Untitled Texas Attorney General Opinion

TIHEATTORNEY GENERAL
OF TEXAS
AUSTIN. T-s 7S711
September 30, 1974
The Honorable William J. Benardino Opinion No. H- 412
County Attorney
Montgomery County Re: Authority of County Health
Conroe, Texas District or Commissioners
Court over a municipal utility
district.
Dear Mr. Benardino: :
You have asked our opinion on four questions regarding the powers
o$ the commissioners court and the Montgomery-Walker County Health
District over local municipal utility districts. It is well settled that the
powers of the commissioners court are limited to those conferred by the
Texas Constitution or statutes. Anderson v. Wood, 152 S.W.2d 1084
(Tex. 1941). A health district may exercise those powers pertaining to
public health which any of its component members may exercise, 6 4,
Article 4447a, V. T. C. S., and may make rules and regulations not in
conflict with city ordinances and laws of the State, 0 4a(f), Article 4447a,
V. T. C. S.
Your first question is:
Can the Commissioners Court and/or the
Montgomery-Walker County Health District
force the municipal utility districts created
by the Legislature to submit their plans for
water and sewage for approval prior to or after
sell.ing bonds for construction7
Statutory authority to approve or refuse approval of mmicipal
utility distri.zt project plans prior to the issuance of bonds for improve-
ments rests with the Texas ~Water Rights ‘Commission. Section 54. 516, Water
p. 1928
The Honorable William J. Benarditio, page 2 (H-412)
Code, V. T. C. S. The Texas State Department of Health also has review
_ _
and approval authority over water supply or sewage disposal system plans.
Section 12, Article 4477-1, V. T. C. S.
When financial assistance for construction of treatment works is
sought by a political subdivision such as a municipal utility district under
Subchapters I or J, Chapter 21, Water Code, V. T. C. S., the Texas Water
Quality Board has exclusive review and approval authority of plans for
treatment works, and the Board’s action specifically does not require
the concurrence or approval of any other governmental agency. Sections
21. 606(c), (d), (e). 21.707(c), (d), (e) Water Code, V. T. C.S.
Counties have no statutory or constitutional authority which would
require their approval of such plans prior to the issuance of bonds.
Neither do we find any authority for a county to require approval of such
plans subsequent to the issuance of bonds.
Your second question is:
Can the Montgomery County Commissioners
Court and/or the Montgomery-Walker County Health
District require that all sewage treatment facilities,
sewage lines, lift stations, fresh water wells, storage
facil.ities, pumps and water lines constructed by utility
districts created by State Legislature be inspected prior
to use to insure that they meet standards of quality so
that their usage would not cause pollution and water-
borne disease?
The Texas Water Rights Commission has authority to inspect approved
improvements during construction in order to assure compliance with the
approved plans. Section 54. 517, Water Code, V. T. C. S. When state or
’ ‘federal financial assistance for construction of treatment works is involved,
the Texas Water Quality Board may inspect the construction at any time to
assure compliance with the approved plans. Sections 21.615, 21. 711, Water
Code, V. T. C. S:
p. 1926
The Honorable William J. Benardino, page 3 (H-412)
A local government has the same power as the Texas Water Quality
Board to enter public and private property within its territorial jurisdiction
to make inspection and investigations of conditions relating to water quality.
Section 21.353, Water Code, V. T. C.S. A local government may inspect
the public water in its area to determine whether the water meets board
standards, and whether the persons discharging effluent have permits and
are in compliance with permit requirements. Section 21. 351, Water Code,
V. T. C. S.
A local government may enforce the provisions of the Texas Water
Quality Act, Chapter 21, Water Code, V. T. C. S. , and any of the rules,
orders, or regul,ations promulated by the Texas Water Quality Board.
Section 21.254, Water Code, V. T. C. S. Enforcement is by means of
injunction and the Texas Water Quality Board is a necessary and indispensable
party. -Id.
