                            QBffice     of tip     !&tornep        Qbneral
                                           &ate of Z!Lexas
DAN MORALES
 ATTORNEY
      GENERAL                                 April 28, 1995

     Honorable Fred Hill                             Opinion No. DM-343
     Chair
     Committee on Urban AtBirs                       Re: Authority of the Texas Natural
     Texas House of Representatives                  Resources Conservation Commission to
     P.O. Box 2910                                   require a municipality to obtain permission to
     Austin, Texas 78768-2910                        regulate on-site sewage facilities (RQ-588)



             You ask whether chapter 366 of the Health and Safety Code pre-empts the
     authority of municipalities to regulate on-site sewage disposal within municipal liits
     pursuant to the following statutes: V.T.C.S. article 1015; Health and Safety Code section
     342.002;  and Local Government Code sections 51.012,214.012(2), 214.014 and 217.002.

              The statute codified as chapter 366 of the Health and Safety Code was adopted in
     1987 to provide minimum state-wide standards for regulation of on-site sewage disposal
     systems.’ Attorney General Opinion TM-1278 (1990); House Comm. on Natural
     Resources, Biil Analysis, H.B. 1875, 70th Leg. (1987); see Health & Safety Code
     4 366.001 (purpose clause). Prior to the adoption of this statute, the state did not “have a
     consistent state-wide permit system for septic tanks or for registration of septic tank in-
     stallers.” House Comm. on Natural Resources, supra. Under chapter 366, a person “may
     not cohst~ct, aher, repair, or extend” an on-site sewage disposal system that does not
     comply with chapter 366 and the applicable rules adopted by the Texas Natural Resource
     Conservation Commission (“commission*‘).Z and a person “must hold a permit and an
     approved plan to construct, alter, repair, extend, or operate” the system. Id.$5366.004,
     .OSl. House Comm. on Environmental Regulation, Big Analysis, S.B. 1042, 73d Leg.
     (1993).


             ‘An “on-de sews@ diqosel sysIem”pmduca no morethat 5,0@‘gallons 3      of waste each day and
     is wed only to dispose of sewage producedon the site whew it is located. Health & Safety Code
     5 366.002(8), amended by Act of May 21, 1993,13d Leg., RS., ch. 589,$3, 1993 Tex. Sees. Law Serv.
     2245.2245; see ah 30 T.A.C. 5 285.11(29) (listing sqecik typesof ‘[o]n-siteseweragefacilities”).

              2Rior10~hl,1992,theDcpanmcatofHcalthadministaedthstahltenowcodificdas
     chapter 366 of the Health and Safety Cede. On that date, responsibilityfor these pmvisioos was
     uansferredto the Texas WaterCommission. Act of July25,1991,72d Leg., 1st C.S., ch. 3.8 1.088, 1991
     Tex. Sess. Law Serv. 4, 43. On September1, 1993, the name of the Texas Water Gnmnision was
     changed IOthe Texas Natural Resowce Comewation Commissioo, and all powers, duties, rights, and
     obligationsof the WaterCommissionwe& bansferfedto the NaturalResnuce ConservationCommission.
     Id. 0 1.085, at 42.
HonorableFred Hill - Page 2              (DM-343)




       Administration of chapter 366 is vested in the commission and its “authori&
agents” according to the following provision:

          The [wmmission] or authorized agents:

               (1) have general authority over the location, design, wnstruc-
          tion, installation, and proper iimctioning of on-site sewage disposal
          systems; and
             (2) shall administer this chapter and the rules adopted under this
          Chflptef.

Health & Safety Code 4 366.011.

         An “authotized agent” is a “local governmental entity,” including a municipality,
“authorized by the. . [commission] to implement and enforce rules” under chapter 366.
Id.5 366.002(   1), (6). As an author&d agent, a local governmental entity may, instead of
the wmmission, exercise the general authority provided by section 366.011. Attorney
Oeneral Opinion TM-1278 (1990) at 2. The commission “shall designate a local govern-
mental entity as an authorized agent” if the governmental entity complies with the
requirements of sections 366.031 and 366.032. The local governmental entity must notify
the commission that it wishes to regulate the use of on-site sewage disposal systems in its
jurisdiction, hold a public hearing, and adopt an order or resolution that must:

               (1) incorporate the. . [wmmission’s] ruleson abatement or
          prevention of pollution and the prevention of injury to the public
          health;

               (2) meet the . [wmmission’s] minimum requirements for on-
          site sewage disposal systems; and

               (3) include a written enforcement plan.

