DAN MORALES 

ATTORNEY GENERAL 

QBffice of tip !&tornep Qbneral 

&ate of Z!Lexas 

April 28, 1995 

Honorable Fred Hill 

Chair 

Committee on Urban AtBirs 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Opinion No. DM-343 

Re: Authority of the Texas Natural 

Resources Conservation Commission to 

require a municipality to obtain permission to 

regulate on-site sewage facilities (RQ-588) 

You ask whether chapter 366 of the Health and Safety Code pre-empts the 

authority of municipalities to regulate on-site sewage disposal within municipal liits 

pursuant to the following statutes: V.T.C.S. article 1015; Health and Safety Code section 

342.002; and Local Government Code sections 51.012,214.012(2), 214.014 and 217.002. 

The statute codified as chapter 366 of the Health and Safety Code was adopted in 

1987 to provide minimum state-wide standards for regulation of on-site sewage disposal 

systems.’ Attorney General Opinion TM-1278 (1990); House Comm. on Natural 

Resources, Biil Analysis, H.B. 1875, 70th Leg. (1987); see Health & Safety Code 

4 366.001 (purpose clause). Prior to the adoption of this statute, the state did not “have a 

consistent state-wide permit system for septic tanks or for registration of septic tank installers.” House Comm. on Natural Resources, supra. Under chapter 366, a person “may 

not cohst~ct, aher, repair, or extend” an on-site sewage disposal system that does not 

comply with chapter 366 and the applicable rules adopted by the Texas Natural Resource 

Conservation Commission (“commission*‘).Z and a person “must hold a permit and an 

approved plan to construct, alter, repair, extend, or operate” the system. Id. $5 366.004, 

.OSl. House Comm. on Environmental Regulation, Big Analysis, S.B. 1042, 73d Leg. 

(1993). 

‘An “on-de sews@ diqosel sysIem” pmduca no more that 5,0@‘gallons 3 of waste each day and 

is wed only to dispose of sewage produced on the site whew it is located. Health & Safety Code 

5 366.002(8), amended by Act of May 21, 1993,13d Leg., RS., ch. 589,$3, 1993 Tex. Sees. Law Serv. 

2245.2245; see ah 30 T.A.C. 5 285.11(29) (listing sqecik types of ‘[o]n-site sewerage facilities”). 

2Rior10~hl,1992,theDcpanmcatofHcalthadministaedthstahltenowcodificdas 

chapter 366 of the Health and Safety Cede. On that date, responsibility for these pmvisioos was 

uansferred to the Texas Water Commission. Act of July 25,1991,72d Leg., 1st C.S., ch. 3.8 1.088, 1991 

Tex. Sess. Law Serv. 4, 43. On September 1, 1993, the name of the Texas Water Gnmnision was 

changed IO the Texas Natural Resowce Comewation Commissioo, and all powers, duties, rights, and 

obligations of the Water Commission we& bansferfed to the Natural Resnuce Conservation Commission. 

Id. 0 1.085, at 42. 
HonorableFred Hill - Page 2 (DM-343) 

Administration of chapter 366 is vested in the commission and its “authori& 

agents” according to the following provision: 

The [wmmission] or authorized agents: 

(1) have general authority over the location, design, wnstruction, installation, and proper iimctioning of on-site sewage disposal 

systems; and 

(2) shall administer this chapter and the rules adopted under this 

Chflptef. 

Health & Safety Code 4 366.011. 

An “authotized agent” is a “local governmental entity,” including a municipality, 

“authorized by the. . [commission] to implement and enforce rules” under chapter 366. 

Id. 5 366.002( 1), (6). As an author&d agent, a local governmental entity may, instead of 

the wmmission, exercise the general authority provided by section 366.011. Attorney 

Oeneral Opinion TM-1278 (1990) at 2. The commission “shall designate a local governmental entity as an authorized agent” if the governmental entity complies with the 

requirements of sections 366.031 and 366.032. The local governmental entity must notify 

the commission that it wishes to regulate the use of on-site sewage disposal systems in its 

jurisdiction, hold a public hearing, and adopt an order or resolution that must: 

(1) incorporate the. . [wmmission’s] rules on abatement or 

prevention of pollution and the prevention of injury to the public 

health; 

(2) meet the . [wmmission’s] minimum requirements for onsite sewage disposal systems; and 

(3) include a written enforcement plan. 

