question before you today and that is whether the district court erred in dismissing this case because it failed to require t d s to show that the legislature limited with unmistakable clarity the city of san angelo zz home rule power to enter into this contract with republic the district court ignored the depth and the breath of the home rule power that is given to cities like san angelo through a nine hundred twelve amendment to the texas constitution called the home rule amendment that amendment changed the way drastically that cities did business prior to that time and during the time of the republic of texas cities had to go to the legislature to receive authority for any acts that they wanted to engage in after the home rule amendment happened cities were transferred the power from the state not through the legislature but from the constitution through the city charter into the hands of the cities themselves since the texas legislature here to some right here argument has san angelo got its power from the constitution to do what it did and therefore it did not get its power from chapter three sixty three or three sixty four and so three sixty three three sixty four saying under this section and where whatever taking power away doesn't matter because i'm not getting this power from this section so it doesn't matter whether the section then takes that power away it nets out and i'm still left with my home rule is that the or it's absolutely correct or has it it was kind of hard to get there reading all this into finally that's where i got is your argument i want to be clear on that so you resting on the notion really that you're not receiving power from this chapter so whatever this means doesn't really matter because it applies to this section does not apply that's right you're not under this section you don't care whether it applies or not that's correct your honor because this power that is you know we believe that three sixty three is often a belt and suspenders transfer of power and also under the government code there is a codification of that police power that is transferred because this police power that is given to the cities through the home rule amendment comes with it the presumption that any action a city takes is valid and this this particular charter has all the charger has a section section one thousand that deals with the police powers of the cities and it allows them to protect the public hill life and property and for decades long before three sixty three long before three sixty four cities were allowed to enter into these types of exclusive contracts for the handling of their waste in the disposal of their waste furthermore that opinion is carried out by the attorney general's opinions that we cite in our reeses well as the cases dating back to  a private entity or you know something where it would be like overarching rather than this section that's correct judge ain't under under this this construction of the home rule amendment because of this presumption of validity there is an extraordinary burden that a party who is challenging the city's power has to meet and whether that burden has been met is a question of law for the court that test that the texas courts use to determine whether that burden has been met is called the end mistaken will clarity rule so to override that home rule power the legislature would have had to have said with unmistakable clarity we are prohibiting cities or limiting the rights of cities to enter into these types of exclusive contracts and as you admit and as you point out in this subsection h doesn't have that kind of unmistakable clarity in fact it doesn't say that we limit or prohibit cities from exercising home rule power at all instead it says it doesn't apply the language specifically says this section so three sixty four point zero three four does not apply to a private entity so republic d s that contracts to provide temporary solid waste disposal services to a construction project so it doesn't say we're not limiting new cities it says this section doesn't apply in this circumstance now we know th detaches texas legislature knew how to limit cities when it when it intended to do so because the very same legislature that enact and subsection age also enacted subsection f at the same time that it in acted sub on age and it has in it this very specific very unmistakable limitation on cities it says that governmental entities including unisa polities may not restrict the right of an entity to contract with the wifes and waste hauler for the collection and removal of certain very specific types of waste that includes grease that waste rich trap waste lint trap waste or sand trap waste so the legislature necessarily different types of work but that's not clear from the record what we do know is that this contract specifically gives republic be exclusive right to remove all waste from within the city of san angelo and specifically says that includes temporary construction waste that language is used in the contract when it defines the parameters of the contract we also know from this record that oh in that i believe it pages what ninety six to one twelve that when t d s brought the waste to the landfill it its drivers reported that they were picking up waste from within the confines of the city of san angelo so they admit on this record that they interfered with the exclusive right that t d that republic gained from the city to pick up waste within the city limits construction daybreak anyway the record shows that they were making deliveries to the landfill delivering waste that was collected within the city the permit that they received to drive through the city specifically pointed out that the city had a contract an contract the city did not pay two companies to do the same work you're out of this landfill to be if t d s was picking up woefully waste outside of the city of san angelo to get to the landfill it had to drive through the city of san angelo so a permit was needed the permit that was issued as the record shows specifically resides that the permit is not issued to allow t d s to interfere with the exclusive contract  the law for example that the home rule amendment exists in fact the texas supreme court told us in mcbride versus clayton and it's progeny that the legislature is presumed to know the state of the law and therefore the courts are supposed to harmonize the new law they exist the new the new legislation with the existing law and the courts are not to assume that the new legislation repeals former law by implication in fact the acar court said statutory repeals by implication are not favored so we know from subsection age that there is no specific unmistakably clear limit on the city's power to enter into this contract but what t d s did convince the district court to impose such a limitation by implication and that's simply not proper now recognizing that there is a limitation on its argument because the language in subsection  just does not limit the city's power t v s next missed an argument and claims that there was an improper delegation of the city's power through this contract but this is not a case like that to solve a case that cited in t brief instead this contract makes it absolutely clear that only proprietary matters were delegated to republic not governmental powers like delegation they did not delegate break making  coffin not any kind discretionary decision of the city there was absolutely no discretion no governmental power of the city was given to republic what this shows is that republic