When the construction project is within the jurisdiction of the Texas
Water Rights Commission, enforcement of construction standards may be
obtained by the Commissi.on through the procedure specified in 5 54. 517,
Water Code, V. T. C. S.
Thus, a county or health district may inspect treatment facilities to
the same extent as may the Texas Water Quality Board, and may enforce
statutory or Texas Water Quality Board standards by injunction. However,
the county or health district has no independent regulatory authority over
construction of treatment works.
Your third question is:
If the Commissioners Court of Montgomery
County were to establish county sewage and water
systems, the plans for faciles as they were
constructed being approved by the State Department
of Health and the Texas Water Quality Board, could
the Commissioners Court force the municipal utility
districts created by legislative act to utilize this
system to insure adequate treatment of waste-water
to prevent pollution and water-borne disease?
p. 1927
. .
The Honorable William J. Benardino, page 4 (H-412)
A county has authority to establish and operate a county-wide
sewage and water system and to perform water quality management
functions within the county, alone, or in conjunction with cities and towns
within the county, other counties, water districts or authorities, and the
Texas Water Quality Board. Attorney General Opinion M-1049 (1972).
The Texas Water Duality Board is the state agency responsible for
implementation of the state’s policy of encouraging and promoting the use
of regional and area-wide waste collection, treatment, and diposal systems.
Section 21.201, Water Code, V. T. C.S. Since Montgomery County is
within a standard metropolitan statistical area, it may be designated by
the board as an area-wide system pursuant to 5 21.201(b), Water Code,
V. T. C. S. When a regional or area-wide system has been designated,
the board may require all waste dischargers within the area to use the
system. Section 21.204, Water Code, V. T. C.S.
However, a county, acting alone, has no authority to force municipal
utility districts created under general law or by the legislature to utilize
its county-wide sewage and water system.
Your fourth question is:
If the Commissioners Court of Montgomery County
were to create a county water and sewage facility, could
the areas which are in the extra-territorial jurisdiction
of home rule cities be included in the county system despite
the objections of the cities to the inclusion of, these areas?
A city has authority to regulate by ordinance plats and the subdivision
of land within its extraterritorial jurisdiction. Section 4, Article 970a,
V. T. C. S. This authority includes regulation of water supply and distribu-
tion systems. See Swinney v. City of San Antonio, 483 S.W.2d 556 (Tex.
Civ. App., San Antonio. 1971, no writ). No general law municipal utility
district may be created within a city’s extraterritorial jurisdiction without
the city’s written consent, unless the city refuses to provide the water and
sewer services contemplated by the proposed district. Section 8B, Article
970a, V. T. C. S. ; Section 54.016, Water Code, V. T. C. S.
p. 1928
. -
The Honorable William J. Benardino, Page 5 (H-412)
There is no authority for a county to force persons within the
extraterritorial jurisdiction of a city to utilize a county water an&sewage
facility.
While there may be some circumstances under which a couriy might
provide water and sewage services to an area within the extraterrStoria1
jurisdiction of a city, as by agreement with a municipal utility district
formed after the city has refused to provide services to the area, we
believe that generally a city would prevail in any dispute with a county
concerning provision of water and sewage services to an area within the
extraterritorial jurisdiction of the city.
SUMMARY
A county or county health district has no authority
to require a municipal utility district to obtain county
approval of plans for construction of water and sewage
facilities.
A county or county health district may inspect a
municipal utility district’s water and sewage facilities,
but has no independent regulatory authority over
construction of such facilities.
Authority to require a municipal utility district
to utilize a county water and sewage system rests
with the Texas Water Quality Board, not the county.
A county has no authority to require utilization of
its water and sewage system in the extraterritorial
jurisdiction of a city over the objection of the city.
Very truly yours,
p. 1929
The Honorable William Benardirio, page 6 (H-412)
APPROVED:
& /car
LARRY F. PORK, * ret &cri&nt
DAVID M. KENDALL, Chairman
Opinion Committee
lg
p. ,193o