Health & Safety Code 9 366.032(a). An order or resolution that adopts more stringent
standards than chapter 366 or the commission’s standards will prevail over the statute or
the wmmission’s standards. Id.5 366.032(b);        seeulsoAttorney General Opinion
JM-1278 (1990) at 3 (local governmental entity that has been designated authorized agent
may adopt standards more stringent than commission standards for local registration of
installers). The designation of the local governmental entity as authorized agent takes
effect only when the wmmission approves the resolution or order. Health & Safety Code
g366.03qb).

        Chapter 366 provides for comprehensive state-wide regulation of on-site sewage
disposal systems by the commission. Local governmental entities, includmg cities, may
administer the state-wide regulations, or more stringent ones, if they become authorized
agents pursuant to sections 366.031 and 366.032 of the Health and Safety Code.
Otherwise, the commission will administer the statute and regulations within the territorial
limits of local governmental entities. You suggest that these provisions wntlict with other

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Honorable Fred Hill - Page 3                (DM-343)




statutes, specifically, V.T.C.S. article 1015; Health and Safety Code section 342.002; and
Local Government Code sections 51.012, 214.012(2), 214.014, and 217.002, which you
believe give such regulatory authority to cities.

       Section 51.012 of the Local Govemment Code provides as follows:
               The municipality may adopt an ordinance, act, law, or
          regulation, nor incom‘stenf withstate  iinv,that is necessary for the
          govermnent, interest, welfare, or good order of the municipality as a
          body politic. pmphasis added.]

An ordinance, act, law, or regulation adopted under this provision may not be inwnsistent
with state law. Accordingly, a city has no authority under section 51.012 of the Local
Government Code to adopt legislation wncernhr g on-site sewage disposal systems that is
inconsistent with chapter 366 of the Health and Safety Code.

        Article 1015, V.T.C.S., which applies only to general law cities,3 enumerates
several powers of the governing body, including the power to “establish, erect, wnstruct,
regulate and keep in repair bridges, culverts, and sewers.” V.T.C.S. art. 1015(2).
Nothing in this language authorizes a city to regulate on-site sewage disposal systems,
since they are not wmrected with a sewer system. See Attorney General Opinion JM-%I
(1988) (Upper Guadalupe giver Authority cMIot wmpel connection of septic tanks with
sewage gathering system).

        Chapter 342 of the Health and Safety Code, formerly codified as article 4436,
V.T.C.S., deals with municipal regulation of sanitation. Section 342.002 authorizes the
governing body of a municipality to regulate the wnstruction, alteration and repair of
sewers and privies, to direct the methods and materials for wnstructing them, and to
regulate the cleaning and disinfecting of these facilities. This statute gives cities authority
over the construction and regulation of a type of on-site sewage disposal system’ and thus
it appears to be in wntlict with chapter 366 of the Health and Safety Code.

        If statutes enacted at different sessions of the legislature are irreconcilable, the
statute latest in date of enactment is held to have impliedly repealed the earlier statute.
Ciry of Dallas  Y. Brown, 475 S.W.2d 833 (Tex. Civ. App.-Dallas 1971, writ refd n.r.e.);
see also Gov’t Code 5 3 11.025(a). The doctrine of implied repeal rests on the principle
that the last expression of thelawmakers will     be givene&t. Allied       FinanceCo.v.
Falkner,  397S.W.2d 846 (Tex. 1965).




       3Trwnan O’Quinn,“Histovy,SlaIw, and Functionof Cities,Towns and Villagc$” 2A V.T.C.S.
XXlX - XXX; see Woo/ridgev. Folsorn,564 S.W.2d 471 (Tcx. Civ. App.-Dallas 1978, no tit).

        ‘See 30 T.A.C. 8 285.1 l(29) (debition of ‘[o]n&e seweraSefkilities”).