Health & Safety Code 9 366.032(a). An order or resolution that adopts more stringent 

standards than chapter 366 or the commission’s standards will prevail over the statute or 

the wmmission’s standards. Id. 5 366.032(b); see ulso Attorney General Opinion 

JM-1278 (1990) at 3 (local governmental entity that has been designated authorized agent 

may adopt standards more stringent than commission standards for local registration of 

installers). The designation of the local governmental entity as authorized agent takes 

effect only when the wmmission approves the resolution or order. Health & Safety Code 

g366.03qb). 

Chapter 366 provides for comprehensive state-wide regulation of on-site sewage 

disposal systems by the commission. Local governmental entities, includmg cities, may 

administer the state-wide regulations, or more stringent ones, if they become authorized 

agents pursuant to sections 366.031 and 366.032 of the Health and Safety Code. 

Otherwise, the commission will administer the statute and regulations within the territorial 

limits of local governmental entities. You suggest that these provisions wntlict with other 

p. 1825 
Honorable Fred Hill - Page 3 (DM-343) 

statutes, specifically, V.T.C.S. article 1015; Health and Safety Code section 342.002; and 

Local Government Code sections 51.012, 214.012(2), 214.014, and 217.002, which you 

believe give such regulatory authority to cities. 

Section 51.012 of the Local Govemment Code provides as follows: 

The municipality may adopt an ordinance, act, law, or 

regulation, nor incom ‘stenf with state iinv, that is necessary for the 

govermnent, interest, welfare, or good order of the municipality as a 

body politic. pmphasis added.] 

An ordinance, act, law, or regulation adopted under this provision may not be inwnsistent 

with state law. Accordingly, a city has no authority under section 51.012 of the Local 

Government Code to adopt legislation wncernhr g on-site sewage disposal systems that is 

inconsistent with chapter 366 of the Health and Safety Code. 

Article 1015, V.T.C.S., which applies only to general law cities,3 enumerates 

several powers of the governing body, including the power to “establish, erect, wnstruct, 

regulate and keep in repair bridges, culverts, and sewers.” V.T.C.S. art. 1015(2). 

Nothing in this language authorizes a city to regulate on-site sewage disposal systems, 

since they are not wmrected with a sewer system. See Attorney General Opinion JM-%I 

(1988) (Upper Guadalupe giver Authority cMIot wmpel connection of septic tanks with 

sewage gathering system). 

Chapter 342 of the Health and Safety Code, formerly codified as article 4436, 

V.T.C.S., deals with municipal regulation of sanitation. Section 342.002 authorizes the 

governing body of a municipality to regulate the wnstruction, alteration and repair of 

sewers and privies, to direct the methods and materials for wnstructing them, and to 

regulate the cleaning and disinfecting of these facilities. This statute gives cities authority 

over the construction and regulation of a type of on-site sewage disposal system’ and thus 

it appears to be in wntlict with chapter 366 of the Health and Safety Code. 

If statutes enacted at different sessions of the legislature are irreconcilable, the 

statute latest in date of enactment is held to have impliedly repealed the earlier statute. 

Ciry of Dallas Y. Brown, 475 S.W.2d 833 (Tex. Civ. App.-Dallas 1971, writ refd n.r.e.); 

see also Gov’t Code 5 3 11.025(a). The doctrine of implied repeal rests on the principle 

that the last expression of the lawmakers will be given e&t. Allied Finance Co. v. 

Falkner, 397 S.W.2d 846 (Tex. 1965). 

3Trwnan O’Quinn, “Histovy, SlaIw, and Function of Cities, Towns and Villagc$” 2A V.T.C.S. 

XXlX - XXX; see Woo/ridge v. Folsorn, 564 S.W.2d 471 (Tcx. Civ. App.-Dallas 1978, no tit). 

