Attorney General of Texas — Opinion.
June 13, 1996
DAN MORALES, Attorney General of Texas
The Honorable Warren Chisum Chair Committee on Environmental Regulation Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910
Re: Whether an independent school district located within a municipality is subject to a municipal ordinance governing garbage collection (RQ-857)
Dear Representative Chisum:
You ask whether the Pasadena Independent School District (the “school district”) must comply with an ordinance of the City of Pasadena (the “city”) authorizing a single vendor to collect 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 collect and dispose of commercial refuse within the city. The school district uses the garbage collection services of the city’s franchisee within the city limits and contracts with a different 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 $200,000 a year if it were 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 franchisee, regardless of cost.
It is within the police power of a city to adopt ordinances governing the removal of garbage. City of Breckenridge v. McMullen, 258 S.W. 1099, 1101
(Tex.Civ.App.-Fort Worth, 1923, no writ); see also City of Breckenridge v. Cozart, 478 S.W.2d 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 for failure to pay garbage, and sewer service charges); 56 AM. JUR. 2D Municipal Corporations § 458 (1971) (tendency of garbage to become source of annoyance and cause of disease justifies stringent police regulations regarding its removal). A city may grant an exclusive franchise and contract to a private company to collect, haul, and dispose of all solid waste material within the city. Browning-Ferris, Inc. v. City of Leon Valley, 590 S.W.2d 729, 732
(Tex.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. Port Arthur Indep. Sch. Dist. v. City of Groves, 376 S.W.2d 330, 334 (Tex. 1964). Statutes authorizing the school board to maintain and control the public schools and to contract for and superintend the construction of buildings do not prevail over municipal ordinances providing for standards of construction, obtaining building permits, and inspection of the construction work by city officials. 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 fulfill its duties to educate children through the local school districts and its duties to protect the health, safety, and property of the people by delegating them to the cities. Id. In performing its duties, the city does not usurp the school district’s authority in the area of education. Id. If the city ordinance did not prevail over school district authority, the schools might “be built so as to be inconsistent with the city’s scheme of regulation and inconsiderate of the city’s peculiar problems of health and safety.” Id. at 335.
For the same reasons that a school district must comply with city building ordinances, we believe the school district must comply with the city ordinance on garbage collection that you inquire about. The ordinance derives from an exercise of the city’s police power to protect the public health and safety. See McMullen, 258 S.W. at 1011. The problem of garbage disposal and waste disposal is moreover “of paramount importance.” Cozart, 478 S.W.2d at 165. No Education Code provision expressly addresses garbage collection for school districts. See Educ. Code ch. 44, subch. B (school district purchasing procedures). A city may enact reasonable measures pursuant to its police power, and the determination of reasonableness is for the city council, subject to judicial review. See generally Douthit v. Ector County, 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. The cost of the service may be an element of reasonableness, depending on the other facts and circumstances of the case.
Chapter 364 of the Health and Safety Code, the County Solid Waste Control Act, is also relevant 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 § 364.002. Since a “public agency” includes a municipality, id. § 364.003(3), the act in effect codifies some of the powers of home-rule cities over the collection and disposal of solid waste. See Cozart, 478 S.W.2d at 165. A public agency may “(1) offer solid waste disposal service to persons in its territory; (2) require the use of the service by those persons; [and] (3) charge fees for the service . . . .” Health Safety Code §364.034. A “person” includes a “governmental subdivision.” Gov’t Code § 311.005(2). A school district is therefore a “person” within the above provision. The city may offer 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 school 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 not inconsistent with other legislation specifically governing this subject. Until the legislature expressly authorizes the school district to choose its own garbage collection service throughout the district, the district’s property within the city is subject to the city ordinance.
The Pasadena Independent School District must comply with an ordinance of the City of Pasadena authorizing a single vendor to collect garbage within municipal limits, assuming that the ordinance is reasonable. The reasonableness of the ordinance involves the resolution of fact questions and therefore cannot be determined in an attorney general opinion.
Yours very truly,
DAN MORALES Attorney General of Texas
JORGE VEGA First Assistant Attorney General
SARAH J. SHIRLEY Chair, Opinion Committee
Prepared by Susan L. Garrison Assistant Attorney General
(Tex.Civ.App.Tyler 1981, no writ) (city ordinances unlawfully attempted to interfere with county’s statutory authority to choose location of disposal facility).