Can a Texas river authority or water district force property owners on septic tanks to hook up to its sewer system?

Texas AG Opinion JM-961: Can a River Authority Force a Sewer Hookup?

Plain-English summary

If you live on a septic tank and a regional water authority builds a sewer line down your road, can it make you dig up the tank and tie into the sewer? For the Upper Guadalupe River Authority, the answer in 1988 was no. The authority asked whether it could compel septic tank owners across its service area to connect to a sewage system it runs, and the Attorney General said the authority simply does not have that power, whether it acts on its own or under a contract with a city.

The reasoning starts with a basic rule about government entities like this one: they have only the powers the legislature gives them, plus whatever is genuinely necessary to carry those powers out. The authority holds the combined powers of a water control and improvement district and a municipal utility district, and those include running a sewage disposal system. But there is a difference between the power to operate a sewer system and the power to force everyone nearby onto it. Texas courts do not let a district imply a new power just because it would be convenient. Forcing septic users to connect might be convenient for the authority, but convenient is not the same as necessary, so no implied power arises.

The Water Code backs this up in its own definitions. Chapter 26 treats septic tanks as "private sewage facilities," a category expressly set apart from a "sewer system." A septic tank is not a piece of a sewer network; it is an alternative to one. So the authority's power to run a sewer system does not stretch to regulating or eliminating septic tanks. The authority pointed to a municipal utility district's power to require safe plumbing connections that are "subsidiary parts" of its sewer system, but the Attorney General explained a septic tank is not a subsidiary part of anything. It works in the sewer system's place, standing on its own.

There was also a signal from the legislature itself. Not long before this opinion, lawmakers passed a comprehensive on-site sewage disposal statute that regulates the location, design, and construction of septic systems and sets up a permitting process run by the Department of Health or a designated local agent. That statute declares that properly designed septic systems, in suitable soil, are a safe and adequate way to dispose of sewage, and it even exempts single homes on ten acres or more from needing a permit at all. A legislature that just built a careful framework for keeping septic tanks around is not one that quietly authorized a river authority to abolish them by forcing everyone onto a sewer.

The authority had a fallback argument: home rule cities can require property owners to connect to a city sewer, so maybe a city could delegate that power to the authority. The Attorney General agreed cities have that power and can even require residents to connect to a system the authority operates on the city's behalf under a Water Code contract. But a city cannot simply hand the power off. Providing sewer service is a governmental function, and a city may not surrender control of a governmental function to another entity in a way that strips the city of its discretion. So a home rule city can contract with the authority and can direct connections, but it keeps the reins; it cannot delegate away the connection power itself.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The statutes this opinion relies on have been reorganized and amended since 1988. Article 4477-7e, V.T.C.S., the on-site sewage disposal law, was later codified into the Health and Safety Code, and the state agency that administers on-site sewage rules changed as Texas reorganized its environmental and health functions. The Water Code and Local Government Code provisions on district powers and city sewer connections have also been revised. The general principle, that a special-purpose district has only its express powers plus those necessarily implied, and that a city cannot abdicate control of a governmental function, remains sound, but anyone dealing with a forced sewer connection today should check the current statutes and rules for the specific district and city involved rather than the 1988 citations here.

Who this opinion affected (as of 1988)

Septic tank owners in the authority's service area: The opinion protected them from being forced by the river authority to abandon their tanks and connect to its sewer system.

The Upper Guadalupe River Authority (and similar districts): The opinion confirmed that operating a sewer system does not carry an implied power to compel septic connections, and that a city cannot delegate its connection power to the district.

Home rule cities: The opinion confirmed cities keep the power to require connections inside their limits, including to a system the authority runs for them, but cannot give that power away.

Common questions

Could the river authority make septic owners connect to its sewer?
No. The Attorney General concluded the authority had no express or implied power to force septic tank users to connect to a sewer system it operates, either on its own or under a contract with a city.

Why doesn't running a sewer system include forcing everyone onto it?
Because a district's powers are limited to what the legislature grants plus what is necessary, not merely convenient. The Water Code also treats septic tanks as private facilities separate from a sewer system, so operating a sewer does not include regulating septic tanks.

Can a city force property owners to connect to a sewer?
Yes. Home rule cities have express statutory power to require property owners to connect to a city sewer system within the city limits, and can require connection to a system the authority operates for the city under contract.

Can a city hand that power to a river authority?
No. Sewer service is a governmental function, and a city may not delegate it away in a manner that surrenders the city's control and discretion over the function.

Background and statutory framework

The Upper Guadalupe River Authority asked whether it could compel septic tank users within its boundaries to connect to a sewage gathering, transmission, and disposal system operated by the authority, either directly or under an agreement with another governmental entity, across six location categories: inside a home rule city, in a home rule city's extraterritorial jurisdiction, outside both, inside a general law city, inside the boundaries of an entity holding a certificate of convenience and necessity for sewer service, and outside all of those.

