Untitled Texas Attorney General Opinion ( 1988 )

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
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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.)
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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.
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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.
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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
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