MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 76711. 2546 

5121475-2501 

Telex 9101674.1367 

Telecopier 5121475-0266 

1607 Main St.. Suite 1400 

Dallas, TX. 752014709 

2141742-6944 

4624 Alberta Ave., Suite 160 

El Paso. TX. 79905.2793 

9151533.3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002-6966 

71316500666 

606 Broadway. Suite 312 

l.ubbock. TX. 79401.3479 

806/747-5236 

4309 N. Tenth. Suite S 

McAllen. TX. 78501-1665 

5121662-4547 

200 Main Plaza. Suite 400 

San Antonio. TX. 76205.2797 

51212254191 

An Equal Opportunity/ 

Affirmative Action Employer 

The ,Attorney General of Texas 

August 3, 1982 

Mr. Harvey Davis 

Executive Director 

Department ,of Water Resources 

P. 0. Box 13087, Capitol Station 

Austin, Texas 78711 

Opinion No. MW-500 

Re: Authority of county to 

incur indebtedness to finance 

construction and maintenance 

of sewage treatment works 

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 responsibilities under an area wide water quality management plan. 

It is well settled that counties have only those powers which 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 County v. Lampasas County, 40 S.W. 403 (Tex. 1897); 

Harrison County v. City of Marshall, 253 S.W.2d 67 (Tex. Civ. App. - 

Fort Worth 1952, writ ref'd); Wichita County v. Vance, 217 S.W.2d 702, 

703 (Tex. Civ. App. - Fort Worth 1949, writ ref'd n.r.e.). It is 

equally well established that pursuant to article XI, sections 5 and 7 

of the Texas Constitution, any city or county obligation payable from 

tax revenues to be collected beyond the budget year of its creation 

constitutes debt. McClellan v. 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); Pendleton v. 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-s n-m -I3 -say -h-SC -em -cxm-k~~tilrn 5ctJrtdLu-b~ -h-e 

possibility of counties having sewage treatment powers; on the 

contrary, section 18 of article V states in pertinent part: 

The County Commissioners so chosen,.with the 

County Judge as presiding officer, shall compose 

the County Commissioners Court, which shall 

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

exercise such powers and jurisdiction over all 

county business, as is conferred by this 

Constitution and the laws of the State, or as may 

be hereafter prescribed. (Emphasis added). 

It is well settled, however, that this constitutional provision does 

not confer on commissioners courts any general authority over county 

business; instead, it limits their authority to that conferred by the 

statutes or constitution. Anderson v. Wood, 152 S.W.2d 1084 (Tex. 

1941); Attorney General Opinion No. C-772 (1966). 

Article XI, section 7 of the Texas Constitution alludes to county 

sewage power for counties on the gulf coast. It provides 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 construction of sea walls, breakwaters, or 

sanitary purposes, as may now or may hereafter be 

authorized by law, and may create a debt for such 

works and issue bonds in evidence thereof. 

(Emphasis added). 

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 sewage disposal powers. 

There is no general Texas statute which expressly authorizes 

counties to singly dispose of sewage or to construct, own or operate a 

sewage treatment works. Article 4418f, V.T.C.S., has been relied upon 

for the existence of county sewage treatment powers. Attorney General 

Opinions MW-115 (1979); M-1049 (1972). Article 4418f provides in 

pertinent part: 

The Commissioners Court of any County shall 

have the authority to appropriate and expend money 

from the general revenues of its County for and in 

behalf of public health and sanitation within 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. 

p. 1799 
Mr. Harvey Davis - Page 3 (MW-500) 

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

that: 

[aI county has authority to 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 conjunction with or under contract with 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 correctly begins with the premise that counties have 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. 

(Emphasis added). 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 sanitary purposes. The legislature has not enacted 

any general statute pursuant to this provision which relates to county 

authority to dispose of sewage or construct a sewage system. Article 

2351. subdivision 15, states: 

Said court shall have all such other powers 

and jurisdiction , and shall perform all such other 

duties, as are now or may hereafter be prescribed 

by law. {Emphasis added). 

This subdivision grants counties no 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 

general powers and duties of a county, as specified by 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 the powers expressly granted. 

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

We conclude, therefore, that when Attorney General Opinion M-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 insufficient authority for this conclusion 

today. We therefore overrule Attorney General Opinion M-1049 (1972) 

to the extent that it conflicts with 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 the Water Code. 

Section 17.284 provides in pertinent part that: 

(a) In order to obtain financial assistance 

under this subchapter, a political subdivision may 

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 

determined by the governing body of the political 

subdivision and approved by the board. (Emphasis 

added). 

Section 17.274 provides that: 

A political subdivision may apply to the board for 

financial assistance and may use water quality 

enhancement funds for construction of treatment 

works in the manner provided in this subchapter. 

(Emphasis added). 

Section 17.272 states that: 

(2) 'Treatment works' means any devices and 

systems used in the storage, treatment. recycling, 

and reclamation of waste.... 

. . . . 

(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, ,of the 

Texas Constitution. 

(5) 'Political subdivision' means... a 

county.... 

Section 17.001 provides that "waste" has the same meaning as is 

provided in section 26.001. Section 26.001(6) provides that: 

p. 1801 
. - 

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

'Waste' means sewage, industrial waste, 

municipal waste, recreational waste, agricultural 

waste, or other waste, 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 

issue bonds to construct s sewage treatment works, it may negotiate a 

sale of those bonds to the Texas Water Development Board, rather than 

making a public offering of the bonds. Thus, a political subdivision 

without the creditworthiness to go to the public market can obtain 

needed financing at a lower interest cost from the board which was in 

part established for providing such aid. 

If we assume, arguendo, that section 17.284 does confer 

substantive authority upon counties to issue bonds for sewage 

treatment works, this question would arise: what procedures would be 

utilized to issue the bonds? For example, section 17.284 is silent as 

to whether the bonds would require a referendum or could be issued 

without voter approval, and whether the bonds will be tax-supported or 

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. (waterworks and 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, 

interest and 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 the Water Code in 1977. i study of sections 17.011 through 

17.034 of the Water Code, which provide for the issuance of bonds by 

the Texas Water Development Board, will reveal the provisions required 

for substantive authorization to issue bonds. 

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. 1802 
Mr. Harvey Davis - 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-term and long-term indebtedness to finance 

the construction costs of a sewage treatment works, insure adequate 

oper&ion+and v*intenance of the works throughout its jurisdiction, or 

to carry out.,respoi&bPlit~ies under an area wide water quality plan. 

SUMMARY 

'There is no general authority for a Texas 

county to incur short-term and long-term 

indebtedness to finance the construction costs of 

a sewage treatment works, insure adequate 

operation and maintenauce of the works throughout 

its jurisdiction, or to carry out responsibilities 

under an area wide water quality plan. 

A 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by D. Ladd Pat1110 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible . . 

Patricia Hinojosa 

Jim Moellinger 

D. Ladd Pat1110 

Susan Plettman 

p. 1803