was always subject to the supervision and control of the city thirty six and thirty seven makes it clear that the solid waste administrator always maintained supervisory power further twenty four and forty two three forty five show that the city council is the one who sets the rates and maintains section exclusive control over rates and that it even has a format for the bill that must be use the city sets the hours of operation its policy matters like promoting recycling and reclamation all of those governmental powers policymaking right setting remain with the city however only the proprietary matters the correct and i'm sorry i misunderstood your question yes that's correct and if it's specifically in the contract that's unfortunate contracts to provide temporary solid waste disposal to  does so it means it so it means that that section that t d s is argument is that section three sixty four point zero three four gives cities some power and it pulls some of that power back but that's not what th section says this section says three sixty four doesn't apply at all so we're left with that very broad home rule power that the cities have not from any legislation but from the constitution through their charters and as a result there needs to be an unmistakable limitation on that power before we can say that the legislature has limited that very broad power of the city this language where you are correct on  your honor if the power only came from somewhere in section three sixty four and not anywhere else then we might have a problem but that's not the case there is power here from the home rule amendment there is power here from the government code and there's power here from three sixty three and as a result there has not been an unmistakable limitation on that power there's not been an improper delegation and we asked the court to instruct the court below to enter a declaration that the contract w valid that the city had the power to enter into it and to remand the case for the tortious interference  the court jim him bill for texas disposal systems which we call t d s this is of course a case of statutory interpretation and the goal in interpreting a statute  case law prior to two thousand and seven when this statue was adopted indicates that the answer is yes ok so what is wrong with the argument that this section is giving and then limiting that power however that's not the source this section line and why isn't that pretty clear i think it's clear because of the other provisions of three sixty four zero three four because subsection eight which is the subsection issue here is not the only place in three sixty four zero three four where the legislature used the language to section does not apply that language is also used in subsection eat and i think the way it's used in subsection is determinative of what the legislature's intent was when it used that language and here's why you'd walk through subsection eat some such an established by saying except as provided by some other subsections then it says this section does not of hot same phrases  subsection eight to a person who provides the public or private entity public agency or county with written documentation that the person is receiving solid waste disposal services from another into to stop there what does  creates an opt out it says that if a person provides the governmental entity with written documentation that it already has a waste disposal contract with another entity then argument home rule cities that would apply to whom rule cities because of the language of this section does not apply republic would say who will city still have inherent authority under the police powers however the legislature didn't stop there the legislature went on to the not the following sense but the sentence after by saying the governing body of a municipality may provide that a franchise it grants or contract it enters into for solid waste collection and transportation services under the subchapter or under other law supersedes inside of the municipalities boundaries any other franchise granted or contract entered into under the subject so the legislature then created an exception to the opt out exception why did happen no i don't think it makes it a no to you but what i think what i think the legislature said is saying in subsection ears that when they use the term the section does not apply then they come back and say but there's an correct correct in and i think what each shows is when the legislature said the section does not apply they meant to divest power from home rule cities and that goes to the unmistakable clarity point and i think that they work together because republic clarity being an extremely high standard they used that phrase over and over again but they really don't put flesh on the bones of what texas courts mean when they say unmistakable clarity and i think that it's revealing to look at the anywhere in the world except as otherwise provided somewhere else and something you're looking for some limitation on that group that correct a lot of things and so i'm concerned not just with resolving this case to be careful that we don't suddenly create a lot of restrictions that are intended in texas law right i haven't been able to find any cases that where the language of the specific language the section does not apply  option for this court we think that the district court was correct that this was intended by the legislature to be a limitation on power of all public agencies is the term they use which specifically in three sixty four includes municipalities so we don't think that the certification is necessary but certainly that's something that this court is free to do this is a question of first impression under texas law the statute has not been interpreted contract the contract itself as a as a as a whole is quite valuable we're talking here about a small slice of that contract just what's called construction waste or in the trade it's called construction demolition  are asked a question about isn't this a different kind of waste it is construction and if for two reasons first of all construction sites are inherently temporary well that could that could be true but  statute provides for this what we say is a limitation on power and subsection h for temporary construction projects is what it says and it's a different type of place it actually can go to a different type of plant construction demolition wast is not the kind of municipal solid waste you see that has lots of problems with the composition and that sort of thing so there are actually separate landfills doesn't have to go to separately but it can go in a separate construction demolition wastelands hill so there's there's a rational reason for the legislature to make this distinction now the cases that talk about this unmistakable clarity situations they really fall into two classes when a when a court finds that the legislature has not limited h dollar wise what's what's at stake here how much ballpark i mean it's it's not in the record so i don't i can't say for sure but i mean that the contract itself is a mall time all time multimillion dollar contract ok the construction waste aspect of that is a a small small percentage  well that is true that is true but it's it's you know when you think about i'm not going to deny you getting back on your plane to go back home but based on your answer just trying to get a ballpark  definitive in turn the what we decided just want to have some things in my head some sense of i realize ways pick up at saturn that huge