ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

The Honorable Patrick M. Rose 

Chair, Committee on Human Services 

Texas House of Representatives 

Post Office Box 2910 

Austin, Texas 78768-2910 

Dear Representative Rose: 

March 15,2010 

Opinion No. GA-0762 

Re: Whether a Type A general-law municipality may 

impose and enforce a nonpoint source pollution 

ordinance in its extraterritorial jurisdiction pursuant 

to section 26.177 of the Water Code (RQ-0822-GA) 

On behalf of the City of Wimberley, you ask whether "a Type A General-Law city has the 

authority to impose and enforce a nonpoint source pollution ordinance" in its extraterritorial 

jurisdiction under section 26.177 of the Water Code.! Subsection 26.l77(a) of the Water Code 

states, "[a] city may establish a water pollution control and abatement program for the city." TEx. 

WATER CODE ANN. § 26. 177(a) (Vernon 2008). Subsection 26. 177(b) further explains that 

[t]he water pollution control and abatement program of a city shall 

encompass the entire city and, subject to Section 26.179 of this code,2 

may include areas within its extraterritorial jurisdiction which in the 

judgment of the city should be included to enable the city to achieve 

the objectives of the city for the area within its territorial jurisdiction. 

The city shall include in the program ... the following services and 

functions: 

lRequest Letter (available at http://www.texasattorneygeneral.gov). 

2Section 26.179 of the Water Code pennits the owner or owners ofland in the extraterritorial jurisdiction of 

some municipalities to designate a tract as a water quality protection zone. TEx. WATER CODE ANN. § 26. 179(c}--{d) 

(Vernon 2008). Once the Texas Commission on Environmental Quality approves the designation, municipalities are 

prohibited from enforcing their pollution control and abatement programs within such zones. Id. § 26.1790). However, 

the Texas Supreme Court held that section 26.179 of the Texas Water Code, as it was enacted in 1995, was 

unconstitutional as an impermissible delegation of authority to private landowners. FM Prop. Operating Co. v. City of 

Austin,22 S.W.3d 868,888 (Tex. 2000). Although the Legislature amended the statute in 1999, a prior attorney general 

opinion concluded that ''the Texas Supreme Court's analysis of section 26.179 in FM Properties would not change in 

light of the 1999 amendments." Tex. Att'y Gen. Op. No. JC:-0402 (2001) at 6. 
The Honorable Patrick M. Rose - Page 2 (GA-0762) 

(5) the development and execution of reasonable and 

realistic plans for controlling and abating pollution or potential 

pollution resulting from generalized discharges of waste which are 

not traceable to a specific source, such as storm sewer discharges and 

urban runoff from rainwater .... 

ld. § 26.177(b) (emphasis added) (footnote added). 

At the outset, we note that section 26.177 does not use the phrase "nonpoint source pollution" 

as you do in your request, nor is that phrase defined in the Water Code, although it is used in several 

other provisions.3 See Request Letter; TEx. WATER CODE ANN. § 26.177 (Vernon 2008); see also 

TEx. WATER CODE ANN. §§ 26.0135 (Vernon Supp. 2009) (requiring State Soil and Water 

Conservation Board to coordinate certain "nonpoint source pollution" programs), 26.023 (Vernon 

2008) (requiring consideration of effects of "non point source pollution" in developing water quality 

standards). Instead, subsection 26. 177(b)(5) addresses "generalized discharges of waste which are 

not traceable to a specific source, such as storm sewer discharges and urban runoff from rainwater." 

TEx. W A.TER CODE ANN. § 26.177(b)(5) (Vernon 2008). While the two phrases are conceptually 

similar, in considering your question, we confine our analysis to the exact language of the statute and 

address a Type A general-law municipality's authority in its extraterritorial jurisdiction to control 

and abate water "pollution resulting from generalized discharges of waste which are not traceable 

to a specific source." ld. 

In answering your request, we first address whether section 26.177 applies to Type A generallaw cities. Municipalities in Texas may be divided into three broad categories: general-law, speciallaw, and home-rule. Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 658 (Tex. 1995). 

The Local Government Code further subdivides general-law municipalities into three types: 

A, B, and C. TEx. Loc. GOV'T CODE ANN. §§ 5.001-.003 (Vernon 2008). Section 26.177 of the 

Water Code applies to "a city" or "a municipality" without further distinction, and you therefore ask 

whether that section applies to any city, regardless of its size or whether the city is organized as a 

general-law or home-rule municipality. Request Letter. 

