QMfice of the ~ttornep QZSeneral 

State of llCexa$ 

January 30, 1991 

Mr. William Tenison 

chairman 

On-Site Wastewater Treatment 

Research Council 

P. 0. Box 1088 

Austin, Texas 78767 

Opinion No. DM-1 

Re: Authority of the On-Site Wastewater 

Treatment Research Council, and related 

questions (RQ-2165) 

Dear h4r. Tenison: 

Chapter 367 of the Health and Safety Code provides for the awarding of grants of 

state funds by the On-Site Wastewater Treatment Research Council (hereinafter the 

“council”) for support of research and for dissemination of information relating to on-site 

wastewater treatment technology. The provisions now in chapter 367 were adopted in 

1987 as article 4477-7c V.T.C.S., and codified in the Health and Safety Code in 1989. Acts 

1987,7Oth Leg., 2d C.S., ch. 28; Acts 1989,71st Leg., ch. 67% 9 1, at 2230. 

The council is composed of 11 members appointed by the governor. Health & 

Safety Code 8 367.002. Grants or other expenditures made by the council are payable 

from the on-site wastewater treatment research account in the general revenue fund. Fees 

collected by various entities for the issuance of on-site wastewater treatment permits are 

forwarded to the Department of Health and deposited to the credit of such account. rd. 

@367.008(c), 367.010. 

You ask first about section 367.007, which provides: 

(a) The [Department of Health] shall implement council 

decisions. 

(b) The council may enter into an interagency contract with the 

department to provide staff and other administrative support as 

required. 

(c) Administrative costs are payable from the on-site wastewater 

treatment research account. 

P. 1 
Mr. William Tenison - Page 2 (~~-11 

You ask whether the council may obtain administrative support only under the provisions 

of section 367.007 from the Department of Health. You argue that the permissive 

language of section 367.007(b) and provisions elsewhere for interagency contracts give the 

council authority to contract with other entities for administrative support services. We 

disagree. 

We think the legislature has in section 367.007 identified the Department of Health 

as the appropriate source for administrative support if the council needs it. If the 

legislature had intended that the council could contract with entities other than the 

Department of Health for administrative support, section 367.007(b) would have been 

superfhrous. The express authorization for council contracts with the Department of 

Health for administrative support indicates a lack of council authority to contract with 

other entities for such support services. &e State . Mauritz-Wells Co., 175 S.W.2d 238 

(Tex. 1943) (reciting rule of statutory construction tilt express enumeration or mention of 

one thing is equivalent to express exclwion of others not mentioned). We note, too, that 

the Committee on Natural Resources Bill Analysis to House Bill 32, 70th Leg., 2d C.S., 

(1987), the bill originally adding the provisions now in chapter 367, states that the bill “provides that the Texas Department of Health shall provide staff services for the council.” 

Your second question is whether the council must “pay” the Department of Health 

for services the council contracts for under section 367.007. We thii that the legislature’s 

use of the term “contract” in section 367.007(b) indicates that the legislature intended that 

the council would furnish consideration to the Department of Health for services the 

council obtains under section 367.007(b) from the department. This conclusion is supported by the succeeding provision, in subsection (c) of section 367.007, that “administrative 

costs are payable from the on-site wastewater treatment research account.” 

Given our affirmative response to your first question, we need not address your 

third question. 

Your fourth question is whether “administrative support” would include “technical 

review and/or testing of grant proposals” or “a base on which to conduct research subject to 

a grant.” We think that the language of section 367.007(b) providing that the council may 

contract with the Department of Health “to provide staff and other administrative support 

as required” encompasses all services necessary to the counc$s performance of its duties 

under chapter 367. 

The duties of the council under chapter 367 are essentially to award grants as 

provided for in section 367.008 of the Health and Safety Code. That section reads: 

P. 2 
Mr. William Tenison - Page 3 (~~-11 

(a) The council shall establish procedures for awarding 

competitive grants and disbursing grant money. 

