Untitled Texas Attorney General Opinion ( 1982 )

The ,Attorney General of Texas
August 3, 1982
MARK WHITE
Attorney General
Mr. Harvey Davis Opinion No. MW-500
Supreme Court Building Executive Director
P. 0. BOX 12546 Authority of county to
Department ,ofWater Resources Re:
Austin. TX. 76711. 2546
5121475-2501
P. 0. Box 13087, Capitol Station incur indebtedness to finance
Telex 9101674.1367 Austin, Texas 78711 construction and maintenance
Telecopier 5121475-0266 of sewage treatment works
Dear Mr. Davis:
1607 Main St.. Suite 1400
Dallas, TX. 752014709
2141742-6944 You ask whether a Texas county has the authority to incur
short-term and long-term indebtedness to finance the construction
costs of sewage treatment works, insure adequate operation and
4624 Alberta Ave., Suite 160
maintenance of the works throughout its jurisdiction, and carry out
El Paso. TX. 79905.2793
9151533.3464
its responsibilities under an area wide water quality management plan.
It is well settled that counties have only those powers which are
1220 Dallas Ave., Suite 202 clearly set forth in the state constitution or statutes and those
Houston, TX. 77002-6966
which must necessarily be implied in order for them to accomplish
71316500666
their expressly granted powers. Canales v. Laughlin, 214 S.W.2d 451
(Tex. 1948); Mills County v. Lampasas County, 40 S.W. 403 (Tex. 1897);
606 Broadway. Suite 312 Harrison County v. City of Marshall, 253 S.W.2d 67 (Tex. Civ. App. -
l.ubbock. TX. 79401.3479 Fort Worth 1952, writ ref'd); Wichita County v. Vance, 217 S.W.2d 702,
806/747-5236
703 (Tex. Civ. App. - Fort Worth 1949, writ ref'd n.r.e.). It is
equally well established that pursuant to article XI, sections 5 and 7
4309 N. Tenth. Suite S of the Texas Constitution, any city or county obligation payable from
McAllen. TX. 78501-1665 tax revenues to be collected beyond the budget year of its creation
5121662-4547 constitutes debt. McClellan v. Guerra, 258 S.W.2d 72 (Tex. 1953); T.
and N.O.R. Company v. Galveston County, 169 S.W.2d 713 (Tex. 1943);
200 Main Plaza. Suite 400
Ault v. Hill County, 116 S.W. 359 (Tex. 1909); Pendleton v. Ferguson,
San Antonio. TX. 76205.2797 89 S.W. 758 (Tex. 1905); City of Tyler v. Jester, 78 S.W. 1058 (Tex.
51212254191 1904); McNealv. City of Waco, 33 S.W. 322 (Tex. 1895).
An Equal Opportunity/
There is no provision in the Texas Constitution which expressly
Affirmative Action Employer authorizes counties to dispose of sewage or to construct a sewage
W=-=. "iti 5-s n-m -I3 -say -h-SC -em -cxm-k``tilrn 5ctJrtdLu-b~-h-e
possibility of counties having sewage treatment powers; on the
contrary, section 18 of article V states in pertinent part:
The County Commissioners so chosen,.with the
County Judge as presiding officer, shall compose
the County Commissioners Court, which shall
p. 1798
Mr. Harvey Davis - Page 2 (Mw-500)
exercise such powers and jurisdiction over all
county business, as is conferred by this
Constitution and the laws of the State, or as may
be hereafter prescribed. (Emphasis added).
It is well settled, however, that this constitutional provision does
not confer on commissioners courts any general authority over county
business; instead, it limits their authority to that conferred by the
statutes or constitution. Anderson v. Wood, 152 S.W.2d 1084 (Tex.
1941); Attorney General Opinion No. C-772 (1966).
Article XI, section 7 of the Texas Constitution alludes to county
sewage power for counties on the gulf coast. It provides in part:
All counties and cities bordering on the
coast of the Gulf of Mexico are hereby authorized
upon a vote of the majority of the resident
property taxpayers voting thereon at an election
called for such purpose to levy and collect such
tax for construction of sea walls, breakwaters, or
sanitary purposes, as may now or may hereafter be
authorized by law, and may create a debt for such
works and issue bonds in evidence thereof.
