OFFICE OF THE ATTORNEY GENERAL STATE OF TEX.4S 

JOHN CORNYN 

March 10. 1999 

Mr. John R. Speed, P.E. 

Executive Director 

Texas Board of Professional Engineers 

P.O. Drawer 18329 

Austin, Texas 787604329 

Opinion No. JC-0020 

Re: Whether Texas Natural Resource Conservation 

Commission has authority under chapter 366 of the 

Texas Health and Safety Code to require certification 

of “site evaluators” (RQ-1090) 

Dear Mr. Speed: 

On behalf of the Texas Board of Professional Engineers (the “Board”), you ask several 

questions about the rule-making authority of the Texas Natural Resource Conservation Commission 

(the “TNRCC” or “Commission”) under chapter 366 of the Texas Health and Safety Code, which 

addresses the regulation of on-site sewage disposal systems. Your specific questions are as follows: 

1. Does the TNRCC have the authority to license site evaluators or 

other persons to perform engineering as authorized by the Texas 

Engineering Practice Act? 

2. Does an agency or political subdivision of the state have the 

authority to interfere with the authority of the TBPE [(“Texas 

Board of Professional Engineers”)] by imposing additional 

requirements upon licensed engineers to practice activities 

already authorized by their licenses? 

3. Do such agencies or political subdivisions have the authority to 

prohibit or otherwise impede licensed engineers from performing 

activities already authorized under their engineering license? 

Letter from John R. Speed, P.E., Executive Director, Texas Board of Professional Engineers, to 

Honorable Dan Morales, Texas Attorney General 6 (Feb. 11, 1998) (on tile with Opinion 

Committee) [hereinafter Speed letter of 2/l l/98]. 

Our analysis begins with the rules to which the Board most specifically objects - those 

pertaining to site evaluator training and certification. In addressing the rules on site evaluator 

training and certification, we do not raise any question about the Commission’s authority to require 

site evaluations to determine the suitability of a location for placing a particular on-site sewage 
Mr. John R. Speed, P.E. - Page 2 (JC-0020) 

disposal facility. See TEX. HEALTH & SAFETY CODE ANN. $4 366.011(l) (Commission or 

authorized agents have general authority over location, design, construction, installation, and proper 

functioning of on-site sewage disposal systems); 366.012(a)(2) (adoption of rules that encourage 

alternative techniques and technologies that can be used in soils not suitable for conventional on-site 

sewage disposal); 366.012(b)(3) (adoption of rules requiring specific management practices or 

procedures if required by site conditions or other problems) (Vernon Supp. 1999). 

You indicate that rules adopted by the Commission to regulate “site evaluators” are not 

authorized by chapter 366 of the Health and Safety Code and that some of them encroach upon the 

Board’s authority to regulate the practice of professional engineering. We conclude that the 

Commission does not have authority under chapter 366 of the Health and Safety Code to require the 

certification of “site evaluators.” Because we believe such rules are invalid, we do not need to 

decide whether “site evaluators” perform engineering as regulated by the Texas Engineering 

Practice Act or whether the rules impede licensed engineers from performing activities already 

authorized under their engineering license. We could not in any case answer these questions 

definitively in an attorney general opinion. To determine whether or not a “site evaluator” engages 

in the practice of engineering would require the investigation and resolution of fact questions, which 

cannot be done in the opinion process. See, e.g., Tex. Att’y Gen. Op. Nos. DM-383 (1996) at 2 

(questions of fact are inappropriate for the opinion process); DM-98 (1992) at 3 (questions of fact 

cannot be resolved in the opinion process); H-56 (1973) at 3 (improper for Attorney General to pass 

judgment on a matter that would be a question for jury determination); M-l 87 (1968) at 3 (Attorney 

General cannot make factual findings). 