The Legislature has charged the Texas Commission on Environmental Quality (the 

"Commission") with implementing the provisions of chapter 26 of the Water Code. TEx. WATER 

CODEANN. § 26.011 (Vernon 2008). For purposes of section 26.177, the Commission has defined 

the term "city" as "a municipality or city existing, created or organized under the general, home rule, 

or special laws of this state." 30 TEx. ADMIN. CODE § 216.23 (2009) (Tex. Comm'n on 

3"Point source" is defined in the Water Code as "any discernible, confmed and discrete conveyance, including 

but not limited to any pipe, ditch, channel, tunnel, conduit, well, . . . or vessel or other floating craft, from which 

pollutants or wastes are or may be discharged into or adjacent to any water in the state." TEx. WATER CODE ANN. § 

26.001 (21) (Vernon 2008). The Texas Commission on Environmental Quality has defined "nonpoint source" as "[ a]ny 

origin from which pollutants emanante in an unconfmed and unchanneled manner, including, but not limited to, surface 

runoff and leachate seeps." 30 TEx. ADMIN. CODE § 330.3(92) (2009) (Tex. Comm'n on Environmental Quality, 

Municipal Solid Waste, Definitions). 
The Honorable Patrick M. Rose - Page 3 (GA-0762) 

Environmental Quality, Municipal Water Pollution Control and Abatement, Definitions). Thus, 

under the Commission's definition, the term city in section 26.177 would include Type A generallaw cities. As the agency charged with administering the provisions of chapter 26 of the Water 

Code, the Commission's rules interpreting those provisions are entitled to deference, provided the 

agency's interpretation is reasonable and does not contradict the plain language of the statute. Fiess 

v. State Farm Lloyds, 202 S.W.3d 744, 747 (Tex. 2006); Tarrant Appraisal Dist. v. Moore, 845 

S.W.2d 820,823 (Tex. 1993). We therefore analyze the Commission's construction of the term city 

in light of this standard. 

In construing statutes, the primary objective is to ascertain and give effect to the Legislature's 

intent. City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006). Unambiguous 

statutory language is interpreted according to its common meaning unless such interpretation would 

lead to absurd results. TEx. GOV'TCODEANN. § 311.011(a) (Vernon 2005); Hernandez v. Ebrom, 

289 S.W.3d 316, 318 (Tex. 2009). The commonly-understood definition of the term city is "an 

incorporated municipality." AMERICAN HERITAGE DICTIONARY 276 (2d ed. 1982); see also THE 

NEW OXFORD AMERICAN DICTIONARY 312 (2001) (defining city as "an incorporated municipal 

center"). For purposes of the Local Government Code, when the Legislature simply uses the word 

municipality without further specification, it means "a general-law municipality, home-rule 

municipality, or special-law municipality." TEx. Loc. Gov' T CODE ANN. § 1.005(3) (Vernon 2008). 

Thus, the Commission's definition of the term city appears to be consistent with both the plain 

meaning and the Legislature's intent. 

Furthermore, an examination of the Texas statutes as a whole reveals that the Legislature 

frequently enacts laws specific to one type of municipality. See, e.g., id §§ 141.006 (applying to 

Type A general-law municipalities), 23.024 (applying to Type B general-law municipalities ),26.047 

(applying to home-rule municipalities); TEx. WATER CODE ANN. §§ 26.0271 (Vernon Supp. 2009) 

(applicable to some home-rule municipalities only), 26.180 (Vernon 2008) (applicable to some type 

B or C general-law municipalities only). However, the plain language of section 26.1 77 of the Water 

Code does not distinguish between types of municipalities. When the Legislature employs a term 

in one section of a statute and excludes it in another section, the term should not be implied where 

excluded. Laidlaw, 904 S.W.2d at 659. Had the Legislature wanted to limit the application of 

section 26.177 to specific types of cities, it knew how to do so. We conclude that the Commission's 

construction of the term city is neither unreasonable or contrary to the plain language of the statute 

and agree that section 26.177 applies to Type A general-law municipalities. 

We next address whether section 26.177 authorizes a city to "voluntarily implement and 

enforce a water pollution and abatement program in its "extraterritorial jurisdiction." Request Letter. 

