Can a Texas city require homebuilders to use the city's garbage franchise to haul off construction debris?

Texas AG Opinion JC-0035: Home-Rule City Requiring Builders to Use the City Garbage Franchise

Plain-English summary

The dispute came out of Lewisville, where the city had granted an exclusive solid-waste franchise to a single hauler and required residential construction contractors to use that franchisee's roll-off bins for construction debris. Homebuilders objected, saying debris hauling is a competitive service where they should be able to shop around. A state representative asked the Attorney General whether a home-rule city has the legal authority to impose that requirement.

The Attorney General answered yes. Texas courts and the Legislature have long treated garbage collection as a core part of a city's police power, and a comprehensive municipal garbage-collection plan falls squarely within that authority. Health and Safety Code section 364.034 expressly lets a municipality require persons within its jurisdiction to use a particular solid-waste-disposal service, and "person" includes corporations and other business entities, so it reaches construction contractors. On top of that, cities have broad power to regulate building activity within their limits. The opinion also noted that a private hauler probably has no vested right to collect waste in a particular area, so requiring contractors to use the franchisee does not run into a protected right on the haulers' side.

The opinion was careful about what it did not decide. It addressed only the state-law question of municipal authority. It expressly declined to decide whether Lewisville's own Home Rule Charter (which a builders' group argued forbids exclusive utility franchises) permitted the ordinance, leaving that local-charter question to the city's officials. With no other legal defect alleged, the opinion presumed the ordinance valid, consistent with the rule that municipal ordinances carry a presumption of validity.

Currency note

This opinion was issued in 1999. 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.

Common questions

Can a Texas home-rule city give one company an exclusive garbage franchise?
The opinion treated exclusive solid-waste franchises as within a city's authority, describing them as a common feature of municipal solid-waste arrangements. It rested on the city's police power over garbage collection and on Health and Safety Code section 364.034, which lets a municipality require people within its jurisdiction to use a particular solid-waste-disposal service.

Does the franchise requirement reach construction contractors specifically?
Yes, as the opinion read the law. Section 364.034 lets a municipality require "persons" to use a designated service, and "person" includes corporations, partnerships, and other legal entities. Combined with a city's broad authority to regulate building activity within its limits, the opinion concluded the city could require residential construction contractors to use the franchisee to haul ordinary construction-site debris.

Do private haulers have a right to keep collecting in the area?
The opinion pointed to its earlier conclusion that a private solid-waste-hauling company probably has no vested right to collect waste in a particular area. So an exclusive franchise that displaces other haulers does not, by itself, violate a protected right of the displaced companies.

Did the opinion decide whether Lewisville's city charter allowed the ordinance?
No. The Attorney General limited the opinion to state-law questions and expressly declined to interpret the city's Home Rule Charter, including a charter provision a builders' group cited that no public-utility franchise "shall be exclusive." Construing a city's own charter is the responsibility of city officials, so the opinion left that question to them.

Background and statutory framework

The opinion grounded municipal authority over garbage in the police power. It quoted Grothues v. City of Helotes for the proposition that enforcing a comprehensive garbage-collection plan is clearly within the police power granted to all municipalities, and that governments may regulate contractual relations and restrict the right to contract where reasonably necessary to protect the public. Health and Safety Code section 364.034 supplies express statutory authority for a municipality to require persons within its jurisdiction to use a particular solid-waste-disposal service, with the relevant definitions in sections 361.003 and 364.003.

For building regulation, the opinion cited a line of cases recognizing a city's extensive power to regulate construction within its limits, including Scanlan v. Home Ins. Co., City of Tyler v. Ingrum, Town of Renner v. Wiley, Newton v. Town of Highland Park, Kirschke v. City of Houston, and Ex parte Cramer, along with the municipal land-use and structure provisions in Local Government Code sections 211.001 through 230.018. On the haulers' side, it relied on its earlier letter opinion and on City of San Antonio v. Bee-Jay Enters. for the point that a private waste hauler probably has no vested right to collect in a particular area, and on Browning-Ferris, Inc. v. City of Leon Valley for a city's power to restrict the right to contract in this field. The opinion presumed the ordinance valid under City of Brookside Village v. Comeau and John v. State, while declining under prior opinion practice to construe the city's charter.

