Untitled Texas Attorney General Opinion ( 1988 )


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  •                  TEE       ATTORNEY          GENERAL
    OF   TEXAS
    September 30, 1988
    Ms. Betty Strohacker           Opinion No.     JR-961
    President
    Upper Guadalupe River          Re:    Authority  of the Upper
    Authority                   Guadalupe  River Authority     to
    P. 0. Box 1278                 compel septic tank users within
    Kerrville, Texas   78029       its service area to connect    to
    a sewage gathering, transmission,
    and disposal facility   (RQ-1375)
    Dear Ms. Strohacker:
    You request an opinion concerning the authority of the
    Upper Guadalupe River Authority to compel septic tank users
    within the boundaries   of the authority   to connect to a
    sewage gathering, transmission, and disposal system operated
    -   by the authority,   either by itself or pursuant      to an
    agreement with some other governmental entity permitted   to
    contract with the authority    for the operation of such a
    system.  You limit your questions to a sewage system wholly
    within the service area of the authority, including:
    (1) locations within the          corporate limits     of a     home
    rule city:
    (2) locations within the extraterritorial            jurisdiction
    of a home rule city:
    (3) locations outside the corporate limits and               extra-
    territorial jurisdiction of a home rule city:
    (4) locations wholly within the corporate limits of               a
    general law city:
    (5) locations within the boundaries  of an entity
    authorized  to provide   sewage collection and   disposal
    services pursuant   to a Certificate  of Convenience  and
    Necessity; and
    (6) locations not within the boundaries of any of               the
    entities described in (l)-(5).
    We conclude  that the authority has no power,  either
    express or implied, to compel septic tank users to connect
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    Ms. Betty Strohacker - Page 2     (JM-961)
    to a sewage system operated by it, either on its own behalf
    or pursuant  to an agreement with some other governmental
    entity, including both home rule and general law cities.
    We also conclude   that while home rule cities have
    the express power to compel property     owners within   the
    boundaries of the city to connect to sewage systems operated
    by them, they may not delegate that power to the authority.
    The authority has the power to purify water before    it
    returns to the groundwater    table and hence to the river
    system. Thus, the authority may treat and dispose of sewage
    generated within its service area. parker v. San Jacinto
    Citv Water Control    and Imnrovement District No. 1, 
    273 S.W.2d 586
      (Tex. 1954).    However, the authority   has no
    general police powers to protect the public health        and
    general welfare   that can be used to force septic tank
    users to abandon those systems in favor of a sewage system
    operated by it, nor any express power to do so. Powers may
    not be implied merely because they are convenient to the use
    of express powers.   Tri-Citv Freshwater Suvvlv District  No.
    2 of Harris Countv v. Mann, 
    142 S.W.2d 945
    , 948 (Tex. 1940).
    The authority has express authority under its enabling
    statute and Water Code provisions       to operate   a sewage
    disposal system. See Acts 1971, 62d Leg., ch. 430, § 1, at
    1586; Water Code 5 30.021 (regional waste disposal    system):
    § 51.331 (water control and improvement district):    g 54.030
    (municipal utility district).      However, the authority   to
    operate a sewage disposal      system does not include the
    implied authority to require all septic tanks to be con-
    nected with the system. Septic tanks are not parts of a
    sewer system.    See, e.q., McWilliams v. Barnes, 
    242 P.2d 1063
    (Kan. 1952); Lake Townshiv. McComb     Countv v. Millar,
    
    241 N.W. 237
    . 239 IMich. 1932). Chapter 26 of the Water
    Code, which pertains   to water .guality control,   authorizes
    the Texas Water Commission       to issue permits    for   the
    discharge of waste or pollutants into water in the state.
    Water Code     9 26.027.   The    following definitions    are
    applicable to chapter 26:
    (‘5) 'Waste' means    sewage,    industrial
    waste, municipal   waste, recreational   waste,
    agricultural   waste, or    other waste,     as
    defined in this section.
    .   .   .   .
    (14) 'Sewer system'   means   pipelines,
    conduits, storm  sewers, canals,    pumping
    stations, force  mains,   and  all    other
    p. 4878
    Ms. Betty Strohacker - Page 3    (JM-961)
    constructions,   devices,   and   appurtenant
    appliances used to transport waste.
    (15) 'Treatment    facility*  means   any
    plant, disposal  field, lagoon, incinerator,
    area devoted to sanitary landfills, or other
    facility  installed    for the   purpose   of
    treating, neutralizing, or stabilizing waste.
