DAN MORALES

ATTORNEY GENERAL 

### QBffice of tip !&tornep Qbneral 

## &ate ofZ!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 ofthis 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*‘).Zand a person “must hold a permit and an approved plan to construct, alter, repair, extend, or operate” the system. 

### Id. $5366.004, .OSl. House Comm. on Environmental Regulation, Big Analysis, S.B. 1042, 73d Leg. (1993).

‘An“on-de sews@diqosel sysIem” pmduca nomorethat5,0@‘3 gallonsofwasteeachdayand is wed only to disposeof sewageproducedon the site whew it is located. Health & SafetyCode 5366.002(8),amendedbyAct ofMay21, 1993,13d Leg.,RS., ch. 589,$3, 1993Tex. Sees.LawServ. 2245.2245; seeah 30T.A.C.5285.11(29)(listingsqecik typesof ‘[o]n-site sewerage facilities”). 2Rior10~hl,1992,theDcpanmcatofHcalthadministaedthstahltenowcodificdas chapter366 of the Health and Safety Cede. On that date, responsibility for these pmvisioos was uansferred

totheTexasWater

Commission.ActofJuly25,1991,72d Leg., 1stC.S.,ch. 3.8 1.088, 1991 Tex. Sess. Law Serv.4, 43. On September 1, 1993,the nameof the Texas WaterGnmnision was changedIO

the TexasNaturalResowce ComewationCommissioo,and all powers,duties, rights,and obligations

oftheWater

Commission

we&bansferfed

totheNatural

Resnuce Conservation

Commission. Id. 0 1.085,at42.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. 5366.002(

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. 5366.032(b);

seeulso

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. 1825Honorable 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 ofthe 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 5 311.025(a). The doctrine of implied repeal rests on the principle that the last expression of 

### the lawmakers 

### will

begiven e&t. Allied

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

3Trwnan O’Quinn,“Histovy, SlaIw,andFunctionofCities,TownsandVillagc$”2A V.T.C.S. XXlX -XXX;see Woo/ridge v.Folsorn,

564S.W.2d471(Tcx.Civ.App.-Dallas 1978,notit).

‘See30T.A.C.8285.1l(29) (debition of‘[o]n&e seweraSe fkilities”).

p. 1826Honorable 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 “‘orderthe 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 31,1897,25th 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 ofthe 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 ofthis 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

toimplement

ciupter366oftheHealthandSafelyCodestatethataasspool isanuasatisfactaym&cd efrewagcdispeml.30T.A.C. 5285.102.

p. 1827Honorable 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 ofthe 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~rtic1e1015,V.T.C.S.,dces not includeanyprovisionauthorizingmunicipalities to regulate on-sitesewagedisposalsystems.

p. 1828