                                            p.   1826
Honorable Fred Hill - Page 4                 (DM-343)




        The predecessor to chapter 342 of the Health and Safety Code was first adopted in
1875, by the same bill that adopted some of the other provisions you inquire about,
section 217.002 of the Local Government Code and the original versions of sections
214.012 and 214.014 of the Local Government Code. Act approved March 15, 1875,
14th Leg., 2d C.S.. ch. 100, 8 124, 1875 Tex. Gen. Laws 113, 156; see ah id. $5 59,
64. Chapter 342 was last amended in 1965. See Act of May 20, 1965, 59th Leg., R.S.,
ch. 470, 1965 Tex. Gen. Laws 975 (amending former article 4436, V.T.C.S., now chapter
342 of the Health and Safety Code.) The 1965 amendment did not change the provision
now cod&d as section 342.092. Chapter 366 of the Health and Safety Code, the more
recently enacted statute, has impliedly repealed section 342.002 of the code, to the extent
the ktter provision authorized a municipality to regulate septic tanks in a manner
inwnsistent with chapter 366.

        Section 214.012(2) of the Local Govemment Code states that a municipality “that
has underground sewers or cesspools~ shag regulate by ordiice              . house draining and
plumbing.” Section 214.014 of the same code authorizes the “governing body of a Type
A general-law municipality” to “‘order the owner of a private drain, sink, or privy to till up,
clean, drain, alter, relay, repair, or improve the drain, sinlc, or privy.” The predecessors of
both provisions were adopted in the nineteenth century. See Act of August 3 1,1897,25th
Leg., R.S., ch. 163, § 1. 1897 Tex. Gen. Laws 236, 236; Act approved March 15, 1875,
14th Leg., 2d C.S., ch. 100, 5 69, 1875 Tex. Gen. Laws 113, 131. To the extent that
section 214.012(2) and section 214.014 of the Local Government Code are inconsistent
with chapter 366 of the Health and Safety Code, they are repealed by chapta 366.

        Section 217.082 of the Local Govermnent Code authorizes the governing body of
a municipality to “define and declare what constitutes a nuisance,” and authorize its
summary abatement, and to abate “in any mamter the governing body considers expedient
any nuisance that may injure or afkt the public health or wmfort.” This chapter is not
directed specifically at on-site sewage disposal systems. Municipalities may not, however,
act under the authority of this statute in a manner that is inconsistent with the genera) laws
of the state.

        The predecessor of section 217.002 was also adopted in 1875. See Act approved
March IS, 1875, 14th Leg., 2d C.S., ch. 100, $8 59, 64, 1875 Tex. Gen. Laws 113. 130.
Because section 217.002 of the Local Government Code was adopted earlier than chapter
366 of the Health and Safety Code, it is impliedly repealed by chapter 366 to the extent of
wnflict. A city may not exercise its power to define and abate nuisances under section
217.002 to regulate on-site sewage disposal systems in a manner that is inconsistent with
the provisions of chapter 366 of the Health and Safety Code.




         JRUI~S promulgstcdto implementciupter 366 of the Healthand Safely Code state that a asspool
is an uasatisfactay m&cd efrewagc dispeml. 30 T.A.C. 5 285.102.

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Honorable Fred Hill - Page 5                (DM-343)




        Municipalities that have been designated as authorized agents may adopt standards
for on-site sewage disposal systems that are more stringent that the commission’s
standards. Chapter 366 of the Health and Safety Code impliedly repeals any other
authority municipalities might have to regulate on-site sewage disposal systems within
municipal limits pursuant to section 342.002 of the Health and Safety Code and sections
51.012, 214.012(2), 214.014, and 217.002 of the Local Government Code.6 The Texas
Natural Resource Conservation Commission is charged with administering chapter 366,
but a municipality that wishes to regulate on-site sewage disposal systems within its
boundaries may seek designation as an authorized agent of the commission.


                                      SUMMARY

               Pursuant to Chapter 366 of the Health and Safety Code,
           municipalities designated as authorized agents may regulate on-site
           sewage disposal systems more stringently than the commission does.
           Chapter 366 impliedly repeals any other authority municipalities
           might have to regulate on-site sewage disposal systems within
           municipal limits pursuant to section 342.002 of the Health and Safety
           Code and sections 51.012, 214.012(2), 214.014, and 217.002 of the
           Local Government Code. The Texas Natural Resource Conservation
           Commission is charged with administering chapter 366, but a
           municipality that wishes to regulate on-site sewage disposal systems
           within its boundaries may seek designation as an authorized agent of
           the commission.




                                                          DAN MORALES
                                                          Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

 SARAH J. SHIRLEY
 Chair, Opinion Committee

 Prepared by Susan L. Garrison
 Assistant Attorney General


          6~rtic1e 1015, V.T.C.S., dces not include any provision authorizingmunicipalitiesto regulate
 on-site sewage disposalsystems.


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