Under the plain language of section 26. 177(b ), the Legislature has authorized a city to establish a 

program to control and abate water pollution resulting from generalized discharges of waste not 

traceable to a specific source. TEX. WATER CODE ANN. § 26.177(b )(5) (Vernon 2008). Furthermore, 

this program may extend to the city's extraterritorial jurisdiction so long as "in the judgment of the 

city" doing so "enable [ s] the city to achieve the objectives of the city for the area within its territorial 

jurisdiction." Id § 26. 177(b). 
The Honorable Patrick M. Rose - Page 4 (GA-0762) 

Consistent with the plain language, Texas courts have recognized a city's authority under 

section 26. 177(b ) "to enact ordinances, applicable ... within its extraterritorial jurisdiction designed 

to control and abate actual or potential water pollution resulting from generalized discharges of waste 

not traceable to [a] specific source." Lucas v. N. Tex. Mun. Water Dist., 724 S.W.2d 811, 817 (Tex. 

App.-Dallas 1986, writ refd n.r.e.) (holding that cities may not regulate sewer treatment plants, 

which are point sources, in their extraterritorial jurisdiction). In City of Austin v. Jamail, the Austin 

court of appeals specifically addressed a city's authority to enforce a nonpoint source pollution 

control ordinance in its extraterritorial jurisdiction. 662 S. W.2d 779, 780 (Tex. App.-Austin 1983, 

writ dism'd). Upholding the ordinance, the court concluded that subsection 26. 177(b )(5) expressly 

provided the city with authority to execute its ordinance in its extraterritorial jurisdiction. ld. at 

782-83.4 Prior opinions of this office likewise recognize a city's authority under section 26.177 to 

enforce water pollution control and abatement programs within its extraterritorial jurisdiction. See, 

e.g., Tex. Att'yGen. Op. Nos. JC-0402 (2001) at 2-3, JM-226 (1984) at 7-8. Thus, the Legislature 

has granted express authority to a Type A general-law municipality to regulate, in its extraterritorial 

jurisdiction, pollution resulting from generalized discharges of waste which are not traceable to a 

specific source if the municipality first determines that implementing a water pollution control 

program in its extraterritorial jurisdiction is necessary to achieve pollution control objectives in its 

territorial jurisdiction.5 

4Dicta in City of West Lake Hills v. Westwood Legal Defense Fund suggested that section 26.177 "does not 

contemplate independent regulatory action by a city." 598 S.W.2d 681, 686 (Tex. Civ. App.-Waco 1980, no writ). 

That opinion addressed the authority of cities to regulate private sewage facilities (point sources) in the cities' 

extraterritorial jurisdiction, and it is therefore distinguishable from the nonpoint source pollution asked about in the 

request at issue. Id. at 682; see also Jamail, 662 S.W.2d at 781 ("[T]his language [in City of West Lake Hills] is quite 

clearly dictum to the extent that it purports to defme the scope of city authority under subection five .... "). 

5 A brief submitted by the Texas Association of Builders suggests that the Texas Local Government Code limits 

the regulations that a city may include in a water pollution control and abatement program applicable to its extraterritorial 

jurisdiction. See Brief from Ned Muftoz, Director of Regulatory Affairs, Texas Association of Builders, to Honorable 

Greg Abbott, Attorney General of Texas, at 4 (Oct. 23, 2009) (on file with the Opinion Committee). However, you ask 

only about the general authority granted pursuant to section 26.177 of the Water Code, and our opinions are limited to 

the specific questions asked by an authorized requestor. Tex. Att'y Gen. Op. No. GA-0283 (2004) at 9 n.2. Therefore, 

we express no opinion on the validity of any specific controls that may be included within a city's pollution control and 

abatement program. 
The Honorable Patrick M. Rose - Page 5 (GA-0762) 

SUMMARY 

Pursuant to Water Code subsection 26. 177(b)(5), if a Type A 

general-law municipality determines that implementing a water 

pollution control program in its extraterritorial jurisdiction is 

necessary to achieve pollution control objectives in its territorial 

jurisdiction, the Legislature has authorized the municipality to 

regulate, in its extraterritorial jurisdiction, pollution resulting from 

generalized discharges of waste which are not traceable to a specific 

source. 

ANDREW WEBER 

First Assistant Attorney General 

JONATHAN K. FRELS 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Virginia K. Hoelscher 

Assistant Attorney General, Opinion Committee