   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                              January 28,2002



The Honorable J.E. “Buster” Brown                    Opinion No. JC-0457
Chair, Natural Resources Committee
Texas State Senate                                   Re: Whether new construction in an area of the state
P.O. Box 12068                                       that is outside municipal jurisdiction may delay
Austin, Texas 7871 l-2068                            complying with the Texas Building Energy Perfor-
                                                     mance Standards, chapter 388 of the Health and
                                                     Safety Code, until September 1,2002 (RQ-0430-JC)


Dear Senator Brown:

         Chapter 388 of the Health and Safety Code, enacted by the Seventy-seventh Legislature,
adopts “the energy efficiency chapter of the International Residential Code, as it existed on
May 1,2001, . . . as the energy code in this state for single-family residential construction” and
“the International Energy Conservation Code . . . as the energy code for use in this state for all
other residential, commercial, and industrial construction.”      TEX. HEALTH & SAFETY CODE ANN.
0 388003(a), (b) (V emon Supp. 2002). A municipality is required, by September 1, 2002, to
establish procedures for administering and enforcing the codes and “to ensure that code-certified
inspectors . . . perform inspections and enforce the code in the inspectors’ jurisdictions.”  See Act
of May 24,2001,77th       Leg., R.S., ch. 967,§ 1 l(b), 2001 Tex. Sess. Law Serv. 1970,1986-87; TEX.
HEALTH & SAFETY CODE ANN. 8 388.003(c) (V emon Supp. 2002).                   A political subdivision
encompassing area outside a municipality’s jurisdiction is not required to adopt similar procedures
and is not subject to the September 1,2002 deadline. Nevertheless, section 388.004 provides for
“[elnforcement     of [elnergy [sltandards [olutside of [m]unicipalit[ies].”  TEX. HEALTH & SAFETY
CODEANN. 8 388.004 (Vernon Supp. 2002). Section 388.004 took effect on September 1,200l. See
Act of May 24,2001,77th        Leg., R.S., ch. 967, 5 22,200l Tex. Sess. Law Serv. 1970, 1994. You
ask when new construction “in the unincorporated areas of the state,” which we understand to be
areas outside a municipality’s jurisdiction, must “begin complying with the energy performance
standards” that chapter 388 of the Health and Safety Code prescribes.’ We conclude that new
construction must have begun complying as of September 1, 2001, which is the effective date of
chapter 388 generally.




         ‘Letter from Honorable J.E. “Buster” Brown, Chair, Natural Resources Committee, Texas State Senate, to
Honorable John Cornyn, Texas Attorney General (Sept. 5,200l) (on file with Opinion Committee) [hereinafter Request
Letter].
The Honorable   J.E. “Buster” Brown      - Page 2     (JC-0457)




        The Seventy-seventh Texas Legislature adopted the provisions about which you inquire as
part of Senate Bill 5. See Act ofMay 24,2001,77th Leg., R.S., ch. 967,s l(b), sets. 388.001-.008,
2001 Tex. Sess. Law Serv. 1970,1986-88. As a whole, Senate Bill 5’s objective was to bring Texas
into compliance with federal limits on maximum allowable concentrations of certain pollutants. See
SENATE COMM. ON NATURAL RESOURCES,BILL ANALYSIS, Tex. S.B. 5,77th Leg., R.S. (2001) at 1;
~CCW~HOUSE COMM. ONENVIRONMENTALREGULATION,               BILL ANALYSIS, Tex. S.B. 5,77th Leg., R.S.
(2001) at 1; HOUSERESEARCHORG.,BILLANALYSIS, Tex. S.B. 5,77th Leg., R.S. (2001) at 2. To this
end, Senate Bill 5 established several programs to facilitate reductions in pollutant emissions, such
as an emissions reduction plan, a diesel emissions reduction incentive program, and a technology
research and development program. See Act of May 24,2001,77th Leg., R.S., ch. 967,§ l(b), 2001
Tex. Sess. Law Serv. 1970, 1971-80, 1984-86 (codified at TEX. HEALTH & SAFETY CODE ANN. ch.
386, subchs. B, C, and ch. 387); see also SENATECOMM. ON NATURAL RESOURCES,BILL ANALYSIS,
Tex. S.B. 5, 77th Leg., R.S. (2001) at 1. The bill also added a new chapter 388 to the Health and
Safety Code, entitled “Texas Building Energy Performance Standards.” You ask specifically about
these Building Energy Performance Standards. See TEX. HEALTH& SAFETYCODEANN. 4 § 3 88.00 l-
.008 (Vernon Supp. 2002); Request Letter, supra note 1, at 1.

        In enacting chapter 388, in particular, the legislature articulated a need for “an effective
building energy code” to reduce “air pollutant emissions,” to moderate “future peak electric power
demand,” to assure the electrical grid’s reliability, and to control “energy costs for residents and
businesses in this state.” TEX. HEALTH & SAFETY CODE ANN. 9 388.001(a) (Vernon Sup. 2002).
Two sections of chapter 388 are especially relevant to your inquiry. First, section 388.003 adopts
building energy efficiency performance standards that apply statewide:

                    (a) To achieve energy conservation in single-family residential
                construction,  the energy efficiency chapter of the International
                Residential Code, as it existed on May 1, 2001, is adopted as the
                energy code in this state for single-family residential construction.

