          THE      ATIXBRSEY               GESERAI.
                      OF    TEXAS




Honorable Hugh Yantis                Opinion No. M-891
Executive Director
Texas Water Quality Board            Re:    Power to Contract on
Austin, Texas   78701                       behalf of State of
                                            Texas for Federal
                                            grants or loans under
                                            the Federal Water
Dear Mr. Yantis:                            Pollution Control Act.

     You have asked our opinion as to the powers of Texas
Water Quality Board and of yourself as Executive Director
thereof to contract with the Federal Government.  You ask
three questions:

     1)   Based on the Water Quality Fund Program,
          does the Texas Water Quality Board, acting
          on behalf of the State of Texas and through
          its Executive Director, have the authority
          to certify and agree that the State of Texas
          will pay 25% of the estimated reasonable
          costs of all treatment works projects for
          which Federal grants are to be made under
          the Federal Water Pollution Control Act,
          the construction contracts on which are
          let on or after July 1, 19707

     2)   Would such a certification and agreement
          of the Texas Water Quality Board be binding
          on the State of Texas?

     3)   Is the Executive Director of this agency,
          acting on behalf of and pursuant to the
          directive of the Texas Water Quality Board,
          authorized to execute such a certification
          and agreement and bind the State?

     With two exceptions, to,be hereinafter discussed, all
three questions are answered in the affirmative.   Your
organic law authorizes agreements with the Federal



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-Honorable Hugh Yantis, Page 2 (M-891)



Government.   Section 3.25, Texas Water Quality Act;
Article 7621d-1; Section 21.087, Texas Water Code.   This
law specifically relates to Texas Water Quality Board
and provides:

                      Federal grants

          Sec. 3.25.  The board may execute agree-
     ments with the Department of the Interior, the
     Federal Water Pollution Control Administration
     or any other federal agency that administers
     programs providing federal cooperation,
     assistance, grants, or loans for research,
     development, investigation, training, planning,
     studies, programming, and construction related
     to methods, procedures, and facilities for the
     collection, treatment, and disposal of waste
     or other water quality control activities.
     The board may accept federal funds for these
     purposes and for other purposes consistent
     with the objectives of this Act and may use
     the funds as prescribed by law or as provided
     by agreement.

     To further assure that Texas Water Quality Board can
contract with the United States Government on behalf of
the State of Texas, your attention is invited to your
further authorizations found in Section 7.12 of House
Bill 1440, Acts of the 62nd Leg., Regular Session,
effective May 14, 1971. Related authority and support
for such contracts by Texas Water Quality Board on
behalf of the State of Texas is found in Section 21.095,
of House Bill 1412, Acts of the 62nd Leg., Regular
Session, effective May 31, 1971; Section 21.095, of the
Texas Water Code. This office had already approved the
River Authority Compact plan in Opinion M-822, dated
March 30, 1971.

     In view of the foregoing discussion of the statutory
authority of your~Board to contract, and after considering
the Resolution of Texas Water Quality Board dated May
20, 1971, authorizing you as Executive Director to sign
for the Texas WaterQuality  Board, you can bind the
State, subject to two objections to be hereinafter
discussed.



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        Honorable Hugh Yantis, Page 3        (M-891)



             Your first question also encompasses whether the
        Board, or you as Executive Director thereof, may apply
        to the Environmental Protection Agency to certify waste
        water treatment works within Texas back to July 1,
        1970. Section 8, of the Federal Water Pollution Control
        Act specifically provides for such a procedure and we
        find the basic authority of your Board broad enough to
        contract and certify to the Federal Government such
        reimbursable projects as your Board find have met or can
        meet the Federal law.

             Likewise, under Section 8(b) (71, Federal Water
        Pollution Control Act, we find no reasons under the broad
        provisions of Texas law why the percentage limitations
        on previous grants cannot be increased and related back
        to July 1, 1970.

             One impediment to the contracts you mention is
        found in Article 9.32 of the Texas Election Code which
        reads in part as follows:

                  "Within sixty (60) days from the date of
             any election upon any proposed amendment to the
             Constitution, and not thereafter, any citizen
             of this State who is a qualified voter, should
             have the right to contest said election by
             filing his petition in a district court of
             Travis County, fully stating his grounds for
             contest,..."

             Senate Joint Resolution No. 17, which was adopted by
        the Texas electorate at an election held on May 18, 1971,
        added a new Section 49-d-l to Article III of the Texas
        Constitution.  This is the real basis for the new proce-
        dures whether to obtain waste water treatment by issuance
        of bonds or by direct assistance contracts, and any
        certification to the United States Government would by
        law be subject to the said Article 9.32 election contest
        until after July 18, 1971, (60 days after the election
        of May 18, 1971).

             Any contract with the Federal Government by Texas
        Water Quality Board must bear the approval of the Governor
        of Texas. Art. IV, Sec. 10, Texas Constitution.   This
        requirement for the Texas Governor's approval is explained



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Honorable Hugh Yantis, Page 4         (M-891)



in Opinion M-312, dated December 10, 1968, which sets
forth a proper endorsement for the Governor.

                        SUMMARY

        Texas Water Quality Board through its
     Executive Director may contract for the State
     of Texas with the Federal Government for
     Federal grants or loans available under Sec-
     tion 8 of the Federal Water Pollution Control
     Act. This contractual authority is subject
     to the 60-day limitation contained in Article
     9.32 of the Texas Election Code and to the
     Constitutional requirement that the Governor
     of Texas approve the Federal Contract.




Prepared by Roger Tyler
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Scott Garrison
Mike Stork
Pat Bailey
R. D. Green
Bob Flowers

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant


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