Can a Texas city require specific paint colors and patterns for buildings, or does the state building-materials law block that?

Plain-English summary

The Cameron County District Attorney, Luis Saenz, asked the Attorney General about a clash between local design rules and a state law on building materials. The City of South Padre Island had adopted a form-based code that mandates specific color palettes and patterns in certain areas. The DA wanted to know whether Government Code section 3000.002 prohibits a city from requiring particular paint colors and color patterns.

The AG started with chapter 3000 of the Government Code, which governs the building regulations a governmental entity (including a municipality) may adopt for building products, materials, and methods. Two prohibitions are central. Subsection 3000.002(a)(1) says a city may not adopt or enforce a rule that "prohibits or limits, directly or indirectly," the use or installation of a building product or material that a national model code has approved within the last three code cycles. Subsection 3000.002(a)(2) says a city may not set a standard for a building product, material, or "aesthetic method" that is more stringent than the standard in those model codes. The statute does not define "building product or material" or "aesthetic method," so the AG used common dictionary meanings: "aesthetic" relates to beauty as distinguished from the useful, and a "method" is a procedure or process for attaining an object. Putting those together, the AG said an "aesthetic method" is a procedure to satisfy considerations of beauty or appearance in building work, and that a court could treat a limit on the paint color palette or pattern in part of a city as an aesthetic method standard.

That is where the analysis stopped short of a definitive answer. The DA noted the City had adopted several model codes (the 2015 International Building Code, the 2015 International Residential Code, and others) and that those codes are silent on color palettes and patterns. The AG explained that silence alone does not resolve the question. Subsection 3000.002(a)(1) reaches indirect prohibitions and limitations too, so working out whether a color rule indirectly limits an approved product would require resolving facts about particular products or materials. Likewise, whether a model-code provision sets a less stringent standard than the color rule would depend on the particular facts. A court might conclude the model codes' silence leaves room for a city to regulate color without violating section 3000.002, but the AG said it could not make that call as a matter of law, because investigating and resolving fact questions is beyond the opinion process. The AG cited KP-0088 for that limit on what an opinion can do.

The AG did resolve the DA's second question cleanly. Subsections 3000.002(a)(1) and (2) apply only to a "governmental entity," which is defined to cover entities in the executive branch of state government and political subdivisions. Because the Legislature is neither, those subsections do not apply to the Legislature's own statutory requirements.

What this means for you

This describes what the 2021 opinion holds. It is the AG's reading of the statute, and statutes and local codes can change, so confirm current law before relying on it.

Cities with form-based or color-palette codes

The opinion treats a paint-color-palette or pattern requirement as something a court could classify as an "aesthetic method" standard under section 3000.002(a)(2). It does not declare such rules valid or invalid; whether a specific ordinance crosses the line depends on facts about the products involved and the applicable model codes, which the AG said it cannot resolve in an opinion.

Builders, architects, and property owners

The opinion confirms that section 3000.002 protects the use of building products and materials approved by recent national model codes against both direct and indirect local limits. Whether a city's color rule indirectly limits an approved product is a fact-specific question, not something this opinion answers for any particular project.

The Legislature

The opinion holds that section 3000.002's restrictions do not apply to the Legislature, because it is neither an executive-branch entity nor a political subdivision.

Common questions

Q: Did the AG say cities can or cannot require certain paint colors?
A: Neither, definitively. The AG said a court could treat a color-palette rule as an aesthetic-method standard, but whether a particular rule violates section 3000.002 depends on fact questions the opinion process cannot resolve.

Q: The model codes don't mention color. Doesn't that settle it?
A: The AG said silence is not enough, because section 3000.002(a)(1) also bars indirect limits on approved products, and assessing indirect effects requires resolving facts about specific products and materials.

Q: What is an "aesthetic method" under this statute?
A: The statute doesn't define it, so the AG used the plain meaning: a procedure or process to satisfy considerations of beauty or appearance in building construction, renovation, maintenance, or alteration.

Q: Does this law limit what the Legislature itself can require?
A: No. The AG concluded section 3000.002(a)(1) and (2) apply only to executive-branch entities and political subdivisions, so they do not reach the Legislature.

Q: Are there exceptions to section 3000.002?
A: Yes. The opinion notes the statute does not apply to certain areas, such as those designated for historical, cultural, or architectural significance under section 3000.002(c)(5)–(7).

