April 19,1999 

The Honorable Bill G. Carter 

Chair, Committee on Urban Affairs 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Opinion No. E-0035 

Re: Whether a home-rule municipality may adopt 

an ordinance requiring residential construction 

contractors to use the franchisee selected by the 

city for weekly residential and commercial 

garbage removal (RQ-1215) 

Dear Representative Carter: 

Your predecessor as Chair of the House Committee on Urban Affairs, Representative 

Fred Hill, asked this office whether a home-rule municipality may adopt an ordinance requiring 

residential construction contractors to have construction debris hauled by the franchisee selected by 

the city for weekly residential and commercial garbage removal. In answering this question, we 

have assumed that the municipal ordinance applies only to contracts between residential construction 

contractors and private solid-waste-hauling firms that are executed after the adoption of the 

ordinance. See Tex. Att’y Gen. LO-97-037, at 3. Because amunicipality has comprehensive powers 

to regulate garbage collection, we conclude that it may adopt the ordinance Representative Hill 

described. 

Representative Hill’s question arose from a situation in the City of Lewisville. According 

to his letter to this offtce, the City of Lewisville, a home-rule city, see THE DALLAS MORNING NEWS, 

1998-1999 TEXAS ALMANAC 436,440 (Mary G. Ramos ed., 1997), recently adopted a waste-hauling 

franchise agreement ordinance granting an exclusive franchise to Texas Waste Management, 

Inc. (“TWM”). The agreement includes, he stated, “an exclusive rights provision that requires 

construction contractors to use TWM roll-off trash collection bins.“’ Letter from Honorable 

‘In a letter to this off&, the City of Lewisville suggests a different characterization of its franchise ordinance. 

See Letter from Mr. Ronald J. Neiman, City Attorney, City of Lewisville, to Ms. Sarah J. Shirley, Office of the Attorney 

General (Dec. 15, 1998) (on tile with Opinion Committee). The city states that its ordinance: 

m pickup trucks, pickup truck and trailer, dump trucks, dump !nxk and trailer, 

semitractor and trailer, or any combination thereof to collect, haul, and dispose of 

construction solid waste from a dwelling unit construction site as long as there is not a 

container such as a roll-off container on the properly. 

(continued...) 
The Honorable Bill G. Carter - Page 2 (X-0035) 

Fred Hill, Texas House of Representatives, to Honorable Dan Morales, Attorney General, at 1 

(Oct. 14,1998) (on tile with Opinion Committee). Representative Hill described roll-off trash bins 

as “the commonly seen trash receptacles used by commercial businesses, restaurants, and 

multifamily communities.” Id. He suggested that this exclusive-rights provision constrains the 

construction contractors and increases their costs: 

Although not all construction projects need a roll-off trash bin, for those 

times when a bin is needed for the project, residential construction 

contractors want a choice. Residential construction contractors feel that 

construction site debris collection, hauling and disposal is a solid waste 

activity where competition makes sense and benefits small business 

operations. 

Id. On the other hand, the City of Lewisville apparently contends that this type of exclusive-rights 

provision is “a common element of municipal solid waste franchise agreements.” Id. at 2. 

We conclude that an exclusive-rights agreement such as your predecessor described is within 

the city’s authority. “The legislature and the courts have long recognized the importance of garbage 

disposal to the enhancement of health and safety. The enforcement of a comprehensive garbage 

collection plan [by a municipality] is clearly within the police power granted to all municipalities.” 

Grothues v. City of Helotes, 928 S.W.2d 725, 729 & n.6 (Tex. App.-San Antonio 1996, no writ) 

(and cases cited therein); Tex. Att’y Gen. LO-97-037, at 1-2 (quoting Grothues). Indeed, Health and 

Safety Code section 364.034 explicitly permits a municipality, among other public entities, to 

require persons within its jurisdiction to use a particular solid-waste-disposal service. See TEX. 

HEALTH & SAFETY CODE ANN. 5 364.034 (Vernon 1992); see also id $5 361.003(34), (35); 

364.003(3), (5) (Vernon 1992 & Supp. 1999) (defining “public agency” and “solid waste”). The 

term “person” includes corporations, partnerships, and other legal entities. Cf: id. $ 361.003(23) 

(Vernon Supp. 1999) (defining “person”). In addition, a municipality has extensive power to 

regulate, by proper ordinance, building construction that occurs within its limits. Scunlun v. Home 

Ins. Co., 79 S.W.2d 186, 188 (Tex. Civ. App.-Beaumont 1935, writ ref’d); accord City of Tyler v. 

Ingrum, 164 S.W.2d516,519(Tex. ~~~~)(~~~~~~~~EuGENEMcQuILLIN,THELAw OFMUNICIPAL 

CORPORATIONS $ 1016, at 282 (2d ed.)); Town ofRenner v. Wiley, 458 S.W.2d 516,521 (Tex. Civ. 

