Are city plastic bag bans legal in Texas?

Plain-English summary

State Representative Dan Flynn asked the Attorney General whether Texas cities may ban single-use plastic bags or impose fees on replacement bags, given section 361.0961 of the Health and Safety Code. He pointed to nine Texas cities that had adopted such ordinances. The AG explained at the outset that it does not interpret specific city ordinances, because each ordinance differs, but it can address the general legal question of whether this type of ordinance conflicts with state law. Every cited ordinance prohibited businesses from giving customers single-use plastic bags, so the AG addressed that general question.

Both home-rule and general-law cities adopted these ordinances, and neither kind of city may adopt an ordinance inconsistent with the Texas Constitution or state statutes. Section 361.0961 is part of the Solid Waste Disposal Act. It says a local government may not adopt an ordinance to (1) prohibit or restrict, "for solid waste management purposes," the sale or use of a "container or package" in a manner not authorized by state law, or (3) assess a fee or deposit on the sale or use of a container or package.

The first question was whether a single-use plastic bag is a "container or package." The Act does not define the term, so the AG gave it its ordinary meaning. A container is a receptacle for holding goods, and a bag is a flexible container for holding, storing, or carrying something, so the AG concluded a court would likely hold that a single-use plastic bag is a container under section 361.0961. The AG rejected the argument that the term covers only containers meant to store solid waste, noting that the statute's text does not limit the kinds of containers and that the bill's sponsor had described the law as reaching things like Styrofoam containers.

The next question was whether the ordinances ban bags "for solid waste management purposes," because the ban in subsection (a)(1) only applies when an ordinance is adopted for that purpose. The Act defines solid waste to include rubbish and refuse, defines rubbish to include plastics, and defines management broadly to cover controlling the generation of solid waste. A city might well ban single-use plastic bags to control solid waste, which the bags often become, but other purposes are possible too; the AG noted two of the ordinances said their purpose was protecting animal or marine life. Whether a particular city adopted its ordinance for solid waste management purposes is a factual question about the city's intent, which is beyond the scope of an AG opinion. So the AG concluded only that section 361.0961 would likely prohibit a single-use plastic bag ban adopted for solid waste management purposes, without deciding whether any specific city's ordinance qualified.

On fees, the AG reached a firmer conclusion. The separate prohibition on assessing a fee or deposit on the sale or use of a container is not limited to solid waste management purposes. Because a bag is likely a container, the AG concluded a court would likely hold that a city is prohibited from assessing a fee on the sale or use of a replacement bag. The AG added that section 361.0961 applies only to local governments and other political subdivisions, so it does not stop a private business from choosing to charge a fee for a bag on its own.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. The status of local single-use bag ordinances under this statute has since been the subject of Texas court decisions. 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

Representative Flynn (as the opinion described it): The opinion answered the general legal questions he raised: a single-use plastic bag is likely a "container" under section 361.0961, a ban adopted "for solid waste management purposes" would likely be prohibited (though whether a given city's ordinance was so adopted is a factual question the opinion would not resolve), and a city ordinance assessing a fee on the sale or use of a bag would likely be prohibited regardless of purpose.

Texas cities, home-rule and general-law (as the opinion described it): The opinion described both kinds of cities as unable to adopt ordinances inconsistent with state law, described a single-use plastic bag ban adopted for solid waste management purposes as likely prohibited by subsection (a)(1), and described an ordinance assessing a fee or deposit on a bag as likely prohibited by subsection (a)(3) without the solid-waste-purpose qualifier.

Businesses and retailers (as the opinion described it): The opinion described section 361.0961 as applying only to local governments and other political subdivisions, so it described the statute as not affecting a private business's own decision to charge a fee for the sale of a replacement bag.

Common questions

Did the AG say Texas cities can't ban plastic bags?
Not flatly. The AG concluded that a city ordinance banning single-use plastic bags would likely be prohibited by section 361.0961(a)(1) if the city adopted it for solid waste management purposes, but whether a particular city did so is a factual question about the city's intent that an AG opinion cannot decide.

Is a plastic bag a "container" under the statute?
The AG concluded a court would likely say yes. Using ordinary dictionary meanings, a container is a receptacle for holding goods and a bag is a flexible container, so a single-use plastic bag is likely a container under section 361.0961.

Are city fees on bags prohibited too?
The AG concluded yes, and more clearly. The statute's ban on assessing a fee or deposit on a container is not limited to solid waste management purposes, so a court would likely hold a city cannot assess a fee on the sale or use of a replacement bag.

Can a store still charge for bags?
Yes. The AG noted that section 361.0961 applies only to local governments and political subdivisions, so it does not prevent a private business from choosing to charge a fee for a bag.

Why couldn't the AG just say whether a specific city's ban is illegal?
The AG explained that interpreting specific city ordinances, and determining the city's intent in adopting one, requires factual inquiry that is outside the scope of an attorney general opinion.

Background and statutory framework

Neither a home-rule nor a general-law city may adopt an ordinance inconsistent with the Texas Constitution or Texas statutes (Tex. Const. art. XI, § 5; Tex. Loc. Gov't Code Ann. §§ 51.012, .032 (West 2008)), and a general law and a city ordinance are not held repugnant if any reasonable construction leaves both in effect (Dallas Merch.'s & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993)). Section 361.0961 is part of the Solid Waste Disposal Act (Tex. Health & Safety Code Ann. § 361.001 (West 2010)) and provides that a local government may not adopt an ordinance to prohibit or restrict, "for solid waste management purposes," the sale or use of a container or package in a manner not authorized by state law, or to assess a fee or deposit on the sale or use of a container or package (id. § 361.0961(a)(1), (3)).

Because the Act does not define "container or package," the AG applied the ordinary meaning of the terms (TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)), concluding a single-use plastic bag is likely a container, and noting that definitions in unrelated statutes give little guidance (Tex. Agric. Code Ann. § 141.001(5) (West 2004); Tex. Health & Safety Code Ann. § 431.002(27) (West 2010)). On purpose, the AG read the Act's definitions of solid waste (id. § 361.003(35)), rubbish, which includes plastics (id. § 361.003(31)), and management (id. § 361.003(18)), and concluded a ban adopted for solid waste management purposes would likely be prohibited by subsection (a)(1) (id. § 361.0961(a)(1)), while whether a particular city acted for that purpose is a factual question beyond an opinion (Tex. Att'y Gen. Op. No. GA-0090 (2003) at 5). On fees, the AG read subsection (a)(3)'s prohibition as not limited to solid waste management purposes and concluded a city is likely barred from assessing a fee on the sale or use of a bag (id. § 361.0961(a)(3)), while the statute, applying only to local governments and political subdivisions, does not reach a private business's own bag fee (id. § 361.0961(a)). The AG also reiterated that it does not construe specific city ordinances but addresses whether a type of ordinance conflicts with state law (Tex. Att'y Gen. Op. Nos. GA-0648 (2008) at 6-7, GA-0433 (2006) at 1).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XI, § 5 (city ordinances may not conflict with state law)
• Tex. Loc. Gov't Code Ann. §§ 51.012, .032 (West 2008) (general-law city ordinance authority)
• Tex. Health & Safety Code Ann. § 361.001 (West 2010) (Solid Waste Disposal Act)
• Tex. Health & Safety Code Ann. § 361.0961(a)(1) (West 2010) (restriction on container ordinances for solid waste purposes)
• Tex. Health & Safety Code Ann. § 361.0961(a)(3) (West 2010) (prohibition on fees or deposits)
• Tex. Health & Safety Code Ann. § 361.0961(a) (West 2010) (applies to local governments and political subdivisions)
• Tex. Health & Safety Code Ann. § 361.003(18) (definition of "management")
• Tex. Health & Safety Code Ann. § 361.003(31) (definition of "rubbish")
• Tex. Health & Safety Code Ann. § 361.003(35) (definition of "solid waste")
• Tex. Agric. Code Ann. § 141.001(5) (West 2004) (definition of "container" in another context)
• Tex. Health & Safety Code Ann. § 431.002(27) (West 2010) (definition of "package" in another context)

Cases:

• Dallas Merch.'s & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993)
• TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0648 (2008)
• Tex. Att'y Gen. Op. No. GA-0433 (2006)
• Tex. Att'y Gen. Op. No. GA-0090 (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1078
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1078.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

August 29, 2014

The Honorable Dan Flynn Opinion No. GA-1078
Chair, Select Committee on Transparency in
State Agency Operations Re: Whether section 361.0961 of the Texas
Texas House of Representatives Health and Safety Code prohibits municipalities
Post Office Box 2910 from adopting ordinances that ban plastic bags
Austin, Texas 78768 (RQ-1189-GA)

Dear Representative Flynn:

You ask whether section 361.0961 of the Health and Safety Code prohibits municipalities from "enact[ing] bans on plastic bags and adopt[ing] fees on replacement bags."[1] You point to nine Texas cities that have adopted such ordinances in recent years and question whether the ordinances are legal in light of section 361.0961. Request Letter at 1. Each of the nine ordinances differ to some extent in the specific requirements and prohibitions they impose and the types of businesses to which they apply.[2] Questions regarding construction of specific city ordinances are outside the purview of an attorney general opinion. Tex. Att'y Gen. Op. No. GA-0648 (2008) at 6-7. This office will, however, address the legal question of whether a certain type of ordinance conflicts with state law. Tex. Att'y Gen. Op. No. GA-0433 (2006) at 1. All the ordinances you cite prohibit businesses from providing single-use plastic bags to customers. Thus, while this opinion should not be read to construe the specific terms of a particular municipal ordinance, we can advise you about the general question whether state law prohibits a municipality from prohibiting businesses from providing single-use plastic bags to customers.