The purpose ofchapter 366 ofthe Health and Safety Code is to “eliminate and prevent health 

hazards by regulating and properly planning the location, design, construction, installation, 

operation, and maintenance of on-site sewage disposal systems.” TEX. HEALTH & SAFETY CODE 

ANN. 5 366.001(l) (Vernon Supp. 1999). An “[o]n-site sewage disposal system” is defined as “one 

or more systems of treatment devices and disposal facilities that: (A) produce not more than 5,000 

gallons of waste each day; and (B) are used only for disposal of sewage produced on a site on which 

any part of the system is located.” Id. 5 366.002(7). Under chapter 366, before constructing, 

altering, repairing, extending or operating an on-site sewage disposal system, a person must obtain 

a permit from the TNRCC or the TNRCC’s “authorized agent,” a local government entity that the 

TNRCC has authorized to regulate on-site sewage disposal systems within its jurisdiction. See id. 

$366.002( 1); Tex. Att’y Gen. Op. No. JM-1278 (1990) at 2 (“[aluthorized agents” defined as “local 

governmental entities designated by the [TNRCC] to implement and enforce chapter 366 and the 

rules adopted [under this chapter]“). 

The Commission’s rules concerning on-site sewage facilities (“OSSFs”) require applicants 

for an OSSF permit to submit “a positive site evaluation performed by a certified site evaluator.” 

30 TEX. ADMIN. CODE 5 285.20(2) (1998). A “[slite evaluator. visits a site and conducts apreconstruction site evaluation which includes performing soil analysis, a site survey, and other criteria 

necessary to determine the suitability of a site for a specific OSSF.” Id. 5 285.2. See also id. 

5 285.30 (detailed description ofsite evaluation). Therules “set forth a statewide uniform procedure 
Mr. JohnR. Speed, P.E. - Page 3 (JC-0020) 

for the training and registration ofinstallers of OSSFs and training and certification of site evaluators 

and designated representatives.” Id 5 285.50(a). They provide that “[n]o individual may represent 

himself or herself as an installer, site evaluator, or designated representative unless they possess a 

valid agency certificate for that profession.” Id. 5 285.50(c). 

Chapter 366 of the Health and Safety Code does not expressly authorize the TNFXC to 

require training and certification of a “site evaluator” nor does it even mention this term. In contrast, 

the Commission has express authority to certify a “designated representative,” defined as “a person 

who is designated by the commission or authorized agent to make percolation tests, systems designs, 

and inspections subject to the commission’s approval.” TEX. HEALTH & SAFETY CODE ANN. 

5s 366.002(3), 366.014 (Vernon Supp. 1999). It also has express authority to register an “installer,” 

defined as “a person who is compensated by another to construct, install, alter, or repair an on-site 

sewage disposal system.” Id. §§ 366.002(4), 366.071. 

The TNRCC argues that it has implied authority to require the training and certification of 

site evaluators because these requirements help implement various provisions of Health and Safety 

Code chapter 366. It states that such rules will implement the statutory purpose of eliminating and 

preventing health hazards. It also states that its rules implement the provisions regarding training 

and registration of installers. Letter from Gene Snelson, TNRCC, to Sarah Shirley, Office of the 

Texas Attorney General (Apr. 24,1998) (on file with Opinion Committee) [hereinafter Snelson letter 

of 4/24/98]. See TEX. HEALTH & SAFETY CODE ANN. $5 366.013 (training of installers); 366.071 - 

,078 (registration of installers) (Vernon Supp. 1999). The Commission argues that its authority to 

register an installer includes authority to register a “site evaluator” as a kind of installer, but it also 

states that it offers a separate certificate for a site evaluator to allow competent candidates to perform 

this function without having to obtain installer registration. Snelson letter of 4/24/98, supra, at 6-7. 

To qualify as a site evaluator, an individual must, among other requirements, have two years of 

verifiable experience in the OSSF field and possess either an Installer II certificate, a designated 

representative certificate, a registered sanitarian certificate, or a professional engineer registration. 

