                 TEE       ATTORNEY          GENERAL
                              OF   TEXAS


                              September 30, 1988



    Ms. Betty Strohacker           Opinion No.     JR-961
    President
    Upper Guadalupe River          Re:    Authority  of the Upper
       Authority                   Guadalupe  River Authority     to
    P. 0. Box 1278                 compel septic tank users within
    Kerrville, Texas   78029       its service area to connect    to
                                   a sewage gathering, transmission,
                                   and disposal facility   (RQ-1375)

    Dear Ms. Strohacker:

         You request an opinion concerning the authority of the
    Upper Guadalupe River Authority to compel septic tank users
    within the boundaries   of the authority   to connect to a
    sewage gathering, transmission, and disposal system operated
-   by the authority,   either by itself or pursuant      to an
    agreement with some other governmental entity permitted   to
    contract with the authority    for the operation of such a
    system.  You limit your questions to a sewage system wholly
    within the service area of the authority, including:

         (1) locations within the          corporate limits     of a     home
    rule city:

         (2) locations within the extraterritorial            jurisdiction
    of a home rule city:

          (3) locations outside the corporate limits and               extra-
    territorial jurisdiction of a home rule city:

          (4) locations wholly within the corporate limits of               a
    general law city:

          (5) locations within the boundaries  of an entity
    authorized  to provide   sewage collection and   disposal
    services pursuant   to a Certificate  of Convenience  and
    Necessity; and

          (6) locations not within the boundaries of any of               the
    entities described in (l)-(5).

         We conclude  that the authority has no power,  either
    express or implied, to compel septic tank users to connect



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to a sewage 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.

     We also conclude   that while home rule cities have
the express power to compel property     owners within   the
boundaries of the city to connect to sewage systems operated
by them, they may not delegate that power to the authority.

     The authority has the power to purify water before    it
returns to the groundwater    table and hence to the river
system. Thus, the authority may treat and dispose of sewage
generated within its service area. parker v. San Jacinto
Citv Water Control    and Imnrovement District No. 1, 273
S.W.2d 586   (Tex. 1954).    However, the authority   has no
general police powers to protect the public health        and
general welfare   that can be used to force septic tank
users to abandon those systems in favor of a sewage system
operated by it, nor any express power to do so. Powers may
not be implied merely because they are convenient to the use
of express powers.   Tri-Citv Freshwater Suvvlv District  No.
2 of Harris Countv v. Mann, 142 S.W.2d 945, 948 (Tex. 1940).

     The authority has express authority under its enabling
statute and Water Code provisions       to operate   a sewage
disposal system. See Acts 1971, 62d Leg., ch. 430, § 1, at
1586; Water Code 5 30.021 (regional waste disposal    system):
§ 51.331 (water control and improvement district):    g 54.030
(municipal utility district).      However, the authority   to
operate a sewage disposal      system does not include the
implied authority to require all septic tanks to be con-
nected with the system. Septic tanks are not parts of a
sewer system.    See, e.q., McWilliams v. Barnes, 242 P.2d
1063 (Kan. 1952); Lake Townshiv. McComb     Countv v. Millar,
241 N.W. 237. 239 IMich. 1932). Chapter 26 of the Water
Code, which pertains   to water .guality control,   authorizes
the Texas Water Commission       to issue permits    for   the
discharge of waste or pollutants into water in the state.
Water Code     9 26.027.   The    following definitions    are
applicable to chapter 26:

            (‘5) 'Waste' means    sewage,    industrial
        waste, municipal   waste, recreational   waste,
        agricultural   waste, or    other waste,     as
        defined in this section.

           .   .   .   .

           (14) 'Sewer system'   means   pipelines,
        conduits, storm  sewers, canals,    pumping
        stations, force  mains,   and  all    other


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        constructions,   devices,   and   appurtenant
        appliances used to transport waste.

            (15) 'Treatment    facility*  means   any
        plant, disposal  field, lagoon, incinerator,
        area devoted to sanitary landfills, or other
        facility  installed    for the   purpose   of
        treating, neutralizing, or stabilizing waste.