‘See 30 T.A.C. 8 285.1 l(29) (debition of ‘[o]n&e seweraSe fkilities”). 

p. 1826 
Honorable Fred Hill - Page 4 (DM-343) 

The predecessor to chapter 342 of the Health and Safety Code was first adopted in 

1875, by the same bill that adopted some of the other provisions you inquire about, 

section 217.002 of the Local Government Code and the original versions of sections 

214.012 and 214.014 of the Local Government Code. Act approved March 15, 1875, 

14th Leg., 2d C.S.. ch. 100, 8 124, 1875 Tex. Gen. Laws 113, 156; see ah id. $5 59, 

64. Chapter 342 was last amended in 1965. See Act of May 20, 1965, 59th Leg., R.S., 

ch. 470, 1965 Tex. Gen. Laws 975 (amending former article 4436, V.T.C.S., now chapter 

342 of the Health and Safety Code.) The 1965 amendment did not change the provision 

now cod&d as section 342.092. Chapter 366 of the Health and Safety Code, the more 

recently enacted statute, has impliedly repealed section 342.002 of the code, to the extent 

the ktter provision authorized a municipality to regulate septic tanks in a manner 

inwnsistent with chapter 366. 

Section 214.012(2) of the Local Govemment Code states that a municipality “that 

has underground sewers or cesspools~ shag regulate by ordiice . house draining and 

plumbing.” Section 214.014 of the same code authorizes the “governing body of a Type 

A general-law municipality” to “‘order the owner of a private drain, sink, or privy to till up, 

clean, drain, alter, relay, repair, or improve the drain, sinlc, or privy.” The predecessors of 

both provisions were adopted in the nineteenth century. See Act of August 3 1,1897,25th 

Leg., R.S., ch. 163, § 1. 1897 Tex. Gen. Laws 236, 236; Act approved March 15, 1875, 

14th Leg., 2d C.S., ch. 100, 5 69, 1875 Tex. Gen. Laws 113, 131. To the extent that 

section 214.012(2) and section 214.014 of the Local Government Code are inconsistent 

with chapter 366 of the Health and Safety Code, they are repealed by chapta 366. 

Section 217.082 of the Local Govermnent Code authorizes the governing body of 

a municipality to “define and declare what constitutes a nuisance,” and authorize its 

summary abatement, and to abate “in any mamter the governing body considers expedient 

any nuisance that may injure or afkt the public health or wmfort.” This chapter is not 

directed specifically at on-site sewage disposal systems. Municipalities may not, however, 

act under the authority of this statute in a manner that is inconsistent with the genera) laws 

of the state. 

The predecessor of section 217.002 was also adopted in 1875. See Act approved 

March IS, 1875, 14th Leg., 2d C.S., ch. 100, $8 59, 64, 1875 Tex. Gen. Laws 113. 130. 

Because section 217.002 of the Local Government Code was adopted earlier than chapter 

366 of the Health and Safety Code, it is impliedly repealed by chapter 366 to the extent of 

wnflict. A city may not exercise its power to define and abate nuisances under section 

217.002 to regulate on-site sewage disposal systems in a manner that is inconsistent with 

the provisions of chapter 366 of the Health and Safety Code. 

JRUI~S promulgstcd to implement ciupter 366 of the Health and Safely Code state that a asspool 

is an uasatisfactay m&cd efrewagc dispeml. 30 T.A.C. 5 285.102. 

p. 1827 
Honorable Fred Hill - Page 5 (DM-343) 

Municipalities that have been designated as authorized agents may adopt standards 

for on-site sewage disposal systems that are more stringent that the commission’s 

standards. Chapter 366 of the Health and Safety Code impliedly repeals any other 

authority municipalities might have to regulate on-site sewage disposal systems within 

municipal limits pursuant to section 342.002 of the Health and Safety Code and sections 

51.012, 214.012(2), 214.014, and 217.002 of the Local Government Code.6 The Texas 

Natural Resource Conservation Commission is charged with administering chapter 366, 

but a municipality that wishes to regulate on-site sewage disposal systems within its 

boundaries may seek designation as an authorized agent of the commission. 

SUMMARY 

Pursuant to Chapter 366 of the Health and Safety Code, 

municipalities designated as authorized agents may regulate on-site 

sewage disposal systems more stringently than the commission does. 

Chapter 366 impliedly repeals any other authority municipalities 

might have to regulate on-site sewage disposal systems within 

municipal limits pursuant to section 342.002 of the Health and Safety 

Code and sections 51.012, 214.012(2), 214.014, and 217.002 of the 

Local Government Code. The Texas Natural Resource Conservation 

Commission is charged with administering chapter 366, but a 

municipality that wishes to regulate on-site sewage disposal systems 

within its boundaries may seek designation as an authorized agent of 

the commission. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

6~rtic1e 1015, V.T.C.S., dces not include any provision authorizing municipalities to regulate 

on-site sewage disposal systems. 

p. 1828