Case Information
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June 13.1996 The Honorable Wamn Chisum Opinion No. DM-401 chllir
Committoe on Environmental Regulation Re: Whether an independent school Texas House of Representatives district located within a municipality is P.O. Box 2910 subject to a municipal ordinance governing Austin, Texas 78768-2910 garbage collection (RQ-857) Dear Rqresentative Chisum:
You ask whether the Pesadena Independent School District (the “school district”) mua comply with an ordinance of the’ City of Pasadena (the “city”) authorizing a single vendor to colltct garbage within municipal limits. You state that the school district Lies partially within the city and partially within the limits of three other municipalities. The city has by ordinance contracted with a single company to cotlect and dispose of commercial refuse within the city.1 The school district uses the garbage collection services of the city’s franchisee within the city limits and contracts with a diierent vendor chosen through competitive bidding for garbage collection within the rest of the district. You state that the price charged for services within the city is more than twice as much as that charged by the vendor used in the remainder of the district. The school district estimates that. it could save approximately $20o,OtK1 a year if it wwc to choose a vendor through competitive bidding for garbage collection within city limits. You ask whether the school district is bound by the franchise granted by the city and required to use the services of the ftanchisee, regardless of cost.2
It is within the police power of a city to adopt ~rdhtanccs governing the removal of grubage. Ci& of Breckenridge v. McMdh, 258 SW. 1099, 1101 (Tex. Civ. App.?Fort .Wor& 1923, no writ); see also Ci@ ofBreckenridge yv. Cozar~, 478 S.W.Zd 162, 165 (Tex. Civ. App.--Eastland 1972. writ ref’d n.r.e.) (because of importance of waste disposal, city could discontinue individual’s water service fix failure to pay garbage, and sewer service charges); 56 AM. RJR. ZD Munfclpol Corpomtiom $458 (1971) (tendency
bkacdena, Tex..Ordi~yu~~ 66461 (Juty 29. 1986);ornmlkdby~de~,'l,'?en,~90- 201 (Oct. 10. 19%). 92-268 (Jan. 1, 1993). The Pa&ens CityCode provides that M activity or cntc~pdre wjIl bc 6wmed “conuwrcial” whcwvcr lhc @sgc cellecdon poll&s rrquirc use of avtain containon oww6 hy Ihe oily. Passdens. Tut.; cock 9 14-l (July 25,1%7). ‘IIe prodsion relating to fees i%r mddcnrisl and o~mmcreial garbage c&&n define “cemm&.al”‘~~ “all premises from which gatbsgc, refuse and trash and collected, except there detined as ‘r&denUal.“’ Id. 0 14-10(@(Z). *2 The Honorable Warren Chisum - Pago 2 (DM-40t)
of garbage to become source of annoysncc and cause of disease justifies stringent police regulations regarding Ps removal). A city may grant an exclusive ftanchise and contract to a private company to collect, haul, and dispose of all solid waste ma&al within the city: Browning-Ferris, Inc.. v. C/fy of Leon Vaky, 590 S.W.Zd 729. 732 vex. Civ. App.--San Antonio 1979, writ ref d n.r.e.).
A municipal exercise of police power to require minimum standards of construction applies to a school district’s buildings, absent legislation on the particular matter covered by the ordinance. Potf AflhuUxiep, Sch. Disf. v. City of Groves, 376 S.W.2d 330, 334 (Tex. 1964). Statutes authorizing the school board to maintain and control the public schoolsJ and to comract for and superintend the Fonstnaction of buildings’ do not prevail over municipal ordinances providing for standards of construction, obtaining building permits, and inspection of the construction work by city ofI%&. Id. at 334. “[T]he better rule. . , [is] that the school buildings of an independent school district are subject to the reasonable ordinances of the city.” Id. The state chose to t%lfill its duties to educate children through the local school districts and its duties to protect the health, safety, and propeny of the people by delegating them to the cities. Id. In puforming its duties, the city does not usurp the school district’s authority &I the area of educati0n.s Id. If the city ordinance did not prevail over school district authority, the schools might “be built so as to bc inconsistent with the city’s scheme of regulation and inconsiderate of the cily’s peculiar problems of health and safety.” Id. at 335.
