TEE ATTORNEY GENERAL 

OF TEXAS 

September 30, 1988 

Ms. Betty Strohacker Opinion No. JR-961 

President 

Upper Guadalupe River Re: 

Authority 

Authority of the Upper 

Guadalupe River Authority to 

P. 0. Box 1278 within 

Kerrville, Texas 

compel septic tank users 

78029 its service area to connect to 

a sewage gathering, transmission, 

and disposal facility (RQ-1375) 

Dear Ms. Strohacker: 

You request an opinion concerning the authority of the 

Upper Guadalupe River Authority to compel septic tank users 

within the boundaries of the authority to connect to a 

sewage gathering, transmission, 

authority, 

and disposal system operated 

- by the either by itself or pursuant to an 

agreement with some other governmental entity permitted to 

contract with the authority for the operation of such a 

system. You limit your questions to a sewage system 

within the service area of the authority, including: 

wholly 

(1) locations within the corporate limits of a home 

rule city: 

(2) locations within the extraterritorial jurisdiction 

of a home rule city: 

(3) locations outside the corporate limits and extraterritorial jurisdiction of a home rule city: 

(4) locations wholly within the corporate limits of a 

general law city: 

(5) locations within the boundaries of an entity 

authorized to provide sewage collection and disposal 

services pursuant to a Certificate of Convenience and 

Necessity; and 

(6) locations not within the boundaries of any of the 

entities described in (l)-(5). 

We conclude that the authority has no power, either 

express or implied, to compel septic tank users to connect 

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Ms. Betty Strohacker - Page 2 (JM-961) 

to a sewage system operated by it, either on its own behalf 

or pursuant to an agreement with some other governmental 

entity, including both home rule and general law cities. 

We also conclude that while home rule cities have 

the express power to compel property owners within the 

boundaries of the city to connect to sewage systems operated 

by them, they may not delegate that power to the authority. 

The authority has the power to purify water before it 

returns to the groundwater table and hence to the river 

system. Thus, the authority may treat and dispose of sewage 

generated within its service area. parker v. San Jacinto 

Citv Water Control and Imnrovement District No. 1, 273 

S.W.2d 586 (Tex. 1954). However, the authority has no 

general police powers to protect the public health and 

general welfare that can be used to force septic tank 

users to abandon those systems in favor of a sewage system 

operated by it, nor any express power to do so. Powers may 

not be implied merely because they are convenient to the use 

of express powers. Tri-Citv Freshwater Suvvlv District No. 

2 of Harris Countv v. Mann, 142 S.W.2d 945, 948 (Tex. 1940). 

The authority has express authority under its enabling 

statute and Water Code provisions to operate a sewage 

disposal system. See Acts 1971, 62d Leg., ch. 430, § 1, at 

1586; Water Code 5 30.021 (regional waste disposal system): 

§ 51.331 (water control and improvement district): g 54.030 

(municipal utility district). However, the authority to 

operate a sewage disposal system does not include the 

implied authority to require all septic tanks to be connected with the system. Septic tanks are not parts of a 

sewer system. See, e.q., McWilliams v. 

1063 (Kan. 1952); 

Barnes, 242 P.2d 

Lake Townshiv. McComb Countv v. Millar, 

241 N.W. 237. 239 IMich. 1932). Chapter 26 of the Water 

Code, which pertains to water .guality control, authorizes 

the Texas Water Commission to issue permits for the 

discharge of waste or pollutants into water in the state. 

Water Code 9 26.027. The following definitions are 

applicable to chapter 26: 

(‘5) 'Waste' means sewage, industrial 

waste, municipal waste, recreational waste, 

agricultural waste, or other waste, as 

defined in this section. 

. . . . 

(14) 'Sewer system' means pipelines, 

conduits, storm sewers, canals, pumping 

stations, force mains, and all other 

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Ms. Betty Strohacker - Page 3 (JM-961) 

constructions, devices, and appurtenant 

appliances used to transport waste. 

(15) 'Treatment facility* means any 

plant, disposal field, lagoon, incinerator, 

area devoted to sanitary landfills, or other 

facility installed for the purpose of 

treating, neutralizing, or stabilizing waste. 