industry here assuming the terms construction ways has some  and further assuming that texas has a huge price then just skin so we're talking about millions generally i don't know if it's up to millions integrally i'm not privy to how much construction republic holes so i don't know what the whole ball of wax is all right well i was trying to get a feel not as much for there but also for a given you say they are many case this were moving off towards certified some question i was trying to get you know is this just a small nuanced and i haven't reached issue because it doesn't come up t of the reason why i was asking but i get you you don't know so and i think i can but i think i can address your question your honor in a little bit different way to smile understanding that sanjay lol certainly is not the only city in texas that has exclusive contracts that purport to include construction please my understanding is that cities vary as to how long or if they try to enforce that because of section subsection so i think that i can't put a dollar what we have is we have something i'm giving you a gift but you can't use it on sundays that's different from you are reading out something over here i'm not telling you what you can do with that but there aren't any cases that that find that a limitation as to vested elsewhere so to me that's different from then creating a court now we create like a county court and only as a jurisdiction we get it kind of like federal district courts have only been jurisdiction granted so i don't i don't understand your point thing this second and they're not leaving power under this section so why do we care about winning this fight because i think that the when you look at the text of the entire statute including what i walk through in subsection eve i think the legislature's text shows that you intended this section does not apply to be a limitation on all municipalities power when you look at the cases the republic relies heavily on this case called city of college rock corporation and it's a good example of when the legislature has not spoken to limit home rule you dissipate all of these authority there the city of college stations and developers if you're going to develop so much of a of a property you need set aside some park land and the developer said wait wait a minute there's a statute that lists a city's powers when it comes to development and that's not listed so the city doesn't have the power and the supreme court said no it's a home rule city that listing is a lustrous to give it's not exclusive so that's the type of case that we talk about when we talk about  can't put nine people on the zoning adjustment board or some board because the statute says you can only have three in the courts or do you misreading the statute the statute by its terms only applies to general law what we think that actually republic is trying to read into this statute a prohibition that applies to general or municipalities but that does not apply to home rule municipalities when the statute is silent as to t alleged distinction so we think that the that the text of three sixty four point zero three four when all taken together displays a legislative intent that when they say the section does not apply republicans trying to enforce at least a city ordinance which we think should be the city's job and not request it's absolutely true that the contract purports to give the republic the responsibility to enforce this ordinance but that's what's that's what's going on here think now this was an unusual posture of this case because we've thought all told the six motion to dismiss which was granted on the sole issue of whether or still believe that that the statute in context is clear that this was intended to be a legislative limitation of power that was intended to reach home rule cities as well that's what the the district  we don't believe this court needs to certify it because this this case law is clear this this whole rule amendment goes back to nine hundred twelve there's plenty of case law interpret in the fact that if you're going to limit a home rule cities power you have to do it with  unmistakable clarity that just hasn't happened here and as a result there's no need to send it for certification to the texas supreme court because there's not a question of unsettled law here this is a very black letter law that homo suit cities ha that there is no standing problem here not only to the context this is an exclusive contract which gave the public the right to collect all the waste and to judge clement's question that included temporary construction waste of the type of waste here relative all of that was given to those two republicans in this contract at page twenty seven i believe of the record it gave the exclusive right to pick up construction waste temporary construction waste and all waste in the city so anything that t d s did picking up waste within the city limits of san angelo interfered with that contract right it's a property right that we had the ability to defend in court it would be no different than if me answered the question of you know we give all we can take away and so we just strikes me intuitively this can't be the first case where there's been  different from a b c d n d or someone trying to do x home rule was asserted clearly authority in texas where they said sap that's the answer that's what i'm asking your honor i've got several cases for you are the city had had put in place an ordinance that said developers if you are going to develop we want you to set aside in your plat some park land or else and that's a requirement for getting your plant developed now the developer said no we think that there are statues out statutes out there that list how cities can acquire parkland and this isn't one of those and the court looked at the statute and said well it doesn't say it's the exclusive listing so there's no limit on how cities can acquire parkland so we're going to allow the city through its police power to impose this ordinance and acquire parkland by the exercise of its home rule power so it's very much like the case we've got here now a different case that's not in the brief because it just came out this month this is the law radio merchants association versus city of laredo case and that westlaw site is twenty sixteen westlaw for three seven six six two seven and it's out of san antonio so there's no petition history yet again twenty six they were slow for twenty sixteen westlaw for three seven six six two seven now libretto trying to clean up the city made a new ordinance that made it unlawful for merchants to hand out check out bags in the city and they provided they they said that plastic one time use bags for single use paper bags could not be handed out and they imposed a two thousand dollars per violation fine so the merchant said we've got to be able to give our customers bags to put  things in and we believe that this conflicts with these health and safety code a provision in the health and safety code and they brought before the court that provision that specifically stated that it prohibited so it used that mistake oblique clear language it prohibited local governments municipalities from adopting ordinances for solid waste management purposes that prohibit or restrict sale of use of containers or packages so the checkout bags the paper bags fit within the definition of containers or packages and because the statute prohibited local governments from adopting ordinances that restricted the sale or use of those there was an unmistak