The cities that have adopted these ordinances include both home-rule and general-law cities. Neither a home-rule city nor a general-law city may adopt an ordinance that is inconsistent with the Texas Constitution or Texas statutes. TEX. CONST. art. XI, § 5; see TEX. LOC. GOV'T CODE ANN. §§ 51.012, .032 (West 2008) (authorizing general-law cities to adopt ordinances not inconsistent with state law). "'[A] general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached.'" Dallas Merch.'s & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993) (citation omitted).

The statute about which you ask is found in chapter 361 of the Health and Safety Code, which is titled the "Solid Waste Disposal Act" ("the Act"). TEX. HEALTH & SAFETY CODE ANN. § 361.001 (West 2010). Section 361.0961 of the Act states, in relevant part:

A local government or other political subdivision may not adopt an ordinance, rule, or regulation to:

(1) prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law; [or]

(3) assess a fee or deposit on the sale or use of a container or package.

Id. § 361.0961(a)(1), (3). Answering your question requires analyzing whether a single-use plastic bag is a "container or package" within the meaning of section 361.0961, and if so, whether the municipal ordinances prohibit single-use plastic bags for "solid waste management purposes."

The Act does not define "container or package."[3] Undefined terms in a statute are given their ordinary meaning unless a different or more precise definition is apparent from the term's use in the statute's context. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). The common understanding of the word "container" is a "receptacle for holding goods." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 269 (11th ed. 2003). Also relevant to the question is the common understanding of "bag," which is a "flexible container that may be closed for holding, storing, or carrying something." Id. at 91 (emphasis added). Based on the common understanding of these terms, a court is likely to conclude that a single-use plastic bag is a container within the meaning of section 361.0961.

Briefing submitted to this office argues that the phrase "container or package" as used in section 361.0961 is limited to only those containers or packages that are intended to store solid waste.[4] While the Legislature limited the application of the statute to ordinances, rules, or regulations adopted for solid waste management purposes, the plain language of section 361.0961 does not limit the types of containers or packages to which it applies. Furthermore, during the Legislature's debate on section 361.0961, the bill's sponsor explained that the bill was intended to prohibit municipalities from adopting rules about Styrofoam containers, suggesting that the language could apply to containers beyond those used to store solid waste. Debate on Tex. S.B. 963 on the Floor of the Senate, 73d Leg., R.S. (May 24, 1993) (digital recording available from Texas State Archives Comm'n); see also House Research Org., Bill Analysis, Tex. S.B. 963, 73d Leg., R.S. (1993) at 5 (explaining that opponents argue the bill would "prohibit a city from banning wasteful packaging or Styrofoam cups or imposing a bottle return fee"). While legislative history is often unreliable and is not determinative of our interpretation of section 361.0961, these relatively clear statements of legislative intent provide added support for the text-based construction of section 361.0961 adopted here. Construing the scope of "container" narrowly as suggested by some briefers would both depart from the statute's plain text and ignore the available legislative history.

Because a single-use plastic bag is likely a container under section 361.0961, it is necessary to analyze the purposes for which the municipal ordinances prohibit single-use plastic bags. In order for an ordinance to be prohibited by section 361.0961, the city must have adopted it "for solid waste management purposes." TEX. HEALTH & SAFETY CODE ANN. § 361.0961(a)(1) (West 2010). "[S]olid waste" is defined in chapter 361 to include, among other items, "rubbish, [or] refuse." Id. § 361.003(35). "Rubbish" is in turn defined as "nonputrescible solid waste ... that consists of," among other items, "plastics." Id. § 361.003(31). "Management" is defined as "the systematic control of the activities of generation, source separation, collection, handling, storage, transportation, processing, treatment, recovery, or disposal of solid waste." Id. § 361.003(18). It is conceivable that a city adopting an ordinance that prohibited single-use plastic bags would do so to control the generation of solid waste, which single-use plastic bags will most likely become. Other purposes may also exist for such an ordinance, however. For example, two of the ordinances you inquire about state that their purpose is the protection of animal life. See FREER, TEX., ORDINANCES 2012-05 (Dec. 10, 2012) ("there is a strong possibility that plastic bags ... can end up in the ranch land, ... and create ... potential hazard to wildlife"); LAGUNA VISTA, TEX., ORDINANCES 2012-23 (Sept. 11, 2012) ("there is a strong possibility that plastic bags ... create ... potential hazard to marine life").

