December 28, 1990 

Robert Bernstein, M.D. Opinion No. JR-1278 

Commissioner 

Texas Department of Health Re: Registration of installers 

1100 West 49th Street of on-site sewage disposal 

Austin, Texas 78756-3199 systems, and related questions 

under chapter 366 of the 

Health and Safety Code 

(RQ-2037) 

Dear Dr. Bernstein: 

you ask three questions concerning state and local 

regulation of installers of on-site sewage disposal systems1 

under chapter 366 of the Health and Safety Code. Chapter 

366 codifies article 4477-7e, V.T.C.S., which was repealed 

effective September 1, 1989, the date the Health and Safety 

.Code took effect. Acts 1989, 71st Leg., ch. 678, § 13, at 

3165. 

Since your second question is narrower than your first, 

we will address it first. you ask whether an "authorized 

agent" as defined in chapter 366 may require installers to 

meet more stringent registration standards than those 

required by the Texas Department of Health [the "department"] pursuant to section 366.073. The registration of 

1. On-site sewage disposal systems for purposes of 

chapter 366 are treatment devices and disposal facilities 

that produce not more than 5,000 gallons of waste each day, 

are used only for disposal of sewage produced on site, and 

are not regulated by the Texas Water Commission. Id. 

S 366.002(B). For the most part, these systems are septic 

tank systems, aerobic treatment plants and other treatment 

devices used by homeowners and small businesses. m 

generallv Tex. Engineering ExtensiontServ:c;,toTyi4 A z ; 

Univ. System, Qn-Site Seweraae Facili ies - 

to 6-12 (July 1989). Installers are persons who are chmpensated by others to construct., install, alter or repair 

on-site sewage disposal systems. Health & Safety Code 

5 366.002(5). 

P. 6848 
Dr. Robert Bernstein - Page 2 (JM-1278) 

installers is covered by subchapter E of chapter 366. It 

provides that no person may operate as an installer in Texas 

unless registered by the department or an authorized agent. 

Health & Safety Code 8 366.071. Section 366.073(a) requires 

the department to issue or authorize the issuance of 

installer registrations. Section 366.073(b) provides that 

the department shall issue a registration to an installer if 

he completes both an application in compliance with chapter 

366 and the training program provided by the department. 

"Authorized agents" are local governmental entities 

designated by the department to implement and enforce 

chapter 366 and the rules adopted by the Texas Board 

of Health under chapter 366. Health & Safety Code 

5 366.002(l); gee also iB, 5 366.033. For purposes of 

chapter 366, the phrase "local governmental entities" refers 

to municipalities, counties, river authorities or special 

districts. & 0 366.002(6). According to section 366.011, 

either the department or an authorized agent has "general 

authority over the location, design, construction, installation, and proper functioning of on-site sewage disposal 

systems." Neither subchapter E nor any other provision in 

chapter 366 or its predecessor, article 4477-7e, states that 

state registration in accordance with chapter 366 ' 

exclusive .or that authorized agents may not impose rnoi: 

stringent installer registration standards or require state 

registered installers to register locally. In fact, the one 

reference in chapter 366 describing departmental registration of installers as "statewide" does not indicate any 

legislative intent to prohibit more stringent local regulation of installers. a ia, 0 366.077(a) (permitting an 

authorized agent as well as the department to revoke an 

installer's "statewide registration" for violating chapter 

366 or rules adopted under the chapter). 

Subchapter C of chapter 366 requires a local governmental entity desiring designation as an authorized agent 

to hold a public hearing and adopt an order or resolution 

satisfying certain statutory requirements so that it 

rather than the department may exercise the general authority provided by section 366.011. Health 6 Safety Code 

SS 366.031-.032. Designation takes effect when the 

department approves the order or resolution in writing. 

L S 366.031(b). 

The order or resolution must satisfy the departmentIs 

minimum requirements for on-site sewage disposal systems and 

include a written enforcement plan. Ig, S 366.032(a); - 

&EQ j,& S 366.034(b)'(revocation of an authorized agent's 

designation if it does not consistently enforce the minimum 

requirements). More stringent requirements are permissible, 

P. 6849 
Dr. Robert Bernstein - Page 3 (JM-1278) 

however, in accordance with section 366.032(b) which 

provides: 

If the order or resolution adopts more stringent standards for on-site sewage disposal 

systems than this chapter or the department's 

standards and provides greater public health 

and safety protection, the authorized agent's 

order or resolution prevails over this 

chapter or the standards. 

