                                            December 29.1999



Mr. G. Granger MacDonald, President                    Opinion No. E-0162
Board of Directors
Upper Guadalupe River Authority                        Re: Whether the Upper Guadalupe              River
125 Lehmann Drive, Suite 100                           Authority is authorized to compel septic tank
Kerrville, Texas 78028-5908                            users to connect to a sewage disposal system, and
                                                       related questions; reconsideration    of Attorney
                                                       General Opinion JM-961 (1988) (RQ-01 IO-JC)

Dear Mr. MacDonald:

         You ask us to reconsider the conclusion of this office in Attorney General Opinion JM-961
that the Upper Guadalupe River Authority (the “River Authority”) is not authorized to compel septic
tank users to connect to a regional sewage disposal system. We conclude that the River Authority,
unlike a municipality, is not authorized to compel septic tank users to connect to a sewage disposal
system. However, the River Authority may operate a sewage disposal system serving city residents
under contract with a municipality, provided that the municipality does not delegate any of its
governmental powers. The municipality may require septic tank users within its jurisdiction to
come& to the system. You also ask whether recently enacted Senate Bill 821, which adds section
412.016 to the Local Government Code, authorizes a county to compel septic tank users in
unincorporated    areas of the county to connect to a sewage disposal system.            See Act of
May 11,1999,76thLeg.,R.S.,ch.        191,s l,sec.412.016,1999Tex.Sess.LawServ.668;T~~.L0~.
GOV’TCODE ANN. 5 412.016 (Vernon Supp. 2000). We conclude that it does not give counties this
authority.

         The Upper Guadalupe River Authority is a conservation and reclamation district created by
the legislature in 1939 by special law pursuant to article XVI, section 59 ofthe Texas Constitution.’
In 1971, the legislature amended the River Authority’s enabling statute to authorize it to construct,
own and operate a sewage disposal system:

                     (b) As a necessary aid to the conservation, control, preservation,
                 and distribution of such water for beneficial use, the Authority shall
                 have the power to construct, own and operate sewage gathering,




        ‘See Act of Apr. 19, 1939, 46th Leg., R.S., ch. 5, 1939 Tex. Gen. Laws 1062, (1s amended by Act of
A~r.9,1957,551hLeg.,R.S.,ch.83,1957Tex.Gen.Zaws185;ActofMay26,1965,59thLeg.,R.S.,ch.632,1965
Tex. Gen. Laws 1439;Act ofApr. 29,1971,62d Leg., R.S., ch. 430,19+/l Tex. Gen. Laws 1586;Act of May 30,1983,
68th Leg., R.S., ch. 484, art. IV, $9 5,6,1983 Tex. Gen. Laws 2827,2843; Act of May 26, 1983,68th Leg., R.S., ch.
1059,1983 Tex. Gen. Laws 5612; Act of May 22, 1997,75th Leg., R.S., ch. 830, 1997Tex. Gen. Laws 2669.
Mr. G. Granger MacDonald       - Page 2          (K-0162)




                transmission and disposal services, to charge for such service, and to
                make contracts in reference thereto with municipalities and others.

Act ofApr.   29, 1971, 62d Leg., R.S., ch. 430, Ij 1, sec. 16, 1971 Tex. Gen. Laws 1586.

        In 1988, the River Authority asked this office whether it was authorized to compel septic tank
users within its boundaries to connect to a sewage disposal system operated by the River Authority,
either by itself or pursuant to an agreement with some other governmental entity permitted to
contract with the River Authority for the operation of such a system. This office concluded in
Attorney General Opinion JM-961 that the River Authority had no power, either express or implied,
to compel septic tank users to connect to a regional sewage disposal 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. See Tex. Att’y Gen. Op. No. N-961 (1988) at l-2. The opinion
reasoned that although the River Authority has express authority to own and operate a sewage
disposal system, that authority does not include the implied authority to compel septic tankusers to
connect to the system because the authority to operate a sewage disposal system does not include
the authority to regulate septic tanks. See id. at 2-3. The opinion also observed that section 214.013
of the Local Government Code expressly authorized home-rule cities to require property owners to
correct to a city sewer system. See id. at 3. Finally, the opinion noted that septic tanks are
recognized by state statutes as a lawful means to dispose of waste. See id. at 4-5.

          You ask us to reconsider the conclusion in Attorney General Opinion N-961 that the River
Authority is not authorized to compel septic tank users to connect to a sewage disposal system. See
Letter from Mr. G. Granger MacDonald, President, Board of Directors, Upper Guadalupe River
Authority, to Honorable John Comyn, Texas Attorney General, at 2-3 (Aug. 17, 1999) (on rile with
Opinion Committee) [hereinafter “Request Letter”]. We have reexamined the opinion and have
 determined that it correctly states the law, because the statutes of this state indicate that when the
legislature intends to authorize a political subdivision to compel property owners within its
jurisdiction to connect to a sewage disposal system, it provides this authority expressly.

         The legislature has provided governmental entities with express authority to compel
connections to sewage disposal systems in several statutes. Section 26.084 of the Water Code, for
example, authorizes the Texas Natural Resource Conservation Commission to enter an order
requiring a person to use a regional waste disposal system.           See TEX. WATER CODE ANN.
4 26,084(a)(l)-(3) (Vernon 1988). Before entering such an order, the Commissionmust        aftirmative-
ly find, among other things, that a majority of the votes cast in any election under section 26.087 of
the Water Code favored creation of the system. See id. 9 26.084(b)(5).

