*1 i t January25, 1972 RQnosrable Wugh C. Pa*tie, Jc, Opinion NO. M-1049 Executive Director
Texas Water QuaUty Board Re: Whether a county has P.O. BOX 13246 authority to plan, aon- Capitol Station struct, operate and main- Austin, Texae 78711 tain an area or regional
waste water oolleotion system and to perform water quality management function,alone or in con- junotion with or under contract with one or more Debar Mr. Yankier politiaat e&&visions.
Your recent letter requests our opinion with regard to the following question:
"Does a aounty, under the exietiw law, have authority to p&am, oonstruct, operate an8 maintain an a~rea 81 tegional waste water collection end treatment 8yrtem and to per- form water quality managetnent fumtions, alone or in aonjunction with or under contract with one or mere other political subdivirions?" This request presents two questions: the first is whether a county has authority to plan, construct, operate and maintain an area or regional waet@ water collection and treat- ment system and to perform water quality management functions, alone. The second question is whether a county has the au- thority to do the above stated functions in conjunction with or under contract with one or more politic&l subdivisions.
We will answer thr initial question first.
Section 18 of Article V of the Constitution Texas reads, in part, ae follows:
-,5123-
Honorable Hugh C. Yantlst page 2. (M-i0491 . the ~County Commi88ionen 80
I) cho8en; ;ith the County Judge a8 presiding officer, ehall cornpole the County Commia- sionerr Court, which ahall exercise such powers and juri8diction over al+ county busine88, as ie conferred by thin Consti- tution and the law8 of the State, or ae may be hereafter prescribed."
St i8 well settled that this constitutional provision, rather than conferring on Commissioners Courts general authority over county business, on tihe ac&tr*.ny limits that authority to that conferred by the statutes or Constitution. Anderson v. Wood, 137 Tex. ;)Ol, I$2 S.W.2d 1054 (1941); Attorney General'8 Opin- ion No. C-722 (1966). We hold that the constitutional and stat- utory authority in thi8 inrtance exists.
Furthermore, although specific constitutional author- ify ie not required, certain counties under Article XI, Section 7 of the Texae Constitution have specific constitutional author- Ity, that is,
"All counties and cities bordering on the coast the Birrlf of Mexico are hereby authorized . . . to levy Mid collect euch tax for construction of sea'wa118, break- wate= or sanitary purposes as may now or mav hereafter be authorized bv law, and Slav create a debt for such works -ma issue bon&s in evidence thereof." (Emphaeie added.) Article 2351, Vernon's Civil Statute8,* in its relw uent portion, read8r
"Each Commireioners Court ahallc "15. Said court 8hall have all such other paver8 and jurisdiction, and ahall per- form all 8uoh other dutiee, a8 are now or may hereafter be prercribed by Uv."
All reference8 to Articles are to Vernon's Civil Statutes. *3 Ronorable l¶ugb C. Yantis, Jr., page 3.
Article 4419-f authorizes the Commissioners Court of any county to appropriate and expend money for and in behalf of public health and sanikakisub within it8 oounty.
In Attorney General's Opinion No. C-722 (1966) this dfice held that Article 4419-f authorize8 a county, in the fudheracce of public health and sanitation within the county, to use tax funds for the purpose of operating ambulance services in the oounty or cooperate with an incorporated city in the Runty in the operation of euc!h service. This office also held that this article authorizes a county, in the furtherance of public health and sanitation , to acquire l,and for the purpose of disposing of gwbhge end refuse collected from the inhabit- ants of the county. Attorney General's Opinion No. O-6024 (1944). This offioe has further held th.& this article author- izes a county to expend general revenuea fer the purpose of establishing and maintaining a prophylakfc unit, prarvided the Commissioners Court determines that this will be in furtherance of the public health and sanitation within the county. Attor- ney General's Opinion No. O-4729 (1942).
In view of the foregoing, you are hereby advised that a county under the existing law &toes have authority to plan, construct, operate and maintain an area or regional waste water collection and treatment system and to perform water quality iBanagemrwt fun&inns, within the county, alone;
We now consiclsx ~@EXI! e~cond question, namely, whether a county has authority t#v g&m&$ amstruat, operate and maintain an area or regional waste water aollection and treatment system and to perform water quality management functions, in conjunc- tion with or under contract with one or more political subdivi- sions.
Article ,2951, ~@sOtfonB 19(a), 19(b)'&n6'19fc) author- lies Cdu&iseioners Courts to contract with the United States Government, or any agency thereof, for the acquisition of land and to own and operate euah land, and further to bind the county to comply with any condition8 imposed &a a prerequisite to the conveyance of such land. This statute further authorizes Com- missioners Courts to issue bonds, to finance the aar&eftion and the improvements on said lend. *4 BaocebL% HurjpI C. Yantig, J;P.# page It.
