Do new Texas school buildings have to follow the commercial energy conservation code?

Plain-English summary

The Webb County Attorney asked whether new school district construction begun after November 1, 2016 has to follow the latest International Energy Conservation Code, the version that applies to commercial buildings, under section 388.003(b) of the Health and Safety Code and the comptroller's rule at 34 Texas Administrative Code section 19.53(b). The hinge of the question was whether a school building counts as a "commercial" building.

The AG first explained that the answer is not the same statewide. Chapter 388 adopts the International Energy Conservation Code as the state energy code for residential, commercial, and industrial construction, but it also lets municipalities adopt local amendments, and the State Energy Conservation Office can substitute the latest published edition (the comptroller's rule adopted the 2015 edition effective November 1, 2016). Because local adoptions vary, the Texas Education Agency's school-facility rules tell a district which code to use: a district in an area with a local construction code follows that code, and a district in an area with no local code uses the latest family of International Codes published by the International Code Council. So the AG said it could not give a blanket answer for every district, only for those governed by the 2015 edition either by local adoption or by default.

For those jurisdictions, the AG concluded a court would likely find school buildings are "commercial" construction within section 388.003(b). Chapter 388 does not define "commercial," so the AG looked to the meaning the adopted building code itself uses. The International Energy Conservation Code defines a "commercial building" as any building that is not a residential building. A public school is not a residential building, so it falls into the commercial category, and the energy code applies. The county attorney had pointed to statements by individual legislators suggesting the 2013 amendments were aimed only at residential construction, but the AG explained that Texas courts read the enacted text, not isolated legislative remarks, and a court would be unlikely to use legislative history to narrow the statute's plain language.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting county attorney (as the opinion described it): The opinion answered that a court would likely find school buildings are commercial construction within the scope of section 388.003(b), while noting that the specific code edition applying to a given district turns on local adoption, so no single answer fits every district.

School districts planning construction (as the opinion described them): The opinion explained that a district in an area with a local construction code must follow that code, and a district in an area without one uses the latest family of International Codes; where the 2015 International Energy Conservation Code governs, it treats school buildings as commercial construction subject to that code.

The State Energy Conservation Office and comptroller (as the opinion described them): The opinion recited that section 388.003(b) authorizes the office to substitute the latest published edition of the International Energy Conservation Code, and that the comptroller's rule adopted the 2015 edition effective November 1, 2016.

Common questions

Is a public school a "commercial" building for energy code purposes?
Under this opinion, yes. The AG relied on the International Energy Conservation Code's own definition, which treats every building that is not residential as a commercial building. A public school is not residential, so it is commercial for that code.

Does the same energy code apply to every Texas school district?
No. The opinion said the governing code depends on local adoption. A district where the locality adopted a construction code follows that code; a district in an area with no local code uses the latest International Codes. The AG could only speak to jurisdictions under the 2015 edition.

The 2013 amendments were described as being about homes, not schools. Does that change the answer?
No. The AG explained that Texas courts look at the text the Legislature enacted, not statements by individual legislators, and would be unlikely to use those statements to narrow the statute against its plain language.

Which edition of the energy code took effect for commercial construction?
The opinion noted the comptroller's rule adopted the 2015 International Energy Conservation Code effective November 1, 2016 for the buildings within section 388.003(b).

Background and statutory framework

Chapter 388 of the Health and Safety Code sets Texas's building energy performance standards and states legislative findings about the need for an effective energy code given the state's cooling-heavy climate (Tex. Health & Safety Code §§ 388.001-.012, 388.001(a)-(b)). Section 388.003(a) adopts energy provisions of the International Residential Code for single-family residential construction, and section 388.003(b) adopts the International Energy Conservation Code as the energy code for all other residential, commercial, and industrial construction, while authorizing the State Energy Conservation Office to substitute the latest published edition (Tex. Health & Safety Code §§ 388.003(a), 388.003(b)). The comptroller's rule adopted the 2015 edition effective November 1, 2016 (34 Tex. Admin. Code § 19.53(b)). Chapter 388 also lets municipalities adopt local amendments, with limits on amendments that would make requirements less stringent (Tex. Health & Safety Code §§ 388.003(d), 388.003(e)).

