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 inapartment buildings.

You ask for a construction of article 1446d,V.T.C.S., enacted by the 65thLegislature. Acts 1977, 65th Leg., ch. 353, at 942. You askwhether section 2of article 1446dprecludes a political subdivision from issuing a certificate of occupancy after January 1, 1978, for an apartment building which isnot individually metered or submetered for electricity, where the subdivision has issued abuilding permit for the building prior toJanuary 1, 1978. We understand thatmany apartment buildings which do not have individual meters or submetering are presently under construction or are substantially planned and ready forapplication forabuilding permit but that the construction will notbe completed prior toJanuary 1, 1978. Article 1446d applies tobuildings containing more than five units. Section 2of the statute provides:

After January 1, 1978, no incorporated city or town, including ahome-rule city or other political subdivision of the state,may issue apermit, certificate, or other authorization for the construction or occupancy of anew 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 themeasurement of the quantity of electricity, ifany, consumed-by theoccupants within that dwelling unit. (Emphasisadded). Political subdivisions may issuebuilding permits for apartment buildings without individual meters or submetering until January 1, 1978. You inquire whether suchbuildings

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would qualify for a certificate of occupancy upon completion after January 1, 1978.
A building permit is issued upon thebasis ofplans which indicate that a proposed building will comply with applicable codes and regulations. Inour understanding a certificate of occupancy merely certifies that the completed structure has in fact so complied. People v.Auto Placement, Inc., 346N.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 isprior to issuance of thebuilding permit. Once abuilding permit is issued, article 1446d, inour opinion, contemplates issuance of a certificate of occupancy on completion in compliance with thebuilding permit, even though completion occurs after January 1, 1978. Itwould be inconsistent topermit issuance of abuilding 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 theHouse Committee on Business and Industry.
Inour opinion, article 1446d allows issuance of a certificate of occupancy after January 1, 1978, forbuildings completed inaccordance with building permits issued prior to that date, even though they do not have individual metering or submetering. After January 1, 1978, abuilding permit for an apartment may not be issued unless the construction plans provide for individual metering or submetering. See generally Annot., 49A.L.R. 3d 13 (1973).
SUMMARY Section 2of article 1446d does not prohibit the issuance of a certificate of occupancy foran apartment building which lacks individual meters or submetering and which is completed after January 1, 1978, so long as abuilding permit has been issued for thebuilding prior to January 1, 1978.

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# Liz ry truly yours,
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# L?%.Lz?&

;TOHNL. HILL Attorney General of Texas
APPROVED:

C.ROBERT HEATH, Chaidan Opinion Committee jst

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