The Honorable Joe Resweber 

County Attorney 

Harris County Courthouse 

Houston, Texas 77002 

Opinion No. H- 931 

Re: Effect of Department 

of Health Resources 

Municipal Solid Waste 

Management Regulations 

on county licensing of 

landfills. 

Dear Mr. Resweber: 

You request our opinion concerning two regulations on 

municipal solid waste management recently promulgated by the 

Texas Department of Health Resources under article 4477-7, 

V.T.C.S., the Solid Waste Disposal Act, which designates the 

Department as the agency with jurisdiction over municipal 

solid waste, and article 4477-8, V.T.C.S., the County Solid 

Waste Control Act. 

Harris County licenses sanitary landfills within the 

extraterritorial jurisdiction of cities and towns in the 

county under the authority of article 4417-7, section 5(d), 

V.T.C.S., which reads in pertinent part: 

[AI county is empowered to require and 

issue licenses authorizing and governing 

the operation and maintenance of sites 

used for the disposal of solid waste in areas 

not within the territorial limits of incor oratedcitieT?h-Zl towns. (Emphasis -ax-?- ad e 

The county also has power to make regulations for solid 

waste management, but unlike the licensing authority, this 

rule-making power may not be exercised in the extraterritorial 

area: 

p. 3890 
The Honorable Joe Resweber - page 2 (H-931) 

[Al county, acting through its commissioners court, mav make resulations 

for the areas of.the-county not within 

the territorial limits or extraterritorial 

-isdiction of incorporated cities and 

towns to provide for sovernins and 

controlling solid waste collection, 

handling, storage, and disposal. (Emphasis 

added). V.T.C.S. art. 4477-8, 5 18(a). 

You ask whether rule I-2 promulgated by the Department in 

the Municipal Solid Waste Management Regulations affects 

the power of Harris County to license landfills within the 

extraterritorial area: 

I-l. Before exercising licensing authority 

for municipal solid waste disposal facilities, 

government must establish and promulmes g& regulations which areconsistent 

with those established by the Department and 

must be approved by the Department. (Emphasis 

added). 

I-2. A county may not establish rules and 

regulations for municipal solid waste 

management within the extraterritorial or 

territorial jurisdiction of a city or town. 

We do not believe that rule I-2, read in conjunction with 

rule I-l, affects the power of Harris County to license 

sanitary landfills under article 4477-7, section 5(d). 

We believe that I-2 merely restates the limits of county 

rule-making authority under article 4477-8, section 18(a). 

It serves to remind the counties that the section I-l 

requirement that they make rules and regulations does not 

increase the geographical area subject to their rule-making 

authority. Since we have concluded that rule I-2 does not 

affect the power of Harris County to license sanitary landfills, 

we do not answer the several questions you asked contingent 

on a finding that the rule did withdraw licensing authority. 

YOU also question whether the Department of Health 

Resources has authority to require counties to hold a hearing 

prior to renewing a landfill license. The Department has 

promulgated the following regulation: 

p. 3891 
The Honorable Joe Resweber - page 3 (H-931) 

I-7. A county shall hold a public hearing 

P prior to issuance, amendment, extension, 

revocation, or renewal of a county license. 

(Emphasis added). 

Section 5(d)(3) authorizes the county to prescribe 

procedures for license renewal. However, the exercise of 

licensing authority by the county does not preclude the 

Department from exercising any powers vested in it sunder 

other provisions of the Act. V.T.C.S. art. 4477-7, § 5(a). 

Section 3 of article 4477-l gives the Department of Health 

Resources "the powers and duties specifically prescribed 

in this Act and all other powers necessary or convenient to 

carry out its responsibilities." The Department "may adopt 

and promulgate rules and regulations consistent with the 

general intent and purposes of [the] Act." V.T.C.S. art. 

4477-7, s 4(c). The purpose of the Act is 

to safeguard the health, welfare, and 

physical property of the people through 

controlling the collection, handling, 

storage, and disposal of solid wastes. 

V.T.C.S. art. 4477-7, § 1. 

In Attorney General Opinion H-653 (19751, we recognized that 

the procedural aspects of a licensing system strongly influence 

the fulfillment of this purpose, and said that the Department 

may require reasonable procedures of counties in addition 

to those required by statute. In that opinion we determined 

that the statute itself did not require counties to hold a 

hearing for license renewal, and we did not have before us 

a regulation requiring a hearing. Since the issuance of 

H-653, the Department has promulgated rule I-7. It imposes 

on the counties a reasonable procedure designed to help 

"safeguard the health, welfare, and physical property of 

the people" through the management of municipal waste. 

We believe that the Department may adopt rule I-7 as an 

exercise of its power to adopt rules consistent with the 

purpose of the Act. See Gerst v. Oak Cliff Savings & Loan -- -- 

Ass'n, 432 S.W.2d 702 (Tex. Sup. 1968). 

In addition, the Department has power to approve or 

disapprove the county's renewal of a license for a municipal 

solid waste disposal site. V.T.C.S. art. 4477-7, § 5(d) (4); 

see §§ 2(2), 3(a). Rule I-7 contributes to the effective ' 

exercise of this supervisory authority over the county's 

p. 3892 
The Honorable Joe Resweber - page 4 (H-931) 

decisions by ensuring that the Department receives adequate 

information on which to base its approval. See Southwestern 

Savings & Loan Ass'n of Houston v. J. M. Falkner, 331 s.w.zd -- 

917 (Tex. Sup. 1960);liittorney GeneralOpinion H-64 (1973). 

It is our opinion that the Department may require counties 

to hold a public hearing prior to renewal of a license. 

SUMMARY 

Rule I-2 promulgated by the Texas 

Department of Health Resources under 

articles 4477-J and 4477-8, V.T.C.S., 

does not affect the power of counties to 

license landfills within the extraterritorial 

jurisdiction of ~incorporated cities and towns. 

The Department has authority to promulgate rule 

I-7 which requires a hearing for renewal of a 

county license. 

Very-truly yours, 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

Opinion Committee 

jwb 

p. 3893