When did buildings outside city limits in Texas have to start meeting the state energy code?

Plain-English summary

In 2001 the Texas Legislature adopted statewide building energy efficiency standards as part of a larger clean-air bill, Senate Bill 5, creating chapter 388 of the Health and Safety Code. The standards adopt the energy chapter of the International Residential Code for single-family homes and the International Energy Conservation Code for other construction. The chair of the Senate Natural Resources Committee asked the Attorney General when new construction in unincorporated areas (places outside any city's jurisdiction) had to start meeting those standards.

The Attorney General concluded the answer was September 1, 2001, the general effective date of chapter 388. The confusion came from a separate deadline. Section 388.003(c) requires a municipality to set up procedures to administer and enforce the codes by September 1, 2002, but that deadline applies only to cities. The senator suggested the lack of a matching deadline for unincorporated areas might have been an oversight, but the opinion found it was deliberate. The legislative history showed that the House first amended the bill to require both municipalities and counties to set up enforcement procedures, then struck "or county" on the House floor, at the request of small counties, so that counties would not be required to enforce the codes at all.

Because chapter 388 as a whole took effect September 1, 2001, the opinion concluded that new construction outside city limits had to begin complying on that date, and compliance could not be put off to 2002. The mechanism for showing compliance in those areas, section 388.004, also took effect September 1, 2001. It lets a building qualify through an accredited energy program, through inspection by a private code-certified inspector, or, if neither is available, through a builder's self-certification on a form from the Energy Systems Laboratory at Texas A&M. The opinion added that, although counties are not required to enforce the codes outside municipal jurisdiction, a county may voluntarily do so under section 388.004.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General 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. Chapter 388 of the Health and Safety Code has been amended several times since 2002, including changes to which editions of the International codes apply and how they are updated, so confirm the current statute and the current adopted code edition before relying on anything here.

What the opinion meant for those who asked

The Senate Natural Resources Committee, which asked (what the opinion held): The opinion concluded that the missing compliance date for unincorporated areas was not an oversight; new construction outside municipal jurisdiction had to comply from September 1, 2001, the general effective date of chapter 388, and could not wait for the 2002 municipal deadline.

Builders and developers working outside city limits (what the opinion held for them): The opinion treated their projects as already subject to the statewide energy codes since September 1, 2001, with compliance shown under section 388.004 through an accredited energy program, a private code-certified inspector, or a builder's self-certification on the Texas A&M laboratory form.

Counties (what the opinion held for them): The opinion concluded counties were not required to enforce the energy codes in unincorporated areas, because the Legislature deliberately struck "or county" from the enforcement provision, but that a county could choose to enforce them under section 388.004.

Common questions

Did construction outside a city get until 2002 to meet the energy code?
No. The opinion concluded the September 1, 2002 deadline applied only to municipalities, which had to set up enforcement procedures by then. New construction outside city limits had to comply starting September 1, 2001, and compliance could not be delayed.

Was the missing 2002 deadline for rural areas just a drafting mistake?
The opinion concluded it was not. The legislative history showed the House had amended the bill to cover counties, then struck "or county" on the floor at the request of small counties, so counties would not be required to enforce the codes.

How did a builder outside city limits show compliance?
Under section 388.004, by one of three methods: certification from a national, state, or local accredited energy efficiency program; inspection by a private code-certified inspector using the applicable International code; or, if neither was available, a builder's self-certification on a form from the Energy Systems Laboratory at Texas A&M, listing the building's code-compliance features.

Did counties have to enforce the energy code in rural areas?
No. The opinion concluded a county was not required to enforce the codes outside municipal jurisdiction, but it could voluntarily monitor and enforce compliance under section 388.004.

Background and statutory framework

Chapter 388 of the Health and Safety Code, the Texas Building Energy Performance Standards, was enacted by the Seventy-seventh Legislature as part of Senate Bill 5, a bill whose overall objective was to bring Texas into compliance with federal limits on certain air pollutants. See Act of May 24, 2001, 77th Leg., R.S., ch. 967, 2001 Tex. Sess. Law Serv. 1970; Tex. S.B. 5, 77th Leg., R.S. (2001). Section 388.003 adopts the energy efficiency chapter of the International Residential Code (as it existed May 1, 2001) for single-family residential construction and the International Energy Conservation Code for other residential, commercial, and industrial construction. Tex. Health & Safety Code Ann. § 388.003(a), (b) (Vernon Supp. 2002). Section 388.003(c) requires a municipality to establish procedures to administer and enforce the codes and to ensure code-certified inspectors perform inspections. Id. § 388.003(c). Local amendments are permitted but may not be less stringent in nonattainment areas and affected counties and must comply with the National Appliance Energy Conservation Act of 1987, 42 U.S.C. §§ 6291-6309. Id. § 388.003(d)-(f).

A municipality required to establish procedures under section 388.003(c) had until September 1, 2002, but in other respects chapter 388 became effective September 1, 2001. See Act of May 24, 2001, 77th Leg., R.S., ch. 967, §§ 11(d), 22, 2001 Tex. Sess. Law Serv. 1970, 1992, 1994. The opinion traced the legislative history: as introduced, Senate Bill 5 had no chapter 388; the Senate committee substitute added it with a permissive municipal-only enforcement provision; the House Committee on Environmental Regulation amended section 388.003(c) to require both a municipality and a county to establish procedures; and then, on second reading, the House adopted Representative Wolens's amendment striking "or county" at Representative Ramsay's request on behalf of small counties. See Tex. C.S.S.B. 5, 77th Leg., R.S. (2001); H.J. of Tex., 77th Leg., R.S. 3744-45 (2001).

Because chapter 388 became effective September 1, 2001, the opinion concluded that new construction outside municipal jurisdiction had to begin complying then, with compliance monitored under section 388.004, which also took effect September 1, 2001, and which lets a building qualify through an accredited program, a private code-certified inspector, or a builder's self-certification on the Energy Systems Laboratory form. Tex. Health & Safety Code Ann. § 388.004 (Vernon Supp. 2002). Although section 388.003(c) does not require a county to enforce the codes outside municipal jurisdiction, the opinion concluded a county could voluntarily enforce them under section 388.004, consistent with the rule that a county exercises only the powers conferred by the constitution and statutes. See id. § 388.003(d), (f); Tex. Att'y Gen. Op. No. JC-0171 (2000) at 1.

Citations

Constitutional and statutory provisions:

• Tex. Health & Safety Code Ann. §§ 388.001-.008 (Vernon Supp. 2002)
• Tex. Health & Safety Code Ann. § 388.001(a) (Vernon Supp. 2002)
• Tex. Health & Safety Code Ann. § 388.002(1), (6), (7), (10), (11), (12) (Vernon Supp. 2002)
• Tex. Health & Safety Code Ann. § 388.002(2), (8), (9) (Vernon Supp. 2002)
• Tex. Health & Safety Code Ann. § 388.003(a), (b) (Vernon Supp. 2002)
• Tex. Health & Safety Code Ann. § 388.003(c) (Vernon Supp. 2002)
• Tex. Health & Safety Code Ann. § 388.003(d), (f) (Vernon Supp. 2002)
• Tex. Health & Safety Code Ann. § 388.004 (Vernon Supp. 2002)
• Tex. Loc. Gov't Code Ann. § 214.212 (Vernon Supp. 2002)
• Tex. Rev. Civ. Stat. Ann. art. 6243-101, § 5B(a) (Vernon Supp. 2002)
• 42 U.S.C. §§ 6291-6309
• Act of May 24, 2001, 77th Leg., R.S., ch. 967, 2001 Tex. Sess. Law Serv. 1970
• Tex. S.B. 5, 77th Leg., R.S. (2001)
• Tex. C.S.S.B. 5, 77th Leg., R.S. (2001)

Prior Attorney General opinion referenced: JC-0171 (2000).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0457
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0457.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

January 28, 2002

The Honorable J.E. "Buster" Brown
Chair, Natural Resources Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068

Opinion No. JC-0457

Re: Whether new construction in an area of the state that is outside municipal jurisdiction may delay complying with the Texas Building Energy Performance 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. § 388.003(a), (b) (Vernon 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, § 11(b), 2001 Tex. Sess. Law Serv. 1970, 1986-87; Tex. Health & Safety Code Ann. § 388.003(c) (Vernon 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 "[e]nforcement of [e]nergy [s]tandards [o]utside of [m]unicipalit[ies]." Tex. Health & Safety Code Ann. § 388.004 (Vernon Supp. 2002). Section 388.004 took effect on September 1, 2001. See Act of May 24, 2001, 77th Leg., R.S., ch. 967, § 22, 2001 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.[1] We conclude that new construction must have begun complying as of September 1, 2001, which is the effective date of chapter 388 generally.

The Seventy-seventh Texas Legislature adopted the provisions about which you inquire as part of Senate Bill 5. See Act of May 24, 2001, 77th Leg., R.S., ch. 967, § 1(b), secs. 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; accord House Comm. on Environmental Regulation, Bill Analysis, Tex. S.B. 5, 77th Leg., R.S. (2001) at 1; House Research Org., Bill Analysis, 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, § 1(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 Senate Comm. 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 & Safety Code Ann. §§ 388.001-.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. § 388.001(a) (Vernon Supp. 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.

(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.

(f) 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. § 388.003(a)-(f); see also id. § 388.002(1), (6), (7), (10), (11), (12) (defining "affected county," "International Residential Code," "International Energy Conservation Code," "municipality," "nonattainment area," and "single-family residential"). But cf. Tex. Loc. Gov't Code Ann. § 214.212 (Vernon Supp. 2002) (adopting International Residential Code as municipal residential building code in this state); Tex. Rev. Civ. Stat. Ann. art. 6243-101, § 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 Experiment Station of The Texas A&M University System], enumerating the code-compliance features of the building.

Tex. Health & Safety Code Ann. § 388.004 (Vernon Supp. 2002); see also id. § 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, § 11(d), 2001 Tex. Sess. Law Serv. 1970, 1992. In other respects, for our purposes here, chapter 388 became effective on September 1, 2001. See id. § 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, §§ 1(b), 11(d), 2001 Tex. Sess. Law Serv. 1970, 1987, 1992 (section 1(b) codified at Tex. Health & Safety Code Ann. § 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 from 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, 2001). 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.

Tex. C.S.S.B. 5, § 1(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, § 1(b), sec. 388.004, 77th Leg., R.S. (2001). The House Committee on Environmental Regulation amended the proposed section 388.003(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, § 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, 2001) (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, § 22, 2001 Tex. Sess. Law Serv. 1970, 1994. But see id. § 11(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, 2001. See id. § 22, 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 388.003 adopt energy efficiency performance standards "for use in this state," the construction of single-family residences, and "all other residential, commercial, 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. § 388.003(d), (f). A county that chooses to enforce the standards would do so under section 388.004, which provides for "[e]nforcement of [e]nergy [s]tandards [o]utside of [m]unicipality." Id. § 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).

                                  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 & Safety Code Ann. § 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. § 388.004.

Yours very truly,

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