September I?, 1970 

Dr. J. E. Peavy, M. D. Opinion No. M-693 

Commissioner of Health 

Texas State Department Re: Whether a corporation may 

of Health participate in the collection, 

1100 West 49th Street handling, storage and disposal 

Austin, Texas 78756 of "municipal solid waste" as 

such term is used in Section 

3a of Article 4411-7, V.C.S. 

Dear Doctor Peavy: and other related questions. 

You have requested our opinion as to proper statutory 

construction of certain statutes relating to the powers of 

corporations and particularly as to their powers to contract 

for services under the Solid Waste Disposal Act. (Chap. 405, 

page 1320, Acts of the blst Leg., Regular Session: Article 

4477-7, Vernon's Civil Statutes). Your questions are as 

follows: 

"(1) May a corporation legally participate in the 

collection, handling, storage, and disposal 

of "municipal solid waste" as that term is 

used in Section 3(a) of Article 4477-7, 

V.A.T.S.? 

" (2) If your answer to the above question is in the 

affirmative, under which of the following Acts 

should such a corporation be organized and 

operate: 

(a) The Texas Miscellaneous Corporation Laws 

Act; 

(b) The Texas Business Corporation Act: 

(c) The Texas Non..Profit Corporation Act; 

(d) A corporation such as Bolivar Peninsula 

Water Supply Corporation chartered under 

Article l434a? 

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Dr. J. E. Peavy, M. D., page 2 (M-693) 

” (3) If your answer to question number (1) above 

is in the affirmative, may a county, incorporated city or other political subdivision, 

or combination thereof, legally contract 

with such corporation for the services described in the Solid Waste Disposal~Act?" 

In answer to question (l), Section 3 of Article 4477-7, 

speaks generally of state duties to plan, and th~ere is no 

reason why a corporation as such could not perform solid, ; 

waste disposal services if the corporation ,is not otherwi,se 

disqualified in law or by the provisions of its charter." 

H.&T.C.R. Co. v. Diamond-Press-Brick Co., 111 Tex. 18, 222 

S:W.-204 (1920). 

----- 

Your question (2) requires several answers. ~ Under 

question 2(a), the Texas Miscellaneous Corporation Laws Act, 

(Art. 1302-1.01 through 1302-6.26, V.C.S., Acts of the 57th 

Leg., 1961, chap. 205, page 408, effective August 28, 1961) 

does not empower or authorize corporate purposes: it is demonstrative of a convenient way to codify miscellaneous 

statutes relating to certain corporations. 

By question 2(c), you ask whether non-profit corporat~ions 

chartered under the Non-Profit Corporation Act'can perform 

solid waste disposal services; We know of no legal reason .' 

why such a non-profit corporation would~ be unable to engage 

in solid waste disposal work if its charter so provides and 

the law does not prohibit it from such work. 

By question 2(d) you mention Bolivar Peninsula Water 

Supply Corporation, which was chartered on October 26, 1967, 

pursuant to Article 1434a, Vernon's Civil Statutes. The 

Bolivar Peninsula W.S.C. cannot amend so as to perform solid 

waste disposal because it can only act under authority of 

Art. 1434a; it cannot add solid waste disposal purposes by 

amendment. Attorney General Opinion No. O-3433 (1941). The 

Texas Business Corporation Act has no application to such a 

corporation created by special law. Tri-County Electric 

Cooperative, Inc., v. Clair, 217 S.W.2d 681 (Tex.Civ.App. 

1949, error ref. n.r.e.1. 

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, I 

Dr. J. E. Peavy, M. D., page 3 (M-693) 

The last question we are considering is 2(b) which 

inquires as to whether a private corporation chartered 

under the Texas Business Corporation Act can perform 

solid waste disposal services. Such a purpose would be 

a lawful purpose and this corporation formed for profit 

could act just as an individual person might act. Sec. 

2 (1) , of the Texas Business Corporation Act (Acts of the 

54th Leg., 1955, chap. 64, page 239), states in substance 

that with certain named exceptions (not material here) 

"corporations for profit may be organized under this Act 

for any lawful purpose or purposes, which purposes shall 

be fully stated in the articles of incorporation". Such 

a profit corporation has the same liberty to contract as 

an individual. 2 Texas Law Review 366 (1924); 12 Texas 

Law Review 101 (1933). A private corporation is generally any corporation not classed as public, and is one 

created for private, as distinguished from a public purpose. Miller v. Davis, 136 Tex. 299, 150 S.W.2d 973 

(1941), 136 A.L.R. 177. 

With respect to the third question, we must observe 

that the same rules of law which relate to public service 

franchises in general apply to contracts where a profit 

corporation or a non-profit corporation performs solid 

waste disoosal services. For example. no monovolv or 

exclusive-franchise can be created-in.violation of Art. I, 

Sec. 26, Texas Constitution; City of Brenham v. Brenham, 

Water Co., 67 Tex. 542, 4 S.W. 14: 3 (1887); Edwards County 

Jennings, 89 Texas 620, 35 S.W. 1053 (1896). 

Generally, the courts of Texas have held that city 

collection and disposal of garbage is a "corporate governmental function" and that the City of Dallas could grant 

a contract for a reasonable period, (in this case 15 years) 

for the exclusive privilege of buying all wet garbage. 

Gardner v. City of Dallas, 81 Fed.2d 425, cert.den. 298 

U.S. 668 (1936): and this riaht can be exclusive because 

it amounts to~appointment of-an officer deemed necessary to 

protect the public health. City of Breckenridge v. McMullen, 

258 S.W. 1099 (Tex.Civ.App. 1923 no writ): 

73 Tex.Cr.Reo. 208, 163 S.W. 968'(1914): 

In Re London, 

40 Tex. Jur.2d 70, 

Municipal Corporations, Sec. 390; Wichita Falls v. Kemp 

Hotel Operating Co., 162 S.W.2d 150 (Tex.Civ.App., 1942, 

affirmed in - Kemp Hotel Operating Co. v. City of,Wichita Falls, 

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Dr. J. E. Peavy, M. D., page 4 (M-693) 

141 Tex. 90, 170 S.W.2d 217 (1943). No injunction will 

lie to stop such contract: Cheek v. Beckworth, 292 S.W.2d 

158, (Tex.Civ.App., 1956, error ref. n.r.e.). 

In view of the foregoing, we answer the third question 

in the affirmative. 

SUMMARY ------- 

A profit or non-profit Texas corporation 

may perform solid waste disposal services 

under Texas laws. Corporations chartered 

under Article 1434a, V.C.S. cannot amend 

to include waste disposal purposes. A 

county, incorporated city or other political subdivision, or combination thereof, 

may legally contract with such corporations 

for the services described in the Solid 

Waste Disposal Act. 

: 

Prepared by Roger B. Tyler 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Bill Corbusier 

Harold Kennedy 

James Broadhurst 

James M. Mabry 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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eneral of Texas