             TISEATFORNEY                  GENERAL
                       OF       v?ExAH
                    AUFJTIN.     -rExAs    7f3711
                         April 23, ,197O


Mr. Charles R. Barden, P.E.               Opinion No. H- 616
Executive Secretary
Texas Air Control Board                   Re: Extent of authority
1100 West 49th Street                         of a city-county
Austin, Texas 78756                           health district
                                              establishedunder
                                              Article 4447a, V.C.S,.
                                              to enforce air
Dear Wr. Barden:                              pollution laws
       You have requested our opinion as to whether a city-
county health district (Articlew7a, Vernon's Civil
Statutes),which is now defined in Article 4477-5 as a
"local government,"can make rules and regulationsor
otherwise enforce the air pollution laws. You ask whether
our former opinion M-257 (1968) has been altered by the 1969
amendatory revision of Article 4477-5, Vernon's Civil
Statutes. That opinion, insofar as thfs request is concerned,
held that a city-countyhealth un$t was not at that time
defined as a “local government"under the Texas Clean Air
Act 80 as to authorize such entity to enforce the law.
       The Legislaturehas subsequentlyamended the Texas
Clean Air Act. (Acts 1969, 6lst Leg., R.S., p. 817
ch. 273, being S.B. 48, codified by Vernon as Art. b+77-5).
This Act became effective September 1, 1969; Section 1.03
(7), thereof reads as follows:
         m    llocal government@means a county;
          an incorporatedcity or town; or a
          health district establlshedunder
          authority of Chapter 63, Act6 of the
          51st Legislature,1949, as amended by
          Chapter 239, Acts of the 56th
          Legislature,1959 (Articlew?s,
          Vefnon~s:.TeXasCivil Statutes)."
       Article w7a, authorizes a County Commissioner
Court, the municipal authoritiesof any one or more cities,




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    Mr. Charles R. Barden, page 2, (M- 616)


    towns, school boards and school districts,and any other
    governmentalentity to create tit -county health districts
    by written "agreement." Section $ of Article 4bb7a provides
    that a "health district may perform all the functions
    pertaining to public health which any of its component
    members is authorized to perform." We are of the opinion
    that Article 4447a is a valid general grant by reference
    from the TexasLegislature to this regional district of all
    of the powers relating to public health and abatement of
    pollution that are possessed by the component agencies who
    agree to form the health district. 53 Tex. Jur. 26 137
    Statutes, Sec. 92; 82 C.J.S., Statutes, Sec. 370, page h48;
    50 Am. Jur., Statutes, Sec. 39, pages 58-5   ; Trimmier v.
    Carlton, 1.16 Tex. 572, 296 S.W. 1070 (19273 ; z Ruli Case
         Sec. 160, page 908; 59 C.J. Statutes, Sec. 624,:age
           All health districtswould thus have the powers
    delegated to local governmentsunder SubchapterE of the
    Texas Clean Air Act, including the power to enforce the Act
    and such rules and regulation8of the Texas Air Control
    Board promulgated pursuant thereto.
           However, the Act gives only incorporatedcities or
    towns the right to enact and enforce ordinances for the
    abatement of air pollution, so that a city or town would
    have to be a party to the agreement enacting the district
    before the city-countyhealth district would have the power
    to ordain and adopt ordinances not inconsistentwith state
    rules. Sec. 5.05,  Texas Clean Air Act.
           To the extent that Attorney General Opinion No. M-257
    supra, ehould conflict. with this holding, such prior
    opinion Is hereby modified to the extent of any conflict
    because of the re-definitionof "local government"by the
    1969 amendment to the Texas Clean Air Act.   Such a Legisla-
    tive Act does not take away the resent duties and powers of
    cities and counties since Art. 4t.4
                                      ?a is not an exclusive act;
    nor would appointment of a counsel for a city-countyhealth
    unit diminish the authority of a city attorney or county
    attorney should such units of local government desire to
    file individual suits to abate air pollution even after
    creating the health district. Attorney General Opinion c-782
    (1966). A city or county would not lessen their legal duties
    to abate water or air pollution by virtue of any agreement
    for these duties also to be done for them by a health
    district.




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or. Charles R. Rarden, Page 3, (M- 616)


      A county has only those powers or duties as are
conferred by the constitutionand statutes of the state.
15 Tex. Jur. 2d, Counties, Sec. 80, page 307. A clty-
county health district, one of whose members is a city,
can ordain or adopt health and pollution rules so long
as such ordinance is not "inconsistentwith" the Texas
Clean Air Act. Section 5.05 (a) (2), Texas Clean Air
Act.

                  SUMMARY
                  -------
         City-countyhealth districts (Article
         u7a, V.C.S.) are defined as
         local governments"under the Texas
         Clean Air Act and have legal authority
         to file suits in their own name to
         enforce the Texas Clean Air Act, or
         to enforce rules and regulationsof
         Texas Clean Air Act, or to ,enforce
         rules and regulationsof Texas Air
         Control Board. All duties of cities
         or counties to act through a "local
         governmentI'to abate air pollution
         continue to exist even if enforcement
         is done through a city-countyhealth
         district. Article V, Sec. 21,
         Texas Constitution. A health district
         or "local government" has the seme
         power to ordain or adopt health
         pollution rules as a city If an ln-
         corporated city or town is a party
         to the agreement creating the health
         district.




                                  General   of   Texas




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        Mr.   Charles R, Barden, page 4, (M-616)



        Prepared by Roger Tyler
        Assistant Attorney General
        APPROVED:
        OPINION coMMITTEE
        Kerns Taylor, Chairman
        W. E. Allen, Acting Co-Chairman
        Roland Allen
        Houghton Brownlee
        John Grace
        JohnBanks
        MEADE F. GRIFFIN
        Staff Legal Assistant
        ALFREDWA&KER
        Executive Assistant
        NOLA WHITE
        First Assistant




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