Because local codes vary, the Texas Education Agency's school-facility rules direct districts: a district in an area that adopted a local construction code must comply with it, and a district in an area without one uses the building and energy conservation code from the latest edition of the family of International Codes published by the International Code Council (19 Tex. Admin. Code §§ 61.1036(f)(1)-(f)(2), 61.1036(f)(1), 61.1036(f)(2)(A), 61.1036(a)(14)(B); Tex. Educ. Code § 46.008(a)). On the meaning of "commercial," the AG applied the rule that undefined terms with a particular meaning are construed accordingly (Tex. Gov't Code § 311.011(b)), noted that "commercial" can be broad or narrow depending on context (citing Tex. Att'y Gen. LO-90-16 (1990)), and used the International Energy Conservation Code's definition of "commercial building" as any non-residential building, supported by a similar local-government definition (Tex. Loc. Gov't Code § 214.211(5)(A)). On legislative history, the AG cited the Texas Supreme Court for reading enacted text over individual legislators' statements: Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006); Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011); Klein v. Hernandez, 315 S.W.3d 1, 11 (Tex. 2010); and Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999).

Citations

Statutes and rules:

• Tex. Health & Safety Code §§ 388.001-.012, 388.001(a)-(b), 388.003(a), 388.003(b), 388.003(d), 388.003(e)
• Tex. Educ. Code § 46.008(a)
• Tex. Gov't Code § 311.011(b)
• Tex. Loc. Gov't Code § 214.211(5)(A)
• 34 Tex. Admin. Code § 19.53(b)
• 19 Tex. Admin. Code §§ 61.1036(f)(1)-(f)(2), 61.1036(f)(1), 61.1036(f)(2)(A), 61.1036(a)(14)(B)

Cases:

• Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006)
• Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011)
• Klein v. Hernandez, 315 S.W.3d 1 (Tex. 2010)
• Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278 (Tex. 1999)

Other authority:

• Tex. Att'y Gen. LO-90-16 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0148
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0148.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 11, 2017

The Honorable Marco A. Montemayor Opinion No. KP-0148
Webb County Attorney
1110 Washington Street, Suite 301 Re: Applicability of the International Energy
Laredo, Texas 78040 Conservation Code to new school district
building construction after November 1, 2016
(RQ-0141-KP)

Dear Mr. Montemayor:

    Your question concerns the applicability of the International Energy Conservation Code. Specifically, you ask

            [w]hether all new school district building construction begun after November 1, 2016 require[s] adherence to the latest published edition of the International Energy Conservation Code, which applies to commercial buildings, as provided under Texas Health & Safety Code § 388.003(b) and as promulgated by Texas Administrative Rule under Title 34, Chapter 19, rule § 19.53(b)[.] [1]

    Chapter 388 of the Health and Safety Code establishes Texas's building energy performance standards. See TEX. HEALTH & SAFETY CODE §§ 388.001-.012. It contains legislative findings regarding the need for an effective building energy code to reduce pollutants and to ensure reliable and affordable energy for residents and businesses in Texas's unique climate, which typically requires more energy for cooling than for heating. See id. § 388.001(a)-(b). Subsection 388.003(a) expressly adopts specified energy efficiency provisions of the International Residential Code for single-family residential construction. See id. § 388.003(a). Subsection 388.003(b), about which you ask, adopts the "International Energy Conservation Code as it existed on May 1, 2001, ... as the energy code for use in this state for all other residential, commercial, and industrial construction." Id. § 388.003(b). Subsection 388.003(b) also expressly grants the State Energy Conservation Office ("SECO") authority to "adopt and substitute for that energy code the latest published edition of the International Energy Conservation Code" based on certain findings. Id.; see also 34 TEX. ADMIN. CODE § 19.53(b) (2017) (Comptroller of Pub. Accounts, Tex. Bldg. Energy Performance Standards) (adopting, effective November 1, 2016, the 2015 version of the International Energy Conservation Code). In addition, chapter 388 authorizes municipalities to adopt local amendments. TEX. HEALTH & SAFETY CODE § 388.003(d); see also id. § 388.003(e) (limiting, in many instances, a municipality's adoption of local amendments that "result in less stringent energy efficiency requirements" than provided by the International Energy Conservation Code).

