Honorable Chet Brooks 

Chairman, Senate Committee on 

Human Resources 

Senate Chamber 

Austin, Texas 78711 

Dear Senator Brooks: 

Opinion No. H-1849 

Re: Requirement of individual metering in apartment 

buildings. 

You ask for a construction of article 1446d, V.T.C.S., 

enacted by the 65th Legislature. Acts 1977, 65th Leg., ch. 353, 

at 942. You ask whether section 2 of article 1446d precludes a 

political subdivision from issuing a certificate of occupancy 

after January 1, 1978, for an apartment building which is not 

individually metered or submetered for electricity, where 

the subdivision has issued a building permit for the building 

prior to January 1, 1978. We understand that many apartment 

buildings which do not have individual meters or submetering 

are presently under construction or are substantially planned 

and ready for application for a building permit but that the 

construction will not be completed prior to January 1, 1978. 

Article 1446d applies to buildings containing more than 

five units. Section 2 of the statute provides: 

After January 1, 1978, no incorporated 

city or town, including a home-rule city 

or other political subdivision of the 

state, may issue a permit, certificate, or 

other authorization for the construction 

or occupancy of a new apartment house or 

conversion to a condominium unless the 

construction plan provides for individual 

metering by the utility company or submetering by the owner of each dwelling 

unit for the measurement of the quantity 

of electricity, if any, consumed-by theoccupants within that dwelling unit. 

(Emphasis added). Political subdivisions may issue building permits for apartment buildings without individual meters or submetering until January 1, 1978. You inquire whether such buildings 

p. 4318 
Honorable Chet Brooks - Page 2 (H-1049) 

would qualify for a certificate of occupancy upon completion 

after January 1, 1978. 

A building permit is issued upon the basis of plans which 

indicate that a proposed building will comply with applicable 

codes and regulations. In our understanding a certificate of 

occupancy merely certifies that the completed structure has in 

fact so complied. People v. Auto Placement, Inc., 346 N.Y.S. 2d 

961 (N.Y. Dist. Ct. 1973). Article 1446d, section 2, focuses 

on the requirement that "the construction plan . . . [provide] 

for individual metering." The usual time for review of the construction plan is prior to issuance of the building permit. Once 

a building permit is issued, article 1446d, in our opinion, contemplates issuance of a certificate of occupancy on completion 

in compliance with the building permit, even though completion 

occurs after January 1, 1978. It would be inconsistent to permit issuance of a building permit prior to January 1, 1978, on 

the basis of a construction plan which does not provide for 

individual metering, and then after January 1, 1978, refuse a 

certificate of completion "unless the construction plan provides for individual metering." Such a result would be contrary 

to the rule that courts will not adopt an interpretation that 

would lead to a contradiction. Magnolia Petroleum Co. v. Walker, 

83 S.W.2d 929 (Tex. 1935). This interpretation conforms to the 

bill analysis prepared by the House Committee on Business and 

Industry. 

In our opinion, article 1446d allows issuance of a certificate of occupancy after January 1, 1978, for buildings completed in accordance with building permits issued prior to that 

date, even though they do not have individual metering or submetering. After January 1, 1978, a building permit for an 

apartment may not be issued unless the construction plans provide for individual metering or submetering. See generally 

Annot., 49 A.L.R. 3d 13 (1973). 

SUMMARY 

Section 2 of article 1446d does not prohibit the issuance of a certificate of 

occupancy for an apartment building which 

lacks individual meters or submetering 

and which is completed after January 1, 

1978, so long as a building permit has 

been issued for the building prior to 

January 1, 1978. 

P. 4319 
Honorable Chet Brooks - Page 3 (H-1049) 

Liz ry truly yours, 

n L?%.Lz?& 

;TOHN L. HILL 

Attorney General of Texas 

APPROVED: 

C. ROBERT HEATH, Chaidan 

Opinion Committee 

jst 

p. 4320