We conclude the legislature intended section 366.032(b) to 

authorize any governmental entity that is an authorized 

agent to adopt more stringent standards and for such 

standards to prevail after their adoption. Our construction 

is consistent with the language of article 4477-7e, from 

which section 366.032(b) was derived, and with the testimony 

presented to the legislature in 1987 on behalf of House Bill 

1875, the bill that enacted article 4477-7e. 

Section 366.032(b) modifies and combines language from 

sections 5(c) and 13 of article 4477-76, V.T.C.S. Acts 

1987, 70th Leg., ch. 406, at 1935, 1938. Section 5(c) 

stated "[t]he order or resolution may adopt more stringent 

standards for on-site sewage disposal systems than the 

department's standards." L at 1935. Section 13 stated: 

A local governmental. entity's orders and 

rules that are more stringent than this 

article or rules adopted under this article 

and that provide greater protection to the 

public health or safety prevail in the local 

governmental entity's jurisdiction. 

J,& at 1938. The language in section 5(c) that an "order or 

resolution may adopt more stringent standards for on-site 

sewage disposal systems" clearly constitutes authority for 

any governmental entity who is an authorized agent to adopt 

more stringent standards, and we conclude that the modification of this language from section 5(c) and its combination with language from section 13 was not intended to make 

a change in the law.2 

2. Repeal of these and other sections of article 

4477-7e and enactment of chapter 366 was part of a nonsubstantive codification of existing health and safety laws 

and thus was not intended to make substantive legal changes. 

(Footnote Continued) 

P. 6850 
Dr. Robert Bernstein - Page 4 (JM-1278) 

Furthermore, the testimony offered in 1987 on behalf of 

House Bill 1875 supports our conclusion that the legislature 

intended counties and other local entities to have the power 

to adopt more stringent standards. Several speakers at a 

public hearing held in 1987 on House Bill 1875 referred to 

the bill as a means of implementing minimum standards 

statewide. Those speakers stated that minimum state standards would discourage incompetent installers from moving 

from counties that currently regulated sewage disposal 

systems and installers to counties without such regulations.3 They also testified that the adoption of minimum 

state standards in conjunction with a grant of authority to 

authorized agents to collect permit fees, 5ee Health & 

Safety Code S 366.059, would encourage additional counties 

to regulate sewage disposal systems locally and thereby 

avoid departmental regulation within their jurisdictions. 

No mention was made of any intent to restrict more stringent 

(Footnote Continued) 

Acts 1989, 71st Leg., ch. 678, g 14, at 3165 (legislation 

adopting the Health and Safety Code intended as 

recodification only: no substantive change intended); 

see alSp -on V. itv of Fort ,Worth, 774 S.W.2d 653, 

654-55 (Tex. 1989) (with regard to nonsubstantive revisions 

of statutory law, former statutes control over codified 

language in cases of conflict): Attorney General Opinion 

JM-1230 (1990). 

3. In 1987 sections 26.031 and 26.032 of the Water 

Code authorized county commissioners courts to regulate 

private sewage facilities within their jurisdictions. 

Testimony at the public hearing indicated that between 70 

and 110 counties were regulating sewage facilities and their 

installers locally. winas on Tex. H.B. 1875 Before the 

Hou e Comm. on Natural Resources, 70th Leg. (March 25, 1987) 

(teztimonies of Larry Soward and R.J. King) (tapes on file 

with House Technical Services). House Bill 1875 repealed 

sections 26.031 and 26.032 effective September 1, 1989, the 

date that the bill required the rules to be adopted by the 

state under article 4477-7e to take effect. Acts 1987, 70th 

Leg., ch. 406, SS 2-3, at 1938. Given the current language 

of section 366.032(b) of the Health and Safety Code, the 

prior language of section 5(c), and the public testimony 

stating minimum state standards were needed for counties not 

regulating sewage disposal facilities, the repeal of 

sections 26.031 and 26.032 does not indicate any intent to 

deprive counties of their authority to regulate on-site 

sewage disposal facilities more stringently than the 

department. 

P. 6851 
Dr. Robert Bernstein - Page 5 (JM-1278) 

local regulation or deprive entities such as counties that 

were currently regulating sewage facilities or their 

installers of their power to do so. See. e.a,, -inas on 

Tex. H.B. 1875 Before the House Co- on Natural Resources, 

70th Leg. (March 25, 1987) (testimonies of Mark Hoelscher, 

Larry Soward, Jack Purcell, R.J. King, representatives of 

various state and local entities) (tapes available from 

House Technical Services).4 

The department's brief filed with us states that section 366.032(b) of the Health and Safety Code does permit 

authorized agents to adopt more stringent standards. The 

brief, however, concludes that authorized agents may adopt 

more stringent standards only with regard to on-site sewage 

disposal systems and not more stringent standards'for the 

registration of installers who hold state registrations, We 

disagree with this conclusion. 