    (16)  'Disposal system' means any         system
    for disposing   of waste,   including         sewer
    systems and treatment facilities.
    Water Code § 26.001.
    Section 26.031 of the      Water     Code   defines   "private
    sewage facilities" to mean
    sevtic tanks, pit privies, cesspools,   sewage
    holding tanks, injection wells used to dis-
    pose of sewage, chemical toilets,    treatment
    tanks, and all other facilities, systems, and
    methods used for the disvosal of sewace other
    than disvosal svstems overated under a vermit
    &e.sued bv the commission.  (Emphasis added.)
    Water Code 0 26.031. Thus, the chapter 26 definitions   show
    that septic tanks are distinct  from a sewer system and not
    part of one. The express power of the Upper Guadalupe River
    Authority to operate  a sewer system does not include the
    authority  to regulate   septic tanks by requiring     their
    connection with the system.     See also Local Gov't Code
    § 214.013 (providing that home rule cities may operate
    sewage systems and require connections with a sewer system
    operated by the city); Water Code 5 26.084(a)(l).     (Water
    Commission may compel tie-in to regional or area-wide  waste
    disposal system designated under section 26.083 of the Water
    Code.)
    The authority  has assumed the powers   of a municipal
    utility district pursuant to section 54.030 of the Water
    Code, and therefore has the following statutory power:
    A [MUD] may adopt and enforce            reasonable
    rules and regulations to:
    (1) secure and maintain safe, sanitary,
    and adequate plumbing installations,   connec-
    tions, and    appurtenances   as    subsidiarv
    parts of its sanitarv sewer svstem . . . .
    (Emphasis added.)
    p. 4879
    Ms. Betty Strohacker - Page 4     (JM-961)
    ‘1
    Water Code 5 54.205.    It is suggested that the underlined
    language authorizes a municipal utility district to require
    septic tank users to connect to a sewage treatment    system
    operated by it.      Section  54.205 does not grant     such
    authority.  A septic tank is not a "subsidiary part" of the
    sanitary sewer system because it operates in its vlace.
    No other provision   in the Water Code specifically
    permits municipal utility districts to force connections   by
    septic tank users to sewage disposal operated by it. Nor do
    we think that such a power can be implied from the express
    powers granted to the authority in the code.     Ordinarily,
    forcing septic tank users to connect to a sewage system can
    only be considered to be convenient, and not necessary,    to
    the operation of a sewage system by a MUD. Tri-Citv    Fresh-
    water Suvvlv District, suvra.
    The legislature has, moreover, recognized that septic
    tanks in the appropriate circumstances are adequate means to
    preserve the waters    subject to the jurisdiction   of the
    district.  The 70th Legislature enacted a statute regulating
    the location, design, construction and operation of on-site
    sewage disposal systems,  including septic tanks. Acts 1987,
    70th Leg., ch. 406, 5 1, at 1932 (codified at 4477-7e,
    V.T.C.S.):l see V.T.C.S. art. 4477-7e, 5 2(7). The purpose
    clause includes the following legislative findings:
    (2) on-site sewage disposal systems, when
    properly designed and constructed in suitable
    soils, provide a safe and adequate method  of
    sewage disposal; and
    (3) in some areas of the state, the soil
    is not suitable for normal underground sewage
    disposal   and the improper and unapproved
    construction   and installation  of   on-site
    sewage disposal   in those areas has created
    conditions dangerous to the public health.
    V.T.C.S. art. 4477-7e, 5 l(b).
    The Department of Health or its authorized agent  is
    responsible for adopting rules regulating on-site  sewage
    1. Two other statutes adopted by the 70th Legislature
    were also codified  as article 4477-7e, V.T.C.S.   See Acts
    1987, 70th Leg., ch. 162, at 1327: Acts 1987, 70th Leg., ch.
    810, at 2808.
    P. 4880
    Ms. Betty Strohacker - Page 5     (JM-961)
    disposal and issuing permits to build, alter, repair, extend
    or operate an on-site sewage disposal system. V.T.C.S. art.
    4477-7e, 9s 4, 7.    A city, county,   river authority,   or
    special district may be designated an authorized agent by
    the department and may then exercise the regulatory   powers
    set out in article      4477-7e, V.T.C.S.    To become    an
    authorized agent, a local government     must, among other
    statutory requirements, enter an order or resolution   which
    meets the department's   minimum  requirements  for on-site
    sewage disposal systems. 
    Id. 5 5(c).
