             THE       A~TORNEP                $~ENEWAL




Honorable Hugh C. Yantis,    Jr.     Opinion   No. M-894
Executive   Director
Texas Water Quality Board            Re:       Power to Contract     on behalf   of
1108 Lavaca Street                             State for increased    Federal
Austin,   Texas 78701                          grants under the Federal     Water
                                               Pollution Control Act.
Dear Mr.   Yantis:

         You request our opinion as to the powers of the Texas Water Duality
Board, acting through you as Executive Director thereof,        to bind the State
of Texas under a certification    and agreement     with the Federal Government
to provide state financial assistance    of not less than 25% of the estimated
reasonable   cost of construction   of every waste treatment works project in
this State on which the Federal Government        makes a grant offer under Section
8(b) of the Federal Water Pollution Control Act (33 U. S. C. 1158) and on which
a construction   contract had not been let prior to July 1, 1970.     Your opinion
request is predicated on the adoption by the people of the State of Texas on
May 18, 1971, of the constitutional     amendment codified as Article III; Section
49-d-1,.  Constitution of Texas,   and the passage by the 62nd Texas Legislature
at its Regular Session,    1971, of House Bills Nos. 1412 and 1440, which es-
tablish a program authorizing the sale of State bonds to obtain funds with which
to provide state financial assistance    for the construction  of waste treatment
works.

         We have previously  issued Attorney General Opinion No. M-822 (1971),
in which we approved the State of Texas Water Pollution Control Compact as a
State Agency to provide the state construction  assistance   required under the
Federal Water Pollution Control Act, on the basis of which you state you have
previously  submitted a certification and agreement    with an effective date of
April 15, 1971.

         The effect of your present request is to inquire whether you may make
a new certification   and agreement   based on the recently established   state bond
program,    supplemented   by the State of Texas Water Pollution Control Compact,
and move the effective date of the state construction    assistance  program back
to July 1, 1970.    In connection with this opinion request,   you have submitted the
following items:

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Honorable   Hugh Yantis,   Jr.,    Page   2      (M-894)




                (a) Excerpt from the minutes of the meeting of
        the Texas Water Quality Board on May 20, 1971, author-
        izing the new certification and agreement with an effective
        date of July 1 r 1970, and authorizing the Executive Di-
        rector to execute it on behalf of the Board.

                (b) The new certification and agreement   dated
        June 22, 1971, (with an effective date of July 1, 1970),
        to be submitted to the Environmental  Protection  Agency.

                (c) Proposed proclamation  suggested for issuance
        by the Governor of Texas approving the new certification
        and agreement.

        The specific   questions   you ask are as follows:

                (1) Is the new certification and agreement  dated
        June 22, 1971, valid and binding on the State of Texas?

                 (2) Is the Executive  Director  of this agency, act-
       ing on behalf of and pursuant to the directive of the Texas
       Water Quality Board, authorized to execute the new cer-
       tification and agreement     and bind the State?

                (3) Should the new certification      and agreement    be
        approved by the Governor?

                 (4) If your answer to question (3) is in,the af-
        firmative,   will the enclosed proclamation  suggested for
        issuance by the Governo~r satisfy the requirement     of the
        Governor’s    approval?

        All four questions are answered       in the affirmative.    Reference   is
made, however,     to our recommendation       discussed   hereafter  concerning
the date of issuance of bonds.

         Your organic law authorizes  agreements     with the Federal Govern-
ment.    Section 3. 25, Texas Water Quality Act; Article 7621d-1;      Section
21.. 087, T.exas Water Code.   This law specifically    relates to the Texas
Water Quality Board and provides with reference       to federal grants:



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Honorable   Hugh Yantis,    Jr.,   Page 3          (M-894).



                  “Sec.   3. 25.  The board may execute agreements          with
        the Department of the Interior,,. the Federal Water Pollution
        Control Administration       or any other federal agency that ad-
        ministers     programs    providing federal cooperation,      assistance,
        grants,     or loans’for  research,  development,     investigation,
        tr.aining, 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 pur-
        poses and for other ,purposes consistent with the objectives           of
        this Act and may use the funds as prescribed          by law or as pro-
        vided by~agreement.       ”

         To further assure that the Texas Water        QdityBoard 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
1.4, 1971.   Related authority and .support for such contracts by the Texas
Water Quality Board on behalf of the. State of T~exae is found in Section 20
of House Bill 1412,. Acts of the, 62nd Leg. , Regular. Session,     effective May
31, 1971; Section 21.095,    of,the Texas Water Code.

        In view of the foregoing discussion     of the statutory authority of your
Board to contract and consideration     of the resolution of the Texas Water
Quality Board,     dated May 20, 1971, authorizing       you as Executive Director
to sign for the Texas Water Quality Board,        it is our opinion that you are em-
powered to bind~the State, with an effective date of July 1, 1970, subject to
the approval by the Governor,     as hereinafter     discussed.   The Amendment
becomes    effective upon the ascertainment    that it received a majority of the
votes cast at the election.   Attorney General Opinion No. O-6821 (1945) and
cases   there   cited.

       With respect to the issuance of bonds under the State water quality
enhancement program,    reference  is made to Article 9. 32 of the Texas Election
Code which reads in part as follows:

                  “Within sixty (60) days from the date of anyelec-
         tion 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,    . . . ”

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Honorable   Hugh Yantis,   Jr.,   Page 4         (M-894)




        We interpret this provision as providing a limitation  statute for the
bringing of suits to contest such election; it does not suspend the effective
date of the election.

         Section 49-d-l   .was added to Article III of the Texas Constitution by
the Texas electorate     at an election held on May 18, 1971.       The official
canvass of this election was conducted on June 4, 1971, which confirmed
the adoption of the constitutional     provision.    The amendment became ef-
fective as a part of the organic law of this State on that date.       See Attorney
General’s    Opinions Nos. O-6821 (1945),        supra; S-148 (1954) and M-318
(1968).   It is our suggestion,   however, that no bonds be issued based on
the constitutional   provision until after the sixty day election contest limita-
tion period has passed to facilitate the approval of the bonds by this office,
as required by law.      However,    this does not in any way limit the authority
of the State of Texas to make at this time a valid and binding certification
and agreement with the Federal Government.

         Any contract with the Federal Government    by the Texas Water Quality
Board must bear the approval of the Governor of Texas.       Article IV, Section
10, Texas Constitution.    This requirement  for the Texas Governor’s    approval
is explained in Opinion M-312 (1968) dated December      10, 1968.   The proposed
proclsmation   of the Governor  submitted with your opinion request will satisfy
this requirement.

                                  SUMMARY

                The Texas Water Quality Board, through its Execu-
        tive Director, acting for and on behalf of the State of Texas,
        may contract now with the Federal Government       for the in-
        creased percentage   limitations for Federal grants available
        under Section 8 of the Federal Water Pollution Control Act.
        The Governor of Texas must           ve the Federal’contract.




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Honorable    Hugh Yantis,    Jr.,    Page   5   (M-894)




Prepared    by Kerns Tayldr
Assistant   Attorney General

APPROVED:
OPINION COMMITTEE

W. E.   Allen,   Acting   Chairman

Joseph Sharpley
2. T. Fortescue
S. J. Aronson
Michael Stork

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED      WALKER
Executive   Assistant

NOLA WHITE
First Assistant




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