                         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, incor-
            porated city or other political subdivision,
            or combination thereof, legally contract
            with such corporation for the services des-
            cribed 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 de-
monstrative 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 gener-
ally any corporation not classed as public, and is one
created for private, as distinguished from a public pur-
pose. 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 govern-
mental 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):   In Re London,
73 Tex.Cr.Reo. 208, 163 S.W. 968'(1914): 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 politi-
         cal subdivision, or combination thereof,
         may legally contract with such corporations
         for the services described in the Solid
         Waste Disposal Act.
                                                    :




                                        eneral of Texas

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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