Section 5(c) does expressly refer only to "more stringent standards for on-site sewage disposal systems" and does 

not contain express language referring to more stringent 

standards for installer registrations. Nevertheless, the 

language of section 366.032(b) permitting authorized agents 

in their orders or resolutions to adopt more stringent standards for on-site sewage disposal systems implies the powers 

necessary to carry out the grant of the express power. 

Terre11 v. Saark& 135 S.W. 519, 521 (Tex. 1911); Austin 

Boad Co. v. Rvg~~g, 499 S.W.2d 194, 203 (Tex. Civ. App. - 

Fort Worth 1973, writ refrd n.r.e.); 67 Tex. Jur. 3d 

Statutes 0 118, at 701-02 (grant of express power conveys 

every incidental power necessary and proper to effectuate 

legislative grant). As stated earlier, no provision of 

chapter 366 or its predecessor, article 4477-7e, states that 

state registration is exclusive or that localities may not 

impose more stringent registration requirements.5 Thus, an 

4. See also House Research Organization Daily Floor 

Report - Pt. Two on C.S.H.B. 1875 at 47 (May 6, 1987) (local 

government may adopt more stringent standards than the 

department). 

5. One speaker testifying at the 1987 public hearing 

on House Bill 1875 stated that the bill would not prevent a 

local entity from imposing more stringent standards if it 

wanted to license installers and require some additional 

training. That speaker had participated in the Texas Rural 

Water Quality Task Force whose work resulted in House Bill 

(Footnote Continued) 

p. 6852 
Dr. Robert Bernstein - Page 6 (JW-1278) 

authorized agent who adopts more stringent standards for 

on-site sewage disposal systems in its order or resolution 

pursuant to section 366.032(b) may adopt more stringent 

standards for local registration of installers if those 

standards are necessary to ensure that local installers will 

satisfy the agent's more 

standards.6 

stringent disposal system 

We now turn to your first question. you ask if local 

governmental entities, whether or not designated as 

authorized agents, may impose certain specific requirements 

on installers who hold state registrations. you describe 

the requirements as "paying fees, attending training courses, posting surety bonds, or obtaining licenses or registrations." The department's brief contends that chapter 366 

preempts all local regulation not in conformance with its 

provisions. You have not provided us with the texts of any 

existing local orders, resolutions or ordinances adopting 

such requirements. You also have not indicated either the 

type of entity imposing the requirements or the legal 

authority relied upon to impose specific local requirements. 

Accordingly, we answer your question only generally. 

We address this question first with regard to local 

governmental entities that have been designated as authorized agents and that possess the power to regulate on-site 

sewage disposal systems only under chapter 366. Consistent 

with our first answer, authorized agents that have adopted 

in their orders or resolutions more stringent standards for 

on-site sewage disposal systems pursuant to section 366.032 

may adopt additional regulatory requirements necessary to 

achieve those more stringent standards as long as the additional requirements do not directly conflict with chapter 

366! Consequently, to be valid, requirements for local 

fees ,, 1 training, bonds, licenses, or registrations must 

ensure compliance with the more stringent standards adopted 

(Footnote Continued) 

i875. winas on Tex. H.B. 18 75, sunra (testimony of R.J. 

King, speaking on behalf of the Texas Department of 

Agriculture). 

6. An agent's more stringent system or installer 

standards must not directly conflict with the department's 

minimum standards. &8 infra Note 7 and accompanying text; 

gee al Q Attorney General Opinion JW-790 (1987) (local 

regulation preempted if in direct conflict with state law 

that does not exclusively occupy the field). 

p. 6853 
Dr. Robert Bernstein - Page 7 (JM-1278) 

by authorized agents for sewage disposal systems within 

their jurisdictions. 

We next turn to local governmental entities that 

possess statutory or other legal authority outside of 

chapter 366 to regulate on-site sewage disposal systems and 

their potential threat to the environment and public health. 

These entities may or may not be designated as authorized 

agents. Local regulations are preempted by state law only 

if the regulations are expressly prohibited by state law, if 

the legislature intended state law to exclusively occupy the 

field, or if the regulations directly conflict with state 

law. &.8 Attorney General Opinions JW-790, 374-619 (1987). 