App.-Dallas 1970, no writ); Newton v. Town of Highland Park, 282 S.W.2d 266,278 (Tex. Civ. 

App.-Dallas 1955, writ ref d n.r.e.); see Kirschke v. City of Houston, 330 S.W.2d 629, 633 (Tex. 

Civ. App.-Houston 1959, writ ref d n.r.e.), (quoting 9 EUGENEMCQUILLIN,THELAW OFMUNICIPAL 

CORPORATIONS 5 26.200, at 479) (stating that municipality has power to issue building permits); cf: 

‘(...continued) 

Id. at 2. “Thus,” the city continues, a residential construction contractor may “haul away the debris” him- or herself or 

“contract with a third party, but roll-off containers. cannot be kept on the property and used for disposal by someone 

other than Texas Waste Management, the franchisee.” Id. In the city’s view, consequently, the question should be 

whether it may “grant an exclusive franchise for solid waste collection and require that all roll-off containers and rolloff collection work be provided by the franchisee.” Id. Our conclusion in this opinion responds to the question as 

Representative Hill framed it, but we believe it also responds to the less extreme situation and question the city presents. 
The Honorable Bill G. Carter - Page 3 (JC-0035) 

Exparte Cramer, 136 S.W. 61, 62 (Tex. Crim. App. 1911) (stating that municipality has power 

to regulate installation of electrical apparatus). See generally TEX. LOC. GOV’T CODE ANN. 

$5 211.001 - 230.018 (Vernon 1988 & Supp. 1999) (concerning municipal authority to regulate land 

use, structures, businesses, and related activities). 

Where public interest is involved, individuals’ rights often yield to overriding 

public interests and are often regulated under the police power of the state. 

Thus, a government entity often regulates the contractual relations between 

parties and restricts the right to contract where it is reasonably necessary to 

protect the general public. The enforcement of such restrictions is a 

necessary function of municipal governments to promote the common 

welfare of the greater metropolitan area. 

Grothues, 928 S.W.2d at 731 (citations omitted); accord Browning-Ferris, Inc. v. City of Leon 

Valley, 590 S.W.2d 729,731-33 (Tex. Civ. App.-San Antonio 1979, writ ref dn.r.e.); cf Tex. Att’y 

Gen. Op. No. DM-401 (1996) at 2 (concluding that independent school district must comply with 

municipal ordinance authorizing single vendor to collect garbage within municipal limits). In 

addition, this office previously has determined that a private solid-waste-hauling company probably 

has no vested right to collect waste in a particular area. See Tex. Att’y Gen. LO-97-037, at 2; see 

also City of San Antonio v. Bee-Jay Enters., Inc., 626 S.W.2d 802, 804 (Tex. App.-San Antonio 

1981, no writ). We know of no statute that precludes a home-rule city from adopting the solidwaste-disposal ordinance Representative Hill described. 

We limit our opinion to the state law issues your predecessor raised. We do not address the 

purely local question ofwhether the city’s charter permits the city to adopt the ordinance. See also 

Tex. Att’y Gen. Op. No. JM-846 (1988) at 1; Tex. Att’y Gen. LO-93-042, at 1. Although we do not 

have a copy of the city’s charter, we have received a brief suggesting that the city’s ordinance 

violates article 10, section 10.05 ofthe city’s Home Rule Charter, which apparently provides: “[N]o 

grant, contract, or franchise, to construct, maintain or operate a public utility for or in Lewisville, 

Texas, and no renewal or extension of such grant, contract or franchise, shall be exclusive.” See 

Letter from Mr. Jeffrey A. Morrison, Bush & Morrison, P.C., on behalf of the Home Builders 

Association of Greater Dallas, to Ms. Liz Robinson, Chair, Opinion Committee, Office of the 

Attorney General (Jan. 7, 1999) (on tile with Opinion Committee). Not having the charter before 

us, and in deference to municipal officials authority to construe their municipality’s ordinances and 

charters, we decline to comment on whether the ordinance is consistent with the city charter. See 

Tex. Att’y Gen. LO-94-008, at 2 n.1 (declining to issue opinion in deference to city attorney, who 

bears primary responsibility for construing city charter). 

Representative Hill alleged no other legal or procedural improprieties with respect to the City 

of Lewisville’s solid-waste-disposal ordinance, and we therefore presume it is valid. See City of 

Brookside ViZlage v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982) (stating that municipal ordinance 

is presumed valid); John v. State, 577 S.W. 2d 483,485 (Tex. Crim. App. [Panel Op.] 1979) (stating 

that municipal exercise of legislative power is presumed to be valid); Grothues, 928 S.W.2d at 730. 
The Honorable Bill G. Carter - Page 4 (JC-0035) 

SUMMARY 

A home-rule municipality may adopt an ordinance requiring residential 

construction contractors to use the hanchisee selected by the city for weekly 

residential and commercial garbage removal to collect and haul customary 

debris from a construction site. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVIN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General