    Article 4477-7e, V.T.C.S.,     is directed  at assisting
    "the state's citizens in obtaining safe and adequate on-site
    sewage disposal   systems,"  not at prohibiting    them.   
    Id. 5 l(a).
    The department or an authorized agent may refuse a
    permit to construct an on-site sewage disposal system       if
    issuing it would conflict with the public policy declared
    under the statute or with other applicable          laws, 
    id. 5 7(e)(2),
    but may not deny any and all permits or require
    all septic tanks to be connected to a sewage system.     More-
    over, no permit is required   for an on-site sewage disposal
    system for a single residence on a land tract of 10 acres or
    larger, subject to meeting statutory conditions designed    to
    protect the public health.    
    Id. 5 7(f).
    The authority    may
    not rely on article    4477-7e, V.T.C.S.,   to require septic
    tanks to be connected to its sewage disposal system.       The
    statute also expresses the legislature's intent to allow
    properly designed   and constructed   septic tanks and other
    on-site sewage disposal systems to exist, 
    id. § l(b)
    (2), and
    its recognition that in some areas of the state the soil is
    not suitable for normal underground     sewage disposal.   
    Id. § l(b)(3).
    The legislature's     findings and expression    of
    intent in article 4477-7e and its adoption of comprehensive
    regulations  applicable   to septic tanks lend additional
    support to our conclusion that the authority may not rely on
    implied authority to regulate septic tanks requiring connec-
    tions with their sewage system.
    The authority suggests that because the Local Govern-
    ment Code allows home rule cities to force connections   with
    sewage collection systems operated by the city, such a power
    can be delegated by a home rule city to the authority.     We
    disagree.  Chapter 30 of the Water Code permits cities to
    contract with the authority   for the operation   of sewage
    disposal systems. Water Code §f,30.021-035.    However,   the
    Local Government  Code specifies that QP&      a home rule
    city may "provide for a sanitary sewer system" and "require
    property owners to connect to the sewer system."        Local
    Gov't Code 5 214.013.
    P. 4881
    Ms. Betty Strohacker - Page 6       (JM-961)
    The provision of sewage collection, transportation, and
    disposal is a governmental      function of a municipality.
    Dillev v. Citv of Houston,   
    222 S.W.2d 992
    (Tex. 1949); see
    also Gotcher v. Citv of Fannersville, 151 S.W.Zd 565       (Tex.
    1941). cf. Local Gov't Code 5 402.063(e).       A municipality
    may not delegate   a governmental function to another poli-
    tical subdivision so as to lose control over the discharge
    of the function or to inhibit the exercise        of necessary
    discretion by the municipality      concerning   the function.
    C' v of Farmers   Branch v. Citv of Addison,     
    694 S.W.2d 94
    (;:x. App . - Dallas 1985, writ  ref'd n.r.e.);  Pidelitv   Land
    8 Trust Co. v. Citv of West Universitv Place, 496 S.W.Zd 116
    (Tex. Civ. App. - Houston [14th Dist.] 1973, writ ref'd
    n.r.e.).
    Thus, while a home rule city may by statute    contract
    with the authority for the collection, transportation,   and
    disposal of sewage, and cities which have the power to force
    property owners to connect to their sewage systems may force
    them to connect with the sewage system operated      by the
    authority, such cities may not surrender    that power com-
    pletely and unequivocally to the authority as a condition of
    such a contract.  Citv of Farmers Branch, suvra.
    ---
    In conclusion, the authority has no power to require
    semtic tanks within   its boundaries to connect to a sewage
    sy'stem which it operates.
    SUMMARY
    The Upper Guadalupe River Authority,  which
    possesses cumulatively the powers of a water
    control and improvement district and a muni-
    cipal utility district, has no power to force
    septic tank users to connect to a sewage
    disposal system operated by the entity.   Home
    rule cities may require septic tank users to
    connect to a sewage system operated by the
    city inside of its corporate limits, but the
    city may not delegate that power to any other
    governmental entity or political subdivision.
    J AfQdh
    Ver    truly yo   ,
    &
    -J I M   MATTOX
    Attorney General of Texas
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    Ms. Betty Strohacker - Page 7      (JM-961)
    MARY KELLER
    First Assistant Attorney General
    LOU MCCREARY
    Executive Assistant Attorney General
    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General
    RICK GILPIN
    Chairman, Opinion Committee
    Prepared by Susan L. Garrison and
    D. R. Bustion, II
    Assistant Attorneys General
    P. 4883