    In light of potential differing governing codes in different municipalities, the rules of the Texas Education Code regarding construction standards for school facilities provide direction to school districts. See 19 TEX. ADMIN. CODE § 61.1036(f)(1)-(f)(2) (2017) (Tex. Educ. Agency, Comm'rs Rules Concerning Sch. Facilities); see also TEX. EDUC. CODE § 46.008(a) (requiring the Texas Education Commissioner to establish standards for the adequacy of school facilities). A school district in an area that adopted a local construction code must comply with that code. 19 TEX. ADMIN. CODE § 61.1036(f)(1) (2017). A school district in an area that has not adopted a local construction code "shall adopt and use the building code and related ... energy conservation code from the latest edition of the family of International Codes as published by the ICC." [2] Id. § 61.1036(f)(2)(A). Thus, the specific code applying to a particular school district will depend on the local adoption of restrictions, and we cannot provide a blanket answer that will apply to all school districts. However, we can advise you about the 2015 International Energy Conservation Code's applicability to school building construction in those jurisdictions that adopted the 2015 International Energy Conservation Code or where it governs by default. With respect to these jurisdictions, you ask whether school buildings are "other residential, commercial, or industrial buildings" within the scope of subsection 388.003(b). See Request Letter at 3.

    You explain that school buildings are neither "other residential" construction nor "industrial" construction and question whether the school buildings are "commercial" construction. See id. at 3-4. As chapter 388 does not define the term "commercial," we look to the common or particular meaning of that undefined term. See TEX. GOV'T CODE § 311.011(b) ("Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."). The term "commercial establishment" and related terms such as "commercial" may have a broad or narrow meaning depending on the context. See Tex. Att'y Gen. LO-90-16 (1990) at 2. Here, the relevant building code, the International Energy Conservation Code, which the Legislature expressly adopted, contains a particular definition of the term. The International Energy Conservation Code defines "commercial building" to mean "all buildings that are not included in the definition of 'residential building.'" Int'l Code Council, Int'l Energy Conservation Code 2015, § C202 ("General Definitions"); [3] see also TEX. LOC. GOV'T CODE § 214.211(5)(A) (defining "commercial" in a similar context to mean "a building for the use or occupation of people for: (A) a public purpose ...."). Thus, because a public school building is not a residential building, it falls within the scope of "commercial" construction for purposes of the International Energy Conservation Code and likely also for purposes of chapter 388.

    Citing several sources of legislative history, you suggest this conclusion is contrary to the Legislature's intent as represented by the statements of various legislators. See Request Letter at 4. You assert that the 2013 amendments to chapter 388 were "meant to address energy efficiency standards in residential construction and not commercial construction." Id. The cardinal rule of statutory construction is to ascertain the Legislature's intent, and the "truest manifestation of what legislators intended is what lawmakers enacted, the literal text they voted on." Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006). Texas courts recognize that "[s]tatements made during the legislative process by individual legislators or even a unanimous legislative chamber are not evidence of the collective intent of the majorities of both legislative chambers that enacted a statute." Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011). Wary of isolated statements of legislators, the Texas Supreme Court acknowledges that the statute itself "constitutes the law; it alone represents the Legislature's singular will, and it is perilous to equate an isolated remark or opinion with an authoritative, watertight index of the collective wishes of 181 individual legislators, who may have 181 different motives and reasons for voting the way they do." Klein v. Hernandez, 315 S.W.3d 1, 11 (Tex. 2010). Thus, a Texas court is unlikely to rely on such statements to limit the applicability of the 2015 International Energy Conservation Code to only residential construction contrary to the statute's plain language. See TEX. HEALTH & SAFETY CODE § 388.003(b); see also Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999) (stating that "legislative history cannot be used to alter or disregard the express terms of a code provision").

                                 SUMMARY

                   A court would likely find that school buildings are commercial construction within the scope of subsection 388.003(b) of the Health and Safety Code.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Marco A. Montemayor, Webb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 10, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] The ICC refers to the International Code Council. 19 TEX. ADMIN. CODE § 61.1036(a)(14)(B) (2017).

[3] Available at http://codes.iccsafe.org/I-Codes.html (last visited Mar. 29, 2017).