Does a Texas city need an election to sell its sewer system to a river authority?

Plain-English summary

Texas cities usually cannot sell off a major public utility without first asking the voters. Government Code section 1502.055(a) says that, unless authorized by a majority vote of the municipality's qualified voters, a city "may not sell a utility system, park, or pool." A "utility system" includes a sewer system. So as a general matter, selling a city's sewage operation requires an election.

The President of the Angelina & Neches River Authority (ANRA) asked the Attorney General about a specific deal. The City of Huntington wanted to sell its sewage collection system and treatment plant to ANRA, with ANRA then operating and maintaining the system. The City was worried that section 1502.055 forced a public vote first. ANRA argued that chapter 30 of the Water Code, the Regional Waste Disposal Act, lets the sale go through without an election.

The opinion worked through chapter 30. Its purpose is to let public agencies cooperate to collect, treat, and dispose of waste and prevent water pollution. Section 30.035 says no election is required to exercise any power under the chapter (with one unrelated exception). Most of chapter 30's powers go to "districts" (which includes a river authority like ANRA), but some powers go to a "public agency," a term defined to include a municipality. Section 30.027 lets a public agency contract with a district for waste services, and section 30.028(a)(4) allows that contract to provide for the "sale or lease to or use by a district of all or part of a disposal system owned ... by the public agency." Reading those together, the opinion concluded that chapter 30 gives a municipality specific authority to sell its disposal system to a district, and under section 30.035 it may do so without an election.

That created an apparent conflict with section 1502.055, which demands an election before any utility-system sale. Courts resolve conflicts like this by harmonizing the statutes and treating the more specific provision as an exception to the more general one. The opinion did exactly that: a city must generally hold an election before selling a utility system, but section 30.035 carves out a specific exception for a city selling a disposal system to a district under sections 30.027 and 30.028(a)(4). That reading also fits chapter 30's goal of promoting cooperation among public agencies for efficient waste treatment. So the bottom line was that Huntington could sell its sewer system to ANRA without a public vote.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Angelina & Neches River Authority and other river authorities (as the opinion described it): The opinion read chapter 30 of the Water Code to let a river authority (a district) buy a municipal disposal system through a chapter 30 contract, without the municipality having to first hold an election.

The City of Huntington and other municipalities (as the opinion described it): The opinion treated section 30.035 as a specific exception to the general election requirement in section 1502.055(a). A city selling a disposal system to a district under sections 30.027 and 30.028(a)(4) did not need a public vote.

Cities selling other utilities (as the opinion described it): The opinion left the general rule intact. Outside the chapter 30 disposal-system context, a municipality must generally hold an election under section 1502.055(a) before selling a utility system.

Common questions

Does a Texas city always need an election to sell a utility system?
Generally yes, under Government Code section 1502.055(a). But the opinion identified an exception for selling a disposal system to a district under chapter 30 of the Water Code.

Why didn't the sewer sale to the river authority need a vote?
Because chapter 30 of the Water Code authorizes a municipality to sell its disposal system to a district, and section 30.035 says no election is required to exercise a power under that chapter. The opinion treated this as a specific exception to the general election rule.

Is a river authority a "district" for this purpose?
Yes. The opinion noted ANRA was created as a conservation and reclamation district with river-authority powers, which makes it a "district" under chapter 30.

Could a city use this to skip a vote on selling, say, its water utility to a private buyer?
The opinion's exception was specific to selling a disposal system to a district under chapter 30. The general election requirement in section 1502.055(a) still applies to utility-system sales outside that context.

Background and statutory framework

Government Code section 1502.055(a) bars a municipality from selling a utility system, park, or pool without majority voter approval; section 1502.001(3) defines "utility system" to include a sewer system. Chapter 30 of the Water Code, the Regional Waste Disposal Act (section 30.001 short name, section 30.002 purpose), authorizes cooperation among public agencies for waste disposal. Section 30.035 eliminates the election requirement for exercising powers under the chapter, and section 30.004(b) provides that other laws imposing additional requirements do not apply unless chapter 30 expressly says so. Sections 30.021 and 30.022 grant disposal-system powers to districts; sections 30.003(1), (2), (3), and (10) define "city," "district," "public agency," and "disposal system"; and sections 30.027 and 30.028(a)(4) authorize a public agency to contract with a district to sell its disposal system. ANRA's status as a conservation and reclamation district with river-authority powers comes from Special District Local Laws Code sections 8501.051 and 8501.151(1), tied to article XVI, section 59 and article III, section 52 of the Texas Constitution.

The opinion relied on Radford v. City of Cross Plains (a sale without the required election is void), Railroad Commission v. Texas Citizens for a Safe Future & Clean Water (construing a statute by its plain language), and on La Sara Grain Co. v. First National Bank of Mercedes, City of Waco v. Lopez, Brazoria County v. Texas Commission on Environmental Quality, and Forwood v. City of Taylor for harmonizing statutes by reading the specific as an exception to the general.

Citations

Cases:

• Radford v. City of Cross Plains, 86 S.W.2d 204, 205 (Tex. 1935)
• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)
• La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex. 1984)
• City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex. 2008)
• Brazoria Cnty. v. Tex. Comm'n on Envtl. Quality, 128 S.W.3d 728, 738 (Tex. App.—Austin 2004, no pet.)
• Forwood v. City of Taylor, 214 S.W.2d 282, 286 (Tex. 1948)

Statutes:

• Tex. Gov't Code Ann. § 1502.055(a) (West Supp. 2011)
• Tex. Gov't Code Ann. § 1502.001(3) (West 2000)
• Tex. Water Code Ann. §§ 30.001, 30.002, 30.003(1)-(3), (10), 30.004(b), 30.021, 30.022, 30.027, 30.028(a)(4), 30.035 (West 2008)
• Tex. Spec. Dist. Code Ann. §§ 8501.051, 8501.151(1) (West 2011)
• Tex. Const. art. XVI, § 59; art. III, § 52

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0959
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0959.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

July 31, 2012

Mr. Jody 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-1041-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.[1] 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) (recognizing that an action taken under the purview of subsection 1502.055(a)'s predecessor without an election is void).

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. Id. § 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." Id. § 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 system[5] available to the public agency and will furnish waste collection, transportation, treatment, and disposal systems to the public agency ...." Id. § 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." Id. § 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.

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.

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.

Very truly yours,

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

[1] See Letter from Mr. Jody 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").

[2] A "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.

[3] A "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).

[4] A "'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." Id. § 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.