When must a Texas water utility paint a fire hydrant black under Health and Safety Code 341.0357?

TX AG Opinion GA-0710: When must a water utility paint a fire hydrant black?

Plain-English summary

A state representative asked about Health and Safety Code section 341.0357, which deals with nonfunctioning or otherwise unavailable fire hydrants. The questions were whether, to paint a device black, a water utility must first determine that the individual device flows less than 250 gallons per minute, and whether the statute lets a utility paint every device in a system black even when some of those devices flow more than 250 gallons per minute.

The Attorney General read the statute by its plain language. Section 341.0357(a) says the owner of any device that looks like a fire hydrant, located where a fire suppression entity would expect a hydrant, must paint it black if the device is nonfunctioning or otherwise unavailable for use, unless that condition is temporary (in which case a black tarp is an option). The statute defines "nonfunctioning" as pumping less than 250 gallons per minute, but it does not define "otherwise unavailable for use." So the duty to paint arises in two distinct situations.

Because the phrase "otherwise unavailable for use" must mean something different from or in addition to the flow test, and is very broad with no listed criteria, the opinion concluded an owner need not first measure flow to paint a device black, so long as the owner determines the device is otherwise unavailable for fire suppression. It followed that if an owner determines that all devices in a system are otherwise unavailable for fire suppression, the owner must paint them all black, even those flowing more than 250 gallons per minute. The opinion acknowledged that painting an entire system black might seem counterproductive, but said it could not insert words into the statute or disregard its plain language; amending the statute is the Legislature's job.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion itself noted several pending bills to amend section 341.0357, including one to make painting permissive rather than mandatory and others to define key terms. The statute may read very differently now. Confirm the current version before relying on this analysis.

Who this opinion affected (as of 2009)

Water utilities and device owners: The opinion concluded they did not have to test a device's flow before painting it black, and that a finding of "otherwise unavailable for use" triggered a mandatory duty to paint, even for high-flow devices in a system found unavailable.

Fire departments and fire suppression providers: The opinion tied the black-paint marking to whether a device is available for use in a fire emergency, the safety concern the statute was meant to address.

The Legislature: The opinion flagged that the broad, undefined phrase "otherwise unavailable for use" could require painting an entire system black, and said any fix was for the Legislature, noting bills already pending to amend the statute.

Common questions

Does a utility have to measure flow before painting a hydrant black?
No, the opinion said. An owner may paint a device black if it determines the device is "otherwise unavailable for use" for fire suppression, without first testing whether flow is under 250 gallons per minute.

What does "otherwise unavailable for use" mean?
The opinion noted the statute does not define it, and read it broadly to mean something separate from or in addition to the under-250-gallon flow test.

Could a utility have to paint working hydrants black too?
Yes. The opinion concluded that if an owner finds all devices in a system are otherwise unavailable for fire use, it must paint them all black, even those flowing over 250 gallons per minute.

Isn't that a strange result?
The opinion agreed it might seem counterproductive, but said it could not rewrite the statute's plain language, and that changing it was up to the Legislature.

Background and statutory framework

Section 341.0357(a) requires the owner of a device that looks like a fire hydrant, located where a fire suppression entity would expect one, to paint it black if it is nonfunctioning or otherwise unavailable for use, unless the condition is temporary (Tex. Health & Safety Code Ann. § 341.0357(a) (Vernon Supp. 2008)). A device is "nonfunctioning" if it pumps less than 250 gallons per minute (id. § 341.0357(b)). The opinion read the statute for its plain meaning (Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008)), treated "shall" as a duty (Tex. Gov't Code Ann. § 311.016(2) (Vernon 2005)), and read "or" as disjunctive (Bd. of Ins. Comm'rs of Tex. v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906, 908 (Tex. 1944)). Because "otherwise unavailable for use" is undefined and must not be surplusage (State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006)), it operates independently of the flow test. The statute, enacted by House Bill 1717 (Act of May 17, 2007, 80th Leg., R.S., ch. 684, § 1, 2007 Tex. Gen. Laws 1264, 1264), addressed safety concerns from hydrant-like devices that cannot deliver fire flow. The opinion declined to rewrite the result, citing the rule that courts interpret statutes as written (R.R. Comm'n of Tex. v. Miller, 434 S.W.2d 670, 672 (Tex. 1968)).

Citations

Statutes:

• Tex. Health & Safety Code Ann. § 341.0357(a), (b) (Vernon Supp. 2008)
• Tex. Gov't Code Ann. § 311.016(2) (Vernon 2005)
• Act of May 17, 2007, 80th Leg., R.S., ch. 684, § 1, 2007 Tex. Gen. Laws 1264, 1264

Cases:

• Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008)
• Bd. of Ins. Comm'rs of Tex. v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906, 908 (Tex. 1944)
• State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006)
• R.R. Comm'n of Tex. v. Miller, 434 S.W.2d 670, 672 (Tex. 1968)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0710
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0710.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

April 20, 2009

The Honorable Patrick M. Rose
Chair, Committee on Human Services
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0710

Re: Authority of a water company to paint fire hydrants black under certain circumstances (RQ-0750-GA)

Dear Representative Rose:

You request an opinion about Health and Safety Code section 341.0357, which regulates nonfunctioning or otherwise unavailable fire hydrants.[1] You ask whether under the statute "in order to paint a device black . . . ,[a water] utility [must] first determine the flow of that individual device to be less than 250 gallons per minute [.]"[2] You also ask whether the statute "allow[s] a water utility to paint all devices within a system black even when the flow from certain devices within that system exceeds 250 gallons per minute[.]" Request Letter at 1.

Your questions require us to construe section 341.0357. In construing a statute, the objective is to determine and give effect to the Legislature's intent, which is determined first by looking at the language of the statute. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). If the statutory language is unambiguous, its plain meaning prevails. Id. Section 341.0357(a) provides in relevant part:

The owner of any device having the appearance of a fire hydrant that is located in a place that an entity responsible for providing fire suppression services in a fire emergency would expect a fire hydrant to typically be located shall paint the device black if the device is nonfunctioning or otherwise unavailable for use by the entity providing fire suppression services in a fire emergency.

TEX. HEALTH & SAFETY CODE ANN. § 341.0357(a) (Vernon Supp. 2008). Instead of painting a device black, an owner may place a black tarp over a device that is temporarily nonfunctioning or temporarily otherwise unavailable for use. Id. A device is nonfunctioning, "if the device pumps less than 250 gallons of water per minute." Id. § 341.0357(b).[3]

First, by its terms, section 341.0357 requires an owner to paint black "any device having the appearance of a fire hydrant" either if the device is nonfunctioning or "otherwise unavailable for use" by a fire suppression service provider, unless either condition is temporary. Id. § 341.0357(a); see also TEX. GOV'T CODE ANN. § 311.016(2) (Vernon 2005) ("'Shall' imposes a duty."); Bd. of Ins. Comm'rs of Tex. v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906, 908 (Tex. 1944) (describing "and" as conjunctive and "or" as disjunctive). Thus, the statute requires painting a device black in two instances.

Second, while section 341.0357 deems a device "nonfunctioning" if the device pumps less than 250 gallons per minute, the phrase "otherwise unavailable for use" is not defined. See TEX. HEALTH & SAFETY CODE ANN. § 341.0357 (Vernon Supp. 2008). Based on the plain language and established principles of statutory construction, the phrase "otherwise unavailable for use," as used in the statute, means something different from or in addition to "nonfunctioning," i.e., a device pumping less than 250 gallons per minute. See id.; see also State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006) (stating that when construing a statute, courts give "effect to all its words and, if possible, do not treat any statutory language as mere surplusage"). Moreover, on its face, the phrase "otherwise unavailable for use" is very broad, and the statute does not set out any legal or factual criteria for making a determination that a device is otherwise unavailable for use.[4] See TEX. HEALTH & SAFETY CODE ANN. § 341.0357 (Vernon Supp. 2008).

Thus, based on the plain meaning of section 341.0357, unless the condition is temporary an owner must paint black a device pumping less than 250 gallons per minute or a device "otherwise unavailable for use" by an "entity providing fire suppression services in a fire emergency" for reasons other than that it pumps less than 250 gallons per minute. Id. § 341.0357(a). Furthermore, the term "otherwise unavailable for use" is expansive, and the statute does not specify the factors that must be considered when making a determination as to a device's unavailability for use, other than to specify that the unavailability be to an entity providing fire suppression services under the circumstances of a fire emergency. Accordingly, we conclude that an owner is not required to first determine that the device's flow is less than 250 gallons per minute in order to paint a device black under the statute, if the owner determines that the device is otherwise unavailable for use for fire suppression purposes. Additionally, if an owner determines that all devices within a system are otherwise unavailable for use for fire suppression purposes, the owner is required to paint all the devices black under the statute even when the flow from certain of those devices exceeds 250 gallons per minute.[5]

We recognize that a construction that permits painting all devices within a system black may appear counterproductive. But, like a court, this office cannot disregard the plain language of the statute or insert words into the statute to provide otherwise. See, e.g., R.R. Comm'n of Tex. v. Miller, 434 S.W.2d 670, 672 (Tex. 1968) (stating that because courts are not the law-making body, they are not responsible for omissions in legislation but only for interpreting the statute as written). It is the Legislature's province to amend the statute as it deems necessary or desirable.

SUMMARY

Under Health & Safety Code section 341.0357, an owner is not required to first determine that the flow of a device having the appearance of a fire hydrant is less than 250 gallons per minute in order to paint the device black, if the owner determines that the device is otherwise unavailable for use by an entity providing fire suppression services in a fire emergency. Additionally, if the owner determines that all devices within a system are otherwise unavailable for use for fire suppression services other than on a temporary basis, an owner is required to paint all the devices black under section 341.0357 even when the flow from certain of those devices exceeds 250 gallons per minute.

Very truly yours,

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee

[Footnote 1: There are two provisions codified as section 341.0357 in the Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 341.0357 (Vernon Supp. 2008). At issue here is section 341.0357 enacted by Act of May 17, 2007, 80th Leg., R.S., ch. 684, § 1, 2007 Tex. Gen. Laws 1264, 1264.]

[Footnote 2: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

[Footnote 3: Several bills have been introduced to amend section 341.0357. See, e.g., Tex. H.B. 1587, 81st Leg., R.S. (2009) (amending section 341.0357(a) to permit rather than require an owner to paint black a nonfunctioning "or otherwise unavailable" device); Tex. H.B. 1913, 81st Leg., R.S. (2009) and Tex. S.B. 1258, 81st Leg., R.S. (2009) (defining "hydrant" and "otherwise unavailable for use"; limiting a public water system's liability; and making other changes).]

[Footnote 4: While the statute's legislative history indicates the purpose of the statute, it does not suggest any precise or particular meaning of "otherwise unavailable for use." Section 341.0357 was enacted by House Bill 1717. See Act of May 17, 2007, 80th Leg., R.S., ch. 684, § 1, 2007 Tex. Gen. Laws 1264, 1264. The legislation was intended to address safety concerns posed by the existence of devices resembling fire hydrants that are not usable for fire suppression because they do not deliver flow like fire hydrants or by fire hydrants that are inoperable or nonfunctioning. SENATE RESEARCH CTR., BILL ANALYSIS, H.B. 1717, 80th Leg., R.S. (2007) at 1; HOUSE RESEARCH ORG., BILL ANALYSIS, H.B. 1717, 80th Leg., R.S. (2007) at 1-2. "Such safety concerns may be avoided if those hydrants are identified as nonserviceable." SENATE RESEARCH CTR., BILL ANALYSIS, H.B. 1717, 80th Leg., R.S. (2007) at 1. Additionally, "[m]aking clear which hydrants were inoperable would help fire departments plan responses to emergencies and would establish a statewide standard for designating nonfunctioning hydrants." HOUSE RESEARCH ORG., BILL ANALYSIS, H.B. 1717, 80th Leg., R.S. (2007) at 2.]

[Footnote 5: We note that section 341.0357 requires painting a device black if it meets the statutory criteria, pumping less than 250 gallons per minute or otherwise unavailable for use. See TEX. HEALTH & SAFETY CODE ANN. § 341.0357(a) (Vernon Supp. 2008); see also TEX. GOV'T CODE ANN. § 311.016(2) (Vernon 2005) ("'Shall' imposes a duty."). Arguably, the statute by its terms does not prohibit an owner from painting a device not meeting the statutory criteria black for other reasons. However, we need not make that determination to answer your questions given the breadth of the term "otherwise unavailable for use."]