Untitled Texas Attorney General Opinion: KP-0521

June 26, 2026

The Honorable Kevin Sparks
Chair, Senate Committee on Natural Resources
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. KP-0521

Re: Whether the City of Austin’s proposed energy code conflicts with Texas Utilities Code
§ 181.903 (RQ-0600-KP)

Dear Senator Sparks:

You ask about a possible conflict between provisions in the City of Austin’s Energy Code
and the Utilities Code. 1 The provision at issue in the City’s Energy Code is section 8.4.5, which
you tell us contains “electric-ready” language that “require[s] builders to create additional
electrical infrastructure for hypothetical future electric equipment.” Request Letter at 2. You state
that these requirements conflict with subsection 181.903(b) of the Utilities Code because they
“clearly discriminate against the use of natural gas service based solely on the type and source of
energy.” Id. As such, you ask whether such a conflict indeed exists between these provisions. Id.
at 1.

The City may not adopt a code that “has the purpose, intent, or effect of directly or
indirectly . . . discriminating against” a utility service “based on the type or source of
energy.”

The City is a home-rule municipality which derives its power from article XI, subsection
5(a) of the Texas Constitution. See Quick v. City of Austin, 7 S.W.3d 109, 122 (Tex. 1998); see
also TEX. CONST. art. XI, § 5(a). This classification vests the City with authority to exercise the
“full power of local self-government.” TEX. LOC. GOV’T CODE § 51.072(a). Relevant here, the City
enacted an ordinance that replaced its Energy Code in Article 12 of City Code Chapter 25-12 with
a new Energy Code that includes section 8.4.5 and its subsections. See AUSTIN, TEX., LAND
DEVELOPMENT CODE, § 25-12-262 (2025). Section 8.4.5 and its subsections require buildings
containing combustion equipment for space heating, service water heating, cooking, and clothes

1
See Letter from Hon. Brian Birdwell, Chair, S. Comm. on Nat. Res. & Econ. Dev., to Hon. Ken Paxton,
Tex. Att’y Gen. at 1–2 (May 8, 2025), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/
2025/RQ0600KP.pdf (“Request Letter”).
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drying to install infrastructure for electric equipment and appliances for these same purposes. Id.
§§ 8.4.5–8.4.5.4.2. The Energy Code defines “[c]ombustion [e]quipment” as “[a]ny equipment or
appliance used for space heating, service water heating, cooking, clothes drying or lighting that
uses a fossil fuel.” Id. § 3.2. Thus, the City’s Energy Code requires the installation of “electric-
ready” infrastructure in buildings with equipment or appliances that use natural gas for these
purposes.

Although home-rule municipalities are afforded broad authority to self-govern, City of
Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 261–62 (Tex. 2018), they may not adopt
an ordinance that “contain[s] any provision inconsistent with the Constitution of the State, or of
the general laws enacted by the Legislature of this State,” TEX. CONST. art. XI, § 5(a); see also Act
of May 20, 2023, 88th Leg., R.S., ch. 899, § 11, 2023 Tex. Gen. Laws 2871, 2874 (codified at
TEX. LOC. GOV’T CODE § 51.002). 2 The Legislature may thus limit a home-rule municipality’s
broad powers so long as “it expresses its intent to do so with ‘unmistakable clarity.’” City of
Houston v. Bates, 406 S.W.3d 539, 546 (Tex. 2013) (quoting Dall. Merch.’s & Concessionaire’s
Ass’n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993)).

Subsection 181.903(b) of the Utilities Code is one such limit on the City’s powers. Indeed,
it prohibits political subdivisions, including cities, from adopting or enforcing a code with:

the purpose, intent, or effect of directly or indirectly banning,
limiting, restricting, discriminating against, or prohibiting the
connection or reconnection of a utility service or the construction,
maintenance, or installation of residential, commercial, or other
public or private infrastructure for a utility service based on the type
or source of energy to be delivered to the end-use customer.

TEX. UTIL. CODE § 181.903(b). Thus, the City may not adopt or enforce a provision which conflicts
with subsection 181.903(b) of the Utilities Code.

Section 8.4.5 memorializes a preference for electrification and thus has the “purpose,
intent, or effect of directly or indirectly . . . discriminating against” the use of natural
gas utility services “based on the type or source of energy.”

One way in which section 8.4.5 could conflict with subsubsection 181.903(b) is by having
“the purpose, intent, or effect of directly or indirectly . . . discriminating against” a utility service

2
Section 51.002 of the Local Government Code has been the subject of recent challenges but remains good
law. That section was codified by the Texas Regulatory Consistency Act in 2023, Act of May 20, 2023, 88th Leg.,
R.S., ch. 899, § 11, 2023 Tex. Gen. Laws 2871, 2874, and the Austin Court of Appeals recently reversed a district
court holding that the Act was unconstitutional, State v. City of Houston, No. 03-23-00531-CV, 2025 WL 2014935,
at *8 (Tex. App.—Austin July 18, 2025, pet. filed) (rendering dismissal for want of jurisdiction), reh’g denied, No.
03-23-00531-CV, 2026 WL 1343571 (Tex. App.—Austin May 14, 2026, no pet. h.).
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“based on the type or source of energy.” 3 Id. Determining whether a conflict exists between these
provisions requires us to ascertain the meaning of the phrase “discriminating against” through the
use of established principles of statutory construction. See Marks v. St. Luke’s Episcopal Hosp.,
319 S.W.3d 658, 678 (Tex. 2010).

In interpreting a legislative act, we strive to “ascertain and give effect to the Legislature’s
intent as expressed by the language of the statute.” City of Rockwall v. Hughes, 246 S.W.3d 621,
625 (Tex. 2008). We look to the “plain meaning” of the statute’s words “as informed by the context
in which the enacted text appears.” Am. Pearl Grp., L.L.C. v. Nat’l Payment Sys., L.L.C., 715
S.W.3d 383, 387 (Tex. 2025). “Undefined terms in a statute are typically given their ordinary
meaning,” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011), which is
generally discerned by “look[ing] first to dictionary definitions,” Tex. Dep’t of Crim. Just. v.
Rangel, 595 S.W.3d 198, 208 (Tex. 2020) (quoting Fort Worth Transp. Auth. v. Rodriguez, 547
S.W.3d 830, 838 (Tex. 2018)).

The Legislature does not define “discriminating” for purposes of subsection 181.903(b).
However, the word “discriminate” commonly means “to make a difference in treatment or favor
on a basis other than individual merit.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 358 (11th
ed. 2020). A comparative analysis of contemporaneous dictionaries counsels similarly. See, e.g.,
THE AMERICAN HERITAGE DICTIONARY 31 (5th ed. 2016) (defining “against” as “[i]n hostile
opposition or resistance to”); MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 23 (11th ed. 2020)
(defining “against” as “in opposition or hostility to”); NEW OXFORD AMERICAN DICTIONARY 29
(3d ed. 2016) (defining “against” as “in opposition to”). Here, of course, the basis other than
individual merit has been specified by the Legislature: The Utility Code prohibits differential
treatment that is “based on the type or source of energy to be delivered to the end-use customer.”
TEX. UTIL. CODE § 181.903(b).

The foregoing makes clear that section 8.4.5 has the “purpose, intent, or effect of directly
or indirectly” discriminating against natural gas utility services. This provision mandates the
installation of electric-ready infrastructure—based merely on the “type or source of energy,” id.—
over others like natural gas. See AUSTIN, TEX., LAND DEVELOPMENT CODE, §§ 8.4.5–8.4.5.4.2
(2025). To be sure, the City suggests that “[t]here is no evidence demonstrating that [its] Energy
Code deters the use of natural gas or that it will lead to a meaningful reduction in natural gas
installations.” 4 The City also explains that its Energy Code aims not to discriminate but “create
affordable building options” and give “the customer more options” when choosing a preferred
energy source. Request Letter at 1. But these points miss the mark. There can be no question that
the Utility Code neither prohibits meaningful nor intentional discrimination alone; it guards against
the adoption or enforcement of any “ordinance, resolution, regulation, code, order, policy, or other
measure that has the . . . effect of directly or indirectly . . . discriminating against” utility services

3
As noted above, subsection 181.903(b) also prohibits an ordinance from having “the purpose, intent, or
effect of directly or indirectly banning, limiting, restricting[] . . . or prohibiting the” use of natural gas utility services
“based on the type or source of energy.” TEX. UTIL. CODE § 181.903(b). We offer no comment on whether section
8.4.5 conflicts with subsection 181.903(b) on these other bases.
4
Brief from Deborah Thomas & Sonya Herrera, City of Austin City Att’ys, to Hon. Ken Paxton, Tex. Att’y
Gen. at 2 (Aug. 18, 2025) (“Brief”) (on file with the Op. Comm.).
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based on the “type or source of energy.” TEX. UTIL. CODE § 181.903(b) (emphases added). Basic
economics likewise belie the notion that mandating electric-ready infrastructure over others—in
what would otherwise constitute a free market—would not carry direct or indirect discriminatory
effects against utilities that do not deal in electricity. Put simply, we need not dwell on factual
disputes regarding the scope, scale, or intent of differential treatment when the Legislature has
prohibited the very existence of discriminatory effects in the first place. Id. We therefore conclude
that the Utility Code’s broad prohibition renders section 8.4.5 of the City’s ordinance
unenforceable.
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S U M M A R Y

Subsection 181.903(b) of the Utilities Code prohibits the
City of Austin from adopting or enforcing a code that has “the
purpose, intent, or effect of directly or indirectly . . . discriminating
against” a utility service based on the type or source of energy. As
such, the City of Austin’s Energy Code cannot lawfully memorialize
opposition to the use of natural gas utility services and is invalid to
the extent that it does so.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

RALPH MOLINA
Deputy First Assistant Attorney General

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

MICHAEL C. COTTON
Chair, Opinion Committee

ALLISON FREED
Assistant Attorney General, Opinion Committee