           (16)  'Disposal system' means any         system
        for disposing   of waste,   including         sewer
        systems and treatment facilities.

Water Code § 26.001.

     Section 26.031 of the      Water     Code   defines   "private
sewage facilities" to mean

        sevtic tanks, pit privies, cesspools,   sewage
        holding tanks, injection wells used to dis-
        pose of sewage, chemical toilets,    treatment
        tanks, and all other facilities, systems, and
        methods used for the disvosal of sewace other
        than disvosal svstems overated under a vermit
        &e.sued bv the commission.  (Emphasis added.)

Water Code 0 26.031. Thus, the chapter 26 definitions   show
that septic tanks are distinct  from a sewer system and not
part of one. The express power of the Upper Guadalupe River
Authority to operate  a sewer system does not include the
authority  to regulate   septic tanks by requiring     their
connection with the system.     See also Local Gov't Code
§ 214.013 (providing that home rule cities may operate
sewage systems and require connections with a sewer system
operated by the city); Water Code 5 26.084(a)(l).     (Water
Commission may compel tie-in to regional or area-wide  waste
disposal system designated under section 26.083 of the Water
Code.)

     The authority  has assumed the powers   of a municipal
utility district pursuant to section 54.030 of the Water
Code, and therefore has the following statutory power:

        A [MUD] may adopt and enforce            reasonable
        rules and regulations to:

            (1) secure and maintain safe, sanitary,
        and adequate plumbing installations,   connec-
        tions, and    appurtenances   as    subsidiarv
        parts of its sanitarv sewer svstem . . . .
        (Emphasis added.)



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                                                                ‘1

Water Code 5 54.205.    It is suggested that the underlined
language authorizes a municipal utility district to require
septic tank users to connect to a sewage treatment    system
operated by it.      Section  54.205 does not grant     such
authority.  A septic tank is not a "subsidiary part" of the
sanitary sewer system because it operates in its vlace.

     No other provision   in the Water Code specifically
permits municipal utility districts to force connections   by
septic tank users to sewage disposal operated by it. Nor do
we think that such a power can be implied from the express
powers granted to the authority in the code.     Ordinarily,
forcing septic tank users to connect to a sewage system can
only be considered to be convenient, and not necessary,    to
the operation of a sewage system by a MUD. Tri-Citv    Fresh-
water Suvvlv District, suvra.

     The legislature has, moreover, recognized that septic
tanks in the appropriate circumstances are adequate means to
preserve the waters    subject to the jurisdiction   of the
district.  The 70th Legislature enacted a statute regulating
the location, design, construction and operation of on-site
sewage disposal systems,  including septic tanks. Acts 1987,
70th Leg., ch. 406, 5 1, at 1932 (codified at 4477-7e,
V.T.C.S.):l see V.T.C.S. art. 4477-7e, 5 2(7). The purpose
clause includes the following legislative findings:

            (2) on-site sewage disposal systems, when
        properly designed and constructed in suitable
        soils, provide a safe and adequate method  of
        sewage disposal; and

           (3) in some areas of the state, the soil
        is not suitable for normal underground sewage
        disposal   and the improper and unapproved
        construction   and installation  of   on-site
        sewage disposal   in those areas has created
        conditions dangerous to the public health.

V.T.C.S. art. 4477-7e, 5 l(b).

     The Department of Health or its authorized agent  is
responsible for adopting rules regulating on-site  sewage



     1. Two other statutes adopted by the 70th Legislature
were also codified  as article 4477-7e, V.T.C.S.   See Acts
1987, 70th Leg., ch. 162, at 1327: Acts 1987, 70th Leg., ch.
810, at 2808.




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disposal and issuing permits to build, alter, repair, extend
or operate an on-site sewage disposal system. V.T.C.S. art.
4477-7e, 9s 4, 7.    A city, county,   river authority,   or
special district may be designated an authorized agent by
the department and may then exercise the regulatory   powers
set out in article      4477-7e, V.T.C.S.    To become    an
authorized agent, a local government     must, among other
statutory requirements, enter an order or resolution   which
meets the department's   minimum  requirements  for on-site
sewage disposal systems. Id. 5 5(c).