(Emphasis added).
None of the reported Texas cases discussing article XI, section 7
involve county sewage disposal authority. The only statutes enacted
pursuant to this provision pertain to sea walls, breakwaters, and
levees. See V.T.C.S. arts. 6830-6839g. None of these statutes
relates tocounty sewage disposal powers.
There is no general Texas statute which expressly authorizes
counties to singly dispose of sewage or to construct, own or operate a
sewage treatment works. Article 4418f, V.T.C.S., has been relied upon
for the existence of county sewage treatment powers. Attorney General
Opinions MW-115 (1979); M-1049 (1972). Article 4418f provides in
pertinent part:
The Commissioners Court of any County shall
have the authority to appropriate and expend money
from the general revenues of its County for and in
behalf of public health and sanitation within its
County.
Under article 4418f. however, expenditures for "public health" and
"sanitation" within s county must come from the county's general
revenues. Article 4418f grants no authority to issue bonds, and
neither expressly nor implicitly grants sewage treatment powers to
counties.
p. 1799
Mr. Harvey Davis - Page 3 (MW-500)
In Attorney General Opinion M-1049 (1972), this office concluded
that:
[aI county has authority to plan, construct,
operate and maintain an area or regional waste
water collection and treatment system and to
perform water quality management functions alone,
or in conjunction with or under contract with the
United State Government, or any agencies thereof,
cities and towns within the county, or other
counties, Regional Planning Commissions, water
districts or authorities, and the Texas Water
Quality Board.
This opinion correctly begins with the premise that counties have only
those powers which are expressly or impliedly conferred by the
constitution and statutes. The logic of the opinion and the legal
authorities it cites do not, however, support its generalized
conclusion.
In support of the conclusion that a county may act alone in
exercising sewage disposal powers, the opinion relies on article V,
section 18 and article XI, section 7 of the Texas Constitution, and
article 2351, subdivision 15 and article 4418f. V.T.C.S. Article V,
section 18 of the constitution confers no power upon counties,
however; instead, it grants the county commissioners court limited
jurisdiction "over all county business, as is conferred by this
constitution and the laws of the state, or as may be hereafter
prescribed." (Emphasis added). See Mills County v. Lampasas, s.
Article XI. section 7 fails to support the conclusion in that it
merely authorizes the legislature to empower counties to levy and
collect a tax for sanitary purposes. The legislature has not enacted
any general statute pursuant to this provision which relates to county
authority to dispose of sewage or construct a sewage system. Article
2351. subdivision 15, states:
Said court shall have all such other powers
and jurisdiction, and shall perform all such other
duties, as are now or may hereafter be prescribed
by law. {Emphasis added).
This subdivision grants counties no authority to dispose of sewage or
to construct a sewage system; instead, as a statutory equivalent of
article V, section 18 of the constitution, it designates the
commissioners court as the administrative body to carry out the
general powers and duties of a county, as specified by law. Finally,
article 4418f fails to expressly grant counties any sewage disposal
authority and such authority is not necessarily implied from the
narrow scope of the powers expressly granted.
p. 1800
Mr. Harvey Davis - Page 4 (hg.&500)
We conclude, therefore, that when Attorney General Opinion M-1049
(1972) was decided, insufficient authority existed to support its
conclusion that a county, acting alone, can exercise sewage disposal
powers or construct a sewage system. For the following reasons, we
conclude that there is also insufficient authority for this conclusion
today. We therefore overrule Attorney General Opinion M-1049 (1972)
to the extent that it conflicts with this opinion.
Five years after Attorney General Opinion M-1049 (1972) was
issued, the Sixty-fifth Legislature enacted Senate Bill No. 1139,
which,enacted, inter alla, sections 17.001 et seq. of the Water Code.
Section 17.284 provides in pertinent part that:
(a) In order to obtain financial assistance
under this subchapter, a political subdivision may
authorize and issue revenue bonds for the purpose
of constructing treatment works and sell such
bonds to the board in such amounts as may be
determined by the governing body of the political
subdivision and approved by the board. (Emphasis
added).
