MARK WHITE Attorney General

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AnEqualOpportunity/ Affirmative Action Employer 

# The ,Attorney General of Texas

August 3, 1982

Mr. Harvey Davis ExecutiveDirector Department ,of

Water Resources P. 0. Box 13087,Capitol Station Austin, Texas 78711 OpinionNo. MW-500

Re: Authority of county to incur indebtedness to finance construction and maintenance of sewage treatmentworks

Dear Mr. Davis:

You ask whether a Texas county has the authority to incur short-term and long-term indebtedness to finance the construction costs of sewage treatment works, insure adequate operation and maintenance of the works throughout its jurisdiction, and carry out its responsibilitiesunder an areawide water qualitymanagementplan.

It iswell settled that countieshave only thosepowerswhich are clearly set forth in the state constitution or statutes and those which must necessarily be implied in order for them to accomplish their expressly granted powers. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948);Mills Countyv. Lampasas County, 40 S.W. 403 (Tex. 1897); Harrison Countyv. City of Marshall, 253 S.W.2d 67 (Tex. Civ. App. - Fort Worth 1952,writ ref'd);Wichita Countyv. Vance, 217 S.W.2d 702, 703 (Tex. Civ. App. - Fort Worth 1949, writ ref'd n.r.e.). It is equallywell establishedthatpursuant to articleXI, sections5 and 7 of the Texas Constitution,any city or county obligationpayable from tax revenues to be collected beyond the budget year of its creation constitutesdebt. McClellanv. Guerra, 258 S.W.2d 72 (Tex. 1953);T. and N.O.R. Company v. Galveston County, 169 S.W.2d 713 (Tex. 1943); Ault v. Hill County, 116 S.W. 359 (Tex. 1909); Pendletonv. Ferguson, 89 S.W. 758 (Tex. 1905); City of Tyler v. Jester, 78 S.W. 1058 (Tex. 1904);McNealv. City of Waco, 33 S.W. 322 (Tex. 1895).

There is no provision in the Texas Constitution which expressly authorizes counties to dispose of sewage or to construct a sewage W=-=. "iti 5-sn-m -I3-say-h-SC-em -cxm-k~~tilrn5ctJrtdLu-b~ -h-e possibility of counties having sewage treatment powers; on the contrary, section 18 of articleV states in pertinentpart:

The County Commissioners so chosen,.with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall

p. 1798Mr. Harvey Davis - Page 2 (Mw-500)

exercise such powers and jurisdiction over all county business, as is conferred by this Constitutionand the laws of the State, or as may be hereafterprescribed. (Emphasisadded).

It is well settled, however, that this constitutionalprovision does not confer on commissioners courts any general authority over county business; instead, it limits their authority to that conferredby the statutes or constitution. Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941);Attorney GeneralOpinionNo. C-772 (1966).
ArticleXI, section 7 of the Texas Constitutionalludes to county sewagepower for countieson the gulf coast. Itprovides in part:

All counties and cities bordering on the coast of the Gulf of Mexico are hereby authorized upon a vote of the majority of the resident property taxpayers voting thereon at an election called for such purpose to levy and collect such tax for constructionof seawalls, breakwaters,or sanitary purposes, as may now or may hereafterbe authorizedby law, and may create a debt for such works and issue bonds in evidence thereof. (Emphasisadded).

None of the reported Texas cases discussing article XI, section 7 involve county sewage disposal authority. The only statutes enacted pursuant to this provision pertain to sea walls, breakwaters, and levees. See V.T.C.S. arts. 6830-6839g. None of these statutes relates tocounty sewagedisposalpowers.
There is no general Texas statute which expressly authorizes counties to singly dispose of sewage or to construct,own or operatea sewagetreatmentworks. Article 4418f,V.T.C.S.,has been reliedupon for the existenceof county sewage treatmentpowers. Attorney General Opinions MW-115 (1979); M-1049 (1972). Article 4418f provides in pertinentpart:

The Commissioners Court of any County shall have the authority to appropriateand expendmoney from the general revenuesof its County for and in behalf of public health and sanitationwithin its County.