As we previously stated, we do not find in chapter 366 

or in its predecessor, article 4477-7e, any express prohibition against local regulations that reflect local soil and 

water conditions as well as local public health concerns. 

m Attorney General Opinion JW-1195 (1990) (express 

statutory provision that local licenses not required) with 

Attorney General Opinion JW-994 (1988) (no express prohibition in Controlled Substances Act on local regulation of 

abusable glues). Furthermore, the legislature expressly 

repealed only sections 26.031 and 26.032 of the Water Code 

when it passed House Bill 1875, and even then it replaced 

those sections with section 5(c) of article 4477-7e, now 

section 366.032(b) of the code. w a, n-3. No provision of either chapter 366 or article 4477-7e suggests the 

legislature intended to repeal by implication any legal 

authority to regulate on-site sewage disposal systems at the 

local level. 

Implicit in our first answer was the determination that 

the legislature did not intend chapter 366 or its predecessor, article 4477-7e, to exclusively occupy the' field 

of on-site sewage disposal regulation. Read as a whole, 

chapter 366 imposes minimum statewide standards and a state 

registration requirement to protect communities within 

counties imposing little or no regulation. Chapter 366 does 

not indicate any legislative intent to negate equivalent or 

more stringent local regulation authorized by the charters 

of home rule cities or by state laws. Comnare Attorney 

General Opinion JW-1195 (1990) (insurance coverage required 

by state law indicates legislative intent to preempt local 

bond requirements) & Attorney General Opinion JW-790 

(1987) (detailed state landlord and tenant law indicates 

legislative intent to occupy field and preempt all local 

regulation) a Attorney General Opinion JW-994 (1988) 

(state authority to regulate sale of abusable glues does not 

per se preempt local ordinance requiring business personnel 

to assist customers in such sales) ti Attorney General 

p. 6854 
Dr. Robert Bernstein - Page 8 (JM-1278) 

Opinion JM-226 (1984) (state public health statutes do not 

preempt municipal standards for storage of hazardous waste). 

In addition, various speakers at the public hearing in 

1987 referred to a need for statewide minimum requirements 

and the creation of incentives to encourage more counties to 

regulate on-site systems. No speaker described House Bill 

1875 Asia restriction on or implied repeal of local powers 

to promote the public health and protect the environment. 

See. e . a. &&rinas on TeX. H.B. 18 75 m (testimonies of 

Mark Hoe&her. Wavne Farrell, Larrv ioward and R.J. Kina). 

Thus, we conclude -that the iegisliture did not intend -to 

occupy the field of on-site sewage disposal system 

regulation. 

Nevertheless, local governmental entities may not adopt 

regulations that impose standards in direct conflict with 

chapter 366.7 Standards less stringent than those imposed 

under chapter 366 would directly conflict with state law 

and thus would be preempted. &8 Health 61 Safety Code 

55 366.032(a)(2), 366.034(b). Also preempted would be local 

regulations allowing installers to construct or alter onsite sewage disposal systems locally without state registrations or approved permits as required by chapter 366. See 

& 59 366.051, 366.071. Furthermore, additional pea 

fees for costs covered by the state permit fees would 

directly conflict with state law. Additional registration 

and licensing fees also may not be charged by local entities 

for costs already covered by the state registration fees. 

~n§~o;66.001(2), 366.058, 366.074. Conclusive determinathe validity of a particular fee, license, 

7. Local entities, however, may adopt local regulations that are ancillary to and in harmony with then general 

scope and purpose of the state law. mv of Brookside 

Villaae C meau, 633 S.W.2d 790, 796 (Tex.), 

459 U.S.";OBy (1982) (general law city). 

cert. denied, 

A local regulation 

and a state law should not be found repugnant if any 

reasonable construction can give effect to both provisions. 

v. c of Dallu 702 S.W.2d 291 (Tex. 

Dallas 1985, writ ref'd n.i.e.) (home rule city). 

APP. - 

Limitations on local power will not be implied unless the provisions of the qeneral law 'are clear and compellinq.l@ .- Jh)w r C 1 r d Ri er Auth . Citv of San Marcos, 523 S.W;Zd 

641: 64; O(geE. lz75) (h:rnz rule city) ; ss3uUc2 Citv of 

peslaco v. Melt n 308 S.W.Zd 18, 

stringent regula% by home 

21 (Tex. 1957) (more 

rule city in some instances 

constitutes a separate field of regulation). 

p. 6855 
Dr. Robert Bernstein - Page 9 (JM-1278) 

registration, bonding or training requirement, however, 

would depend on factual determinations that cannot be made 

as part of the opinion process. 