Section 17.274 provides that:
A political subdivision may apply to the board for
financial assistance and may use water quality
enhancement funds for construction of treatment
works in the manner provided in this subchapter.
(Emphasis added).
Section 17.272 states that:
(2) 'Treatment works' means any devices and
systems used in the storage, treatment. recycling,
and reclamation of waste....
.. . .
(4) 'Water quality enhancement funds' means
the proceeds from the sale of Texas Water
Development Bonds issued under the authority of
Article' III. Section 49-d-1, as amended, ,of the
Texas Constitution.
(5) 'Political subdivision' means... a
county....
Section 17.001 provides that "waste" has the same meaning as is
provided in section 26.001. Section 26.001(6) provides that:
p. 1801
. -
Mr. Harvey Davis - Page 5 (MW-500)
'Waste' means sewage, industrial waste,
municipal waste, recreational waste, agricultural
waste, or other waste, as defined in this section.
These sections of the Water Code cannot, in our opinion, be
construed as conferring upon counties any substantive authority to
issue bonds to construct a sewage treatment works. They merely
provide that a political subdivision with substantive authorization
acquired from other statutes may sell such bonds to the Texas Water
Development Board in order to obtain needed financing. In other
words, if a political subdivision has been otherwise authorized to
issue bonds to construct s sewage treatment works, it may negotiate a
sale of those bonds to the Texas Water Development Board, rather than
making a public offering of the bonds. Thus, a political subdivision
without the creditworthiness to go to the public market can obtain
needed financing at a lower interest cost from the board which was in
part established for providing such aid.
If we assume, arguendo, that section 17.284 does confer
substantive authority upon counties to issue bonds for sewage
treatment works, this question would arise: what procedures would be
utilized to issue the bonds? For example, section 17.284 is silent as
to whether the bonds would require a referendum or could be issued
without voter approval, and whether the bonds will be tax-supported or
paid out of revenues. Substantive statutes conferring authorization
to issue bonds always provide for these basic features. See, e.g.,
V.T.C.S. art. 1111 et seq. (waterworks and sewer systems); art. 1187f
(city-owned harbor facilities). Such statutes also either contain
provisions for various funds to be maintained to retire the bonded
indebtedness and various other procedures which must be followed in
issuing bonds or incorporate by reference statutes containing such
procedures. See V.T.C.S. art. 1111 et seq. (various reserve,
interest and sinking funds to be maintained to insure debt service on
waterworks and sewer system bonds, investment provisions, attorney
general's approval, etc.); art. 1187f (incorporating article 1111
procedures). Indeed, there is no need to look beyond sections 17.001
et seq. of the Water Code in 1977. i study of sections 17.011 through
17.034 of the Water Code, which provide for the issuance of bonds by
the Texas Water Development Board, will reveal the provisions required
for substantive authorization to issue bonds.
It is axiomatic that a county cannot incur short-term and
long-term indebtedness to finance the construction, operation, or
maintenance of something it is powerless to construct, operate, or
maintain. Even those statutory provisions discussed above which
either allude to county sewage powers or have been relied on in the
past to support the existence of such powers do not contain
concomitant authority to incur debt. There is no inherent power or
right of a county to issue bonds. "It is not a power to be implied.
p. 1802
Mr. Harvey Davis - Page 6 (``-500)
It does not exist unless expressly conferred by law." Lasater v.
Lopez, 217 S.W. 373 (Tex. 1919).
We therefore conclude that Texas counties are not generally
authorized to incur short-term and long-term indebtedness to finance
the construction costs of a sewage treatment works, insure adequate
oper&ion+and v*intenance of the works throughout its jurisdiction, or
to carry out.,respoi&bPlit~iesunder an area wide water quality plan.
SUMMARY
'There is no general authority for a Texas
county to incur short-term and long-term
indebtedness to finance the construction costs of
a sewage treatment works, insure adequate
operation and maintenauce of the works throughout
its jurisdiction, or to carry out responsibilities
under an area wide water quality plan.
A
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by D. Ladd Pat1110
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible ..
Patricia Hinojosa
Jim Moellinger
D. Ladd Pat1110
Susan Plettman
p. 1803