Background and statutory framework

Chapter 3000 of the Government Code (sections 3000.001–.005) limits how a governmental entity regulates building products, materials, and methods. Section 3000.001 pulls in the definition of "governmental entity" from section 2007.002(1)(B) (political subdivisions) and the definition of "national model code" from Local Government Code section 214.217(a) (publications like the International Building Code and National Electrical Code). The two operative bars are in section 3000.002(a)(1) (no direct or indirect limit on model-code-approved products) and (a)(2) (no more-stringent product, material, or aesthetic-method standard), with exceptions in (c)(5)–(7). The AG relied on Town of Lakewood Vill. v. Bizios for the point that municipalities are political subdivisions, on Brazos Elec. Power Coop., Inc. v. Tex. Comm'n on Env't Quality and City of Rockwall v. Hughes for plain-meaning statutory construction, on Occupations Code section 1051.001(7)(A) for the role of aesthetics in architecture, and on State v. Terrell for the meaning of "method." It cited KP-0088 for the rule that fact questions are beyond the opinion process.

Citations and references

Statutes:

• Tex. Gov't Code § 3000.002 (limits on local building-product and aesthetic-method rules), and §§ 3000.001, 3000.003–.005
• Tex. Gov't Code § 2007.002(1)(B); Tex. Loc. Gov't Code § 214.217(a) (national model code); Tex. Occ. Code § 1051.001(7)(A)

Key cases:

• Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527 (Tex. 2016) (municipalities are political subdivisions)
• Brazos Elec. Power Coop., Inc. v. Tex. Comm'n on Env't Quality, 576 S.W.3d 374 (Tex. 2019); City of Rockwall v. Hughes, 246 S.W.3d 621 (Tex. 2008) (plain-meaning construction)
• State v. Terrell, 588 S.W.2d 784 (Tex. 1979) (meaning of "method")

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0370
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0370.pdf

Original opinion text

May 5, 2021

The Honorable Luis V. Saenz
Cameron County District Attorney
964 East Harrison Street, Fourth Floor
Brownsville, Texas 78520

Opinion No. KP-0370

Re: Whether section 3000.002 of the Government Code prohibits political subdivisions from adopting paint color and pattern requirements (RQ-0387-KP)

Dear Mr. Saenz:

You ask whether section 3000.002 of the Government Code prohibits political subdivisions from adopting paint color and pattern requirements and related questions.¹

Background

Chapter 3000 of the Government Code governs building regulations a governmental entity may adopt with respect to building products, materials, and methods. See TEX. GOV'T CODE §§ 3000.001–.005. For purposes of chapter 3000, a governmental entity includes political subdivisions such as a municipality. Id. § 3000.001(2) (incorporating section 2007.002 of the Government Code), id. § 2007.002(1)(B) (defining governmental entity to include political subdivisions); Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 530 (Tex. 2016) (stating that municipalities are political subdivisions of the State). Subsections 3000.002(a)(1) and (2) limit ordinances and other rules or regulations that a municipality may adopt:

Notwithstanding any other law and [with certain exceptions], a governmental entity may not adopt or enforce a rule, charter provision, ordinance, order, building code, or other regulation that:

(1) prohibits or limits, directly or indirectly, the use or installation of a building product or material in the construction, renovation, maintenance, or other alteration of a residential or commercial building if the building product or material is approved for use by a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building; or

(2) establishes a standard for a building product, material, or aesthetic method in construction, renovation, maintenance, or other alteration of a residential or commercial building if the standard is more stringent than a standard for the product, material, or aesthetic method under a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building.

TEX. GOV'T CODE § 3000.002(a)(1), (2). You state that the City of South Padre Island (the "City") adopted a form-based code² that mandates specific color palettes and patterns in certain areas of the City. Request Letter at 3. You ask whether subsections 3000.002(a)(1) and (2) prohibit a municipality from adopting rules, regulations, and ordinances that require specific color palettes and color patterns in particular areas within the municipality's jurisdiction. Id. at 1.

