   ,




                                             The Attorney            General of Texas
                                                                January 14, 1982

MARK WHITE
Attorney General


                                           Honorable Neal Pfeiffer                  Opinion No.MW-424
Supreme      Court Building
P. 0. BOX 12546                            Criminal District Attorney
Austin,    TX. 78711                       Bastrop County                           He:    Provision   of   street
512/475-2501                               P. 0. Box 753                            cleaning services by a general
Telex    9101674-1387
                                           Bastrop, Texas   78602                   law city and assessment     of
Telecopier     512/4750266
                                                                                    fees therefor

1607 Main St., Suite          1400         Dear Mr. Pfeiffes:
Dallas, TX. 75201
214i7428944                                     You request our opinion as to whether a city incorporated under
                                           the general law statutes of the state of Texas can provide street
4624   Alberta     Ave.,   Suite     160
                                           cleaning services and charge fees therefor. Additionally, you request
El Paso, TX.       79905                   an opinion as to whether such a city can charge such fees to all
9151533.3464                               residents, when the street cleaning services are restricted to the
                                           downtown area of the city.
1220 Dallas Ave., Suite             202
Houston,     TX. 77002                          The city of Elgin, Texas, proposes to provide a street cleaning
713/650-0666                               service for the downtown area only and charge fees to all residents
                                           for such service.
606 Broadway,         Suite   312
                                                With respect to your first question, general law cities have only
Lubbock.     TX.    79401
6061747-5236                               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
4309 N. Tenth, Suite          S
                                           broad powers of home rule cities, which may exercise any power
McAllen.    TX. 76501
                                           incorporated in their charters that is not denied by the constitution
5121662-4547
                                           or by statute. V.T.C.S. art. 1176.

200 Main Plaza, Suite 400                       General law cities have H . ..exclusive control and power over the
San Antonio,  TX. 76205                    atreeta ... of the city .. . to ... clean and otherwise improve said
512/225-4191
                                           streets..."  V.T.C.S. art. 1016. HOWWCX,     no statutory authority for
                                           general law cities to charge fees for such service obtains unless such
An Equal       OppOrtunityI                provision is found in article 4477-8, section 13, V.T.C.S.
Affirmative      Action     Employer
                                                *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




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