        In addition, as noted above, section 214.013 of the Local Government Code expressly
authorizes cities to require property owners to connect to a city sewer system. See TEX. LOC. GOV’T
CODE ANN. § 214.013(a)(2) (Vernon 1999). It also gives cities the tools to enforce this authority.
A city may fix a lien against the property and impose penalties against owners who do not connect
to the system. See id. 5 214.013(b). In 1993, the legislature amended section 214.013 to extend
these powers to all municipalities, not just home-rule municipalities. See Act ofApr. 15, 1993,73d
Mr. G. Granger MacDonald       - Page 3          (X-0162)




Leg., R.S., ch. 51,s I,1993 Tex. Gen. Laws 114. Finally, section 17.934 ofthe Water Code, which
was enacted in 1991,’ provides that political subdivisions located in certain counties receiving
financial assistance may “provide for a sanitary sewer system” and “require property owners to
connect to the sewer system.” TEX. WATER CODE ANN. $ 17.934(a)(l), (2) (Vernon Supp. 2000).
Both the enactment of section 17.934 in 1991 and the amendment to section 214.013 in 1993 post-
date Attorney General Opinion N-961, which was issued in 1988, reconfirming the opinion’s
suggestion that the authorityofpolitical subdivisions to compel sewer connections must be expressly
provided.

        The River Authority      does not have the express authority to compel property owners to
connect to a sewage disposal    system, as we believe it must. Accordingly, we aftirm the conclusion
ofAttorney General Opinion     JM-96 1 that the River Authority is not authorized to compel septic tank
users to connect to a sewage    disposal system.

         You also ask us to revisit the conclusion of Attorney General Opinion JM-961 that a city is
not authorized to delegate its authority to compel connections to a sewer system to the River
Authority. See Request Letter at 3. The opinion states that a city may not surrender its power to
compel sewer connections, a governmental function, to the River Authority as a condition of a
contract for the operation of a sewage disposal system. See Tex. Att’y Gen. Op. No. JM-961 (1988)
at 6. You state that the River Authority does not seek delegation of such authority: “Instead,
pursuant to an ‘Interlocal’ contract between the two governmental bodies, [the River Authority]
would have the authorized entity compel connection to the system owned and operated by [the River
Authority].” Request Letter at 3. The course suggested by your letter is completely consistent
with the opinion, which indicates that cities have the authority to compel property owners within
their jurisdiction to connect to a system operated by the River Authority, see Tex. Att’y Gen. Op.
No. JM-961 (1988) at 6 (“cities which have the power to force property owners to connect to [the
cities’] sewage systems may force [the property owners] to connect with the sewage system operated
by the authority”), provided that the interlocal contract does not interfere with the city’s discretion
with respect to the exercise of its authority, see id.

        Finally, you ask whether the River Authority may “contract with Kerr County, as authorized
by Senate Bill 821, whereby the County would compel connection to the system to achieve the
desired goal ofprotecting water quality in the unincorporated areas ofKerr County.” Request Letter
at 3. You ask, in essence, whether recently enacted Senate Bill 821 authorizes counties to compel
connections to sewage disposal systems. We conclude that it does not.

       Senate Bill 821 adds section 412.016 to the Local Government Code.              See Act of
May 11, 1999,76thLeg.,     R.S., ch. 191,s 1, sec. 412.016,1999 Tex. Sess. Law Serv. 668. Section
412.016 authorizes a county to “acquire, own, operate, or contract for the operation of, a water or
sewer utility system to serve an unincorporated area of the county in the same manner and under the
same regulations as a municipality under Chapter 402.” TEX. Lot. GOV’T CODE ANN. 5 412.016(a)
(Vernon Supp. 2000). Section412.016 does not expressly authorize a county to compel connections


        ?%e Act of May 22,1991,72d Leg., R.S., ch. 422,s 1,199l Tex. Gen. Laws 1584.
Mr. G. Granger MacDonald     - Page 4           (X-0162)




to a county sewer utility system. It refers to chapter 402 of the Local Government Code, which
authorizes cities to operate sewer utilities. However, the authority of a city to compel a property
owner to connect to a city sewer system derives from section 214.013 ofthe Local Government Code
rather than chapter 402. Because the power of a political subdivision to compel connections to a
sewage disposal system must be expressly provided, see discussion supru pp. 2-3, we conclude that
Senate Bill 821 does not authorize counties to compel septic tank users to connect to a county
sewage disposal system. Therefore, Kerr County is not authorized by Senate Bill 821 to compel
septic tank users to connect to a sewage disposal system operated by the River Authority for the
county pursuant to a contract.
Mr. G. Granger MacDonald    - Page 5         (X-0162)




                                      SUMMARY

                      The Upper Guadalupe River Authority is not authorized to
              compel septic tank users to connect to a sewage disposal system. The
              River Authority may operate a system serving city residents under
              contract with a municipality, provided that the municipality does not
              delegate any of its governmental powers. The municipality may
              require septic tank users within its jurisdiction to connect to the
              system. Attorney General Opinion JM-961 (1988) is affirmed.

                      Recently enacted SenateBill 821, which adds section412.016
              to the Local Government Code, does not authorize a county to
              compel septic tank users in unincorporated areas of the county to
              connect to a sewage disposal system. See Act ofMay 11,1999,76th
              Leg., R.S.,ch. 191,s 1, sec. 412.016,1999 Tex. Sess. Law Serv. 668;
              TEX. Lot. GOV’T CODE ANN. § 412.016 (Vernon Supp. 2000).




                                             JO 4 N COIbNYN
                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
