ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

June 14,2010 

The Honorable Byron Cook 

Chair, Conunittee on Environmental Regulation 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 78768-2910 

Dear Representative Cook: 

Opinion No. GA-0781 

Re: Whether a water supply corporation has the 

option of refusing to extend service under 

sections 13 .250 1 and l3 .2502, Water Code 

(RQ-0850-GA) 

You ask whether a water supply corporation that "receives a request for water service in a 

situation as described in 13.2502(a)" of the Water Code has discretion to provide water service to 

the applicant or, alternatively, "is prohibited from providing water service.'" 

A water supply corporation is defined for purposes of chapter l3 of the Water Code as "a 

nonprofit corporation organized and operating under Chapter 67 [of the Water Code] that provides 

potable water service ... for compensation and that has adopted and is operating in accordance with 

by-laws or articles of incorporation which ensure that it is member-owned and member-controlled." 

TEx. WATER CODE ANN. § 13 .002(24)(V ernon 2008). Section 13 .250 of the Water Code mandates 

that "[ e ]xcept as provided by this section or Section 13.2501 of this code, any retail public utility that 

possesses or is required to possess a certificate of public convenience and necessity shall serve every 

consumer within its certified area and shall render continuous and adequate service within the area 

or areas.,,2 Id. § 13.250(a). 

Section 13.250 includes certain exceptions to the general duty to serve all consumers within 

the certified area, including the authority to "discontinue, reduce, or impair service" for nonpayment 

of certain charges, for nonuse, or for "other similar reasons in the usual course of business." Id. § 

l3.250(b). In addition, section l3.2501 of the Water Code requires that "[t]he holder of a certificate 

of public convenience and necessity shall refuse to serve a customer within its certified area if the 

'Request Letter (available at http://www.texasattorneygeneral.gov). 

2Section 13 .250 specifically applies to a "retail public utility;" however, that tenn is defined to include a "water 

supply or sewer service corporation ... operating, maintaining, or controlling in this state facilities for providing potable 

water service or sewer service, or both, for compensation." TEX. WATER CODE ANN. § 13.002(19) (Vernon 2008). 
The Honorable Byron Cook - Page 2 (GA-0781) 

holder of the certificate is prohibited from providing the service under Section 212.oI2 or 232.0047, 

Local Govermnent Code." ld. § 13 .250 1. 3 

Along with the exceptions found in sections 13 .250 and 13 .250 1, section 13 .2502 creates an 

additional exception to the duty to serve all consumers within the certified area: 

Notwithstanding Section 13.250, a water supply .. 

corporation ... is not required to extend retail water ... service 

within the certificated area of the corporation . . . to a service 

applicant in a subdivision if the corporation or special utility district 

documents that: 

(1) the developer of the subdivision has failed to comply 

with the subdivision service extension policy of the corporation ... 

as set forth in the tariff of the corporation ... ; and 

(2) the service applicant purchased the property after the 

corporation ... gave notice as provided by this section of the rules of 

the corporation ... applicable to service to subdivisions from the 

corporation .... 

ld. § 13.2502(a); see also 30 TEx. ADMIN. CODE § 291.85(e) (2009) (Tex. Comm'n on Envtl. 

Quality, Response to Requests for Service by a Retail Public Utility Within Its Certified Area) 

(allowing the same exception by administrative rule); Tex. Att'y Gen. LO-96-035, at 4 (explaining 

that the language "[ n ]otwithstanding any other provision" used in a constitutional provision created 

an exception to what was otherwise the rule of law). You ask whether the phrase "not required to 

extend ... service" in subsection 13.2502(a) means that the water supply corporation "(1) mayor 

may not, at its option, provide water service to the applicant, or (2) is prohibited from providing 

water service as with the wording in section 13.2501, 'shall refuse to serve[.]'" Request Letter. 

"In construing statutes, our primary objective is to give effect to the Legislature's intent as 

expressed in the statute's language." Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 

863,867 (Tex. 2009)(quoting TEx. GOV'T CODE ANN. § 312.005 (Vernon 2005)). If the words of 

a statute are clear and unambiguous, we apply them according to their plain and common meauing. 

ld. Section 13.2502 states that a water supply corporation "is not required to extend retail 

'Section 212.012 of the Local Government Code prohibits a water supply corporation, among other entities, 

from serving or connecting any land with water, sewer, electricity, gas, or other utility service unless the water supply 

corporation has been presented with or otherwise holds a certificate issued under section212.0115, certifying compliance 

with plat requirements of the municipality. TEx. Lac. GOV'T CODE ANN. §§ 212.0115, .0 12(a), (b)( 4) (Vernon SUpp. 

2009). Section 232.0047 of the Local Government Code was repealed in 1995. Act of May 28, 1995, 74th Leg., R.S., 

ch. 979, § 29, 1995 Tex. Gen. Laws 4895, 4911. 
The Honorable Byron Cook - Page 3 (GA-0781) 

water ... service" when the conditions in subsections (1) and (2) of that provision exist. TEx. 

WATER CODE ANN. § 13.2502(a) (Vernon 2008)( emphasis added). By using the language "is not 

required," the Legislature has given water supply corporations discretion under these circumstances. 

Thus, under a plain-language construction of the statute, a water supply corporation has discretion 

as to whether to serve specific applicants that fall within the limited conditions of subsection 

13.2502(a). In other words, the requirement found in section 13.250 of the Water Code requiring 

a water supply corporation to "serve every consumer within its certified area" is not mandatory with 

regard to those applicants. 

Although a water supply corporation is not required to serve applicants falling under the 

subsection 13.2502(a) exception, nothing in the plain language of section 13.2502 prohibits water 

supply corporations from extending such service. To construe the statute in such a way would 

require adding language to the statute, and we will not "add words that are not implicitly contained 

in the language of the statute." Lee v. City of Houston, 807 S.W.2d 290, 294-95 (Tex. 1991) (citing 

Jones v. Liberty Mutual Ins. Co., 745 S.W.2d 901,902 (Tex. 1988)). Furthermore, as you note, in 

section 13.2501 the Legislature required that a water service corporation "shall refuse to serve a 

customer" within the corporation's certified area under other conditions. TEx. WATER CODE ANN. 

§ 13.2501 (Vernon 2008) (emphasis added). Had the Legislature wanted to use this stronger 

language in subsection 13.2502(a), it knew how to do so. See Laidlaw Waste Sys., Inc. v. City of 

Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) ("When the Legislature employs a term in one section of 

a statute and excludes it in another section, the term should not be implied where excluded. "). Thus, 

if a water supply corporation receives a request for water service from an applicant and can 

document that the conditions in subsection 13.2502(a) of the Water Code exist, the water supply 

corporation may, but is not required to, provide water service to the applicant under that statute.4 

'Subsectiou 13.041 (d) ofthe Water Code authorizes the Texas Commission on Environmental Quality to compel 

water service corporations to provide temporary water service in the event of an emergency. TEx. WATER CODE ANN. 

§ 13.041(d) (Vernon 2008). This opinion should not be read to address those limited circumstances. 
The Honorable Byron Cook - Page 4 (GA-078I) 

SUMMARY 

Pursuant to subsection 13.2502(a) of the Water Code, if a 

water supply corporation receives a request for water service from an 

applicant and can document that the conditions in that subsection 

exist, the water supply corporation may, but is not required to, 

provide water service to the applicant. 

ANDREW WEBER 

First Assistant Attorney General 

JONATHAN K. FRELS 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Virginia K. Hoelscher 

Very truly yours, 

Assistant Attorney General, Opinion Committee