Determining whether a city adopted an ordinance for solid waste management purposes will require a factual inquiry into the intent of the governmental body. Such factual inquiries are beyond the scope of an attorney general opinion. Tex. Att'y Gen. Op. No. GA-0090 (2003) at 5 (determining intent is beyond the scope of an attorney general opinion). Thus, we cannot determine whether any specific ordinance is prohibited by section 361.0961 but can advise only that section 361.0961 would likely prohibit a city ordinance adopted for solid waste management purposes that prohibited single-use plastic bags.

You also ask about the legality of a municipal ordinance that assesses "fees on replacement bags" under section 361.0961. Request Letter at 1. The plain language of subsection 361.0961(a)(3) prohibits a political subdivision from adopting an ordinance that "assess[es] a fee or deposit on the sale or use of a container or package." TEX. HEALTH & SAFETY CODE ANN. § 361.0961(a)(3) (West 2010). Unlike the language in subsection 361.0961(a)(1), the prohibition on fees or deposits is not limited to instances when the assessment is for solid waste management purposes. Because a court is likely to conclude that a bag is a container in the context of section 361.0961, a court would also likely conclude that a city is prohibited from assessing a fee on the sale or use of a replacement bag.[5]

SUMMARY

A court would likely conclude that a city ordinance prohibiting or restricting single-use plastic bags is prohibited by subsection 361.0961(a)(1) of the Health and Safety Code if the city adopted the ordinance for solid waste management purposes. Whether a specific city's single-use plastic bag ordinance was adopted for such purposes will require a factual inquiry that is beyond the scope of an attorney general opinion.

A court would likely conclude that section 361.0961(a)(3) prohibits a city from adopting an ordinance that assesses a fee on the sale or use of a single-use plastic bag.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] Letter from Hon. Dan Flynn, House Select Comm. on Transparency in State Agency Operations, to Hon. Greg Abbott, Tex. Att'y Gen. at 1 (Feb. 27, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] See AUSTIN, TEX., ORDINANCES tit. 15, ch. 15-6, art. 7 (2012); BROWNSVILLE, TEX., ORDINANCES pt. II, subpt. A, ch. 46, art. II, §§ 46-47--46-51 (Sept. 20, 2010); FORT STOCKTON, TEX., ORDINANCE art. I, §§ 12-8-12-11 (Aug. 23, 2011); FREER, TEX., ORDINANCES 2012-05, §§ 1-3 (Dec. 10, 2012); KERMIT, TEX., ORDINANCES 13-05 §§ 98-01-98.10 (2013); LAGUNA VISTA, TEX., ORDINANCES 2012-23 (Sept. 11, 2012); LAREDO, TEX., ORDINANCE pt. II, ch. 33, art. VIII, §§ 33-501-33-507 (Aug. 19, 2013); SO. PADRE ISLAND, TEX., ORDINANCES 10-38, §§ 12-30-12-30.3 (Jan. 19, 2011); SUNSET VALLEY, TEX., ORDINANCES §§ 93.60-93.63 (Feb. 19, 2013).

[3] The terms "container" and "package" are defined in unrelated contexts in other statutes, and some expressly include a "bag" or "plastic bags" in the definition, while others do not. See, e.g., TEX. AGRIC. CODE ANN. § 141.001(5) (West 2004) (defining "container" to include, among other things, a bag or package in which commercial feed is packed); TEX. HEALTH & SAFETY CODE ANN. § 431.002(27) (West 2010) (defining "package" as "any container or wrapping in which a consumer commodity is enclosed ...."). While definitions of words from unrelated statutes may sometimes be informative, these incongruities provide little guidance with regard to how the terms should be construed in chapter 361.

[4] See Brief from Karen Kennard, City Attorney, City of Austin at 4 (Mar. 26, 2014); Brief from H. Abell, et. al. at 2 (Mar. 26, 2014) (briefs on file with Op. Comm.).

[5] Section 361.0961 applies only to "a local government or other political subdivision" and therefore does not impact the authority of a private business to, at its own choosing, charge a fee for the sale of a replacement bag. TEX. HEALTH & SAFETY CODE ANN. § 361.0961(a) (West 2010).