             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




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