Citations

Statutes:

• TEX. HEALTH & SAFETY CODE ANN. § 364.034 (Vernon 1992); §§ 361.003(23), (34), (35); 364.003(3), (5) (Vernon 1992 & Supp. 1999)
• TEX. LOC. GOV'T CODE ANN. §§ 211.001-230.018 (Vernon 1988 & Supp. 1999)

Cases:

• Grothues v. City of Helotes, 928 S.W.2d 725 (Tex. App.-San Antonio 1996, no writ)
• Scanlan v. Home Ins. Co., 79 S.W.2d 186 (Tex. Civ. App.-Beaumont 1935, writ ref'd)
• City of Tyler v. Ingrum, 164 S.W.2d 516 (Tex. Civ. App. 1942)
• Town of Renner v. Wiley, 458 S.W.2d 516 (Tex. Civ. App.-Dallas 1970, no writ)
• Newton v. Town of Highland Park, 282 S.W.2d 266 (Tex. Civ. App.-Dallas 1955, writ ref'd n.r.e.)
• Kirschke v. City of Houston, 330 S.W.2d 629 (Tex. Civ. App.-Houston 1959, writ ref'd n.r.e.)
• Ex parte Cramer, 136 S.W. 61 (Tex. Crim. App. 1911)
• 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.)
• City of San Antonio v. Bee-Jay Enters., Inc., 626 S.W.2d 802 (Tex. App.-San Antonio 1981, no writ)
• City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982)
• John v. State, 577 S.W.2d 483 (Tex. Crim. App. [Panel Op.] 1979)

Prior Attorney General opinions discussed: DM-401 (1996), JM-846 (1988), LO-97-037, LO-93-042, LO-94-008.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0035
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0035.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
JOHN CORNYN

April 19, 1999

The Honorable Bill G. Carter
Chair, Committee on Urban Affairs
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0035

Re: Whether a home-rule municipality may adopt an ordinance requiring residential construction contractors to use the franchisee selected by the city for weekly residential and commercial garbage removal (RQ-1215)

Dear Representative Carter:

Your predecessor as Chair of the House Committee on Urban Affairs, Representative Fred Hill, asked this office whether a home-rule municipality may adopt an ordinance requiring residential construction contractors to have construction debris hauled by the franchisee selected by the city for weekly residential and commercial garbage removal. In answering this question, we have assumed that the municipal ordinance applies only to contracts between residential construction contractors and private solid-waste-hauling firms that are executed after the adoption of the ordinance. See Tex. Att'y Gen. LO-97-037, at 3. Because a municipality has comprehensive powers to regulate garbage collection, we conclude that it may adopt the ordinance Representative Hill described.

Representative Hill's question arose from a situation in the City of Lewisville. According to his letter to this office, the City of Lewisville, a home-rule city, see THE DALLAS MORNING NEWS, 1998-1999 TEXAS ALMANAC 436, 440 (Mary G. Ramos ed., 1997), recently adopted a waste-hauling franchise agreement ordinance granting an exclusive franchise to Texas Waste Management, Inc. ("TWM"). The agreement includes, he stated, "an exclusive rights provision that requires construction contractors to use TWM roll-off trash collection bins." Letter from Honorable Fred Hill, Texas House of Representatives, to Honorable Dan Morales, Attorney General, at 1 (Oct. 14, 1998) (on file with Opinion Committee). Representative Hill described roll-off trash bins as "the commonly seen trash receptacles used by commercial businesses, restaurants, and multifamily communities." Id. He suggested that this exclusive-rights provision constrains the construction contractors and increases their costs:

Although not all construction projects need a roll-off trash bin, for those times when a bin is needed for the project, residential construction contractors want a choice. Residential construction contractors feel that construction site debris collection, hauling and disposal is a solid waste activity where competition makes sense and benefits small business operations.

Id. On the other hand, the City of Lewisville apparently contends that this type of exclusive-rights provision is "a common element of municipal solid waste franchise agreements." Id. at 2.

