ATTORNEY GENERAL OF TEXAS GREG ABBOTT

June 14,2010
The Honorable Byron Cook Chair, Conunittee on Environmental Regulation Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910
Dear Representative Cook: Opinion No. GA-0781 Re: Whether a water supply corporationhas 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)" ofthe 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 ofchapter l3 ofthe Water Code as "a nonprofit corporation organized and operating under Chapter 67 [ofthe Water Code] that provides potable water service
... for compensation andthathas adopted and is operating in accordance with by-laws or articles ofincorporationwhich ensurethatitis member-owned and member-controlled." TEx. WATER CODEANN. 

### § 13 .002(24)(Vernon 2008). Section 13 .250 ofthe Water Code mandates that "[ e]xceptas providedbythis sectionor Section 13.2501 ofthis code, anyretail publicutilitythat possesses oris required to possess a certificate ofpublic convenience andnecessity 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, includingthe authorityto "discontinue,reduce, orimpair service" for nonpayment ofcertain charges, for nonuse, or for "other similar reasons in the usual course ofbusiness." Id. 

### § l3.250(b). Inaddition, section l3.2501 ofthe Water Code requires that "[t]he holder ofa certificate ofpublic convenience and necessity shall refuse to serve a customer within its certified area ifthe

'Request Letter (available at http://www.texasattorneygeneral.gov). 2Section 13 .250 specificallyappliesto a "retailpublic utility;" however, thattenn is defined to include a "water supply or sewer service corporation
... operating, maintaining, or controlling inthis state facilities forprovidingpotable water service or sewer service, orboth, for compensation." TEX. WATER CODE ANN. § 13.002(19) (Vernon 2008).The Honorable Byron Cook

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holder ofthe certificate is prohibitedfromprovidingthe service under Section212.oI2 or232.0047, Local Govermnent Code." 

### ld. 

### § 13 .2501. 3 Along withthe exceptions found in sections 13 .250 and 13.2501, 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 ifthe corporation or special utility district documents that: (1) the developer of the subdivision has failed to comply with the subdivision service extension policy ofthe corporation
... as set forth in the tariffofthe corporation
... ; and (2) the service applicant purchased the property after the corporation
... gave notice as provided bythis section ofthe 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 thatthelanguage "[ n]otwithstanding any otherprovision" used in a constitutional provision created an exception to what was otherwise the rule oflaw). 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)). Ifthe 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 ofthe 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 corporationhasbeenpresentedwithorotherwiseholds a certificateissuedunder section212.0115, certifyingcompliance with platrequirements ofthe municipality. TEx. Lac. GOV'T CODE ANN. §§ 212.0115, .0 12(a), (b)( 4) (Vernon SUpp. 2009). Section 232.0047 ofthe Local Government Code was repealed in 1995. Act ofMay 28, 1995, 74th Leg., R.S., ch. 979, § 29, 1995 Tex. Gen. Laws 4895, 4911.

### The Honorable Byron Cook

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

### WATER CODE ANN. 

### § 13.2502(a) (Vernon 2008)( emphasis added). By using the language "is not required,"the Legislaturehas givenwater supply corporations discretionunderthese circumstances. Thus, under a plain-language construction ofthe 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 ofthe Water Code requiring a water supply corporationto "serve every consumerwithinits 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 inthe plain language ofsection 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 inthe language ofthe 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) ("Whenthe Legislature employs a term in one section of a statute and excludes itinanother section, the term shouldnotbe impliedwhere 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) ofthe 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) oftheWaterCode authorizestheTexas CommissiononEnvironmentalQualityto compel water service corporations to provide temporary water service in the event ofan 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

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### SUMMARY Pursuant to subsection 13.2502(a) of the Water Code, if a water supply corporationreceives 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