Can a Texas county require trash service in a city's extraterritorial area without the city's agreement?

Plain-English summary

State Representative Ruth Jones McClendon asked the Attorney General whether a county may provide mandatory solid waste disposal service, by contract or otherwise, in an area of the county that sits inside a city's extraterritorial jurisdiction (ETJ) but receives no such service from the city. Her letter explained there were areas in municipal ETJs where neither the city nor the county was providing solid waste services.

The opinion worked through three sections of the Health and Safety Code. Section 364.034 lets a public agency or a county offer solid waste disposal service to persons in "its territory" and require the use of that service; a municipality is a "public agency" under the chapter. Read alone, that section suggested a county might be able to require service for a person in a city's ETJ who gets no service from the city.

But the opinion stressed that statutes are read in context, not in isolation, and chapter 364's only mention of an ETJ is in section 364.011(a). That section lets a commissioners court regulate solid waste collection, handling, storage, and disposal only in areas of the county that are not in a municipality or its ETJ. The opinion found it hard to imagine a county providing mandatory solid waste service in a city's ETJ without that amounting to regulation of solid waste, which section 364.011 forbids in the ETJ. So while section 364.034 gives a county authority to require service in its territory, section 364.011 takes away any authority to regulate in a municipality's ETJ.

The opinion then pointed to a path that does work: cooperation. Chapter 364's stated purpose is to authorize cooperative efforts among counties, public agencies, and others, and section 364.031 expressly authorizes one public agency to contract with another for solid waste collection and disposal services. Because both counties and municipalities are public agencies, the opinion concluded that a county may contract with the municipality to provide mandatory solid waste disposal service in the part of the county within the municipality's ETJ. Having found that cooperative-contract authority, the opinion declined to reach whether the Interlocal Cooperation Act would also authorize such a contract or what legislative action might otherwise be needed.

Currency note

This opinion was issued in 2013. 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

Counties and commissioners courts (as the opinion described it): The opinion told them that a county could not, on its own authority, require mandatory solid waste service in a city's ETJ, because section 364.011 denies a county authority to regulate solid waste there, but that a county could provide the service in the ETJ through a cooperative contract with the municipality under section 364.031.

Municipalities (as the opinion described it): The opinion described the city as the partner whose agreement, through a section 364.031 contract, lets a county serve the city's ETJ.

Representative McClendon and legislators (as the opinion described it): Because the opinion found existing contract authority under section 364.031, it declined to reach the request's question about what legislative action a county might need.

Common questions

Can a Texas county force trash service in a city's extraterritorial jurisdiction on its own?
The opinion concluded it cannot. Section 364.011 lets a county regulate solid waste only in areas that are not in a municipality or its ETJ, so a county lacks authority to require service in the ETJ on its own.

Is there any way the county can serve those ETJ areas?
Yes. The opinion concluded that section 364.031 lets a county and the municipality enter a cooperative contract under which the county provides mandatory solid waste disposal service in the city's ETJ.

Why doesn't section 364.034 settle it in the county's favor?
The opinion said section 364.034 cannot be read in isolation. Read with section 364.011, the county's authority to require service in "its territory" does not extend to regulating solid waste within a municipality's ETJ.

Did the AG decide whether the Interlocal Cooperation Act also allows the contract?
No. Having found authority under section 364.031, the opinion expressly did not address whether the Interlocal Cooperation Act would also authorize the contract.

Background and statutory framework

The analysis read three provisions of chapter 364 of the Health and Safety Code together. Section 364.034(a) lets a public agency or a county offer solid waste disposal service to persons in its territory and require its use; section 364.003(3) makes a municipality a "public agency," and subsection 364.034(e) addresses overlapping authority and lets a municipality grant a franchise or contract that supersedes others within its boundaries. Section 364.011(a) limits a commissioners court's rule-making over solid waste to areas of the county not in a municipality or its ETJ, subject to the Solid Waste Disposal Act (sections 361.151 and 361.152). Section 364.002 states the chapter's cooperative purpose, and section 364.031(a) authorizes contracts between public agencies (including counties and municipalities, see section 364.013) for solid waste services.

The opinion applied the rule that courts give effect to legislative intent through plain language (R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water) and that provisions are read in the context of the whole statutory scheme rather than in isolation (Tex. Workers' Comp. Ins. Fund v. Del Indus., Inc.).