For the same reasons that a school district must comply @th city building ordinances, we believe the school district must comply with the city ordinance garbage that, you inquire .about.G The ordinance de&or from an exercise of the city’s eokction police power to protect the public health and safely. See McMuIien, ‘258 S.W. at IO1 1. The problem of garbage disposal, and waste disposal is moreover “of paramount
fA~ ‘aiuq April 15. 1905.29th Leg., RS., ch. 124, 5 168, ,I905 Tew. Cicn. Lws 263. 308, (w6ificd U V.T.C.S. 811.2780), ecod(fkd and repscrrCd by Act of June 2. lY6Y. 61st LtS.. RS., ch. 889, ace. 1. @2X%, ~a. 2(a). 1969 Tex. Gcn. Lawr 2135. 2954. 3024, nscod~prd and repeakd by Aa of Msy 27,199s. 741h Leg., KS., sh. 260, soz. I.0 11.151, *cc. 58, 1995 Tex. Scss. Lsw SW. 2207,2227, U98(~tvusiona~Bdus.codc~11.151@)).
,jJd. 0 84, al 284 (cadlfiai a1 V.T.C.S. M. 2752 (1925). rccod~ad and repealed by M Of May 28, 1979. 66th Leg,, ch. 729. 00 7, 8, 1979 Tex. Gun. Laws 1795, 1796, repealed by Ad of May 27.1995.744111 kg.. ch. 260. $I 58(a)(l). 1995 Ten. Scss. Lsw Serv. 2207,249s).
‘A oiy my not WC Its zdng powas to wholly cxd1&6e ftom 118 tmumlsrios school RdUtlu ~sonably located thwc. Avstln I&p. Sch. D&L v. Clcy o/Sunsel Valley. 502 S.W.2d 670, 672 (-fur. 1973). The school dlswictk authority IO Iante rhool fbcllities everri&a the polla pxw of mticipalilia lo zone km OUI. unless bc rchcd diPvla anion ir unrcasonsble or a nuissoo. CQ o/ Addim V. D~lk~~f~~dep. WI. Dlsr, 632 S.W.2d 771,772 flex. App.-Dallas 1982, wril r&d n.r.e.).
400n the badi of Porl Arthur Indrpndenr School DISPJCI v. Cfv qf Gmves, lhii diiw ddcmhd that . muuidps~~anti~mcklng ,ordlssncc spilled to county fadlitkr lccatcd withii the municipality. Attorney dckal O$nion IM-737 (1987) at 2.
The Honorable Warron Chisum . page 3 (r*1-401)
importance.” C-I, 478 S.W.2d at i6S. No Education Code provision expressly addresses garbage collection for school distticts. See Educ. Code ch. 44, sub& B (school district purchasing procedures).7 A city may enact reasonable measures pursuant to its poke power, and the determination of reasonableness is for the city council, subject to judicial review. See generally Dorrthil v. &or Coun@, 740 S.W.2d 16, 19 (Tex. App.- El Paso 1987, writ denied). We believe that the courts would require the school district to comply with the city garbage collection ordinance, assuming they found it reasonable. The reasonableness of the ordinance is a fact question, which cannot be investigated or resolved in an attorney general opinion. ..Thc cost of the service may be an element of reasonableness, depending the other facts and circumstances of the case.
