                                     The Attorney                General of Texas
                                                            December 30, 1983
    JIM MAllOX
    Attorney General


                                   Eouorablc Reynaldo S. Cantu                             Opinion      No. JM-123
                                   Criminal District    Attorney
                                   Cameron County                                          Re: Play Cameron County enforce
                                   Rail of Justice                                         building     regulations     enacted to
                                   974 E. Xarrison   Street                                restrict     developwnt       in flood-
                                   Brovusville,   Texas     70520                          prone      areas     by     prohibiting
                                                                                           provisions       of utility      service
    714 Jackeon. Suile 700
                                                                                           to mu-complying         atructurae
    ,Dallar. TX. 75202-4506
    2w742-Sv44
                                   Dear Mr. Cantu:

                                          You have requested    an Attorney                General      Opinion   on a     question
                                   arising   from the following   facts:

                                                       Since the passage of Cameron County’s                building
                                                   regulations     in 1971, the county has been denying
                                                   building      permits      to    those     individuals       vhose
                                                   subdivisions     and lots do not meet, tbe regulations
                                                   established     by the county under federal             and state
                                                 -
    SW Broadway. malt. 312
                                                   enablrng     regialation       through    the Eederal ,Plood
    Lubbock. TX. 704013479                         Insurance     Program.       Various    utilities     -have ,been
    Sow747-52Ss    .,(’                           ,cooperating     with the county In slso not providing
                  I;;~ :
                                                   service ‘,~to     those      households       which    have .,~not
                                                   receIved~bullding        permits from the county.
    4202 N. TwUh, Sult.8
    McAllen. TX. 7Sm~~.                   .' :         Recently;‘houever.‘questions            have arisen      ae to
    512MS2.4S47 ,‘.’          ”
                                                  whether or not the utilities            can deny service        to a
                                                 ‘household just because~the           county has not giveu it
     200 MaIn PIaz& Suulte4w .:_
     San Antonlo, TX. 7820527s7
                                                 ‘a building        permit.      Our discussions           vith     the
     512/2254191                                  utilities      have not resolved          this    issue.     and we
                                                  have agreed to seek an Attorney General’s                   Opinion
                                                  as to whether,or        not Cameron County can prevent a
     An Equal Opwftunltyl                         utility     from providing        service      to an individual
     Afllrmatlre Actlon EmpIoyar
                                                  who has been denied         a building      permit for failure
                                                  to comply with the county's            building     regulations.

                                          We will first       consider  whether         the utilities      may voluntarily       deny
                                   service   under the       facts given.
P
                                         Article     144612, section           58(a),      V.T.C.S..       the    Public     Utility
                                   Regulatory    Act, provides   that




                                                                          p. 519
  Ronorable     Reynaldo    S. Cantu - Page 2           (~~-123)




                [t]he    holder     of     any    certificate   of    public
                convenience      and    ueceeeity       shall serve     every
                consumer    within     its    certlflcdrea       and shall
                render continuous       and adequate service     within    the
                area.    (Emphasis added).

  Certificates       of convenience          and necessity     are     issued     to public
  utilities     pursuaot    to sections 49-62 of the Public Utility               Regulatory
  Act.       The public       utilities       in question     provide,        for    example,
  electricity,      water,    sewage disposal      and natural      gas.     V.T.C.S.    art.
  1446~. $3(c).        Unless the commission         issues   a certificate         that the
  convenience      and necessity        mill not be adversely      affected,      the holder
  of a certificate       shall not discontinue       service   except for:

                 (1)   non-payment     of charges;

                 co    nonuee;    or

                 (3)   other similar      reasons    in the usual      course    of
                       business

  V.T.C.S.   art. 1446~.         158(b).    Any discontinuance   of service             must    be
  subject  to conditions         prescribed   by the commission.   Id.                                 ‘?

          The commission has promulgated               a rule permitting      any utility        to
  decline    to serve an applicant            until   he has complied vith the state and
  municipal     regulations.          Rule 052.02.04.043(a)         codified     at 16 T.A.C.
  123.33.      Ewaver,       municipality         is defined     as a “city,      incorporated
- village      orYi%m;“.          .”      -2     d       -‘-- i@ude        a county.          Rule
  052.01.00.012        codified     at “F6 T.::.        yil.2.      The commission’e          rule
  052.02.04.043(a)        also permits          the utility      to decline    service      to an
  applicant     who has not complied with the utility’s                  approved rules and
  regulations      filed with the coam~ission or an spplicant                whose equipment
  is hazfrdous       or of such character           that satisfactory      service    cannot be
  given.        Thus.     the    utility       may voluntarily        deny service         to au
  applicant.     for the reasons           set out in the co=ission            rule.      If the
  Cameron County regulations             guard against       the same conditions       expressed
  in the utility’s         approved regulations           on file with the cotmniesion or
  if    they    prohibit      utility        hook-ups     to applicants       with     equipment
  hazardous     or unsatisfactory           because of the danger of-being           located     in
  a flood prone area, the utility                may voluntarily     comply with them.