Under article 4418f. however, expenditures for "public health" and "sanitation" within s county must come from the county's general
revenues. Article 4418f grants no authority to issue bonds, and neither expressly nor implicitly grants sewage treatment powers to counties.

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In Attorney General Opinion M-1049 (1972),this office concluded that: 

### [aI countyhas authorityto plan, construct,

operate and maintain an area or regional waste water collection and treatment system and to perform water quality management functions alone,
or in conjunctionwith or under contractwith the United State Government, or any agencies thereof, cities and towns within the county, or other counties, Regional Planning Commissions, water districts or authorities, and the Texas Water Quality Board.
This opinion correctlybeginswith thepremise that countieshave only those powers which are expressly or impliedly conferred by the constitution and statutes. The logic of the opinion and the legal authorities it cites do not, however, support its generalized conclusion.

In support of the conclusion that a county may act alone in exercising sewage disposal powers, the opinion relies on article V, section 18 and article XI, section 7 of the Texas Constitution, and article 2351, subdivision 15 and article 4418f. V.T.C.S. Article V, section 18 of the constitution confers no power upon counties, however; instead, it grants the county commissioners court limited jurisdiction "over all county business, as is conferred by this constitution and the laws of the state, prescribed." or as may be hereafter
Article XI. (Emphasisadded). See Mills County v. Lampasas, s.

section 7 fails to support the conclusion in that it merely authorizes the legislature to empower counties to levy and collect a tax for sanitarypurposes. The legislaturehas not enacted any general statutepursuant to thisprovisionwhich relates to county authority to dispose of sewage or constructa sewage system. Article 2351. subdivision 15, states:

Said court shall have all such other powers and jurisdiction,and shallperform all such other duties, as are now or may hereafterbe prescribed

{Emphasisadded). by law.
This subdivision grants countiesno authority to dispose of sewage or to construct a sewage system; instead, as a statutory equivalent of article V, section 18 of the constitution, it designates the commissioners court as the administrative body to carry out the generalpowers and duties of a county, as specifiedby law. Finally, article 4418f fails to expressly grant counties any sewage disposal authority and such authority is not necessarily implied from the
narrow scope of thepowers expresslygranted.

p. 1800Mr. Harvey Davis - Page 4 (hg.&500)

We conclude,therefore,thatwhen AttorneyGeneral OpinionM-1049 (1972) was decided, insufficient authority existed to support its conclusion that a county, acting alone, can exercise sewage disposal powers or construct a sewage system. For the following reasons, we conclude that there is also insufficientauthority for this conclusion today. We therefore overruleAttorney General Opinion M-1049 (1972) to the extent that it conflictswith this opinion.

Five years after Attorney General Opinion M-1049 (1972) was issued, the Sixty-fifth Legislature enacted Senate Bill No. 1139, which,enacted, inter alla, sections 17.001 et seq. of theWater Code. Section 17.284provides inpertinentpart that:

(a) In order to obtain financial assistance under this subchapter,a political subdivisionmay authorize and issue revenue bonds for the purpose of constructing treatment works and sell such bonds to the board in such amounts as may be determinedby the governingbody of the political subdivision and approvedby the board. (Emphasis added).
Section 17.274provides that:

A political subdivisionmay apply to theboard for financial assistance and may use water quality enhancement funds for construction of treatment works in the manner provided in this subchapter. (Emphasisadded).
Section 17.272 states that:

(2) 'Treatment works' means any devices and systems used in the storage, treatment. recycling, and reclamationofwaste....

