Untitled Texas Attorney General Opinion ( 1972 )

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t
January25, 1972
RQnosrableWugh C. Pa*tie, Jc, Opinion NO. M-1049
Executive Director
Texas Water QuaUty Board Re: Whether a county has
P.O. BOX 13246 authority to plan, aon-
Capitol Station struct, operate and main-
Austin, Texae 78711 tain an area or regional
waste water oolleotion
system and to perform
water quality management
function,alone or in con-
junotion with or under
contract with one or more
DebarMr. Yankier politiaat e&&visions.
Your recent letter requests our opinion with regard
to the following question:
"Does a aounty, under the exietiw law,
have authority to p&am, oonstruct, operate
an8 maintain an a~rea81 tegional waste water
collection end treatment 8yrtem and to per-
form water quality managetnentfumtions, alone
or in aonjunction with or under contract with
one or mere other political subdivirions?"
This request presents two questions: the first is
whether a county has authority to plan, construct, operate and
maintain an area or regional waet@ water collection and treat-
ment system and to perform water quality management functions,
alone. The second question is whether a county has the au-
thority to do the above stated functions in conjunction with
or under contract with one or more politic&l subdivisions.
We will answer thr initial question first.
Section 18 of Article V of the Constitution of Texas
reads, in part, ae follows:
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Honorable Hugh C. Yantlst page 2. (M-i0491
I)
. the ~CountyCommi88ionen 80
cho8en; ;ith the County Judge a8 presiding
officer, ehall cornpolethe County Commia-
sionerr Court, which ahall exercise such
powers and juri8diction over al+ county
busine88, as ie conferred by thin Consti-
tution and the law8 of the State, or ae
may be hereafter prescribed."
St i8 well settled that this constitutional provision, rather
than conferring on Commissioners Courts general authority over
county business, on tiheac&tr*.nylimits that authority to that
conferred by the statutes or Constitution. Anderson v. Wood,
137 Tex. ;)Ol,I$2 S.W.2d 1054 (1941); Attorney General'8 Opin-
ion No. C-722 (1966). We hold that the constitutional and stat-
utory authority in thi8 inrtance exists.
Furthermore, although specific constitutional author-
ify ie not required, certain counties under Article XI, Section
7 of the Texae Constitution have specific constitutional author-
Ity, that is,
"All counties and cities bordering on
the coast of the Birrlfof Mexico are hereby
authorized . . . to levy Mid collect euch
tax for construction of sea'wa118, break-
wate= or sanitary purposes as may now or
mav hereafter be authorized bv law, and Slav
create a debt for such works -ma issue bon&s
in evidence thereof." (Emphaeie added.)
Article 2351, Vernon's Civil Statute8,* in its relw
uent portion, read8r
"Each Commireioners Court ahallc
"15. Said court 8hall have all such
other paver8 and jurisdiction, and ahall per-
form all 8uoh other dutiee, a8 are now or may
hereafter be prercribed by Uv."
All reference8 to Articles are to Vernon's Civil Statutes.
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Ronorable l¶ugbC. Yantis, Jr., page 3. (M-1049)
Article 4419-f authorizes the Commissioners Court of
any county to appropriate and expend money for and in behalf
of public health and sanikakisubwithin it8 oounty.
In Attorney General's Opinion No. C-722 (1966) this
dfice held that Article 4419-f authorize8 a county, in the
fudheracce of public health and sanitation within the county,
to use tax funds for the purpose of operating ambulance services
in the oounty or cooperate with an incorporated city in the
Runty in the operation of euc!hservice. This office also held
that this article authorizes a county, in the furtherance of
public health and sanitation, to acquire l,andfor the purpose
of disposing of gwbhge end refuse collected from the inhabit-
ants of the county. Attorney General's Opinion No. O-6024
(1944). This offioe has further held th.& this article author-
izes a county to expend general revenuea fer the purpose of
establishing and maintaining a prophylakfc unit, prarvidedthe
Commissioners Court determines that this will be in furtherance
of the public health and sanitation within the county. Attor-
ney General's Opinion No. O-4729 (1942).
In view of the foregoing, you are hereby advised that
a county under the existing law &toeshave authority to plan,
construct, operate and maintain an area or regional waste water
collection and treatment system and to perform water quality
iBanagemrwtfun&inns, within the county, alone;
We now consiclsx~@EXI!
e~cond question, namely, whether
a county has authority t#vg&m&$ amstruat, operate and maintain
an area or regional waste water aollection and treatment system
and to perform water quality management functions, in conjunc-
tion with or under contract with one or more political subdivi-
sions.
Article ,2951,~@sOtfonB 19(a), 19(b)'&n6'19fc) author-
lies Cdu&iseioners Courts to contract with the United States
Government, or any agency thereof, for the acquisition of land
and to own and operate euah land, and further to bind the county
to comply with any condition8 imposed &a a prerequisite to the
conveyance of such land. This statute further authorizes Com-
missioners Courts to issue bonds, to finance the aar&eftion
of and the improvements on said lend.
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BaocebL% HurjpI
C. Yantig, J;P.#page It. (M-1049)
Vhe munioipal authorities or towns and
oities, end Co¶unissionersCourts of the counties
wherein SW towns and cities are situated, may
cooperate with each other in making euoh improve-
mento . . . as said authorities and courts may
determine neaessary to improve the public health
and to promote efficient sanitary regulations:
arid . . . may provide for the uenstruction of
said improvemeats and the payment therefor."
