Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 20, 2009

The Honorable Patrick M. Rose Opinion No. GA-0710
Chair, Committee on Human Services
Texas House of Representatives Re: Authority of a water company to paint fire
Post Office Box 2910 hydrants black under certain circumstances
Austin, Texas 78768-2910 (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 ifthe
device is nonfunctioning or otherwise unavailable for use by the
entity providing fire suppression services in a fire emergency.

TEx. HEALTII & 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

lThere 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.

2Request Letter at 1 (available at http://www.texasattorneygeneral.gov).
The Honorable Patrick M. Rose - Page 2 (GA-0710)

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(bV

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'TCODEANN. § 311.016(2) (Vernon 2005) ('''Shall' imposes a duty."); Bd o/Ins.
Comm'rs o/Tex. v. Guardian Life Ins. Co. o/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" ifthe 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.3d279, 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

3Several 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., RS. (2009) and Tex. S.B. 1258, 81st Leg., RS. (2009)
(defining "hydrant" and "otherwise unavailable for use"; limiting a public water system's liability; and making other
changes).

4While 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 ofdevices 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.
The Honorable Patrick M. Rose - Page 3 (GA-071O)

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 ofthose devices exceeds 250 gallons
per minute. 5

We recognize that a ~onstruction 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 o/Tex. v. Miller,
434 S.W.2d670, 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.

5We 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."
The Honorable Patrick M. Rose - Page 4 (GA-0710)

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

JONATHANK. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

SheelaRai
Assistant Attorney General, Opinion Committee