30 TEX. ADMIN. CODE 5 285.54(k)(l) (1998). 

In our opinion, the Commission’s authority to register an installer does not authorize the 

Commission to register a “site evaluator.” The fact that the Commission offers a separate certificate 

for a site evaluator who is not a registered installer is inconsistent with its argument that a site 

evaluator is a kind of installer and that its statutory authority over installers encompasses “site 

evaluators.” 

The Commission cites section 366.012 of the Health and Safety Code as another source of 

its implied authority to regulate “site evaluators.” This provision requires the Commission to adopt 

rules governing the installation of on-site sewage disposal systems and rules “that encourage the use 

ofeconomically feasible alternative techniques and technologies for on-site sewage disposal systems 

that can be used in soils not suitable for conventional on-site sewage disposal.” TEX. HEALTH & 

SAFETY CODE ANN. 5 366.012(a)(2) (Vernon Supp. 1999). Subsection (b) of section 366.012 
Mr. John R. Speed, P.E. - Page 4 (JC-0020) 

requires the Commission to adopt rules defining and describing good management practices and 

procedures for constructing on-site sewage disposal systems that: 

(1) justify variation in field size or in other standard requirements; 

(2) promote the use of good management practices or procedures 

in the construction of on-site sewage disposal systems; 

(3) require the use of one or more specific management practices 

or procedures as a condition of approval of a standard on-site sewage 

disposal system if, in the opinion of the commission or authorized 

agent, site conditions or other problems require the use of additional 

management practices or procedures to ensure the proper operation 

of an on-site sewage disposal system. 

Id. 5 366.012(b). 

These provisions relate to the techniques, technologies, and management practices and 

procedures necessary for the construction and proper operation of on-site sewage disposal systems, 

particularly systems that can be used in soils not suitable for conventional on-site sewage disposal. 

They do not mention a site evaluator or refer to the regulation of persons who carry out the tasks 

necessary to ensure the proper operation of an on-site sewage disposal system. 

The legislative intent is determined from a general view of the whole enactment in question. 

Citizens Bankv. First State Bank, 580 S.W.2d 344,348 (Tex. 1979). The interpretation of a statute 

by implication is permitted to supply an obvious intent not expressly stated, but not to add to what 

the statute provides expressly. Massachusetts v. United N. & S. Dev. Co., 168 S.W.2d 226, 229 

(Tex. 1942). “‘[AIn agency can adopt only such rules as are authorized by and consistent with its 

statutory authority.“’ Railroad Comm’n v. Arco Oil & Gas, 876 S.W.2d 473, 481 (Tex. App.- 

Austin 1994, writ denied) (citations omitted). An agency may not, “‘on a theory of necessary 

implication from a specific power, function, or duty expressly delegated, erect and exercise what 

really amounts to a new and additional power or one that contradicts the statute, no matter that the 

new power is viewed as being expedient for administrative purposes.“’ Public Util. Comm ‘n v. 

GTE-Southwest, Inc., 901 S.W.2d 401,407 (Tex. 1995) (quoting Sexton v. Mount Olivet Cemetery 

Ass’n, 720 S.W.2d 129, 137-38 (Tex. App.-Austin 1986, writ refd n.r.e.)). Nor may an agency 

rule “impose additional burdens, conditions, or restrictions in excess of or inconsistent with the 

relevant statutory provisions.” Railroad Comm’n, 876 S.W.2d at 481. 

When we look at chapter 366 as a whole, we see that the legislature has adopted specific and 

detailed provisions on the regulation of installers and designated representatives. See TEX. HEALTH 

& SAFETY CODE. ANN. $5 366.001(4) (Commission may require registration of installer); 366. 

