TIHEATTORNEY GENERAL 

OF TEXAS 

AUSTIN. T-s 7S711 

September 30, 1974 

The Honorable William J. Benardino 

County Attorney 

Montgomery County 

Conroe, Texas 

Opinion No. H- 412 

Re: Authority of County Health 

District or Commissioners 

Court over a municipal utility 

district. 

Dear Mr. Benardino: : 

You have asked our opinion on four questions regarding the powers 

o$ the commissioners court and the Montgomery-Walker County Health 

District over local municipal utility districts. It is well settled that the 

powers of the commissioners court are limited to those conferred by the 

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 of its component members may exercise, 6 4, 

Article 4447a, V. T. C. S., and may make rules and regulations not in 

conflict with city ordinances and laws of the State, 0 4a(f), Article 4447a, 

V. T. C. S. 

Your first question is: 

Can the Commissioners Court and/or the 

Montgomery-Walker County Health 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 to approve or refuse approval of mmicipal 

utility distri.zt project plans prior to the issuance of bonds for improvements rests with the Texas ~Water Rights ‘Commission. Section 54. 516, Water 

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

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

_ _ 

(H-412) 

of Health also has review 

and approval authority over water supply or sewage disposal system plans. 

Section 12, Article 4477-1, V. T. C. S. 

When financial assistance for construction of treatment works is 

sought by a 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 of plans for 

treatment works, and the Board’s action specifically does not require 

the concurrence or approval of any 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 of bonds. 

Neither do we 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 that all sewage treatment facilities, 

sewage lines, lift stations, fresh water wells, storage 

facil.ities, pumps and water lines constructed by utility 

districts created by State Legislature be inspected prior 

to use to insure that they meet standards of quality so 

that their usage would not cause pollution and waterborne disease? 

The Texas Water Rights Commission has authority to inspect approved 

improvements during construction in order to assure compliance with the 

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 the approved plans. Sections 21.615, 21. 711, Water 

Code, V. T. C. S: 

p. 1926 
The 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 to water 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, and whether 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 by the Texas Water Quality Board. 

Section 21.254, Water Code, V. T. C. S. Enforcement is by means of 

injunction and the Texas Water Quality Board is a necessary and indispensable 

party. Id. 

- 

When the construction project is within the jurisdiction of the Texas 

Water Rights Commission, enforcement of construction standards may be 

obtained by the Commissi.on through the procedure specified in 5 54. 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 or Texas Water Quality Board standards by injunction. However, 

the county or health district has no independent regulatory authority over 

construction of treatment works. 

Your third question is: 

If the Commissioners Court of Montgomery 

County were to establish county sewage and water 

systems, the plans for faciles as they were 

constructed being approved by the State Department 

of Health and the 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 of waste-water 

to prevent pollution and water-borne disease? 

p. 1927 
. . 

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

A county has authority to establish and operate a county-wide 

sewage and water system and to perform water quality management 

functions within the county, alone, or in conjunction with cities and towns 

within the county, other counties, water districts or authorities, and the 

Texas Water Quality Board. Attorney General Opinion M-1049 (1972). 

The Texas Water Duality Board is the state agency responsible for 

implementation of the state’s policy of encouraging and promoting the use 

of regional and area-wide waste collection, treatment, and diposal systems. 

Section 21.201, Water Code, V. T. C.S. Since Montgomery County is 

within a standard metropolitan statistical area, it may be designated by 

the board as an area-wide system pursuant to 5 21.201(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 no authority to force municipal 

utility districts created under general law or by the legislature to utilize 

its county-wide sewage and water system. 

Your fourth question is: 

If the Commissioners Court of Montgomery County 

were to create a county water and sewage facility, could 

the areas which are in the extra-territorial jurisdiction 

of home rule cities be included in the county system despite 

the objections of the cities to the inclusion of, these areas? 

A city has authority to regulate by ordinance plats and the subdivision 

of land within its extraterritorial jurisdiction. Section 4, Article 970a, 

V. T. C. S. This authority includes regulation of water supply and distribution systems. See Swinney v. City of San Antonio, 483 S. W. 2d 556 (Tex. 

Civ. App., San Antonio. 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 to provide the water 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 no authority for a county to force persons within the 

extraterritorial jurisdiction of a city to utilize a county water an&sewage 

facility. 

While there may be some circumstances under which a couriy might 

provide water and sewage services to an area within the extraterrStoria1 

jurisdiction of a 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 of water and sewage services to an area within the 

extraterritorial jurisdiction of the city. 

SUMMARY 

A county or county health district has no authority 

to require a municipal utility district to obtain county 

approval of plans for construction of water and sewage 

facilities. 

A county or county health district may inspect a 

municipal utility district’s water and sewage facilities, 

but has no independent regulatory authority over 

construction of such facilities. 

Authority to require a municipal utility district 

to utilize a county water and sewage system rests 

with the Texas Water Quality Board, not the county. 

A county has no authority to require utilization of 

its water and sewage system in the extraterritorial 

jurisdiction of a city over the objection of the city. 

Very truly yours, 

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

APPROVED: 

& /car 

LARRY F. PORK, * ret &cri&nt 

DAVID M. KENDALL, Chairman 

Opinion Committee 

lg 

p. ,193o