(16) 'Disposal system' means any system 

for disposing of waste, including sewer 

systems and treatment facilities. 

Water Code § 26.001. 

Section 26.031 of the Water Code defines "private 

sewage facilities" to mean 

sevtic tanks, pit privies, cesspools, sewage 

holding tanks, injection wells used to dispose of sewage, chemical toilets, treatment 

tanks, and all other facilities, systems, and 

methods used for the disvosal of sewace other 

than disvosal svstems overated under a vermit 

&e.sued bv the commission. (Emphasis added.) 

Water Code 0 26.031. Thus, the chapter 26 definitions show 

that septic tanks are distinct from a sewer system and not 

part of one. The express power of the Upper Guadalupe River 

Authority to operate a sewer system does not include the 

authority to regulate septic tanks by requiring their 

connection with the system. See also Local Gov't Code 

§ 214.013 (providing that home rule cities may operate 

sewage systems and require connections with a sewer system 

operated by the city); Water Code 5 26.084(a)(l). (Water 

Commission may compel tie-in to regional or area-wide waste 

disposal system designated under section 26.083 of the Water 

Code.) 

The authority has assumed the powers of a municipal 

utility district pursuant to section 54.030 of the Water 

Code, and therefore has the following statutory power: 

A [MUD] may adopt and enforce reasonable 

rules and regulations to: 

(1) secure and maintain safe, sanitary, 

and adequate plumbing installations, connections, and appurtenances as subsidiarv 

parts of its sanitarv sewer svstem . . . . 

(Emphasis added.) 

p. 4879 
Ms. Betty Strohacker - Page 4 (JM-961) 

Water Code 5 54.205. It is suggested that the underlined 

language authorizes a municipal utility district to require 

septic tank users to connect to a sewage treatment system 

operated by it. Section 54.205 does not grant such 

authority. A septic tank is not a "subsidiary part" of the 

sanitary sewer system because it operates in its vlace. 

No other provision in the Water Code specifically 

permits municipal utility districts to force connections by 

septic tank users to sewage disposal operated by it. Nor do 

we think that such a power can be implied from the express 

powers granted to the authority in the code. Ordinarily, 

forcing septic tank users to connect to a sewage system can 

only be considered to be convenient, and not necessary, to 

the operation of a sewage system by a MUD. Tri-Citv Freshwater Suvvlv District, suvra. 

The legislature has, moreover, recognized that septic 

tanks in the appropriate circumstances are adequate means to 

preserve the waters subject to the jurisdiction of the 

district. The 70th Legislature enacted a statute regulating 

the location, design, construction and operation of on-site 

sewage disposal systems, including septic tanks. Acts 1987, 

70th Leg., ch. 406, 5 1, at 1932 (codified at 

V.T.C.S.):l see V.T.C.S. art. 4477-7e, 5 2(7). 

4477-7e, 

The purpose 

clause includes the following legislative findings: 

(2) on-site sewage disposal systems, when 

properly designed and constructed in suitable 

soils, provide a safe and adequate method of 

sewage disposal; and 

(3) in some areas of the state, the soil 

is not suitable for normal underground sewage 

disposal and the improper and unapproved 

construction and installation of on-site 

sewage disposal in those areas has created 

conditions dangerous to the public health. 

V.T.C.S. art. 4477-7e, 5 l(b). 

The Department of Health or its authorized agent is 

responsible for adopting rules regulating on-site sewage 

1. Two other statutes adopted by the 70th Legislature 

were also codified as article 4477-7e, V.T.C.S. See Acts 

1987, 70th Leg., ch. 162, at 1327: Acts 1987, 70th Leg., ch. 

810, at 2808. 

‘1 

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Ms. Betty Strohacker - Page 5 (JM-961) 

disposal and issuing permits to build, alter, repair, extend 

or operate an on-site sewage disposal system. V.T.C.S. art. 

4477-7e, 9s 4, 7. A city, county, river authority, or 

special district may be designated an authorized agent by 

the department and may then exercise the regulatory powers 

set out in article 4477-7e, V.T.C.S. To become an 

authorized agent, a local government must, among other 

statutory requirements, enter an order or resolution which 

meets the department's minimum requirements for on-site 

sewage disposal systems. Id. 5 5(c). 

