# TIHEATTORNEY GENERAL OF TEXAS
AUSTIN. T-s 7S711
September 30, 1974
The Honorable William J. Benardino CountyAttorney Montgomery County Conroe, Texas Opinion No. H- 412 Re: Authority of CountyHealth District or Commissioners **Court over**  a municipal utility district. Dear Mr. Benardino: :

You have asked our opinion onfour questions regarding the powers o$the commissioners court andthe Montgomery-Walker CountyHealth District over local municipal utility districts. Itis well settled thatthe powers ofthe commissioners court are limited to those conferred bythe Texas Constitution or statutes. Anderson v. Wood, 152 S.W. 2d 1084 (Tex. 1941). A health district may exercise those powers pertaining to public health which any ofits component members may exercise, 64, Article 4447a, V. T. C.S., and may make rules and regulations notin conflict with city ordinances and laws of the State, 04a(f), Article 4447a, V. T. C.S.

Your first question is:

Can the Commissioners Court and/or the Montgomery-Walker CountyHealth District force the municipal utility districts created by the Legislature to submit their plans for water and sewage for approval prior to or after sell.ing bonds for construction7 Statutory authority toapprove or refuse approval of mmicipal utility distri.zt project plans prior to the issuance ofbonds for improvements rests with the Texas ~WaterRights ‘Commission. Section 54. 516, Water

p. 1928The Honorable William J. Benarditio, page 2

Code, V. T. C.S. The Texas State Department

_ _ (H-412)

ofHealth also has review andapproval authority over water supply or sewage disposal system plans. Section 12, Article 4477-1, V. T. C.S.

When financial assistance for construction oftreatment works is sought bya political subdivision such as a municipal utility district under Subchapters I or J, Chapter 21, Water Code, V. T. C.S., the Texas Water Quality Board has exclusive review and approval authority ofplans for treatment works, and the Board’s action specifically does not require the concurrence or approval ofany other governmental agency. Sections 21.606(c), (d), (e). 21.707(c), (d), (e) Water Code, V. T. C.S.

Counties have no statutory or constitutional authority which would require their approval of such plans prior to the issuance ofbonds. Neither dowe find any authority for a county to require approval of such plans subsequent to the issuance of bonds.

Your second question is:

**Can** the Montgomery County Commissioners Court and/or the Montgomery-Walker County Health District require thatall sewage treatment facilities, sewage lines, lift stations, fresh water wells, storage facil.ities, pumps andwater lines constructed by utility districts created byState Legislature be inspected prior to use to insure thatthey meet standards ofquality so that their usage would not cause pollution andwaterborne disease? The Texas Water Rights Commission has authority to inspect approved improvements during construction in order toassure compliance withthe approved plans. Section 54. 517, Water Code, V. T. C.S. When state or ’ ‘federal financial assistance for construction of treatment works is involved, the Texas Water Quality Board may inspect the construction at any time to assure compliance with theapproved plans. Sections 21.615, 21.711, Water Code, V. T. C.S:

p. 1926The Honorable William J. Benardino, page 3 (H-412)

A local government has the same power as the Texas Water Quality Board to enter public and private property within its territorial jurisdiction to make inspection and investigations of conditions relating towater quality. Section 21.353, Water Code, V. T. C.S. A local government may inspect the public water in its area to determine whether the water meets board standards, andwhether the persons discharging effluent have permits and are in compliance with permit requirements. Section 21.351, Water Code, V. T. C.S.

A local government may enforce the provisions of the Texas Water Quality Act, Chapter 21, Water Code, V. T. C.S. , and any of the rules, orders, or regul,ations promulated bythe Texas Water Quality Board. Section 21.254, Water Code, V. T. C.S. Enforcement is by means of injunction andthe Texas Water Quality Board is a necessary andindispensable party. Id.

- When the construction project is within thejurisdiction of the Texas Water Rights Commission, enforcement of construction standards may be obtained bythe Commissi.on through the procedure specified in 554. 517, Water Code, V. T. C.S.

Thus, a county or health district may inspect treatment facilities to the same extent as may the Texas Water Quality Board, and may enforce statutory orTexas Water Quality Board standards by injunction. However, the county or health district has no independent regulatory authority over construction oftreatment works.

Your third question is:

Ifthe Commissioners Court ofMontgomery Countywere to establish county sewage andwater systems, the plans for faciles as they were constructed being approved bythe State Department ofHealth andthe Texas Water Quality Board, could the Commissioners Court force the municipal utility districts created by legislative act to utilize this system to insure adequate treatment ofwaste-water to prevent pollution andwater-borne disease?

p. 1927. .
The Honorable William J. Benardino, page 4 (H-412)

A countyhas authority to establish and operate a county-wide sewage andwater system and to perform water quality management functions within the county, alone, or in conjunction with cities andtowns within the county, other counties, water districts or authorities, andthe Texas Water Quality Board. Attorney General Opinion M-1049 (1972).

The Texas Water Duality Board is the state agency responsible for implementation ofthe state’s policy of encouraging and promoting the use of regional andarea-wide waste collection, treatment, and diposal systems. Section 21.201, Water Code, V. T. C.S. Since Montgomery Countyis within a standard metropolitan statistical area, it may be designated by the board as anarea-wide system pursuant to 521.201(b), Water Code, V. T. C.S. When a regional or area-wide system has been designated, the board may require all waste dischargers within the area to use the system. Section 21.204, Water Code, V. T. C.S.

However, a county, **acting** alone, has noauthority to force municipal utility districts created under general law or bythe legislature toutilize its county-wide sewage andwater system.

Your fourth question is:

Ifthe Commissioners Court ofMontgomery County were to create a county water and sewage facility, could the areas which are in the extra-territorial jurisdiction ofhome rule cities be included in the county system despite the objections of the cities to theinclusion of,these areas? A city has authority to regulate by ordinance plats andthe subdivision ofland within its extraterritorial jurisdiction. Section 4, Article 970a, V. T. C.S. This authority includes regulation ofwater supply and distribution systems. See Swinney v. City ofSanAntonio, 483 S.W. 2d 556 (Tex. Civ. App., SanAntonio. 1971, no writ). No general law municipal utility district may be created within a city’s extraterritorial jurisdiction without the city’s written consent, unless the city refuses toprovide thewater and sewer services contemplated by the proposed district. Section 8B, Article 970a, V. T. C.S. ; Section 54.016, Water Code, V. T. C. S.

p. 1928. -

The Honorable William J. Benardino, Page 5 (H-412)

There is noauthority for a county to force persons within the extraterritorial jurisdiction ofa city toutilize a county water an&sewage facility.While there may be some circumstances under which a couriymight provide water and sewage services to an area within the extraterrStoria1 jurisdiction ofa city, as by agreement with a municipal utility district formed after the city has refused to provide services to the area, we believe that generally a city would prevail in any dispute with a county concerning provision ofwater and sewage services to an area within the extraterritorial jurisdiction of the city. SUMMARY A county or countyhealth district has noauthority to require a municipal utility district to obtain county approval ofplans for construction ofwater and sewage facilities. A county or countyhealth district may inspect a municipal utility district’s water and sewage facilities, buthas noindependent regulatory authority over construction of such facilities. Authority to require a municipal utility district toutilize a county water and sewage system rests with the Texas Water Quality Board, not the county. A county has noauthority to require utilization of its water and sewage system in the extraterritorial jurisdiction ofa city over the objection of **the** city. Very truly yours,

p. 1929The Honorable William Benardirio, page 6 (H-412)

APPROVED:

& /car LARRY F. PORK, * ret &cri&nt

DAVID M. KENDALL, Chairman Opinion Committee lg

p. ,193o