Vhe munioipal authorities or towns and oities, end Co¶unissioners Courts of the counties wherein SW towns and cities are situated, may cooperate with each other in making euoh improve- mento . . . as said authorities and courts may determine neaessary to improve the public health and to promote efficient sanitary regulations: arid . . . may provide for the uenstruction of said improvemeats and the payment therefor." In Attorney Genearal'e Minion No. C-772 (1%6), this oblfiae held that this provieion authorizes a county~to oooperate with 8 aity &a the county in the epibs*il?ien of an ambulance servioe,
Artiole 9a3-b,, pib &mended, read!4 m f,@lknas:
"Any inoerperated oity or ta@n t . . shall have . . . the peter separately or jointly with any other city . . . and other golotlernraental en- tity, to receive and acquire . . . any property . . . for the follawing purpo8esr whiob are de- clared to be publto purposes: . . . for seviage plants and syetemag rights of way for water and sewer lines: . . . jncinerators, garbege dispos- al plants . . . ."
A county is a legal subdivision of the state. Article XI, &WC- tion 1, Texas Constitution.
Article 969-b, as amended, furthar provides as follows:
"Such city or town and suoh city, town, 'cities, towns and counties are hereby empowered to maintain, improve and operate the property so acquired and all improvements thereon . . . and shall have full and ample power to jointly manage, control and operate such property * . . by entering into any contracts with each other on terms mutually agreeable."
.
Honorable Hugh C. Yantis, Jr., page 5.
Article 969-b continues:
"The political subeivision or subdivirlons acquiring property under this Act is and are hereby expressly authorized and empowered to improve, maintain and conduct the same for the Qurporer hereby authorized and to make and provide thereon all necessary or fit improve- ments and facilities and to fix such reason- able charges . . . as the governing body or bodies . . . shall determine by mutual agree- ment . . . .'I Section 5 of Article 969-b provides as follows:
"The governing body of wy euctk city or town and the Convnissionere Court of any county . . . is hereby empowered to levy and collect a special tax for the purgose of improving, operating, maintaining and conducting any QroQ- erty"
acquired under the provisions this Act and
"to provide all suitebble structures and facili- ties therein..
Section 21.088 of tbo Texas Water Code provides a8 followe:
"The Board may contract with local govern- ments, . . . to assist the Board in developing and preparing end from time to time revising water quality management plans for areas desig- nated by the Board."
Section 21.088 continuesz
"With funds provided for the purpose by legislative appropriation, the Board may make grants or interest-free loans to, or contract with, local governments . . . to pay adminis- trative or other expenses of such entities for developing and preparing, and from tim8 to time revising, water quality management glar18 for aroaa designated by the Board.*
Honorable Hugh C. Yards, Jr., page 6.
Section 21.355 of the Texas Water Quality Act pro- vides as follows:
"(a) A local government may execute co- operative agreements with the Board or other local governatents.
"(1) To provide for the perfamanon of water quality menagement, inspotion, and en- forcement funds and to provide te&niaal aid and educational aervicee to any party to the agreement! and
"(2) For the transfer of Mooney or prop- erty from any party to the agreement to another party te the agreement for the purpose of water quality management, inspection, enforoement, technical aid and education, and the oonstruc- tion, ownership, Qurchaae, maintenance &nd op- eration of disposal systems."
Section 21.003 of the Texas Water Code, provides as follows:
"(15) 'Looal government nraans an incor- porated city, a oounty, a river authority, or a water district or authority acting under Article III, Section 52, or Article XVI, Sec- tion 59 of the Texas Constitution." Article Nllm, in its relevant portions, reads as folkxvs:
"Section 3. (a) Any two or more general purpose governmental units may join in the ex- ercise, performance and cooperation of plenning, powers, duties and functions, as provided by law for any or all such governmental ukits.
When two or more such governmental unit8 agree . . . to cooperate in regional planning, they may establish a Regional Planning Commission . . . .
"Seoticn 1. B 'Governmental Unit' means any county, city, town, village, authority, district or other politioal oubdivision the State..
. . .
Honorable Hugh ,C. YEW&, Jr., page 7. &6-lO.49) Se;,:torney Ganeral'B Opinions WCS. M-928 (1971) and M-806
.
For the reasons statea above, aur opinicil is that a county has authority to p).an , ocnstruct, operate and maintain an area or regional waste water ccl.Iecticn and treatment sys- tem and to perform water quality management functiem# in ocn- junction with or under contract with the United States Gcvern- ment, or any aganay thereof , cities and towns within the county, other counties, Regional Planning Ccmmissior*,water districts OT authorities and the Texas Water Quality Board.
SVldYlARY A county has authority to plan, construct, operate and maintain am area or regional waste water collection and treatment system and to perform water quality manage.ment funoticns, within the ccunty, alone, or in conjunction with or under contract with the United States Qovernmsnt, or any agenoies thereof, cities ad towns within the ccw~ty, other counties, Rtrgional Planning CommiWioae, water districts cr authorities, and the Osxas Water Quality Board.
Prepared by John P. 'Praylor
Assistant Attorney General
. . I
Honorable Hugh C. Yantis, Jr., page 6.
AhROVED :
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Roland Allen
John Reeves
Fisher Tyler
Bob Lattimore
SAN MCDANIEL Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant