, 

The Attorney General of Texas 

January 14, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin, TX. 78711 

512/475-2501 

Telex 9101674-1387 

Telecopier 512/4750266 

1607 Main St., Suite 1400 

Dallas, TX. 75201 

214i7428944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79905 

9151533.3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002 

713/650-0666 

606 Broadway, Suite 312 

Lubbock. TX. 79401 

6061747-5236 

4309 N. Tenth, Suite S 

McAllen. TX. 76501 

5121662-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 76205 

512/225-4191 

An Equal OppOrtunityI 

Affirmative Action Employer 

Honorable Neal Pfeiffer 

Criminal District Attorney 

Bastrop County 

P. 0. Box 753 

Bastrop, Texas 78602 

Opinion No.MW-424 

He: Provision of street 

cleaning services by a general 

law city and assessment of 

fees therefor 

Dear Mr. Pfeiffes: 

You request our opinion as to whether a city incorporated under 

the general law statutes of the state of Texas can provide street 

cleaning services and charge fees therefor. Additionally, you request 

an opinion as to whether such a city can charge such fees to all 

residents, when the street cleaning services are restricted to the 

downtown area of the city. 

The city of Elgin, Texas, proposes to provide a street cleaning 

service for the downtown area only and charge fees to all residents 

for such service. 

With respect to your first question, general law cities have only 

such powers as are granted by statute or by necessary implication 

therefrom. See Payne V. Massey, 196 S.W.2d 493, 495 (Tex. 1946); 

Attorney General Opinion H-796 (1976). This is in contrast to the 

broad powers of home rule cities, which may exercise any power 

incorporated in their charters that is not denied by the constitution 

or by statute. V.T.C.S. art. 1176. 

General law cities have H . ..exclusive control and power over the 

atreeta . . . of the city . . . to . . . clean and otherwise improve said 

streets..." V.T.C.S. art. 1016. HOWWCX, no statutory authority for 

general law cities to charge fees for such service obtains unless such 

provision is found in article 4477-8, section 13, V.T.C.S. 

*ction 13 states in pertinent part: 

Any public agency or any county may offer solid 

waste disposal service to persons within its 

boundaries, may require the use of such service by 

any or all such persons, may charge fees therefor, 

and may establish said service as a utility 

p. 1444 
Honorable Neal Pfeiffer - Page 2 (MW-424) 

separate from other utilities within its 

boundaries.... 

The term "public agency" is defined in article 4477-8, section 

3(e), V.T.C.S., to include "any city as defined herein." The word 

"city" means any incorporated city or town in the state, whether 

operating under general law or under its home rule charter. V.T.C.S. 

art. 4477-8, 53(d). Therefore, a city such as Elgin is a public 

agency under article 4477-8, V.T.C.S., empowered to offer a "solid 

waste disposal service" to persons within its boundaries and charge 

fees therefor. 

The statutory definition of "solid waste" refers to the 

definition found in article 4477-7, V.T.C.S., the Solid Waste Disposal 

Act. V.T.C.S. art. 4477-8, 93(h). 

Prior to the 1977 amendments to section 2 of article 4477-7, 

V.T.C.S., that section defined "solid wastell and "municipal waste" as 

follo"s: 

(5) 'solid waste' means all putrescible and 

nonputrescrible discarded or unwanted solid 

materials, including municipal solid waste... 

(6) 'municipal solid waste' means solid 

waste resulting from or incidental to municipal, 

community, trade, business and recreational 

activities, including garbage, rubbish, ashes, 

street cleanings, dead animals, abandoned 

automobiles, and all other solid waste other than 

industrial solid waste. 

In 1977, the Sixty-fifth Legislature passed two bills amending 

article 4477-7, section 2, V.T.C.S. Senate Bill No. 764, along with 

other changes, excised the phrase "including municipal solid waste" 

from the definition of "solid waste." The definition of "municipal 

solid waste" was changed only by substituting the word "commercial" 

for the words "trade, business." 

On the other hand, in Senate Bill No. 1139 the definitions of 

"solid waste" and "municipal solid waste" have the same wording as the 

statute prior to the 1977 amendments. That is, the definition of 

solid waste specifically includes municipal solid waste. 

Both Senate Bill No. 764 and Senate Bill No. 1139 were finally 

passed by the house on May 13, 1977. The senate concurred in house 

amendments to both bills on May 17, 1977. The governor signed Senate 

Bill No. 764 on May 30, 1977. It became effective on August 29, 1977. 

p. 1445 
Honorable Neal Pfeiffer - Page 3 (MW-424) 

The governor signed Senate Bill No. 1139 on June 16, 1977. Its 

effective date was set at September 1, 1977. 

Two acts on the same subject passed by the same session of the 

legislature must be reconciled and construed as one act. Wright v. 

Broeter, 196 S.W.2d 82, 85 (Tex. 1946). If one act expressly repeals 

the other or there is an irreconcilable repugnancy between them, the 

provision approved last will prevail. Id. at 85. 

The Texas Supreme Court has stated that: 

. ..nothing short of expressions so plain and 

positive as to force upon the mind an irresistible 

conviction, or absolute necessity, will justify a 

court in presuming, that it was the intention of 

the legislature that their acts passed at the same 

session, should abrogate and annul one another. 

Cain v. State, 20 Tex. 355, 361 (1857). 

Accordingly, Senate Bill No. 764 and Senate Bill No. 1139 must be 

read together and reconciled, if possible. The acts are not 

irresistibly repugnant. 

The definition of "solid wasten in Senate Bill No. 764 states: 

(5) 'solid waste' means all putrescible and 

nonputrescible discarded or unwanted solid 

materials, including garbage, refuse, sludge from 

a waste treatment plant or air pollution control 

facility, and other discarded material, including 

solid, liquid, semisolid or contained gaseous 

material resulting from industrial commercial, 

mining and agricultural operations and from 

community activities... 

This definition is broad enough to include the items in the definition 

of municipal solid waste. Consequently, street cleanings are within 

the ambit of "solid waste." (Obviously, there is no clear legislative 

intent to exclude "municipal solid waste" from the term "solid 

waste"). It follows that a "solid waste disposal service" as used in 

article 4477-8, section 13, V.T.C.S., may include the service of 

street cleaning under these definitions. 

You also ask if fees can be charged to all the residents of the 

city if street cleaning services are provided for only a certain 

section of the town, specifically the downtown area which presumably 

is in greatest need of street cleaning. 

p. 1446 
Honorable Neal Pfeiffer - Page 4 (MW-424) 

Under our reading of section 13, such a practice is precluded. 

The statute plainly states that a public agency may offer solid waste 

disposal service to persons within its boundaries and may require the 

use of such service by any or all such persons and may charge fees 

therefor. By use of the phrase "such persons" reference is made to 

the persons to whom the service is offered. Thus, only those persons 

to whom the service is offered, that is, who may actually have the 

street abutting their home or business cleaned, may be charged a fee. 

SUMMARY 

General law cities may provide street 

cleaning services and charge fees therefor under 

article 4477-8, section 13, V.T.C.S. Only persons 

who receive street cleaning services may be 

charged such fees. 

WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Douglas Fraser 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Douglas Fraser 

Rick Gilpin 

Jim Moellinger 

, 

p. 1447