Construction of Subsections 3000.002(a)(1) and (2)

Courts construing statutes attempt to give effect to the Legislature's intent, as ascertained from the plain meaning of the words used in the statute. Brazos Elec. Power Coop., Inc. v. Tex. Comm'n on Env't Quality, 576 S.W.3d 374, 383–84 (Tex. 2019). When the Legislature has defined a statutory term, that definition controls, but for undefined terms courts "construe the statute's words according to their plain and common meaning." City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008).

Subsection 3000.002(a)(1) prohibits a municipality from adopting a regulation that "prohibits or limits . . . the use or installation of a building product or material in the construction, renovation, maintenance, or other alteration of a residential or commercial building" in certain circumstances. TEX. GOV'T CODE § 3000.002(a)(1). The term "building product or material" is not defined. "Product" simply means "something produced." WEBSTER'S THIRD NEW INT'L DICTIONARY 1810 (2002). "Material" commonly means "the basic matter (as metal, wood, plastic, fiber) from which the whole or the greater part of something physical (as a machine, tool, building, fabric) is made." Id. at 1392. The context concerns products and materials that are used "in the construction, renovation, maintenance, or other alteration of a residential or commercial building." TEX. GOV'T CODE § 3000.002(a)(1).

Under subsection 3000.002(a)(1), a municipality may not adopt a regulation prohibiting or limiting the use of those building products or materials that have been "approved for use by a national model code published within the last three code cycles that applies to the construction, renovation, maintenance, or other alteration of the building."³ Id. § 3000.002(a)(1). Because the prohibition concerns only a model code that "applies to the construction, renovation, maintenance, or other alteration of the building" under consideration, it concerns model codes that have been adopted by law within the jurisdiction. TEX. GOV'T CODE § 3000.002(a)(1). And the prohibition includes the last three code cycles of the applicable model codes. Id. Thus, a municipality may not prohibit or limit the use or installation of those building products and materials that an applicable model code has approved within the last three publication cycles for use in building construction, renovation, maintenance, or other alteration. Id.

Subsection 3000.002(a)(2) prohibits a municipality from adopting a "standard for a building product, material, or aesthetic method in construction, renovation, maintenance, or other alteration of a residential or commercial building" more stringent than standards contained in applicable national model codes within the last three publication cycles.⁴ Id. § 3000.002(a)(2). Like the key words in subsection 3000.002(a)(1), subsection 3000.002(a)(2) does not define "aesthetic method." Id. "Aesthetic" commonly means "relating to the beautiful as distinguished from . . . the useful and utilitarian." WEBSTER'S THIRD NEW INT'L DICTIONARY 34 (2002). Aesthetics is a concern in the practice of architecture, which includes establishing "form, aesthetics, materials, and construction technology for a building." TEX. OCC. CODE § 1051.001(7)(A). And "method" commonly means "the procedure or process for attaining an object." WEBSTER'S THIRD NEW INT'L DICTIONARY 1422 (2002).⁵ Thus, an "aesthetic method" in subsection 3000.002(a)(2) concerns procedures or processes to satisfy considerations of beauty or appearance in building construction, renovation, maintenance, and other alterations. A court could consider a limitation of the paint color palette or pattern that may be used in a particular part of the city to be an aesthetic method standard.

Application of subsections 3000.002(a)(1) and (2) to Municipal Color Regulations

You state that the City has adopted several national model codes, including the International Building Code, the International Residence Code, and other model codes. Request Letter at 3. The City's Code of Ordinances indicates that it has adopted a number of model codes:

The City adopts the 2015 International Building Code, 2015 International Residential Code without Section R313 (deleted), 2015 International Fire Code without Appendices L and M (deleted), 2015 International Mechanical Code, 2015 International Plumbing Code, 2015 International Fuel Gas Code, 2014 National Electrical Code, 2015 International Energy Conservation Code, 1997 Standard Housing Code, and the 1985 Unsafe Building Abatement Code and all other amendments thereto except as modified by the Code of Ordinances.

S. PADRE ISLAND, TEX., CODE OF ORDINANCES § 4-5(A) (2018).⁶ Thus, subsections 3000.002(a)(1) and (2) require City ordinances to comport with the pertinent approvals and standards contained in these model codes published within the last three code cycles. See TEX. GOV'T CODE § 3000.002(a)(1), (2).