                    (b) To achieve energy conservation in all other residential,
                commercial, and industrial construction, the International Energy
                Conservation Code as it existed on May 1, 2001, is adopted as the
                energy code for use in this state for all other residential, commercial,
                and industrial construction.

                    (c) A municipality   shall establish procedures:

                        (1) for the administration   and enforcement   of the codes; and

                         (2) to ensure that code-certified inspectors shall perform
                inspections and enforce the code in the inspectors’ jurisdictions.
The Honorable   J.E. “Buster” Brown     - Page 3      (JC-0457)




                    (d) A municipality or county may establish procedures to adopt
                local amendments to the International Energy Conservation Code and
                the energy efficiency chapter of the International Residential Code.

                     (e) Local amendments may not result in less stringent energy
                efficiency requirements    in nonattainment areas and in affected
                counties than the energy efficiency chapter of the International
                Residential Code or International Energy Conservation Code. Local
                amendments must comply with the National Appliance Energy
                Conservation    Act of 1987 (42 U.S.C. Sections 6291-6309)’ as
                amended.




                     (I) Each municipality,  and each county that has established
                procedures under Subsection (d), shall periodically review and
                consider revisions made by the International Code Council to the
                International Energy Conservation Code and the energy efficiency
                chapter of the International Residential Code adopted after May 1,
                2001.

Id. 8 388.003(a)-(f); see also id. 9 388.002(l), (6)’ (7)’ (lo), (1 l), (12) (defining “affected county,”
“International Residential Code,” “International Energy Conservation Code,” “municipality,”
“nonattainment     area,” and “single-family residential”).     But cJ: TEX. LOC. GOV’T CODE ANN.
5 214.2 12 (Vernon Supp. 2002) (adopting International Residential Code as municipal residential
building code in this state); TEX. REW. CIV. STAT. ANN. art. 6243-l 01, § 5B(a) (Vernon Supp. 2002)
(requiring Board of Plumbing to adopt Uniform Plumbing Code and International Plumbing Code).
Second, whereas section 388.003(c) governs enforcement within a municipality’s jurisdiction,
section 388.004 governs compliance with the energy standards outside a municipality’s jurisdiction:

                For construction   outside of the local jurisdiction   of a municipality:

                       (1) a building certified by a national, state, or local accredited
                energy efficiency program shall be considered in compliance;

                         (2) a building with inspections from private code-certified
                inspectors using the energy efficiency chapter of the International
                Residential Code or the International Energy Conservation Code shall
                be considered in compliance; and

                       (3) a builder who does not have access to either of the above
                methods for a building shall certify compliance using a form provided
                by the [Energy Systems Laboratory at the Texas Engineering
The Honorable   J.E. “Buster” Brown       - Page 4    (JC-0457)




                Experiment        Station of The Texas A&M University          System],
                enumerating      the code-compliance features of the building.

TEX. HEALTH & SAFETY CODE ANN.          8 388.004 (Vernon Supp. 2002); see also id. 8 388.002(2), (8),
(9) (defining “building, ” “laboratory,” and “local jurisdiction”).

         A municipality that is required to establish procedures under section 388.003(c) must do so
no later than September 1,2002. See Act of May 24,2001,77th         Leg., R.S., ch. 967, 5 1 l(d), 2001
Tex. Sess. Law Serv. 1970, 1992. In other respects, for our purposes here, chapter 388 became
effective on September 1,200l. See id. 5 22’2001 Tex. Sess. Law Serv. 1970, 1994.

         While Senate Bill 5 requires a municipality that is subject to “the energy code provisions
of Chapter 388” to establish administration,        enforcement,    and inspection procedures by
September 1,2002, you state that “there is no similar effective date mentioned for compliance in
the unincorporated areas of the state.” Request Letter, supra note 1, at 1. You suggest that the
omission of a compliance date for areas outside municipal jurisdiction “was an oversight” and that
the legislature intended “to have the compliance dates coincide.” Id.

          We conclude that the September 1’2002 compliance date does not apply to an area outside a
municipality’s    jurisdiction.   On its face, section 388.003(c)-the        only section with the
September 1, 2002 compliance date-applies        solely to a municipality. See Act of May 24,2001,
77th Leg., R.S., ch. 967, 55 1(b), 11 (d), 2001 Tex. Sess. Law Serv. 1970, 1987, 1992 (section l(b)
codified at TEX. Health & Safety Code Ann. 8 388.003(c) (Vernon Supp. 2002)). Moreover, the
legislative history of section 388.003(c) indicates that the legislature purposefully removed areas
beyond municipal jurisdiction fi-om section 388.003(c) and, thus, from the September 1, 2002
compliance date. Senate Bill 5, as introduced, did not propose a version of chapter 388 of the Health
and Safety Code, concentrating instead on emissions reductions and technology development and
research. See Tex. S.B. 5’77th Leg., R.S. (2001) (filed March 7,200l). The Senate Committee on
Natural Resources adopted a committee substitute that proposed chapter 388, but its version of
section 388.003(c) permitted, although it did not require, a municipality (and only a municipality)
to establish procedures for amending, administering, and enforcing the codes and for inspecting
construction:

                A municipality     may establish procedures:

                        (1) to adopt local amendments to the International Energy
                Conservation    Code and the energy chapter of the International
                Residential Code;

                        (2) for the administration   and enforcement   of the codes; and

                         (3) to ensure the code-certified  inspectors shall perform
                inspections and enforce the code in the inspectors’ jurisdictions.
The Honorable   J.E. “Buster” Brown     - Page 5     (JC-0457)




Tex. C.S.S.B. 5, 8 l(b), sec. 388.003(c), 77th Leg., R.S. (2001) (emphasis added). The Senate
committee substitute also proposed section 388.004, “Enforcement of Energy Standards Outside of
Municipality,” and its proposed version was ultimately adopted, unchanged, in the enrolled bill. See
Tex. C.S.S.B. 5, 5 l(b), sec. 388.004, 77th Leg., R.S. (2001).         The House Committee on
Environmental Regulation amended the proposed section 3 8 8.003(c) to require both a municipality
and a county to establish procedures for administering and enforcing the codes:

                A municipality   or county shall establish procedures:

                        (1) for the administration   and enforcement     of the codes; and

                         (2) to ensure that code-certified inspectors shall perform
                inspections and enforce the code in the inspectors’ jurisdictions.

Tex. C.S.S.B. 5, 9 1(b), sec. 388.003(c), 77th Leg., R.S. (2001) (House Comm. Report). But then,
on the House Floor during the bill’s second reading, Representative Wolens proposed, and the House
adopted, an amendment to the bill that struck from section 388.003(c) the phrase “or county.” See
H.J. OF TEX., 77th Leg., R.S. 3744-45 (2001) ( amendment no. 1). Introducing the amendment,
Representative Wolens explained that Representative Ramsay requested the amendment on behalf
of “the smaller counties”:

                Tom Ramsay asked me about this, and on behalf of the small
                counties, he wanted the counties not to be included in that building
                code section. So what we are doing is . . . striking the word “county”
                and not requiring the counties to adopt all of these procedures and
                giving them no enforcement powers. They’re not required to enforce
                any part of this whatsoever in a county.

Debate on Tex. C.S.S.B. 5 on the Floor of the House, 77th Leg., R.S. (May 21,200l)           (testimony of
Representative Wolens) (tape available from House Video/Audio Services Office).

         Because chapter 388 as a whole became effective September 1,2001, new construction in
areas beyond municipal jurisdiction must have begun complying with the statewide energy codes
as of September 1,2001, and compliance may not be delayed. See Act of May 24,2001,77th       Leg.,
R.S., ch. 967’5 22’2001 Tex. Sess. Law Serv. 1970’1994. But see id. 8 1 l(d), 2001 Tex. Sess. Law
Serv. 1970, 1992 (allowing municipality       required to establish procedures     to have until
September 1’2002). Section 388.004, which provides the only means by which compliance with
the energy standards may be monitored in an area beyond municipal jurisdiction, likewise became
effective on September 1,200l. See id. Cj22’2001 Tex. Sess. Law Serv. 1970, 1994.

         Finally, although section 388.003(c) does not require a county to enforce the new energy
codes in an area outside municipal jurisdiction, we conclude that a county voluntarily may enforce
them. Subsections (a) and (b) of section 3 88.003 adopt energy efficiency performance standards “for
use in this state,” the construction of single-family residences, and “all other residential, commercial,
The Honorable   J.E. “Buster” Brown    - Page 6     (JC-0457)




and industrial construction.” TEX. HEALTH & SAFETY CODE ANN. § 388.003(a), (b) (Vernon Supp.
2002). Additionally, a county may adopt local amendments to the statewide standards. See id.
8 388.003(d), (f). A county that chooses to enforce the standards would do so under section 3 8 8.004,
which provides for “[elnforcement       of [e Jnergy [sltandards [olutside of [m]unicipality.”      Id.
5 388.004; see Tex. Att’y Gen. Op. No. JC-0171 (2000) at 1 (stating that county may exercise only
those powers that state constitution and statutes confer upon it).
The Honorable J.E. “Buster” Brown     - Page 7     (JC-0457)




                                       SUMMARY

                        Effective September 1,2001, new construction in an area of
               the state that is outside a municipality’s jurisdiction must have begun
               complying with the building energy efficiency performance standards
               adopted under section 388.003 of the Health and Safety Code. See
               TEX. HEALTH & SAFETYCODE ANN. 8 388.003 (Vernon Supp. 2002).
               Compliance may not be delayed until September 1,2002. Likewise,
               since September 1,2001, counties have had authority to monitor and
               may voluntarily enforce compliance in these areas under section
               388.004. See id. 8 388.004.




                                              JOHN     CORNYN
                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