Your last question concerns the registration of licensed plumbers as installers. you ask whether individuals 

licensed as plumbers in accordance with article 6243-101, 

V.T.C.S., must be registered as installers 

chapter 366. 

as required by 

Chapter 366 does not exempt state licensed plumbers 

from its registration requirements. Section 366.071 requires all persons operating as installers of on-site sewage 

disposal systems in this state 

department or an authorized agent. 

to be registered by the 

"installerw is defined by 

As mentioned earlier, an 

who receives 

section 366.002(5) as any person 

compensation from another to construct, install, alter, or repair on-site sewage disposal systems. 

See also 25 T.A.C. 55 301.107(a)(5), 301.107(j) (property 

owner exempt from registration with regard to facilities on 

his property). 

Neither does article 6243-101 exempt licensed plumbers 

from the registration requirements of chapter 366. Section 

3(e) of that article currently provides that plumbers 

holding a license from the Texas State Board of Plumbing 

Examiners are not "required to be licensed by any other 

board or agency when installing or working on a lawn irrigation system.' No other provision of article 6243-101 or any 

other state law exempts licensed plumbers from the registration requirements of chapter 366. 

We are aware that the statutory definitions of 

ing" and "on-site sewage disposal system" create some 

"plumblatory overlap. &S V.T.C.S. art. 6243-101, 5 2 

reguincludes all piping, 

(plumbing 

appurtenances and 

elimination of sewage, 

appliances for the 

including disposal systems): Health & 

Safety Code 5 366.002(B) (one or more treatment or disposal 

systems producing not more than 5,000 gallons of on-site 

waste daily). Although particular actions may fall within 

only one of the two definitions or within both definitions, 

we are unable to resolve questions of fact in the opinion 

process. Thus, we limit our discussion to the legal issue 

of whether 

installer 

a state licensed plumber must obtain a state 

registration to operate as an installer for 

purposes of chapter 366. 

With regard to the legal issue,.this office has 

ously held that statutory exemptions are necessary to 

previavoid 

state licensing requirements. 

Opinion H-495 (1975); see 

See.%, Attorney General 

also Attorney General Opinion 

P. 6856 
Dr. Robert Bernstein - Page 10 (JM-1278) 

H-960 (1977) (affirming holding of H-495); Attorney General 

Opinion H-890 (1976) (state agencies cannot create by 

contract licensing exemptions not available by statute). 

Therefore, we conclude that individuals holding valid state 

plumbing licenses must also be registered as installers in 

accordance with chapter 366 before constructing, installing, 

repairing, or altering an on-site sewage disposal system in 

this state for compensation. 

SUMMARY 

A local governmental entity that has been 

designated an authorized agent for purposes 

of chapter 366 of the Health and Safety Code 

may adopt more stringent standards for onsite sewage disposal systems in its order or 

resolution pursuant to section 366.032(b) of 

the code. An ~authorized agent that adopts 

more stringent standards for on-site sewage 

disposal systems pursuant to that section may 

adopt more stringent standards for local 

registration of installers if those standards 

are necessary to ensure that local installers 

will satisfy the agent's more stringent 

disposal system standards. Thus, authorized 

agents are authorized by section 366.032(b) 

to require additional fees or training, local 

licenses or registrations, and the posting of 

surety bonds if necessary to ensure accomplishment of their more stringent standards 

for on-site sewage disposal systems. Local 

standards must not directly conflict with 

chapter 366 of the Health and Safety Code. 

Furthermore, chapter 366 of the Health and 

Safety Code does not preempt local regulations not directly in conflict with its 

requirements that are adopted by local 

governmental entities in accordance with 

other legal authority. Thus, local governmental entities, whether or not they are 

designated as authorized agents, may adopt 

more stringent requirements than the state 

for on-site sewage disposal systems and their 

installers if they possess the legal 

authority to do so and if such requirements 

do not directly conflict with chapter 366. 

Individuals who hold state plumbing 

licenses in accordance with article 6243-101, 

P- 6857 
Dr. Robert Bernstein - Page 11 (JM-1278) 

V.T.C.S., must obtain state installer registrations ;;s;IEiretltir chapter 366 to construct, on-site 

sewage disposal iystems fz: cz$%ation in 

this state. 

JIM MATTOX 

Attorney General of Texas 

MARYKELLER 

First Assistant Attorney General 

Lou MCCREARY 

,Executive Assistant Attorney General 

JUDGE ZOLLIE STFAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chai,man, Opinion Committee 

Prepared by Celeste A. Baker 

Assistant Attorney General 

P- 6858