The Attorney General concluded the authority has no power, express or implied, to compel septic tank users to connect. The authority has the power to treat and dispose of sewage generated within its service area (Parker v. San Jacinto City Water Control and Improvement District No. 1, 273 S.W.2d 586 (Tex. 1954)), and it has express authority under its enabling act and the Water Code to operate a sewage disposal system (Acts 1971, 62d Leg., ch. 430; Water Code sections 30.021, 51.331, 54.030). But the authority has no general police power to protect public health that could force septic users to abandon their systems, and no express power to require connection. Powers may not be implied merely because they are convenient to the exercise of express powers (Tri-City Fresh Water Supply District No. 2 of Harris County v. Mann, 142 S.W.2d 945, 948 (Tex. 1940)).

Septic tanks are not part of a sewer system (see McWilliams v. Barnes, 242 P.2d 1063 (Kan. 1952); Lake Township, Macomb County v. Millar, 241 N.W. 237, 239 (Mich. 1932)). Chapter 26 of the Water Code, which governs water quality control, defines a "sewer system" as pipelines, conduits, and appurtenant devices used to transport waste, and a "disposal system" as any system for disposing of waste (Water Code section 26.001). Section 26.031 separately defines "private sewage facilities" to mean septic tanks, pit privies, cesspools, sewage holding tanks, and other facilities used for the disposal of sewage other than disposal systems operated under a commission permit. These definitions show that septic tanks are distinct from a sewer system and not part of one, so the authority's power to operate a sewer system does not include the power to require septic tanks to connect. Home rule cities are separately authorized to operate sewage systems and require connections (Local Government Code section 214.013), and the Water Commission may compel tie-in to a regional or area-wide waste disposal system it designates (Water Code section 26.084(a)(1)).

Having assumed municipal utility district powers under Water Code section 54.030, the authority may adopt rules to secure and maintain safe plumbing installations, connections, and appurtenances "as subsidiary parts of its sanitary sewer system" (Water Code section 54.205). The Attorney General concluded that language does not authorize forcing septic connections, because a septic tank is not a subsidiary part of the sewer system; it operates in the system's place. No other Water Code provision permits a municipal utility district to force such connections, and the power cannot be implied, because forcing connection is convenient rather than necessary to operating the system (Tri-City Fresh Water Supply District, supra).

The legislature has recognized that septic tanks in appropriate circumstances adequately preserve the waters within the district's jurisdiction. 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, codified at article 4477-7e, V.T.C.S.). Its findings state that on-site systems, when properly designed and constructed in suitable soils, provide a safe and adequate method of sewage disposal, and that in some areas the soil is not suitable and improper construction has created public health dangers. The Department of Health or its authorized agent adopts rules and issues permits, and a city, county, river authority, or special district may be designated an authorized agent by entering a qualifying order or resolution (article 4477-7e, sections 4, 5(c), 7). The statute is directed at helping citizens obtain safe on-site systems, not at prohibiting them; a permit may be refused if issuing it would conflict with the statute's public policy or other law, but the agent may not deny all permits or require all septic tanks to connect to a sewer, and no permit is required for a single residence on a tract of ten acres or larger meeting statutory conditions (article 4477-7e, sections 1(a), 7(e)(2), 7(f)). This framework lends further support to the conclusion that the authority may not rely on implied authority to force septic connections.

On delegation, chapter 30 of the Water Code permits cities to contract with the authority for the operation of sewage disposal systems (Water Code sections 30.021-30.035), and Local Government Code section 214.013 provides that a home rule city may provide for a sanitary sewer system and require property owners to connect to it. The provision of sewage collection, transportation, and disposal is a governmental function of a municipality (Dilley v. City of Houston, 222 S.W.2d 992 (Tex. 1949); see also Gotcher v. City of Farmersville, 151 S.W.2d 565 (Tex. 1941)). A municipality may not delegate a governmental function to another political subdivision so as to lose control over the discharge of the function or inhibit the exercise of necessary discretion (City of Farmers Branch v. City of Addison, 694 S.W.2d 94 (Tex. App. - Dallas 1985, writ ref'd n.r.e.); Fidelity Land & Trust Co. v. City of West University Place, 496 S.W.2d 116 (Tex. Civ. App. - Houston [14th Dist.] 1973, writ ref'd n.r.e.)). A home rule city may therefore contract with the authority and may require property owners to connect to a system the authority operates for the city, but it may not surrender that power completely and unequivocally to the authority as a condition of the contract.