In Attorney Genearal'eMinion No. C-772 (1%6), this oblfiaeheld
that this provieion authorizes a county~to oooperate with 8 aity
&a the county in the epibs*il?ien
of an ambulance servioe,
Artiole 9a3-b,,pib&mended, read!4m f,@lknas:
"Any inoerperated oity or ta@n t . . shall
have . . . the peter separately or jointly with
any other city . . . and other golotlernraental
en-
tity, to receive and acquire . . . any property
. . . for the follawing purpo8esr whiob are de-
clared to be publto purposes: . . . for seviage
plants and syetemag rights of way for water and
sewer lines: . . . jncinerators, garbege dispos-
al plants . . . ."
A county is a legal subdivision of the state. Article XI, &WC-
tion 1, Texas Constitution.
Article 969-b, as amended, furthar provides as follows:
"Such city or town and suoh city, town,
'cities, towns and counties are hereby empowered
to maintain, improve and operate the property
so acquired and all improvements thereon . . .
and shall have full and ample power to jointly
manage, control and operate such property * . .
by entering into any contracts with each other
on terms mutually agreeable."
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.
Honorable Hugh C. Yantis, Jr., page 5. (M-1049)
Article 969-b continues:
"The political subeivision or subdivirlons
acquiring property under this Act is and are
hereby expressly authorized and empowered to
improve, maintain and conduct the same for the
Qurporer hereby authorized and to make and
provide thereon all necessary or fit improve-
ments and facilities and to fix such reason-
able charges . . . as the governing body or
bodies . . . shall determine by mutual agree-
ment . . . .'I
Section 5 of Article 969-b provides as follows:
"The governing body of wy euctkcity or
town and the ConvnissionereCourt of any county
. . . is hereby empowered to levy and collect
a special tax for the purgose of improving,
operating, maintaining and conducting any QroQ-
erty"
acquired under the provisions of this Act and
"to provide all suitebblestructures and facili-
ties therein..
Section 21.088 of tbo Texas Water Code provides a8
followe:
"The Board may contract with local govern-
ments, . . . to assist the Board in developing
and preparing end from time to time revising
water quality management plans for areas desig-
nated by the Board."
Section 21.088 continuesz
"With funds provided for the purpose by
legislative appropriation, the Board may make
grants or interest-free loans to, or contract
with, local governments . . . to pay adminis-
trative or other expenses of such entities for
developing and preparing, and from tim8 to time
revising, water quality management glar18for
aroaa designated by the Board.*
Honorable Hugh C. Yards, Jr., page 6. (M-1049)
Section 21.355 of the Texas Water Quality Act pro-
vides as follows:
"(a) A local government may execute co-
operative agreements with the Board or other
local governatents.
"(1) To provide for the perfamanon of
water quality menagement, inspotion, and en-
forcement funds and to provide te&niaal aid
and educational aervicee to any party to the
agreement! and
"(2) For the transfer of Mooneyor prop-
erty from any party to the agreement to another
party te the agreement for the purpose of water
quality management, inspection, enforoement,
technical aid and education, and the oonstruc-
tion, ownership, Qurchaae, maintenance &nd op-
eration of disposal systems."
Section 21.003 of the Texas Water Code, provides
as follows:
"(15) 'Looal government nraans an incor-
porated city, a oounty, a river authority, or
a water district or authority acting under
Article III, Section 52, or Article XVI, Sec-
tion 59 of the Texas Constitution."
Article Nllm, in its relevant portions, reads as
folkxvs:
"Section 3. (a) Any two or more general
purpose governmental units may join in the ex-
ercise, performance and cooperation of plenning,
powers, duties and functions, as provided by
law for any or all such governmental ukits.
When two or more such governmental unit8 agree
. . . to cooperate in regional planning, they
may establish a Regional Planning Commission
. . . .
"Seoticn 1. B 'Governmental Unit' means
any county, city, town, village, authority,
district or other politioal oubdivision of the
State..
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. . .
Honorable Hugh ,C. YEW&, Jr., page 7. &6-lO.49)
Se;,:torney Ganeral'B Opinions WCS. M-928 (1971) and M-806
.
For the reasons statea above, aur opinicilis that a
county has authority to p).an, ocnstruct, operate and maintain
an area or regional waste water ccl.Iecticnand treatment sys-
tem and to perform water quality management functiem# in ocn-
junction with or under contract with the United States Gcvern-
ment, or any aganay thereof , cities and towns within the county,
other counties, Regional Planning Ccmmissior*,water districts
OT authorities and the Texas Water Quality Board.
SVldYlARY
A county has authority to plan, construct,
operate and maintain am area or regional waste
water collection and treatment system and to
perform water quality manage.mentfunoticns,
within the ccunty, alone, or in conjunction
with or under contract with the United States
Qovernmsnt, or any agenoies thereof, cities
ad towns within the ccw~ty, other counties,
RtrgionalPlanning CommiWioae, water districts
cr authorities, and the Osxas Water Quality
Board.
Prepared by John P. 'Praylor
Assistant Attorney General
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. . I
Honorable Hugh C. Yantis, Jr., page 6. (M-1049)
AhROVED :
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Roland Allen
John Reeves
Fisher Tyler
Bob Lattimore
SAN MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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