* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40465

Summary Calendar

L D JONES

Plaintiff-Appellant

v.

CITY OF PALESTINE

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:06-CV-299

Before KING, DAVIS and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant L. D. Jones (“Jones”), on behalf of a putative class of

similarly situated individuals, brought this action to challenge the fee charged

by Defendant-Appellee City of Palestine, Texas (“the City”) for residential

wastewater between September 12, 1994 and October 1, 2005. Jones alleged

that the City passed an ordinance that clearly established a flat-rate charge.

The City, however, argued thatthe ordinance was ambiguous and that extrinsic

United States Court of Appeals

Fifth Circuit

F I L E D

January 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-40465

1 The parties agree that there is no factual dispute. 

2 Ordinance No. 0-26-94, which was passed on September 12, 1994, is the original

ordinance for this section and was codified in this section. The City, however, also passed a

series of subsequent ordinances, which contained the same language for § 98.91(1), but

modified other subsections. These subsequent ordinances referred to by Jones include:

Ordinance No. 0-27-96, adopted on October 14, 1996; Ordinance No. 0-24-98, adopted on

September 28, 1998; Ordinance No. 0-23-02, adopted on October 23, 2002; and Ordinance No.

0-36-03, adopted on November 24, 2003.

2

evidence revealed a legislative intent to establish a volume-rate charge. The

district court agreed with the City and granted summary judgment in its favor.

We AFFIRM.

I. FACTS AND PROCEEDINGS1

The City, a home-rule municipality organized under the laws of State of

Texas, provides water and wastewater services to its residents at rates

promulgated by ordinance. Jones, a resident of the City, is a water and

wastewater customer. Wastewater is billed separately from water. With regard

to water rates, the ordinance provides varying rates depending upon connection

size for the first 2000 gallons and a rate of $2.12 “after 2,000 gallons, per 1,000.”

PALESTINE, TEX., CODE OF ORDINANCES § 98.90. For residential wastewater

charges, the ordinance states:

(1) Residential. Residential users shall pay the charge according to

the following:

a. First 2,000 gallons, minimum charge $12.00

b. Over 2,000 gallons $3.40

The rate charged for residential wastewater service during summer

months will be based on the average of December-March, if actual

consumption is less,the consumer will be charged the actual charge.

Id. § 98.91(1).2 When the City established these wastewater rates on

September 12, 1994, it also adopted a “Customer Service Policy” resolution,

which stated that the $3.40 charge for wastewater over 2000 gallons would be
No. 07-40465

3

In his First Amended Original Petition, Jones asserted a takings claim under the

United States Constitution, which served as the City’s basis for removal.

3

charged “per thousand.” Likewise, the City’s budget for 1996-97 expressly

provided that the $3.40 charge for wastewater over 2000 gallons was calculated

per thousand, and subsequent budgets used this volume rate for revenue

projections. On September 1, 2005, the City amended the ordinance, effective

October 1, 2005, to state “[f]irst 3,000 gallons, minimum charge . . . 12.00 base

charge” and “[o]ver 3,000 gallons . . . 3.40 per 1,000.”

On June 15, 2006, Jones filed this action in the 3rd Judicial District Court

in Anderson County, Texas, which the City removed to federal district court on

July 5, 2006 based on federal question jurisdiction.3 Jones primarily challenges

the fee charged to residents by the City for wastewater between September 12,

1994 and October 1, 2005. On August 18, 2006, Jones moved for partial

summary judgment. On September 29, 2006, the City also moved for summary

judgment. The parties filed the appropriate responses and replies. On

January 31, 2007, the district court denied Jones’s motion, granted the City’s

motion, and entered final judgment in favor of the City. Jones appeals. 

II. STANDARD OF REVIEW

“We review a district court’s grant of summary judgment de novo.” N.W.

Enters. Inc. v. City of Houston, 352 F.3d 162, 172 (5th Cir. 2003). We also review

questions of statutory interpretation de novo. See Rogers v. City of San Antonio,

392 F.3d 758, 761 (5th Cir. 2004).

III. DISCUSSION

This appeal turns on the interpretation of the City’s residential

wastewater ordinance. See PALESTINE, TEX., CODE OF ORDINANCES § 98.91(1).

Jones argues that the plain language of the ordinance established a flat rate,

which by its terms capped monthly charges at $15.40 per customer ($12.00 for

the first 2000 gallons and $3.40 for any amount over 2000 gallons). Based on
No. 07-40465

4

this language, Jones alleges that the City unlawfully charged residents by a

volume rate ($12.00 for the first 2000 gallons and $3.40 per thousand for any

amount over 2000 gallons). Jones argues that if the City wanted to charge a

volume rate for residential wastewater over 2000 gallons, it could have explicitly

stated so in the ordinance by adding “per thousand” after “$3.40.” The City

counters that it inadvertently omitted the “per thousand” language from § 98-

91(1) and rejects Jones’s proposed interpretation, arguing that it would lead to

absurd results––a capped rate would not allow the City to cover its expenses for

operating the residential wastewater collection and treatment system and collect

sufficient revenues to pay on its bonds related to the system. The City also

argues that the ordinance was ambiguous when considered as a whole and that

extrinsic evidence––the City’s construction and billing practices, “Customer

Service Policy” resolution, budget projections, and financial needs for bond

payments––reveals the City’s intent to charge residents for wastewater by a

volume rate. 

