           THE     ATTOR;YEY           GEXERLIL
                        OF   TEXAS

                        Ocwber   16, 1986



Honorable H. Tati Santiesteban         Opinion No. JM-562
Chairman
Natural Resource Committee             Re:   Applicability of an energy
Texas State Senate                     conservation code to areas which
P. 0. Box 12068                        are provided electric utility
Austin, Texas   78711                  service by a city but are out-
                                       side its corporate boundaries

Dear Senator Santiesteban:

     You ask whether a home :culecity may enforce its energy conserva-
tion code outside its boundaries but within its certified electric
service area. You inform us that a home rule city adopted an energy
conservation code pursuant to section 35 of article 1175, V.T.C.S.
You suggest that this stawte or article 1108, V.T.C.S., authorizes a
home rule city to enforce its conservation code within the areas to
which the city provides ele::tricservice.

     Home rule cities derive their power directly from article XI.
section 5, of the Texas Constitution. Lower Colorado River Authority
v. City of San Marcos, 52: S.W.2d 641, 643 (Tex. 1975). Because a
home rule city’s powers within their boundaries are plenary, it is
necessary to look for expre:;sor implied limits on those powers rather
than for grants of power. See Id. To exercise powers outside its
boundaries, however, a home rule city must have an express or implied
grant of power from the legislature. City of Austin v. Jamail; 662
S.W.2d 779, 782 (Tex. Apn. - Austin 1983, writ dism’d): Attorney
General Opinion s-226 (i984). You suggest that articles 1175 and
1108 contain the necessary authority for the contemplated action.

     Article 1175 enumerates some of the powers of home rule cities.
Section 35 of article 1175 provides:

            A home-rule city may require all buildings to
         be constructed in accordance with energy conserva-
         tion standards included in the building code. If
         any.

This provision fails to specffy that it applies outside the boundaries
of a home rule city.

    Article 1108 provides:

            Any town or cic:yin this State which has or may
         be chartered or ~crganiaed under the general laws



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Honorable R. Tati Santiesteban - Page 2   UM-562)




          of Texas, or by special Act or charter, and which
          owns or operates waterworks, sewers. gas or
          electric lights, shall have the power and right:

            1. To own land for such purposes within or
         without the limits of such town or city.

            2.  To uurchase. construct and overate water.
         sewer and gas and electric light systems inside or
         outside of such tovms or city limits, and regulate
         and control same Tin a manner to protect the in-
         terest of such tol;aor

            3.  To extend the lines of such systems outside
         of the limits of such twins or cities and to sell
         water, sewer, gas, and electric light and power
         privileges or service to any person or corporation
         outside of the limits of such towns or cities, or
         permit them to connect therewith under contract
         with such town or city under such terms and
         conditions as msx appear to be for the best
         interest of such tovm or city; provided that no
         electric lines shall, for the purposes stated in
         this section. be extended into- the corporate
         limits of another incorporated town or city.

            4.  To prescribe the kind of water or gas mains
         or sever pipes ar;i electric appliances within or
         beyond the limits-of such town or city and to
         inspect the same and require them to be'kept in
         good order and co&tion    at all times and to make
         such rules and re@latlons and prescribe penalties
         concerning same, ~5 shall be necessary and proper.
         (Emphasis added).

Article 1108 applies to tome rule cities and authorizes them to
provide retail electric st~rvices to areas beyond their corporate
boundaries. City of Lubbock v. South Plains Electric Cooperative,
Inc., 593 S.W.2d 138. 142 ('&x. Civ. App. - Amarillo 1979, writ ref'd
Ke.);    Attorney General Opinion M-1136 (1972).

     The dispositive questiw in the case at hand is whether article
1108 contains sufficient Implied authority for a city to enact and
enforce an energy conservation code in connection with the city's
extension of service outsiie its boundaries. Section 2 of article
1108 authorizes a city to "rsegulateand control [its electric system]
in a manner to protect the !.nterestsof such city or town." Section 3
allows the city to extend service "under such terms and conditions as
may appear to be for the be:st interest of such town or city. . . ."
Section 4 authorizes the    :ity to prescribe the kind of "electric
appliances" used and "to Inspect the same and require them to be kept
in good order and condition at all times and to make such rules and


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Honorable H. Tati Santiesteban - Page 3    (JM-562)




regulations and prescribe .penalties concerning same, as shall be
necessary and proper." Energy conservation is logically in the "best
interest" of a city that pr,rrideselectric service.

     The court in Port Arthur Housing Company v. City of Port Arthur,
181 S.W.2d 1017 (Tex. Civ. &u. - Beaumont 1944, writ ref'd w.o.m.),
dealt with an extension of-water service outside of the city's
boundaries pursuant to art:lcle 1108. A city ordinance required the
payment of an inspection fe?, an inspection, and the installation of a
drum trap under all bathtubs as a condition to receipt of water
service. Stating that any such regulation must be, above all, reason-
able, the court upheld all three requirements. 181 S.W.2d at 1019-20.
The court upheld the drum trap requirement because the court found the
reasons for the requirement reasonable. The rationale behind the
requirement was twofold: 111)to protect the city's water mains from
contamination. and (2) to preserve the system’s    water pressure and
supply.  181 S.W.2d at 1020.  Thus, the court's reasoning enforces the
idea that article 1108 encowpasses the conservation of resources.

     Similar considerations apply to the use of electricity. Accor-
dim&.   article 1108 provides the implied authority for a city to
enact and enforce provis:Lons designed to protect its electrical
distribution system both inside and outside of its boundaries in the
areas to which the city provides electric service. As indicated in
the Port Arthur case, regulations under article 1108 must be reason-
able. Article 1108 does n,Dt, however, contemplate a comprehensive
energy conservation buildin code. This opinion is not intended to
address any particular hoa,e rule city's energy conservation regula-
tions. Nor does it address ,problemsariking when an out of boundaries
extension of service falls within another municipality. See generally
Port Arthur Housing Co. v.A:ity of Port Arthur, supra; State ex rel.
Richmond Plaza Civic AssocLation v. City of Houston, 270 S.W.2d 235
(Tex. Civ. App. - Galvestnl 1954, writ ref'd n.r.e.); City of New
Braunfels v. City of San .Intonio, 212 S.W.2d 817 (Tex. Civ. App. -
Austin 1948, writ ref'd n.rTel).

                             SUMMARY

               Article 1105, V.T.C.S., authorizes a home
          rule city which operates its own electric service
          company to enact and enforce reasonable regula-
          tions which proi:ect the city's electrical dis-
          tribution system inside its boundaries and outside
          its boundaries in the areas to which it provides
          electric service.




                                          .JIM    MATTOX
                                          Attorney General of Texas



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Honorable H. Tati Sant-iesteban- Page 4    (JM-562)




JACK BIGHTOWJZR
First Assistant Attorney Ge:leral

MARY KELLER
Executive Assistant Attorne:?General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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