                                              AUSTIN.          TEXAS              78711



                                                              August        28,     1974



The    Honorable             Hugh        C.     Yantis,       Jr.              Opinion           No.    H-         384
Executive          Di.rector
Texas       Water          Quality        Board                                Re:         Wbether           the    Texas       Water
P.    0.     Box     13246,        Capitol          Station                                Quality         Board          can delegate
Austin.          Texas      78711                                                          its     authority         to inspect          and
                                                                                           certify        boats      to private
                                                                                           business.
Dear       Mr.     Yantis:


       You       have      asked     whether           the    Texas       Water          Quality       Board        may       delegate
its   inspection            and certification                functions         under       Sec.        21.097,        Texas
Water        Code,         to privately          owned        and operated               marine         dealerships,
marinas          and     similar         enterprises.


      Section        21.097,         Texas          Water      Code,        provides             in part:


                     (b)       Within         twelve      months       after       this    section         takes
             effect        the [Texas           Water        Qualitylboard               shall     issue      regu-
             Zatiotls       concerning              the disposal          of sewage              from      boats
             located           or operated           on inland        fresh        waters         in this        state.
             The        regulat:.ons           of the board          take      effect       six    months
             after       they      are    issued       unless        an   earlier          effective         date        is
             spec’fied          in the         regulations.           The         regulations           of the
             board         shall     include,          but not. be limited                to,     provisions
             for     the est.ablishment                 of standards              for     sewage         disposal
             dev-ices,          the certification              of sewage            disposal           devices,
             in-luding           otl-shore          pump      out faci.lities,             and the visible
             and        conspicuous            display        of evidence           of certification
             of sewage    disposal devices on each boat equipped   with
             ,;nzh de,<ize bnd on each on-shore   pump out device.


                 (c)  The [Texas                     Water    Qual.ii~y] board may delegate
             the admirlistralior                    an_d prrfo,rmanc,e    of the certification
             funci:i.on to l'he ewecuti~ve                    director         or to any           ot.hrr     govern-
             mental          ent::,tyO        The    board      may       prescribe             and     require
             the payment,                 by app!icants             for    ce.rt+.fication,             of reason-
             able       fees     based         on the cost          of administering                  and per.-
              forming          the certXca.ticr,              fur,cti,on.          All     certification
The      Honorable             Hugh      C.     Yantis,         Jr.,      page      2         (H-384)




               fees      shall     be paid        to the entity           performing                 the certifi-
               cation      function.            Al,1 fees        collected          by any          state     agency
               shall     be deposited               in a special          fund for            use     by     that
               agency       in administering                    and    performing               the certifi-
               cation      fizxtion           and shall         not    be deposited                 in the
               general         revenue          fund     of the state.              (Emphasis               added)


       When       the Legislature                has      conferred             duties        and powers              on an officer
or boa-d          those        duties      must        be performed                or     exercised            by that         official
or board,             and in the absence                 cf specific             statutory           authorization              they
cannot         be delegated           to others.             Moody         v.     Texas         Water         Commission,
373    S. W. 2d          793     (Tex.     Civ.App.             - -    Austin       1963,           writ     ref’d.     n. r. e. ).
The      maxi,m.         delegatas            non      potest     delegare          [the        person         to whom           an
office       or duty       is delegated                cannot      1egall.y        devolve           the    duty       on another,
unless         he be expressly                authorized           to do so],            is     applicable            in Texas.
Ne~wsorn         v-    Ada-ma?          451     S. W; 2d 948             (Tex.     Civ. App.               --Beaumont            1970,
no Writ).


       He,ce      there     is a statutory               a;lthorization             to delegate              the certification
~~~r.ct-:.onto tie executive                  director       or to “any            other        governmental                  entity.     ‘I
The      Act    does      not define            “governmental               entity,        ” but the term                must      be
‘cocstrzed         acccrding             to common              usage.          Code      Construct-ion                Act,      Article
542913-2,         Sec.      2. @l.       We      know       of no definition               or common                  usage     of the
term      “goverrmectal                  ectity”       which      would          incl ude privately                   owned       and
npnrated          busii?esses             stz:ch as marinas                and boat           dealerships.


       The      statute        makes          no reference             to inspection,                but speaks           only     of
cc rtif.‘;.zatioo.          Presumably,                 tRe Board           will        adopt       rules     and      regulations
which      require         some         sort     of inspect.ion            a,s a means               of democstrating                           ,
el,igibi?:“.ty     for     certification.                In the absence                 of a specific           rule      or p,rogram
for    owr consideration,                     we are      unable         to say         t:hat the       Board         would       be
unabl.?        to make         arrangements               for    iwpections               conducted            by private             persons
as    eti,der;re        of el,igibiZIty-         for     ce&fication.                   The     certification            function
must      remain          in t-he Board             or the governmental                       entity       to w’hich          the certifi-
cati.on~ respogsibl!.ity                 is delegated.


     It is rot impossible                       for the State to delegate   both inspection   and
certificat’on   F~nctisr.6                    to pri.vate  enterprl.ses,  but statutory   authorization
is    required.        See, e, g. s Art. 6701d, Sec. 141, V. T. C. S.    It is our con-
clusion        that: the Board may not delegat~e Cts certification    responsibil.ities
under      Sec.        21.. 097,      Texas         Water        Code.




                                                                  p.     1811
The   Honorable            Hugh      C.    Yantis,       Jr.,       page    3      (H-384)




                                           SUMMARY


                    The     Texas     Water        Quality         Board    may         not delegate
             its    certification         function      under       Sec.      21.097,        Texas
             Water        Code,      to private        businesses.              It is    not neces-
             sarily       precluded        from       permitting          inspection        by pri-
             vate     entities      as a means          of demonstrating                 eligibility
             for    certification.


                                                            Xery      truly      yours.




                                                             JOHN      L.     HILL
                                                  #          Attorney         General        of Texas


APP;;’       VED:
         4




LARRJY        k.     YO     K,    First     A     sistant




DAVID        M.     KENDALL,              Chairman
Opinion       Committee




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