002(4) (defining “installer”); 366.072 (Commission shall adopt a registration application for 

installers and rules and procedures for processing application); 366.073 (Commission shall require 
Mr. John R. Speed, P.E. - Page 5 (JC-0020) 

the installer to complete a training program provided by the Commission); 366.074 (Commission 

shall establish and collect a registration fee to cover the cost of issuing registrations); 366.076 

(Commission may require periodic renewal of registrations) (Vernon Supp. 1999). The 

Commission’s authority to adopt rules governing the installation of on-site sewage disposal systems 

expressly refers to “rules concerning the registration of installers.” Id. 366.012(a)(l)(B). 

The provisions relating to certification of a designated representative, like those relating to 

an installer, are express and specific. Section 366.014(b) sets out five qualifications for becoming 

a designated representative: (1) demonstrating competency to make percolation tests, designs, and 

inspections for on-site sewage disposal systems; (2) completing the Commission’s training program; 

(3) passing an examination; (4) receiving written certification from the Commission; (5) paying a 

fee. Requirements (3) though (5) were added by a 1993 amendment to chapter 366.’ Thus, even 

though chapter 366 already provided for the position of designated representative, the legislature 

took action to authorize the certification of such persons, subject to passing an examination and 

paying a fee. Section 366.013 expressly requires the Commission to establish a training program 

specifically developed for installers, authorized agents, and designated representatives and authorizes 

the Commission to charge participants a reasonable fee to cover the cost of the training. 

Several opinions of this office have concluded that a state agency may not establish and 

regulate occupational or professional categories in the absence of express legislative authority to do 

so. Attorney General Opinion H-870 determined that the Texas Commission on Alcoholism had no 

authority to certify persons as “alcoholism counselors” and regulate the use of such title. Tex. Att’y 

Gen. Op. No. H-870 (1976) at 2. The opinion noted that the Commission had no express authority 

to certify such persons and found that it had no implied authority to do so. Id. For the latter 

conclusion, it relied on the Texas Supreme Court decision in State v. Cortez, 333 S.W.2d 839 (Tex. 

1960), in which the court held that the Board’s authority to prescribe rules and regulations for the 

operation of all funeral establishments did not give the Board implied authority to require funeral 

establishments to be licensed. Id. (citing Cortez, 333 S.W.2d at 841). The statute at issue in Cortez 

expressly required a license to practice embalming or to be a funeral director and set the fees for such 

licenses, but at the time of the lawsuit it did not expressly require funeral establishments to be 

licensed. Id.’ See also TEX. REV. Qv. STAT. ANN. art. 4582b, 5 4 (Vernon Supp. 1999) (current law 

requires funeral establishments to be licensed). 

Attorney General Opinion MW-320 determined that the Commission on Fire Protection 

Personnel Standards and Education lacked authority to require certification of tire inspectors. The 

Commission had express authority to establish minimum certification requirements only for people 

seeking admission to employment as tire protection personnel. Tex. Att’y Gen. Op. No. MW-320 

(1981). It therefore lacked authority to establish certification requirements for an additional 

specialty, such as tire inspector. Id. See also Tex. Att’y Gen. Op. No. JM-609 (1986) (Texas 

‘Act of May 25, 1993,13rd Leg., RX, ch. 589, 5 4, 1993 Tex. Gen. Laws 2243-44. 

‘See Act of May 14,1953,53d Leg., R.S., ch. 251,§ 4.1953 Tex. Gen. Laws 661,665. 
Mr. John R. Speed, P.E. - Page 6 (JC-0020) 

Department ofHealth could not adopt a rule requiring certain massage therapy instructors to comply 

with requirements for massage therapy school; such rule would be inconsistent with statutory 

distinction between “instructor” and “school”). 

Attorney General Opinion MW-42 determined that the Board ofNurse Examiners could not 

issue rules regulating the practice of advanced nurse practitioners. The Board had neither statutory 

authority for a separate licensing category of advanced nurse practitioners, nor a broad grant of 

regulatory authority over the practice of nursing. Tex. An’y Gen. Op. No. MW-42 at 2 (1979). 