You do not identify any provision in these adopted codes relevant to your question. See Request Letter at 3. You state that these codes are "silent as to the regulation of color palates and patterns," but that fact alone does not fully resolve the inquiry. See id. at 3. While a local color regulation may not directly prohibit or limit the use or installation of approved materials or products, subsection 3000.002(a)(1) also prohibits indirect prohibitions and limitations having that effect. TEX. GOV'T CODE § 3000.002(a)(1). Determining all potential indirect effects of a color regulation would likely require resolution of the facts concerning particular products or materials. Similarly, whether a particular model code provision establishes a standard for a building product, material, or aesthetic method less stringent than a color regulation would also likely depend on the particular facts. See id. § 3000.002(a)(2). While a court could conclude that the model codes' silence allows a governmental entity to regulate in that area without violating section 3000.002, we cannot make that determination as a matter of law. See Tex. Att'y Gen. Op. No. KP-0088 (2016) at 3 (stating that investigating and resolving fact questions are beyond the function of the opinion process).

Application of subsections 3000.002(a)(1) and (2) to the Legislature

Your second question is whether subsections "3000.002(a)(1) and (2) establish a more stringent aesthetic method in construction, renovation, maintenance, or other alteration of a building as compared to the national model codes—which are silent as to color palettes and paint color patterns—rendering the Sections unenforceable." Request Letter at 1–2. Subsections 3000.002(a)(1) and (2) apply to a "governmental entity," which as defined, includes only entities in the executive branch of state government and political subdivisions. See TEX. GOV'T CODE § 3000.001(2) (adopting definition in Government Code section 2007.002(1)(B)). Because the Legislature is not an entity in the executive branch or a political subdivision, subsections 3000.002(a)(1) and (2) do not apply to its statutory requirements.

¹ Letter from the Honorable Luis V. Saenz, Cameron Cnty. Dist. Att'y, to the Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 13, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0387KP.pdf ("Request Letter").

² See Katherine A. Woodward, Form over Use: Form-Based Codes and the Challenge of Existing Development, 88 NOTRE DAME L. REV. 2627, 2642 (2013) (defining "form-based codes" as "[a] method of regulating development to achieve a specific urban form that aims to create a predictable public realm primarily by controlling physical form, with a lesser focus on land use, through city or county regulations" (quotation marks and citation omitted)).

³ Section 3000.001 incorporates the definition of "national model code" that appears in subsection 214.217(a) of the Local Government Code:

"[N]ational model code" means a publication that is developed, promulgated, and periodically updated at a national level by organizations consisting of industry and government fire and building safety officials through a legislative or consensus process and that is intended for consideration by units of government as local law. National model codes include the International Residential Code, the National Electrical Code, and the International Building Code.

TEX. LOC. GOV'T CODE § 214.217(a); see also TEX. GOV'T CODE § 3000.001(1).

⁴ Section 3000.002 does not apply to certain areas of a municipality, such as areas designated historical, cultural, or architectural importance and significance in specified circumstances. See TEX. GOV'T CODE § 3000.002(c)(5)–(7).

⁵ See also State v. Terrell, 588 S.W.2d 784, 788 (Tex. 1979) ("The term 'method' is defined as 'a procedure or process for attaining an object' and as an 'orderly arrangement, development or classification.'. . . The term is synonymous with the words 'mode,' 'plan,' 'design,' or 'system.'" (citation omitted)).

⁶ See SOUTH PADRE ISLAND, TEX., CODE OF ORDINANCES § 4-5(A) (2018), https://library.municode.com/tx/south_padre_island/codes/code_of_ordinances?nodeId=CH4BUCO.

S U M M A R Y

Chapter 3000 of the Government Code governs building regulations a governmental entity may adopt with respect to building products, materials, and methods. Subsection 3000.002(a)(1) prohibits a governmental entity from adopting an ordinance or other regulation that directly or indirectly prohibits or limits the use of products or materials approved for use by certain national model codes. Subsection 3000.002(a)(2) prohibits a governmental entity from establishing standards for building products, materials, or aesthetic methods that exceed the standards in such model codes. Determining whether an ordinance adopting color palette and pattern requirements prohibits or limits, directly or indirectly, a model code approval, or is more stringent than model code standards for building product, material, or aesthetic methods, will likely require investigation into and resolution of fact questions, which is beyond the purview of the opinion process.

Subsections 3000.002(a)(1) and (2) of the Government Code do not apply to the Legislature.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee