Can a Texas general-law city collect trash outside its city limits, in its extraterritorial jurisdiction?

Plain-English summary

The Starr County Attorney asked whether the City of Escobares, a Type A general-law municipality, has authority to offer trash collection outside its geographic boundaries. The AG read the question, given the request's context, as asking about the city's extraterritorial jurisdiction (ETJ): the unincorporated land contiguous to the city's corporate limits. So the opinion is limited to whether the city may provide solid waste disposal service in its ETJ.

A general-law city has only the powers the State expressly confers, plus those reasonably necessary to make the express powers effective. The AG turned to Health and Safety Code chapter 363, "Municipal Solid Waste." In enacting it, the Legislature found that control of solid waste collection and disposal should remain the responsibility of local governments. Section 363.113 requires certain counties and each municipality to review solid waste management services in its jurisdiction and assure that those services are provided to all persons in its jurisdiction by a public agency or private person.

No statute defines "jurisdiction," so the AG used the ordinary meaning, an area within which authority may be exercised. The ETJ is, by the Local Government Code's own terms, an area within a municipality's jurisdiction (the state designates ETJs to promote the health, safety, and welfare of persons residing in and adjacent to municipalities). Reading "jurisdiction" by its common meaning, the AG concluded a court could find that a municipality has authority to provide solid waste disposal service to all persons in its ETJ. A municipality is itself a "public agency" under the statute, and chapter 363 gives public agencies broad contracting authority, including authority to enter contracts to furnish solid waste management services and to contract with a person or another public agency to manage solid waste. So the city could assure the service in its jurisdiction either directly or by contract. The AG summarized that a court could conclude section 363.113 authorizes the City of Escobares to provide solid waste disposal service in its ETJ.

What this means for you

If you run or sit on a general-law city government

Based on this opinion, your city likely has authority under Health and Safety Code section 363.113 to provide solid waste disposal service in its ETJ, as a way of assuring that service reaches all persons in the city's jurisdiction. You can do it directly or through a contract under chapter 363. The opinion frames this as something a court "could conclude," so it is the AG's reading rather than a guarantee.

If you are a resident or business in a city's ETJ

The AG read state law to allow the neighboring general-law city to arrange trash collection for your area as part of its duty to assure solid waste service throughout its jurisdiction. Whether your city actually does so is a local decision.

If you advise a city or county on service boundaries

The decisive points are that the ETJ falls within a municipality's "jurisdiction" under the ordinary meaning of that term, that a municipality is a "public agency" under section 363.004(14), and that sections 363.116 and 363.117 supply broad contracting authority. The AG noted that the requestor's cited authorities (Opinion GA-0988 and section 364.0341) were not directly applicable, the latter because its population bracket did not fit Starr County.

Common questions

Q: Can a Texas general-law city pick up trash outside its city limits?
A: The AG concluded a court could find that section 363.113 of the Health and Safety Code authorizes a city to provide solid waste disposal service in its extraterritorial jurisdiction.

Q: What is an extraterritorial jurisdiction (ETJ)?
A: It is the unincorporated land area contiguous to a municipality's corporate boundary, which the state designates to promote the health, safety, and welfare of persons in and adjacent to the city (Local Government Code sections 42.001, 42.021).

Q: Does the city have to do it itself?
A: No. Chapter 363 gives a municipality, as a public agency, broad authority to contract to furnish solid waste management services, so it can provide the service directly or by contract.

Q: Is this a definite yes?
A: The opinion is phrased as something a court "could conclude," reflecting the AG's reading of the statute rather than a binding ruling.

Background and statutory framework

A general-law municipality possesses only those powers expressly conferred by state law or reasonably necessary to make the express powers effective (Builder Recovery Servs., LLC v. Town of Westlake; Town of Lakewood Vill. v. Bizios, examining a general-law city's extraterritorial authority).

Health and Safety Code chapter 363, "Municipal Solid Waste," is a primary source of authority for municipal solid waste regulation. The Legislature found that control of solid waste collection and disposal should remain the responsibility of local governments (sections 363.002, 363.003(11)). Section 363.113 requires each municipality to review the provision of solid waste management services in its jurisdiction and assure they are provided to all persons in its jurisdiction by a public agency or private person. "Solid waste management" includes collection, handling, and disposal (section 363.004(20)).

"Jurisdiction" is undefined, so it carries its ordinary meaning of an area within which authority may be exercised (Government Code section 311.011(a), applied through Health and Safety Code section 1.002). The ETJ is, by the Local Government Code's own terms, within a municipality's jurisdiction (section 42.001). A municipality is a "public agency" (section 363.004(14)), and chapter 363 grants public agencies broad contracting authority to furnish or receive solid waste management services and to contract with a person or other public agency to manage solid waste (sections 363.116(a), 363.117(2)). The AG concluded that a court could find section 363.113 authorizes the City to provide solid waste disposal service in its ETJ.

Citations and references

Statutes:

• Tex. Health & Safety Code § 363.113 — duty to assure solid waste service to all persons in a municipality's jurisdiction
• Tex. Health & Safety Code § 363.116 — public agency contracting authority for solid waste services
• Tex. Loc. Gov't Code § 42.001 — state policy designating extraterritorial jurisdictions

Key cases:

• Builder Recovery Servs., LLC v. Town of Westlake, 650 S.W.3d 499 (Tex. 2022) — general-law cities have only expressly conferred and reasonably necessary powers
• Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527 (Tex. 2016) — a general-law municipality's extraterritorial authority

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0438
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2023/kp-0438.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 17, 2023

The Honorable Rene P. Montalvo
Starr County Attorney
401 North Britton Avenue, #405
Rio Grande City, Texas 78582

Opinion No. KP-0438

Re: Authority of a general-law city to offer trash collection services outside its geographic boundaries (RQ-0482-KP)

Dear Mr. Montalvo:

You ask whether the City of Escobares ("City"), a general-law municipality, has authority to offer trash collection services outside its "geographic boundaries."¹ You do not specify what you mean by geographic boundaries, but the context of your Request Letter suggests you seek to understand whether the City may offer solid waste disposal service² in its extraterritorial jurisdiction ("ETJ"), an unincorporated land area that is contiguous to a municipality's corporate boundary. See Request Letter at 1 (citing sources related to the ETJ); TEX. LOC. GOV'T CODE § 42.021. Thus, we limit this opinion to consideration of that question.

As a general-law municipality, the City possesses only those powers expressly conferred upon it by state law or reasonably necessary to make effective the powers expressly granted. See Builder Recovery Servs., LLC v. Town of Westlake, 650 S.W.3d 499, 503 (Tex. 2022); Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 530, 536 (Tex. 2016) (examining a general-law municipality's extraterritorial authority).

Chapter 363 of the Health and Safety Code, titled "Municipal Solid Waste," is one of the primary sources of authority for municipal solid waste regulation.³ See TEX. HEALTH & SAFETY CODE §§ 363.001–.145. In enacting chapter 363, the Legislature declared that encouraging cooperation "among federal, state, and local governments and private enterprise" furthers the State's solid waste management goals but found that "the control of solid waste collection and disposal should continue to be the responsibility of local governments and public agencies[.]" Id. §§ 363.002, .003(11). Consequently, and relevant to your question, section 363.113 provides that certain counties and each municipality "shall review the provision of solid waste management⁴ services in its jurisdiction and . . . assure that those services are provided to all persons in its jurisdiction by a public agency or private person." Id. § 363.113 (footnote added).

No applicable statute defines the term "jurisdiction." In relation to a geographic area, the term commonly means an "area within which political or judicial authority may be exercised." BLACK'S LAW DICTIONARY 980 (10th ed. 2014); see also TEX. HEALTH & SAFETY CODE § 1.002 (providing that Government Code, chapter 311, applies to the construction of the Health and Safety Code); TEX. GOV'T CODE § 311.011(a) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."). The ETJ is an area in which a general-law municipality may, in some instances, exercise authority. See, e.g., Bizios, 493 S.W.3d at 532 (discussing municipal authority under Local Government Code section 212.002 and subsection 212.003(a)). By its own terms, the ETJ is an area within the "jurisdiction" of a municipality. See TEX. LOC. GOV'T CODE § 42.001 (declaring "it the policy of the state to designate certain areas as the extraterritorial jurisdiction of municipalities to promote and protect the general health, safety, and welfare of persons residing in and adjacent to the municipalities" (emphasis added)). Using the common meaning of the term "jurisdiction," a court could conclude that a municipality has authority to provide solid waste disposal service to all persons in its ETJ by a public agency or private person. See TEX. HEALTH & SAFETY CODE § 363.113. A municipality itself is a "public agency" under the statute. See id. § 363.004(14).

Chapter 363 gives public agencies broad contracting authority. See id. §§ 363.116, .117. Section 363.116 provides that a public agency, such as a municipality, "may enter into contracts to enable it to furnish or receive solid waste management services on the terms considered appropriate by the public agency's governing body." Id. § 363.116(a). And such a contract may provide that a public agency "contract with a person or other public agency to manage solid waste for that person or agency[.]" Id. § 363.117(2). Thus, a municipality could ensure solid waste disposal service in its jurisdiction independently or via a contract authorized by chapter 363.

In sum, a court could conclude that section 363.113 of the Health and Safety Code authorizes the City to provide solid waste disposal service in its ETJ.

S U M M A R Y

A court could conclude that section 363.113 of the Health and Safety Code authorizes the City of Escobares to provide solid waste disposal service in the extraterritorial jurisdiction as a means of assuring solid waste management service is provided to all persons in the City's jurisdiction.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

CHRISTY DRAKE-ADAMS
Assistant Attorney General, Opinion Committee

¹ See Letter from Rene P. Montalvo, Starr Cnty. Att'y, to Off. of the Att'y Gen., Op. Comm. at 1–2 (Oct. 14, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/RQ0482KP.pdf ("Request Letter"); TML City Officials Directory at https://directory.tml.org/profile/city/28576 (providing the City is a type A general-law municipality).

² We refer to solid waste disposal service, rather than trash collection service, because it is consistent with the statutory terminology used to describe this service. See generally TEX. HEALTH & SAFETY CODE §§ 363.001–.145.

³ You cite to Texas Attorney General Opinion GA-0988 and section 364.0341, Health and Safety Code, in your Request Letter. See Request Letter at 1. But neither is directly applicable here. See Tex. Att'y Gen. Op. No. GA-0988 (2013) (addressing a county's solid waste authority in the ETJ); TEX. HEALTH & SAFETY CODE § 364.0341 (prohibiting a municipality in a county with a population of more than 54,000 and less than 54,500 from providing solid waste disposal service in the ETJ in certain instances); see also Quick Facts, UNITED STATES CENSUS BUREAU (last visited Jan. 17, 2023) (providing that the 2020 estimated population of Starr County is 65,920).

⁴ "Solid waste management" includes the collection, handling, and disposal of solid waste. TEX. HEALTH & SAFETY § 363.004(20)(C), (D), (J).