Chapter 364 of the Health and Safety Code. the County Solid Waste Control Act, is also relevaut to your inquiry. The purpose of this act 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 to control pollution,” Health & Safety Code 8 364.002. Since a “public agency” includes a municipality, id. 4 364.003(3), the act in efkt codifies some of the powers of home-rule cities over the collection and disposal of solid waste., See Cozarl, 478 S.W.2d at 165. A public agency may “(I) offer solid waste disposal service to persons in its territory; (2) require the use of the service by those persons; [and) (3) charge fets for the se&cc. . . .” Health & Sat&y Code 0 364.034. A “person” includes a “governmental subdivision.” Gov’t Code 8 311.005(2).* A school district is therefore a “person” within the above provision.9 The city may offbr solid waste disposal service to persons in its territory-, including the school district, and pursuant to section 364.034(2) of the Health and Safety Code may require the ac.hool district to use that service for its facilities within the city’s boundaries. Accordingly. the school district must comply with a ,reasonable ordinance adopted under this provision as long as the ordinance is hot inconsistent with other legislation specifically
%wlton 44.03 t ofthe Education code. which governs purcbsiugby a’ schoel disui& @as not in&da any provision expmssly addtessing the purchase of garbage 03llcction suvices. The pnwisiens of 44.031 thacforc do not prcvall over tha city ordinance with ~spat to school dindct property don WithIn tho city’s boulldalia.
%c County Solid Waste Conue~ An (the ‘act”) ss adepted denned “per~~~” to rncsn “any individusl, . . . politicpI s&division er gevemmenti agency..” ACI of May 29. 1971.62d Leg.. RS., ch. 516.0 2.1971 TWL &a. Lnwa 1757.1758. In 1989. the act was rcpealad and ra-cnacted as cbaplcr of UIC Health and Safety Code, as pan ef tha ongoing r&ion of the state’s general statutes without ~~bslat~live &an&. SW Ad of Mcy IS, 1989,718l Leg., RS., ch 678, 85 I, 13, 1989 Tex. &IL Laws 2230, 2689. 3165. The wviscd law on&cd the wum law dcflnition of*ptton" boause ii was ~bslanlivoly idcnliml to the ddinkion of”pcreon” ia section 31 l.C$S oflhe Oovcmmcnl Code. Siralth & safklyccdc~364.003miror'$rlolc. bvfs Y. hdep. sch. hf., 161 S.W.id’450, 4i2 flex. 1942)~ (school didrid ir poltticn!
oapodon or subdivision of srate); WI alw Port Arthur bdcp. Sch. Dkt. v. C&y o/clrovu.~316 S.W.24 330.333 (Tex. 1964) (school disuicts arc tndcpandent politiel entities crealcd by Mate). ” *4 Tbc Honorable Warren Chisum - Page (DM-401)
governing this subject.10 Until the legislature expressly authorizes the school district to choose its own ga&age collection service throughout the district, the district’s property within the city is subjeot to the city ordinance.
SUMMARY The Pasadena Independent School District must comply with an ordiicc of the City of Pasadena authorizing a single vendor to eolleet garbage within municipal limjts, assuming that the ordinance is reasonable. The reasonableness of the ordinance involves the resolution of f&t questions and therefore cannot be determined in an attorney general opinion.
Yours very truly, DAN MORALES Attorney General ofTexas JORGE VEOA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opiion Canmlttec
PropyeA by Susan L. Garrison
Assistant Attorney General
l@Yoa ho a& mom geadly wlNbcr a acpamte pdbkel entity Nch as a school disUiCt i6 6objoot lo s muaici~l ordimna ‘govunlng ga&sge colk4lon. We cnnnot provide 6 genkml answr applicable to all polltlcal cntbk. bccau~ the mwdclpat ordlw wttl apply to a p.%ticular eMby only If II ir wuidcnt w&b UK mkvant s~astuws. See C@Y of Gcrllonn v. CS?rSer Ciwnty 615 S.W.2d 321.322 (%a. Civ. Agap.-Qlor 19U1, no WrlO (city ordbunce unlawfuIly at@mptcd to Interfere titb ounty’s etahdory authority to dtoom looalioa ddlcpossl Sicliby).