Under Texas law, “[t]he goal of statutory construction is to give effect to

the intent of the” enacting body. Monsanto Co. v. Cornerstones Mun. Util. Dist.,

865 S.W.2d 937, 939 (Tex. 1993). “To achieve this goal, we must first attempt

to discern that intent . . . from the plain language of the ordinance, considering

the ordinance as a whole.” City of Laredo v. Villarreal, 81 S.W.3d 865, 868 (Tex.

App. 2002) (internal citations omitted); see also City of Coppell v. Gen. Homes

Corp., 763 S.W.2d 448, 454 (stating that the wording of the entire ordinance, not

just one word or phrase, must be examined to determine the underlying intent

ofthe enacting body). “If the meaning of the statutory language is unambiguous,

we adopt. . .the interpretation supported by the plain meaning ofthe provision’s

words and terms.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d

864, 865 (Tex. 1999). “Further, if a statute is unambiguous, rules of construction
No. 07-40465

5

or other extrinsic aids cannot be used to create ambiguity.” Id. at 865–66.

Nonetheless, 

[t]o enforce the plain language of the ordinance does not authorize

us to employ a bloodless literalism in which text is viewed as if it

had no context. We are required to consider the context and the

consequences that would follow from a particular interpretation,

and we must avoid interpretations that would produce absurd

results or render other language mere surplusage. Construction of

a statute by the administrative agency charged with its enforcement

is entitled to serious consideration, so long as the construction is

reasonable and does not contradict the plain language of the statute.

Villarreal, 81 S.W.3d at 868 (internal quotations and citations omitted).

Regardless of ambiguity, courts can also 

consider other factors to determine the Legislature’s intent,

including: the object soughtto be obtained; the circumstances of the

statute’s enactment; the legislative history; the common law or

former statutory provisions, including laws on the same or similar

subjects; the consequences of a particular construction;

administrative construction of the statute; and the title, preamble,

and emergency provision.

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citing TEX. GOV’T

CODE ANN. § 311.023). However, where an otherwise clear statutory provision,

in the context of the remainder of the statute, is ambiguous, a reviewing court

“must look behind the words [of the statute] to determine the true purpose ofthe

provision.” Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex.

1994). 

We firstturn to the language ofthe ordinance. It specifically provides that

residential wastewater will be charged as follows: “[f]irst 2,000 gallons,

minimum charge . . . $12.00” and “[o]ver 2,000 gallons . . . $3.40.” Importantly,

the same subsection of this ordinance contains a “winter-averaging” provision,

which states that “the rate charged for residential wastewater service during

summer months will be based on the average of December-March, if actual

consumption is less, the consumer will be charged the actual charge.” This
No. 07-40465

4 Wastewater rates are based on water consumption. The “winter-averaging” provision

recognizes that during summer months, several uses of water––lawn-watering, swimming

pools, and car washes––inflate water consumption but place no additional burden on

wastewater. To avoid extremely high wastewater charges for residential customers during the

summer, the City charges for wastewater based on the average ofthe winter months. Without

“winter averaging,” some residents would have summer wastewater charges in excess of $100.

6

provision anticipates that water usage during summer months will exceed water

usage during winter months and is written to avoid unfair increased wastewater

charges during winter months.4 Considering the ordinance as a whole, we agree

with the district court that the presence of the “winter-averaging” provision

creates an ambiguity. As the district court found, if the ordinance intended to

provide a cap on residential wastewater rates, it would be completely

unnecessary to provide for winter averaging; such language would be mere

surplusage. See Helena Chem. Co., 47 S.W.3d at 493 (stating that courts “should

not give one provision a meaning out of harmony or inconsistent with other

provisions, although it might be susceptible to such a construction standing

alone”). Therefore, we hold that the ordinance is ambiguous, which renders the

legislative intent unclear.

To resolve this ambiguity and give effect to the intent of the City, we must

apply the rules of construction and utilize appropriate extrinsic evidence. See

Mills v. Brown, 316 S.W.2d 720, 723 (Tex. 1958) (stating that courts construe

city ordinances by the same rules of construction as apply to statutes). Here, the

City has presented ample summary judgment evidence to demonstrate that it

intended to charge residents by a volume rate for wastewater amounts over 2000

gallons. First, on the same date that the subject ordinance was passed, the City

adopted a “Customer Service Policy” resolution that set forth the rate on a

volume-per-thousand basis rather than a flat basis. Second, the City adopted its

budget for 1996-97, which expressly stated that the rate for residential

wastewater was $3.40 per 1000 gallons for amounts over 2000 gallons, and
No. 07-40465

7

subsequent budgets included revenue projections based upon that volume rate.

Third, the City established that a monthly flat-rate charge, capped at $15.40 per

customer, would not produce adequate revenue to pay for the expenses of the

wastewater treatment and collection system and to repay bonds that have been

acquired for improvement ofthat system. The record shows that during the time

period at issue, residential customers were consistently charged $3.40 per

thousand gallons over the initial 2000 gallons and there is no evidence that

anyone ever complained about the way the City calculated the charges.

Furthermore, Jones makes no contention that the City incorrectly administered

the volume rate. Therefore, we agree with the district court that, based on this

extrinsic evidence, the primary intention of the City’s ordinance was to charge

for residential wastewater by a volume rate. Such an interpretation is

consistent with the intent of the City and avoids “absurd results.” Accordingly,

we hold that the ordinance should be construed to charge $3.40 per thousand

gallons after the initial 2000 gallons. 

IV. CONCLUSION

The judgment of the district court is AFFIRMED.