Citations

Statutory authority:

• Section 26.001, Water Code (definitions of sewer system, treatment facility, and disposal system)
• Section 26.031, Water Code (definition of private sewage facilities, including septic tanks)
• Section 54.205, Water Code (municipal utility district rules for subsidiary parts of its sewer system)
• Section 54.030, Water Code (assumption of municipal utility district powers)
• Section 30.021, Water Code (city contracts with the authority for sewage disposal operation)
• Section 214.013, Local Government Code (home rule city power to require sewer connections)
• Article 4477-7e, V.T.C.S. (on-site sewage disposal systems; Department of Health permitting)

Cases:

• Parker v. San Jacinto City Water Control and Improvement District No. 1, 273 S.W.2d 586 (Tex. 1954) (authority may treat and dispose of sewage in its service area)
• Tri-City Fresh Water Supply District No. 2 of Harris County v. Mann, 142 S.W.2d 945 (Tex. 1940) (powers not implied merely because convenient)
• McWilliams v. Barnes, 242 P.2d 1063 (Kan. 1952) (Kansas Supreme Court; septic tanks not part of a sewer system)
• Lake Township, Macomb County v. Millar, 241 N.W. 237 (Mich. 1932) (Michigan Supreme Court; septic tanks not part of a sewer system)
• Dilley v. City of Houston, 222 S.W.2d 992 (Tex. 1949) (sewage service is a governmental function)
• Gotcher v. City of Farmersville, 151 S.W.2d 565 (Tex. 1941) (governmental function of a municipality)
• City of Farmers Branch v. City of Addison, 694 S.W.2d 94 (Tex. App. - Dallas 1985, writ ref'd n.r.e.) (city may not surrender control of a governmental function)
• Fidelity Land & Trust Co. v. City of West University Place, 496 S.W.2d 116 (Tex. Civ. App. - Houston [14th Dist.] 1973, writ ref'd n.r.e.) (limits on delegating governmental functions)

Prior Attorney General opinions referenced: none.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-961
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0961.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. The scanned page 1 header renders the opinion number as "JR-961"; the correct number is JM-961, as shown in the running headers and the file.

THE ATTORNEY GENERAL OF TEXAS

September 30, 1988

Ms. Betty Strohacker
President
Upper Guadalupe River Authority
P.O. Box 1278
Kerrville, Texas 78029

Opinion No. JM-961

Re: Authority of the Upper Guadalupe River Authority to compel septic tank users within 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, and disposal system operated by the authority, 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 wholly within the service area of the authority, including:

(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 (1)-(5).

We conclude that the authority has no power, either express or implied, to compel septic tank users to connect 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 City Water Control and Improvement 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-City Fresh Water Supply District No. 2 of Harris County 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, section 1, at 1586; Water Code section 30.021 (regional waste disposal system); section 51.331 (water control and improvement district); section 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.g., McWilliams v. Barnes, 242 P.2d 1063 (Kan. 1952); Lake Township, Macomb County v. Millar, 241 N.W. 237, 239 (Mich. 1932). Chapter 26 of the Water Code, which pertains to water quality control, authorizes the Texas Water Commission to issue permits for the discharge of waste or pollutants into water in the state. Water Code section 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 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 section 26.001.

Section 26.031 of the Water Code defines "private sewage facilities" to mean

septic 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 disposal of sewage other than disposal systems operated under a permit issued by the commission. (Emphasis added.)

Water Code section 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 section 214.013 (providing that home rule cities may operate sewage systems and require connections with a sewer system operated by the city); Water Code section 26.084(a)(1) (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 subsidiary parts of its sanitary sewer system . . . . (Emphasis added.)

Water Code section 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 place.

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-City Fresh Water Supply District, supra.

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, section 1, at 1932 (codified at article 4477-7e, V.T.C.S.); see V.T.C.S. art. 4477-7e, section 2(7). 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, section 1(b).

The Department of Health or its authorized agent is responsible for adopting rules regulating on-site sewage disposal and issuing permits to build, alter, repair, extend or operate an on-site sewage disposal system. V.T.C.S. art. 4477-7e, sections 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. section 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. section 1(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. section 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. section 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. section 1(b)(2), and its recognition that in some areas of the state the soil is not suitable for normal underground sewage disposal, id. section 1(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 sections 30.021-30.035. However, the Local Government Code specifies that only 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 section 214.013.

The provision of sewage collection, transportation, and disposal is a governmental function of a municipality. Dilley v. City of Houston, 222 S.W.2d 992 (Tex. 1949); see also Gotcher v. City of Farmersville, 151 S.W.2d 565 (Tex. 1941); cf. Local Gov't Code section 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. City of Farmers Branch v. City of Addison, 694 S.W.2d 94 (Tex. App. - Dallas 1985, writ ref'd n.r.e.); Fidelity Land & Trust Co. v. City of West University Place, 496 S.W.2d 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. City of Farmers Branch, supra.

In conclusion, the authority has no power to require septic tanks within its boundaries to connect to a sewage system 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.

Very truly yours,

JIM MATTOX
Attorney General of Texas

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