(b) The council may award competitive grants to: 

(1) support applied research at accredited colleges and 

universities in this state regarding on-site wastewater treatment 

technology and systems applicable to this state that are directed 

toward improving the quality of wastewater treatment and 

reducing the cost of providing wastewater treatment to 

consumers; and 

(2) enhance technology transfer regarding on-site wastewater 

treatment by using educational courses, seminars, symposia, 

publications, and other forms of information dissemination. 

(c) The council may award grants or make other expenditures 

authorized under this chapter only after the comptroller certifies that 

the on-site wastewater treatment research account contains enough 

money to pay for those expenditures. 

Clearly, the council’s duties to award grants under section 367.008 will involve the 

council’s evaluation of grant proposals. Where such evaluations require “technical review 

and/or testing” of proposals, we think such services may be obtained from the Department 

of Health under the provisions of section 367.007 regarding contracts for “administrative 

support.” 

However, we do not think that the council may, under the provisions of section 

367.007 relating to “administrative support,” acquire or contract for the availability of “a 

base on which to conduct research subject to a grant.” Chapter 367 authorizes the council 

to award grant money. It does not authorize the council to directly provide physical 

facilities to grantees. As will be discussed below, in regard to your fifth question, we think 

that grant recipients may spend grant money awarded under section 367.008(b) to obtain 

the use of such facilities for research purposes. 

Your fii question is whether the council may “provide for research support 

services” through a grant. The council’s authority to award grants is limited by section 

367.008(b) to grants that support applied research at colleges and universities and to 

enhance technology transfer by information dissemination. Whether the council may 

award a grant for the provision of “research support services” would depend on whether 

P- 3 
Mr. William Tenison - Page 4 (~~-11 

such “research support” constituted applied research or information dissemination under 

section 367.008(b), and would involve questions of fact as to the nature of the “research 

support” for which the award of a grant was contemplated. 

You suggest in your brief that the council might wish to award grant money to the 

Center for Environmental Research (hereinafter “CER”), a project of the city of Austin, for 

provision of specialized support services. You say CER is “affiliated with several 

accredited universities.” If the services provided under such grant were ones which 

enhanced technology transfer through information dissemination, under section 

367.008(b)(2), such a grant would be within the council’s authority. As to those grants 

which are not for information dissemination, you do not explain what you mean by the 

phrase “affiliated with,” but apparently CER is not under the control of an accredited 

college or university. The only authority for the council to award grant money other than 

for information dissemination under section 367.008(b)(2) is under subsection (h)(l) of 

section 367.008 for “applied research at accredited colleges and universities.“1 We note, on 

the other hand, that we find nothing in chapter 367 which would prevent a grant recipient 

under section 367.008, if permitted under the terms of the grant, from himself using grant 

money to acquire services from CER in support of his grant-funded research or 

information dissemination. 

In light of our response to your first question, we need not address your last 

question. 

SUMMARY 

The On-Site Wastewater Treatment Research Council may 

contract for administrative support only from the Department of 

Health pursuant to Health and Safety Code section 367.007(b), and 

the council must furnish consideration to the department for the 

furnishing of such services by the latter. 

Such administrative support may include technical review or 

testing of grant proposals but not provision of facilities for the conduct 

of grant-supported research. 

1. We note, however, in response to the coocenu you raise in your brief, that we do not think section 

367.CHlS(b)(l) requires that all grant-funded research under that provision literally be performed “at” such 

institutions. We think such grants may bc awarded, for example, for the condua of research under the auspices 

of such institutions ewen though the physical sites of the rcsearcb is at other facilities. 

P. 4 
Mr. William Tenison - Page 5 (DM-1) 

Whether the council may award a grant for “research support” 

would depend on whether, as a factual matter, such “research 

support” was applied research at an accredited college or university 

regarding on-site wastewater treatment technology, or was 

information dissemination regarding such technology. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RENEAHICKS 

Special Assistant Attorney General 

SUSAN GARRISON 

Chairman, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General