Citations

Cases:

• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)
• Tex. Workers' Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000)

Statutes:

• Tex. Health & Safety Code Ann. § 364.034(a), (e) (West 2010); § 364.003(3); § 364.011(a); § 364.002; § 364.013; § 364.031(a)
• Tex. Gov't Code Ann. § 791.011 (West 2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0988
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0988.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

February 5, 2013

The Honorable Ruth Jones McClendon Opinion No. GA-0988
Chair, Committee on Rules and Resolutions
Texas House of Representatives Re: Whether a county may provide mandatory solid
Post Office Box 2910 waste disposal services, by contract or otherwise, in
Austin, Texas 78768-2910 an area of the county that is within the
extraterritorial jurisdiction of a municipality but that
is not receiving such service from the municipality
(RQ-1081-GA)

Dear Representative McClendon:

You ask whether a county may provide mandatory solid waste disposal services, by contract or otherwise, in an area of the county that is within the extraterritorial jurisdiction ("ETJ") of a municipality but that is not receiving such service from the municipality.[1] According to your letter, there are areas in municipal ETJs where neither the municipality nor the county provide solid waste services. Request Letter at 1. You ask first about a county's authority to provide such services under section 364.034 of the Health and Safety Code (the "Code"), particularly in light of language concerning county authority in section 364.011 of the Code. Id. at 1-2.

When construing a statute, courts attempt to give effect to the Legislature's intent as expressed in the statute's plain language. R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). Section 364.034 provides that a "public agency or a county may: (1) offer solid waste disposal service to persons in its territory; [and] (2) require the use of the service by those persons." TEX. HEALTH & SAFETY CODE ANN. § 364.034(a) (West 2010). A municipality is a "public agency" under the statute. Id. § 364.003(3). Thus, section 364.034 authorizes both a municipality and a county to offer solid waste disposal services to persons in "its territory."

While section 364.034 does not expressly state which entity or entities may provide solid waste services in an ETJ, the section recognizes that more than one entity may be authorized to provide solid waste disposal services in the same area. To resolve the potential conflict created by overlapping authority, subsection (e) provides that the section does not apply to persons who document that they already receive solid waste services from another entity. Id. § 364.034(e). Subsection (e) further allows a municipality to grant a franchise or enter into a contract for services that supercedes, inside the municipality's "boundaries," any other contract or franchise. Id. Thus, in isolation, section 364.034 suggests that a county may be authorized to provide mandatory solid waste disposal services to a person in a municipality's ETJ who does not receive such service from the municipality.

However, statutory provisions are not to be construed in isolation, but instead must be read in the context of the statutory scheme in which they appear. See Tex. Workers' Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000). As you note, chapter 364's only reference to an ETJ appears in section 364.011(a) of the Code, which provides that,

[s]ubject to the limitation provided by Sections 361.151 and 361.152 (Solid Waste Disposal Act), a commissioners court by rule may regulate solid waste collection, handling, storage, and disposal in areas of the county not in a municipality or the extraterritorial jurisdiction of a municipality.

TEX. HEALTH & SAFETY CODE ANN. § 364.011(a) (West 2010) (emphasis added); see also Request Letter at 2. It is difficult to envision that a county could offer mandatory solid waste disposal services in a municipality's ETJ in a manner that would not constitute "regulat[ion of] solid waste collection, handling, storage, and disposal." TEX. HEALTH & SAFETY CODE ANN. § 364.011(a) (West 2010). Such regulation in a municipality's ETJ would violate the plain terms of section 364.011. Thus, while section 364.034 authorizes a county to provide mandatory solid waste disposal services in its territory, section 364.011 limits that authority by denying a county authority to regulate in a municipality's ETJ.

Regardless of a county's independent authority to provide mandatory solid waste disposal services in a municipality's ETJ, chapter 364 elsewhere authorizes a county to provide such services by agreement with the pertinent municipality. The stated purpose of chapter 364 "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." Id. § 364.002. Section 364.031 expressly authorizes cooperative contracts:

A public agency may contract with another public agency or a private contractor for the other public agency or private contractor to:

(1) make all or part of a solid waste disposal system available to a public agency, a group of public agencies, or other persons; and

(2) furnish solid waste collection, transportation, handling, storage, or disposal services through the other public agency's or private contractor's system.

Id. § 364.031(a). Both counties and municipalities are "public agencies" under chapter 364. See id. §§ 364.003(3) (definitions), 364.013 (county authority), 364.034(e) (referring to a "public agency" as including a county). Thus, chapter 364 authorizes a county to contract with a municipality for the county to provide mandatory solid waste disposal services in an area of the county that is within the municipality's ETJ.[2]

SUMMARY

While section 364.034 of the Health and Safety Code authorizes a county to provide mandatory solid waste disposal services in its territory, section 364.011 limits that authority by denying a county authority to regulate in a municipality's ETJ.

Section 364.031 of the Health and Safety Code authorizes cooperative agreements between a municipality and a county that would permit the county to provide mandatory solid waste disposal services in an area of the county that is within the extraterritorial jurisdiction of the municipality that is not receiving such services from the municipality.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Ruth Jones McClendon, Chair, House Comm. on Rules & Resolutions, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Aug. 31, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Because we conclude that section 364.031 of the Health and Safety Code authorizes a contract between a county and a municipality for the county to provide solid waste disposal services in the municipality's ETJ, we do not address whether the Interlocal Cooperation Act would also authorize such a contract. See TEX. GOV'T CODE ANN. § 791.011 (West 2012); see also Request Letter at 2. For the same reason, we do not address your question about legislative action necessary for a county to provide solid waste disposal services in such an ETJ.