We conclude that an exclusive-rights agreement such as your predecessor described is within the city's authority. "The legislature and the courts have long recognized the importance of garbage disposal to the enhancement of health and safety. The enforcement of a comprehensive garbage collection plan [by a municipality] is clearly within the police power granted to all municipalities." Grothues v. City of Helotes, 928 S.W.2d 725, 729 & n.6 (Tex. App.-San Antonio 1996, no writ) (and cases cited therein); Tex. Att'y Gen. LO-97-037, at 1-2 (quoting Grothues). Indeed, Health and Safety Code section 364.034 explicitly permits a municipality, among other public entities, to require persons within its jurisdiction to use a particular solid-waste-disposal service. See TEX. HEALTH & SAFETY CODE ANN. § 364.034 (Vernon 1992); see also id. §§ 361.003(34), (35); 364.003(3), (5) (Vernon 1992 & Supp. 1999) (defining "public agency" and "solid waste"). The term "person" includes corporations, partnerships, and other legal entities. Cf. id. § 361.003(23) (Vernon Supp. 1999) (defining "person"). In addition, a municipality has extensive power to regulate, by proper ordinance, building construction that occurs within its limits. Scanlan v. Home Ins. Co., 79 S.W.2d 186, 188 (Tex. Civ. App.-Beaumont 1935, writ ref'd); accord City of Tyler v. Ingrum, 164 S.W.2d 516, 519 (Tex. Civ. App. 1942) (citing 8 EUGENE McQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 1016, at 282 (2d ed.)); Town of Renner v. Wiley, 458 S.W.2d 516, 521 (Tex. Civ. App.-Dallas 1970, no writ); Newton v. Town of Highland Park, 282 S.W.2d 266, 278 (Tex. Civ. App.-Dallas 1955, writ ref'd n.r.e.); see Kirschke v. City of Houston, 330 S.W.2d 629, 633 (Tex. Civ. App.-Houston 1959, writ ref'd n.r.e.), (quoting 9 EUGENE McQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 26.200, at 479) (stating that municipality has power to issue building permits); cf. Ex parte Cramer, 136 S.W. 61, 62 (Tex. Crim. App. 1911) (stating that municipality has power to regulate installation of electrical apparatus). See generally TEX. LOC. GOV'T CODE ANN. §§ 211.001-230.018 (Vernon 1988 & Supp. 1999) (concerning municipal authority to regulate land use, structures, businesses, and related activities).

Where public interest is involved, individuals' rights often yield to overriding public interests and are often regulated under the police power of the state. Thus, a government entity often regulates the contractual relations between parties and restricts the right to contract where it is reasonably necessary to protect the general public. The enforcement of such restrictions is a necessary function of municipal governments to promote the common welfare of the greater metropolitan area.

Grothues, 928 S.W.2d at 731 (citations omitted); accord Browning-Ferris, Inc. v. City of Leon Valley, 590 S.W.2d 729, 731-33 (Tex. Civ. App.-San Antonio 1979, writ ref'd n.r.e.); cf. Tex. Att'y Gen. Op. No. DM-401 (1996) at 2 (concluding that independent school district must comply with municipal ordinance authorizing single vendor to collect garbage within municipal limits). In addition, this office previously has determined that a private solid-waste-hauling company probably has no vested right to collect waste in a particular area. See Tex. Att'y Gen. LO-97-037, at 2; see also City of San Antonio v. Bee-Jay Enters., Inc., 626 S.W.2d 802, 804 (Tex. App.-San Antonio 1981, no writ). We know of no statute that precludes a home-rule city from adopting the solid-waste-disposal ordinance Representative Hill described.

We limit our opinion to the state law issues your predecessor raised. We do not address the purely local question of whether the city's charter permits the city to adopt the ordinance. See also Tex. Att'y Gen. Op. No. JM-846 (1988) at 1; Tex. Att'y Gen. LO-93-042, at 1. Although we do not have a copy of the city's charter, we have received a brief suggesting that the city's ordinance violates article 10, section 10.05 of the city's Home Rule Charter, which apparently provides: "[N]o grant, contract, or franchise, to construct, maintain or operate a public utility for or in Lewisville, Texas, and no renewal or extension of such grant, contract or franchise, shall be exclusive." See Letter from Mr. Jeffrey A. Morrison, Bush & Morrison, P.C., on behalf of the Home Builders Association of Greater Dallas, to Ms. Liz Robinson, Chair, Opinion Committee, Office of the Attorney General (Jan. 7, 1999) (on file with Opinion Committee). Not having the charter before us, and in deference to municipal officials' authority to construe their municipality's ordinances and charters, we decline to comment on whether the ordinance is consistent with the city charter. See Tex. Att'y Gen. LO-94-008, at 2 n.1 (declining to issue opinion in deference to city attorney, who bears primary responsibility for construing city charter).

Representative Hill alleged no other legal or procedural improprieties with respect to the City of Lewisville's solid-waste-disposal ordinance, and we therefore presume it is valid. See City of Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982) (stating that municipal ordinance is presumed valid); John v. State, 577 S.W.2d 483, 485 (Tex. Crim. App. [Panel Op.] 1979) (stating that municipal exercise of legislative power is presumed to be valid); Grothues, 928 S.W.2d at 730.

SUMMARY

A home-rule municipality may adopt an ordinance requiring residential construction contractors to use the franchisee selected by the city for weekly residential and commercial garbage removal to collect and haul customary debris from a construction site.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General