Article 4477-7e, V.T.C.S., is directed at assisting 

"the state's citizens in obtaining safe and adequate on-site 

sewage disposal systems," not at prohibiting them. Id. 

5 l(a). The department or an authorized agent may refuse a 

permit to construct an on-site sewage disposal system if 

issuing it would conflict with the public policy declared 

under the statute or with other applicable laws, id. 

5 7(e)(2), but may not deny any and all permits or require 

all septic tanks to be connected to a sewage system. Moreover, no permit is required for an on-site sewage disposal 

system for a single residence on a land tract of 10 acres or 

larger, subject to meeting statutory conditions designed to 

protect the public health. Id. 5 7(f). The authority may 

not rely on article 4477-7e, V.T.C.S., to require septic 

tanks to be connected to its sewage disposal system. The 

statute also expresses the legislature's intent to allow 

properly designed and constructed septic tanks and other 

on-site sewage disposal systems to exist, id. § l(b) (2), and 

its recognition that in some areas of the state the soil is 

not suitable for normal underground sewage disposal. Id. 

§ l(b)(3). The legislature's findings and expression of 

intent in article 4477-7e and its adoption of comprehensive 

regulations applicable to septic tanks lend additional 

support to our conclusion that the authority may not rely on 

implied authority to regulate septic tanks requiring connections with their sewage system. 

The authority suggests that because the Local Government Code allows home rule cities to force connections with 

sewage collection systems operated by the city, such a power 

can be delegated by a home rule city to the authority. We 

disagree. Chapter 30 of the Water Code permits cities to 

contract with the authority for the operation of sewage 

disposal systems. Water Code §f, 30.021-035. However, the 

Local Government Code specifies that QP& a home rule 

city may "provide for a sanitary sewer system" and "require 

property owners to connect to the sewer system." Local 

Gov't Code 5 214.013. 

P. 4881 
Ms. Betty Strohacker - Page 6 (JM-961) 

The provision of sewage collection, transportation, and 

disposal is a governmental function of a municipality. 

Dillev v. Citv of Houston, 222 S.W.2d 992 (Tex. 1949); see 

also Gotcher v. Citv of Fannersville, 151 S.W.Zd 565 (Tex. 

1941). cf. Local Gov't Code 5 402.063(e). A municipality 

may not delegate a governmental function to another political subdivision so as to lose control over the discharge 

of the function or to inhibit the exercise of necessary 

discretion by the municipality concerning the function. 

C' v of Farmers Branch v. Citv of Addison, 

(;:x. App 

694 S.W.2d 94 

. - Dallas 1985, writ ref'd n.r.e.); Pidelitv Land 

8 Trust Co. v. Citv of West Universitv Place, 496 S.W.Zd 116 

(Tex. Civ. App. - Houston [14th Dist.] 1973, writ ref'd 

n.r.e.). 

Thus, while a home rule city may by statute contract 

with the authority for the collection, transportation, and 

disposal of sewage, and cities which have the power to force 

property owners to connect to their sewage systems may force 

them to connect with the sewage system operated by the 

authority, such cities may not surrender that power completely and unequivocally to the authority as a condition of 

such a contract. Citv of Farmers Branch, suvra. 

---

In conclusion, the authority has no power to require 

semtic tanks within its boundaries to connect to a sewage 

sy'stem which it operates. 

SUMMARY 

The Upper Guadalupe River Authority, which 

possesses cumulatively the powers of a water 

control and improvement district and a municipal utility district, has no power to force 

septic tank users to connect to a sewage 

disposal system operated by the entity. Home 

rule cities may require septic tank users to 

connect to a sewage system operated by the 

city inside of its corporate limits, but the 

city may not delegate that power to any other 

governmental entity or political subdivision. 

Ver truly yo , J & AfQdh 

-J I M MATTOX 

Attorney General of Texas 

P. 4882 
Ms. Betty Strohacker - Page 7 (JM-961) 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison and 

D. R. Bustion, II 

Assistant Attorneys General 

P. 4883