### TISEATFORNEY GENERAL
OF v?ExAH

AUFJTIN. -rExAs 7f3711 April 23, ,197O

Mr. CharlesR. Barden, P.E. OpinionNo. H- 616 ExecutiveSecretary Texas Air Control Board Re: 1100 West 49th Street Extent of authority Austin, Texas 78756 of a city-county health district established

under Article 4447a, V.C.S,. to enforce air Dear Wr. Barden: pollution laws

You have requestedour opinion as to whether a citycounty health district (Article w7a, Vernon's Civil Statutes),which is now defined in Article 4477-5 as a "local government,"can make rules and regulationsor otherwiseenforce the air pollution laws. You ask whether our former opinion M-257 (1968)has been altered by the 1969 amendatoryrevision 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 Legislature

has subsequently

amended the Texas Clean Air Act. (Acts 1969, 6lst Leg., R.S., p. 817 ch. 273, being S.B. 48, codifiedby Vernon as Art. b+77-5). This Act became effectiveSeptember 1, 1969; Section 1.03 (7), thereof reads as follows:

m llocalgovernment@ 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 (Article w?s, Vefnon~s:.TeXas

Civil Statutes)."

Article w7a, authorizesa County Commissioner Court, the municipal authoritiesof any one or more cities,

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Mr. CharlesR. Barden, page 2, (M- 616)

towns, schoolboards and school districts,and any other governmentalentity to create tit by written "agreement." Section $-countyhealth districts of Article 4bb7a provides that a "health districtmay perform all the functions pertainingto public health which any of its component members is authorizedto perform." We are of the opinion that Article 4447a is a valid general grant by reference from the TexasLegislature to this regionaldistrict of all of the powers relating to public health and abatementof pollution that are possessedby the componentagencieswho 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 Carlton, 1.16 Tex. 572, 296 S.W. 1070 (1927 3 ; Trimmierv. ; z Ruli Case Sec. 160, page 908; 59 C.J. Statutes,Sec. 624,:age All health districtswould thus have the powers delegatedto local governmentsunder SubchapterE of the Texas Clean Air Act, includingthe power to enforce the Act and such rules and regulation8of the Texas Air Control Board promulgatedpursuant thereto.
However, the Act gives only incorporatedcities or towns the right to enact and enforce ordinancesfor the abatementof air pollution, so that a city or town would have to be a party to the agreementenacting the district before the city-countyhealth districtwould have the power to ordain and adopt ordinancesnot inconsistent with state rules. Sec. 5.05, Texas Clean Air Act.

To the extent that Attorney General OpinionNo. M-257 supra, ehould conflict.with this holding, such prior opinion Is hereby modified to the extent of any conflict because of the re-definition of "local government"by the 1969 amendment to the Texas Clean Air Act. Such a Legislative Act does not take away the resent duties and powers of cities and counties since Art. 4t.4 ?a is not an exclusiveact;
nor would appointmentof a counsel for a city-countyhealth unit diminish the authorityof a city attorney or county attorney should such units of local governmentdesire to file individualsuits to abate air pollution even after creating the health district. (1966). Attorney General Opinion c-782

A city or county would not lessen their legal duties to abate water or air pollutionby virtue of any agreement for these duties also to be done for them by a health district.

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

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 government

I' to abate air pollution continue to exist even if enforcement is done through a city-county health 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 lncorporatedcity or town is a party to the agreement creating the health district.

General of Texas

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Mr. CharlesR, Barden,page 4, (M-616)

Preparedby Roger Tyler Assistant Attorney General

APPROVED: OPINION coMMITTEE

Kerns Taylor, Chairman W. E. Allen, Acting Co-Chairman
Roland Allen HoughtonBrownlee John Grace JohnBanks

MEADE F. GRIFFIN Staff Legal Assistant

ALFREDWA&KER ExecutiveAssistant

NOLA WHITE First Assistant

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