Texas Attorney General Opinion No. KP-0148


May 11, 2017

Opinion No. KP-0148

Re: Applicability of the International Energy?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)[.]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 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 f?r heating. See id. 388.001 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 l, 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 l, 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)(l)?(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 ?(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 tenn “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”).


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,


Attorney General of Texas


First Assistant Attorney General


Deputy First Assistant Attorney General


Chair, Opinion Committee


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 I (Nov. 10, 201 6), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs (“Request Letter”).

2.?The ICC refers to the International Code Council. 19 TEX. ADMIN. CODE ?(2017).

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