.. . . (4) 'Water quality enhancement funds' means the proceeds from the sale of Texas Water Development Bonds issued under the authority of Article'III. Section 49-d-1, as amended, ,ofthe Texas Constitution.
(5) 'Political subdivision' means... a county....
Section 17.001 provides that "waste" has the same meaning as is provided in section26.001. Section 26.001(6)provides that:

p. 1801. -

Mr. Harvey Davis - Page 5 (MW-500)

'Waste' means sewage, industrial waste, municipal waste, recreationalwaste, agricultural waste, or otherwaste, as defined in this section.

These sections of the Water Code cannot, in our opinion, be construed as conferring upon counties any substantive authority to issue bonds to construct a sewage treatment works. They merely provide that a political subdivision with substantive authorization acquired from other statutes may sell such bonds to the Texas Water Development Board in order to obtain needed financing. In other words, if a political subdivision has been otherwise authorized to issuebonds to construct s sewage treatmentworks, it may negotiatea sale of thosebonds to the Texas Water Development Board, ratherthan making a public offering of the bonds. Thus, a political subdivision without the creditworthiness to go to the public market can obtain needed financingat a lower interest cost from the board which was in part established forproviding such aid.

If we assume, arguendo, that section 17.284 does confer substantive authority upon counties to issue bonds for sewage treatmentworks, this questionwould arise: what procedureswould be utilized to issue thebonds? For example, section 17.284 is silentas to whether the bonds would require a referendum or could be issued withoutvoter approval, andwhether the bondswill be tax-supportedor paid out of revenues. Substantive statutes conferring authorization to issue bonds always provide for these basic features. See, e.g., V.T.C.S. art. 1111 et seq. (waterworksand sewer systems);art. 1187f (city-owned harbor facilities). Such statutes also either contain provisions for various funds to be maintained to retire the bonded indebtedness and various other procedures which must be followed in issuing bonds or incorporate by reference statutes containing such procedures. See V.T.C.S. art. 1111 et seq. (various reserve, interestand sinking funds to be maintained to insure debt service on waterworks and sewer system bonds, investment provisions, attorney general's approval, etc.); art. 1187f (incorporating article 1111 procedures). Indeed, there is no need to look beyond sections 17.001 et seq. of theWater Code in 1977. i study of sections 17.011through 17.034 of the Water Code, which provide for the issuance of bonds by theTexas Water DevelopmentBoard,will reveal theprovisions required for substantiveauthorizationto issuebonds.

It is axiomatic that a county cannot incur short-term and long-term indebtedness to finance the construction, operation, or maintenance of something it is powerless to construct, operate, or maintain. Even those statutory provisions discussed above which either allude to county sewage powers or have been relied on in the past to support the existence of such powers do not contain concomitant authority to incur debt. There is no inherent power or right of a county to issue bonds. "It is not a power to be implied.

p. 1802Mr. HarveyDavis - Page 6 (~~-500)

It does not exist unless expressly conferred by law." Lasater v. Lopez, 217 S.W. 373 (Tex.1919).

We therefore conclude that Texas counties are not generally authorized to incur short-termand long-term indebtedness to finance the construction costs of a sewage treatmentworks, insure adequate oper&ion+and v*intenance of theworks throughoutits jurisdiction,or to carryout.,respoi&bPlit~ies under an areawide water qualityplan.

SUMMARY

'There is no general authority for a Texas county to incur short-term and long-term indebtedness to finance the constructioncosts of a sewage treatment works, insure adequate operation and maintenauce of the works throughout its jurisdiction,or to carry out responsibilities under an areawide water qualityplan. A

MARK WHITE Attorney General of Texas

JOHN W. FAINTER,JR. FirstAssistantAttorney General

RICHARDE. GRAY III ExecutiveAssistantAttorney General
Preparedby D. Ladd Pat1110 AssistantAttorney General

APPROVED: OPINION COMMITTEE

SusanL. Garrison,Chairman Jon Bible

. . PatriciaHinojosa Jim Moellinger D. Ladd Pat1110 Susan Plettman

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