Untitled Texas Attorney General Opinion ( 1991 )

QMficeof the ~ttornep QZSeneral
State of llCexa$
January 30, 1991
Mr. William Tenison Opinion No. DM-1
chairman
On-Site Wastewater Treatment Re: Authority of the On-Site Wastewater
Research Council Treatment Research Council, and related
P. 0. Box 1088 questions (RQ-2165)
Austin, Texas 78767
Dear h4r. Tenison:
Chapter 367 of the Health and Safety Code provides for the awarding of grants of
state funds by the On-Site Wastewater Treatment Research Council (hereinafter the
“council”) for support of research and for dissemination of information relating to on-site
wastewater treatment technology. The provisions now in chapter 367 were adopted in
1987 as article 4477-7c V.T.C.S., and codified in the Health and Safety Code in 1989. Acts
1987,7Oth Leg., 2d C.S., ch. 28; Acts 1989,71st Leg., ch. 67% 9 1, at 2230.
The council is composed of 11 members appointed by the governor. Health &
Safety Code 8 367.002. Grants or other expenditures made by the council are payable
from the on-site wastewater treatment research account in the general revenue fund. Fees
collected by various entities for the issuance of on-site wastewater treatment permits are
forwarded to the Department of Health and deposited to the credit of such account. rd.
@367.008(c), 367.010.
You ask first about section 367.007, which provides:
(a) The [Department of Health] shall implement council
decisions.
(b) The council may enter into an interagency contract with the
department to provide staff and other administrative support as
required.
(c) Administrative costs are payable from the on-site wastewater
treatment research account.
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Mr. William Tenison - Page 2 (~~-11
You ask whether the council may obtain administrative support only under the provisions
of section 367.007 from the Department of Health. You argue that the permissive
language of section 367.007(b) and provisions elsewhere for interagency contracts give the
council authority to contract with other entities for administrative support services. We
disagree.
We think the legislature has in section 367.007 identified the Department of Health
as the appropriate source for administrative support if the council needs it. If the
legislature had intended that the council could contract with entities other than the
Department of Health for administrative support, section 367.007(b) would have been
superfhrous. The express authorization for council contracts with the Department of
Health for administrative support indicates a lack of council authority to contract with
other entities for such support services. &e State . Mauritz-Wells Co., 175 S.W.2d 238
(Tex. 1943) (reciting rule of statutory construction tilt express enumeration or mention of
one thing is equivalent to express exclwion of others not mentioned). We note, too, that
the Committee on Natural Resources Bill Analysis to House Bill 32, 70th Leg., 2d C.S.,
(1987), the bill originally adding the provisions now in chapter 367, states that the bill “pro-
vides that the Texas Department of Health shall provide staff services for the council.”
Your second question is whether the council must “pay”the Department of Health
for services the council contracts for under section 367.007. We thii that the legislature’s
use of the term “contract” in section 367.007(b) indicates that the legislature intended that
the council would furnish consideration to the Department of Health for services the
council obtains under section 367.007(b) from the department. This conclusion is support-
ed by the succeeding provision, in subsection (c) of section 367.007, that “administrative
costs are payable from the on-site wastewater treatment research account.”
Given our affirmative response to your first question, we need not address your
third question.
Your fourth question is whether “administrative support” would include “technical
review and/or testing of grant proposals” or “a base on which to conduct research subject to
a grant.” We think that the language of section 367.007(b) providing that the council may
contract with the Department of Health “to provide staff and other administrative support
as required” encompasses all services necessary to the counc$s performance of its duties
under chapter 367.
The duties of the council under chapter 367 are essentially to award grants as
provided for in section 367.008 of the Health and Safety Code. That section reads:
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Mr. William Tenison - Page 3 (~~-11
(a) The council shall establish procedures for awarding
competitive grants and disbursing grant money.
(b) The council may award competitive grants to:
(1) support applied research at accredited colleges and
universities in this state regarding on-site wastewater treatment
technology and systems applicable to this state that are directed
toward improving the quality of wastewater treatment and
reducing the cost of providing wastewater treatment to
consumers; and
(2) enhance technology transfer regarding on-site wastewater
treatment by using educational courses, seminars, symposia,
publications, and other forms of information dissemination.
(c) The council may award grants or make other expenditures
authorized under this chapter only after the comptroller certifies that
the on-site wastewater treatment research account contains enough
money to pay for those expenditures.
Clearly, the council’s duties to award grants under section 367.008 will involve the
council’s evaluation of grant proposals. Where such evaluations require “technical review
and/or testing” of proposals, we think such services may be obtained from the Department
of Health under the provisions of section 367.007 regarding contracts for “administrative
support.”
However, we do not think that the council may, under the provisions of section
367.007 relating to “administrative support,” acquire or contract for the availability of “a
base on which to conduct research subject to a grant.” Chapter 367 authorizes the council
to award grant money. It does not authorize the council to directly provide physical
facilities to grantees. As will be discussed below, in regard to your fifth question, we think
that grant recipients may spend grant money awarded under section 367.008(b) to obtain
the use of such facilities for research purposes.
Your fii question is whether the council may “provide for research support
services” through a grant. The council’s authority to award grants is limited by section
367.008(b) to grants that support applied research at colleges and universities and to
enhance technology transfer by information dissemination. Whether the council may
award a grant for the provision of “research support services” would depend on whether
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Mr. William Tenison - Page 4 (~~-11
such “research support” constituted applied research or information dissemination under
section 367.008(b), and would involve questions of fact as to the nature of the “research
support” for which the award of a grant was contemplated.
You suggest in your brief that the council might wish to award grant money to the
Center for Environmental Research (hereinafter “CER”), a project of the city of Austin, for
provision of specialized support services. You say CER is “affiliated with several
accredited universities.” If the services provided under such grant were ones which
enhanced technology transfer through information dissemination, under section
367.008(b)(2), such a grant would be within the council’s authority. As to those grants
which are not for information dissemination, you do not explain what you mean by the
phrase “affiliated with,” but apparently CER is not under the control of an accredited
college or university. The only authority for the council to award grant money other than
for information dissemination under section 367.008(b)(2) is under subsection (h)(l) of
section 367.008 for “applied research at accredited colleges and universities.“1 We note, on
the other hand, that we find nothing in chapter 367 which would prevent a grant recipient
under section 367.008, if permitted under the terms of the grant, from himself using grant
money to acquire services from CER in support of his grant-funded research or
information dissemination.
In light of our response to your first question, we need not address your last
question.
SUMMARY
The On-Site Wastewater Treatment Research Council may
contract for administrative support only from the Department of
Health pursuant to Health and Safety Code section 367.007(b), and
the council must furnish consideration to the department for the
furnishing of such services by the latter.
Such administrative support may include technical review or
testing of grant proposals but not provision of facilities for the conduct
of grant-supported research.
1. We note, however, in response to the coocenu you raise in your brief, that we do not think section
367.CHlS(b)(l) requires that all grant-funded research under that provision literally be performed “at” such
institutions. We think such grants may bc awarded, for example, for the condua of research under the auspices
of such institutions ewen though the physical sites of the rcsearcb is at other facilities.
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Whether the council may award a grant for “research support”
would depend on whether, as a factual matter, such “research
support” was applied research at an accredited college or university
regarding on-site wastewater treatment technology, or was
information dissemination regarding such technology.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RENEAHICKS
Special Assistant Attorney General
SUSAN GARRISON
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General