch. 260, § 58(a)(1), 1995 Tex. Sess. Law Serv. 2207, 2498).

[5] A city may not use its zoning powers to wholly exclude from its boundaries school facilities reasonably located there. Austin Independent School District v. City of Sunset Valley, 502 S.W.2d 670, 672 (Tex. 1973). The school district's authority to locate school facilities overrides the police power of municipalities to zone them out, unless the school district's action is unreasonable or a nuisance. City of Addison v. Dallas Independent School District, 632 S.W.2d 771, 772 (Tex. App.-Dallas 1982, writ ref'd n.r.e.).

[6] On the basis of Port Arthur Independent School District v. City of Groves, this office determined that a municipal anti-smoking ordinance applied to county facilities located within the municipality. Attorney General Opinion JM-737 (1987) at 2.

[7] Section 44.031 of the Education Code, which governs purchasing by a school district, does not include any provision expressly addressing the purchase of garbage collection services. The provisions of section 44.031 therefore do not prevail over the city ordinance with respect to school district property within the city's boundaries.

[8] The County Solid Waste Control Act (the "act") as adopted defined "person" to mean "any individual, . . . political subdivision or government agency . . . ." Act of May 29, 1971, 62d Leg., R.S., ch. 516, § 2, 1971 Tex. Gen. Laws 1757, 1758. In 1989, the act was repealed and re-enacted as chapter 364 of the Health and Safety Code, as part of the ongoing revision of the state's general statutes without substantive change. See Act of May 18, 1989, 71st Leg., R.S., ch. 678, §§ 1, 13, 1989 Tex. Gen. Laws 2230, 2689, 3165. The revised law omitted the source law definition of "person" because it was substantively identical to the definition of "person" in section 311.005 of the Government Code. Health & Safety Code § 364.003 revisor's note.

[9] Lewis v. Independent Sch. Dist. of Austin, 161 S.W.2d 450, 452 (Tex. 1942) (school district is political corporation or subdivision of state); see also Port Arthur Independent School District v. City of Groves, 376 S.W.2d 330, 333 (Tex. 1964) (school districts are independent political entities created by state).

[10] You ask more generally whether a separate political entity such as a school district is subject to a municipal ordinance governing garbage collection. We cannot provide a general answer applicable to all political entities, because the municipal ordinance will apply to a particular entity only if it is consistent with the relevant statutes. See City of Gallatin v. Cherokee County, 615 S.W.2d 321, 322 (Tex. Civ. App.-Tyler 1981, no writ) (city ordinance unlawfully attempted to interfere with county's statutory authority to choose location of disposal facility).