Untitled Texas Attorney General Opinion ( 1974 )

AUSTIN. TEXAS 78711
August 28, 1974
The Honorable Hugh C. Yantis, Jr. Opinion No. H- 384
Executive Di.rector
Texas Water Quality Board Re: Wbether the Texas Water
P. 0. Box 13246, Capitol Station Quality Board can delegate
Austin. Texas 78711 its authority to inspect and
certify boats to private
business.
Dear Mr. Yantis:
You have asked whether the Texas Water Quality Board may delegate
its inspection and certification functions under Sec. 21.097, Texas
Water Code, to privately owned and operated marine dealerships,
marinas and similar enterprises.
Section 21.097, Texas Water Code, provides in part:
(b) Within twelve months after this section takes
effect the [Texas Water Qualitylboard shall issue regu-
Zatiotls concerning the disposal of sewage from boats
located or operated on inland fresh waters in this state.
The regulat:.ons of the board take effect six months
after they are issued unless an earlier effective date is
spec’fied in the regulations. The regulations of the
board shall include, but not. be limited to, provisions
for the est.ablishment of standards for sewage disposal
dev-ices, the certification of sewage disposal devices,
in-luding otl-shore pump out faci.lities, and the visible
and conspicuous display of evidence of certification
of sewage disposal devices on each boat equipped with
,;nzh de,373 S. W. 2d 793 (Tex. Civ.App. - - Austin 1963, writ ref’d. n. r. e. ).
The maxi,m. delegatas non potest delegare [the person to whom an
office or duty is delegated cannot 1egall.y devolve the duty on another,
unless he be expressly authorized to do so], is applicable in Texas.
Ne~wsorn v- Ada-ma? 451 S. W; 2d 948 (Tex. Civ. App. --Beaumont 1970,
no Writ).
He,ce there is a statutory a;lthorization to delegate the certification
``~r.ct-:.onto tie executive director or to “any other governmental entity. ‘I
The Act does not define “governmental entity, ” but the term must be
‘cocstrzed acccrding to common usage. Code Construct-ion Act, Article
542913-2, Sec. 2. @l. We know of no definition or common usage of the
term “goverrmectal ectity” which would incl ude privately owned and
npnrated busii?esses stz:ch as marinas and boat dealerships.
The statute makes no reference to inspection, but speaks only of
cc rtif.‘;.zatioo. Presumably, tRe Board will adopt rules and regulations
which require some sort of inspect.ion a,s a means of democstrating ,
el,igibi?:“.ty for certification. In the absence of a specific rule or p,rogram
for owr consideration, we are unable to say t:hat the Board would be
unabl.? to make arrangements for iwpections conducted by private persons
as eti,der;re of el,igibiZIty- for ce&fication. The certification function
must remain in t-he Board or the governmental entity to w’hich the certifi-
cati.on~ respogsibl!.ity is delegated.
It is rot impossible for the State to delegate both inspection and
certificat’on F~nctisr.6 to pri.vate enterprl.ses, but statutory authorization
is required. See, e, g. s Art. 6701d, Sec. 141, V. T. C. S. It is our con-
clusion that: the Board may not delegat~e Cts certification responsibil.ities
under Sec. 21.. 097, Texas Water Code.
p. 1811
The Honorable Hugh C. Yantis, Jr., page 3 (H-384)
SUMMARY
The Texas Water Quality Board may not delegate
its certification function under Sec. 21.097, Texas
Water Code, to private businesses. It is not neces-
sarily precluded from permitting inspection by pri-
vate entities as a means of demonstrating eligibility
for certification.
Xery truly yours.
JOHN L. HILL
# Attorney General of Texas
APP;;’ VED:
4
LARRJY k. YO K, First A sistant
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1812