     Article 4477-7e, V.T.C.S.,     is directed  at assisting
"the state's citizens in obtaining safe and adequate on-site
sewage disposal   systems,"  not at prohibiting    them.   Id.
5 l(a). The department or an authorized agent may refuse a
permit to construct an on-site sewage disposal system       if
issuing it would conflict with the public policy declared
under the statute or with other applicable          laws, id.
5 7(e)(2), but may not deny any and all permits or require
all septic tanks to be connected to a sewage system.     More-
over, no permit is required   for an on-site sewage disposal
system for a single residence on a land tract of 10 acres or
larger, subject to meeting statutory conditions designed    to
protect the public health.    Id. 5 7(f). The authority    may
not rely on article    4477-7e, V.T.C.S.,   to require septic
tanks to be connected to its sewage disposal system.       The
statute also expresses the legislature's intent to allow
properly designed   and constructed   septic tanks and other
on-site sewage disposal systems to exist, id. § l(b) (2), and
its recognition that in some areas of the state the soil is
not suitable for normal underground     sewage disposal.   Id.
§ l(b)(3). The legislature's     findings and expression    of
intent in article 4477-7e and its adoption of comprehensive
regulations  applicable   to septic tanks lend additional
support to our conclusion that the authority may not rely on
implied authority to regulate septic tanks requiring connec-
tions with their sewage system.

     The authority suggests that because the Local Govern-
ment Code allows home rule cities to force connections   with
sewage collection systems operated by the city, such a power
can be delegated by a home rule city to the authority.     We
disagree.  Chapter 30 of the Water Code permits cities to
contract with the authority   for the operation   of sewage
disposal systems. Water Code §f,30.021-035.    However,   the
Local Government  Code specifies that QP&      a home rule
city may "provide for a sanitary sewer system" and "require
property owners to connect to the sewer system."        Local
Gov't Code 5 214.013.




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     The provision of sewage collection, transportation, and
disposal is a governmental      function of a municipality.
Dillev v. Citv of Houston,   222 S.W.2d 992 (Tex. 1949); see
also Gotcher v. Citv of Fannersville, 151 S.W.Zd 565       (Tex.
1941). cf. Local Gov't Code 5 402.063(e).       A municipality
may not delegate   a governmental function to another poli-
tical subdivision so as to lose control over the discharge
of the function or to inhibit the exercise        of necessary
discretion by the municipality      concerning   the function.
C' v of Farmers   Branch v. Citv of Addison,     694 S.W.2d   94
(;:x. App . - Dallas 1985, writ  ref'd n.r.e.);  Pidelitv   Land
8 Trust Co. v. Citv of West Universitv Place, 496 S.W.Zd 116
(Tex. Civ. App. - Houston [14th Dist.] 1973, writ ref'd
n.r.e.).

     Thus, while a home rule city may by statute    contract
with the authority for the collection, transportation,   and
disposal of sewage, and cities which have the power to force
property owners to connect to their sewage systems may force
them to connect with the sewage system operated      by the
authority, such cities may not surrender    that power com-
pletely and unequivocally to the authority as a condition of
such a contract.  Citv of Farmers Branch, suvra.
                                                                   ---
     In conclusion, the authority has no power to require
semtic tanks within   its boundaries to connect to a sewage
sy'stem which it operates.

                        SUMMARY

          The Upper Guadalupe River Authority,  which
       possesses cumulatively the powers of a water
       control and improvement district and a muni-
       cipal utility district, has no power to force
       septic tank users to connect to a sewage
       disposal system operated by the entity.   Home
       rule cities may require septic tank users to
       connect to a sewage system operated by the
       city inside of its corporate limits, but the
       city may not delegate that power to any other
       governmental entity or political subdivision.




                                   J AfQdh
                                     Ver    truly yo   ,


                                         &
                                   -J I M   MATTOX
                                    Attorney General of Texas




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Ms. Betty Strohacker - Page 7      (JM-961)




MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison and
D. R. Bustion, II
Assistant Attorneys General




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