         1. Cameron County might            approach     the PUC about      amending    its    rule
   to include the county.                                                                               ?



         2. The utility     could seek an amendment to its     regulations                        to
    deny service to buildings    which lack permits required by local law.
      .   .




              Honorable     Reynaldo     S. Csntu - Page 3          (JM-123)




                    If the utility     cannot voluntarily     refuse service   to an individual
              who has been denied         a building    permit    for failure   to comply with
              county building      regulations    promulgsted    pursuant   to article  lS81e-1,
              V.T.C.S.,   and sections      16.311 through 16.319 of the Texas Water Code,
              you wish to know vhether Cameron County may prevent the utilities              from
              providing  such service.

                     The Public       Utility       Commisalon has general              power to regulate
              public utilities       and to make rules reasonably               required     In the exercise
              of this power.         V.T.C.S.       art.   1446~. 116.         Section    17(e) of the act
              vests    in the coxw~ission exclusive            jurisdiction       over “electric,         water,
              and sewer utility           rates.       operations      and services         not within         the
              incorporsted      limits     of a municipality           exercising       exclusive      original
              jurisdiction      . . . .”          Section      18     of     the     act     vests       similar
              jurisdiction       in the commission over telecommunications                      utilities       in
              all areas of the state.                This latter       jurisdictional        grant has been
              construed      broadly      to include          “the    entire      field     of     legislative
              regulatfon     of public      utilities.”        Southwestern       Bell Telephone Company
              v. City of Kountre. 543 S.W.2d 871 (Tex. Civ. App. - Beaumont 1976, no
              writ).      See also V.T.C.S. art. 1446~. 135.

                    Counties   have only those powers and duties      expressly     granted or
              necessarily    implied    from statutory   and constitutional        provisions.
              Canales v. Laughlin,     214 S.W.2d 451 (Tex. 1948); Anderson v. Wood, 152
              S.W.Zd 1084 (Tex. 1941); Attorney General Opinion R-374 (1974).                 The
              commissioners      court     does   not  have   general       police      powers.
_.-           Commissioners’     Court v. Kaiu           S.W.2& 840 (Tei. Civ. pp.              -
              Galveston T929, writYef’d)Z

                    Article     1581e-1.  section  4.   V.T.C.S..                    authorizes      counties
              bordering    on the Gulf of Mexico or the tidewater                   limits   thereof

                            to enact and enforce            regulations     vhich    regulate,
                            restrict,       or control      the management and use of
                            land, structures,         and other development          in flood,
                            or rising       water prone, areas in such a manner as
                            to reduce the danger of. damage.caused                    by flood
                            losses.      This power and authority           may include,     but
                            shall      not     be    limited      to,     requirements        for
                            flood-proofing        of structures        which are permitted
                            to remain        in,   or be constructed           in.    flood    or
                            rising    water prone. areas;          regulations     concerning
                            minimum elevation         of any structure       permitted     to be
                            erected        in,    or     improved       in.     such      areas;
                            specifications        for drainage;       and any other action
                            which is feasible          to minfmiie flooding        and rising
 P                          water damage.




                                                                p. 521
Honorable   Reynaldo          S. Cantu - Page 4        (Jli-123)




Article  15Sle-1,   V.T.C.S.,   wss enacted   in 1969 to enable   coastal
counties to qualify   for participation   in the Nations1 Flood Insurance
Program.  Acts 1969. 61et Leg., ch. 720, I1 at 2107; Attorney General
Opinion E-1024 (1977).

       Sections   16.311 through       16.319 of the Water Code authorize       a
number of polltical       subdivisions      including   any county “to take all
necessary     and reasonable    actions    to comply with the requirements    and
criteria     of the National     Flood Insurance      Program.”   Specific powers
include,    but are not limited      to, the following:

                (1) making appropriate  land use adjustments  to
            constrict  the development of land vhich is exposed
            to flood    damage and minimire   damage caused by
            flood losses;

                (2) guiding the development       of proposed future
            construction.     vhere     practicable,      away   from
            location   which Is threatened     by flood hazards;

                (3)           assisting   in   minimizing    damage caused   by
            floods;

                .   .     .    .

               (5) engaging     in    floodplain   management     and
            adopting enforcing    permanent land use and .control.~ __ _
            measures consistent    with the criteria   established
            under the National Flood Insurance Act;

                (6) declaring     property,   when such is the case,
            to be in violation       of local laws, regulations,     or
            ordinances   vhich     are intended    to discourage     or
            otherwise   restrict     land development   or occupancy
            in flood-prone     areas and notifying    the secretary,
            or whomever he designates,       of such property;

                .     .   .     .

                (12)   eatlsfying    criteria     adopted                    and
             promulgated    by the department  pursuant   to                 the
             National Flood Insurance Program; and

                 (13)   adopting    permanent  land use and control
             measures    with    enforcement  provisions     which are
             consistent    with the criteria     for land management
             and use adopted by the secretary        . . . .

 Water Code 116.315.




                                                  p. 522
Ronorable     Reynaldo     S. Cantu - Page 5          (JR-123)




       Article     1581e-1, V.T.C.S..        and sections      16.311 through 16.319 of
the Water Code must be construed               in conformity       vith their purpose --
that is. enabling        counties   and various       other political        subdivisions    to
qualify     for participation        in the National          Flood Insurance         Program.
See Texas Liquor Control Board v. Falstaff                    Distributing      Company. 369
E2d       483 (Tex. Civ. App. - Houston 1963. no writ).                        See  also Code
Construction       Act. V.T.C.S..      art.    5429b-2.      13.03(l)     (in   construinn    a
statute,     a court-may consider        the object bo,ght~;o.b,~attained).                 &The
language      and the purpose of these              statutes      do not require          us to
conclude that counties          have been given land regulation               powers broader
than those necessary         and reasonable       to qualify      for the National Flood
Insurance       Program.     Attorney     General      R-978 (1977).         in considering
whether counties        could enforce       requirements      in excess of the minimum
necessary      to qualify     for insurance       under the federal         program, stated
as follows:

              the authorization       of . . . [the       predecessor     of
              section     16.3151 clearly     is not an unconditional
              grant of authority       for political    subdivisions      to
              enact      land    use    regulations      not     otherwise
              sanctioned      by law.     The regulations      so enacted
              must have as their       purpose and effect       compliance
              with    the requirements      and criteria      promulgated
              pursuant     to the National Flood Insurance Program.

The Public Utility       Regulatory Act was enacted in 1975. subsequent         to
article    1581e-1, V.T.Cu             Acts 1975. 64th Leg., ch. 721 at 2327.
Thus,    even if     article     1581e-1.    V.T.C.S.,    could   be construed  to
impliedly    authorize    counties   to deny utili~ty hook-ups to consumers as
a means of enforcing        land use regulations,      that power would have been
repealed    by the enactment of the Public Utility            Regulatory Act.  See
V.T.C.S.     art.   1446~. 1f16.      17(e),    18. 35. 58; see also &         190
(express repqal of conflicting         laws).

        The denial       of utility      connections      to non-complying         construction
in a flood plain           might be a means of "minimizing                   damage caused by
floods."      Water Code 516;315(3).                Hovever , we do not believe                this
general      authorization          evinces      a    legislative         intent      to    repeal
provisions     of the Public Utility               Regulatory      Act requiring        regulated
utilities     to serve customers            within    the certified         area or providing
that the Public Utility            Commission has exclusive            original    jurisdiction
in unincorporated           areas over telec~unicationr.                    water,     sewer and
electric      utilities.          The comaiseion,            in      the    exercise      of    its
Nle-making       power, may define           the limitations         on a utility's       duty to
serve every customer in its area.                  Neither article        1581e-1 nor section
16.315 of the Water Code authorize                   a county       to do so.        We conclude
that      a county      may not require           a utility        to deny service           to an
individual      or entity        not in compliance            with     county    flood     control
ordinances     or regulations.




                                               p. 523
Honorable   Reynaldo   S. Cantu - Page 6 (JM-123)




                                     SUMMARY

                The Public      Utility       Realatory     Act,    article
            1446~.      V.T.C.S.,         and     present     regulations
            promulgated     thereunder,        prevent    Cameron    County
            from requiring        utilities       to deny     service       to
            individuals     or entities        not in compliance        with
            county flood regulations.
                                                               b
                                                  Very trul        yours.

                                                                   *i&n        /VW
                                                   cl

                                                  Attorney    General       of Texas

Tot4 GREEN
First Assistant     Attorney    General

DAVID R. RICSARDS
Executive Assistant Attorney         General

Prepared    by Susan L. Garrison
Assistant    Attorney General

   PROVED:    _.__
        COMMITEE

Rick Gilpin.    Chairman
Jon Bible
Susan Garrison
Jim Floellinger
Fernando Rodriquez
Nancy Sutton