Accordingly, “[i]n the absence of more specific statutory authority, the board may not promulgate 

rules having the force of law limiting, or dictating methods of practice by advanced registered nurse 

practitioners.” Id. 

In contrast to Attorney General Opinion MW-42 and similar opinions, Attorney General 

Opinion DM-292 determined that the Texas Board of Health could issue rules under the Medical 

Radiologic Technologist Certification Act, article 45 12m, oftheRevised Civil Statutes, for granting 

speciality certificates that authorized the applicant to practice in one of the three disciplines 

comprising medical radiologic technology: diagnostic radiography, nuclear medicine, or radiation 

therapy. It would also offer a general certificate authorizing the holder to practice in all three 

disciplines. The Board had express authority to establish different classes of certificates, but it was 

concerned that this authority was curtailed by a provision defining a “limited certification” as 

authorizing the holder to perform radiologic procedures only to a specified part of the body. 

Attorney General Opinion DM-292 looked at the statute as a whole, concluding that the Board’s 

broad authority to establish classes of certificates was not curtailed by the provision on a “limited 

certification” and that the Board could implement the new licensing system. Thus, the language of 

the Medical Radiologic Technologist Certification Act, as harmonized by Attorney General Opinion 

DM-292, provided specific authority for the Board to establish new classes of certificates. Tex. 

Att’y Gen. Op. No. DM-292 (1994). See also Tex. Att’y Gen. LO-96-125 (Board of Health has 

authority under the Medical Radiologic Technologist Certification Act to grant certificate for 

students performing dangerous or hazardous procedures). 

We finally note a judicial decision that addressed the rule-making authority of the TNRCC 

under the Solid Waste Disposal Act, TEX. HEALTH & SAFETY CODE ANN. $3 361 .OOl-,754 (Vernon 

1992 & Supp. 1999). McDaniel v. Texas NaturalResource Conservation Commission, 982 S.W.2d 

650 (Tex. App.-Austin 1998, pet. filed), addressed the Commission’s implied authority with 

respect to procedures for authorizing sewage sludge disposal. McDaniel, like the present request for 

an attorney general opinion, deals with the rule-making authority of the TNRCC, but it addresses 

a different statute, and, most important, does not concern the regulation of an occupational or 

professional category. For these reasons, McDaniel does not assist us in answering your question. 

In the absence of any statutory authority to regulate site evaluators, the TNRCC has adopted 

rules that place burdens on persons who engage in site evaluation, by requiring them to take an 

examination, pay fees, and comply with other requirements for getting acertiticate. 30 TEX. ADMIN. 

CODE $5 285.50, 285.54, 285.57 (1998). A person who violates a rule is subject to a suit for 
Mr. John R. Speed, P.E. - Page 7 (JC-0020) 

injunctive relief or a civil suit under section 366.092. In the context of Health and Safety Code 

chapter 366, which expressly defines and provides for the regulation of two occupations related to 

on-site sewage facilities, it is reasonable to expect the legislature to express its intention to authorize 

regulation of a third occupation related to on-site sewage facilities by a similarly express grant of 

authority. We conclude that the Commission lacks implied authority to regulate site evaluators. 

Accordingly, the Commission has no authority to issue rules regulating “site evaluators” and such 

rules are invalid. 
Mr. John R. Speed, P.E. - Page 8 (JC-0020) 

SUMMARY 

Chapter 366 of the Health and Safety Code, relating to the regulation of 

on-site sewage disposal systems, does not expressly or by necessary 

implication authorize the Texas Natural Resource Conservation Commission 

to regulate “site evaluators.” The Commission’s rules requiring the 

certification of site evaluators and otherwise regulating site evaluators are 

invalid. 

Attorney General of Texas 

ANDY TAYLOR 

First Assistant Attorney General 

CLARK KENT ERVlN 

Deputy Attorney General - General Counsel 

ELIZABETH ROBINSON 

Chair, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General