December 28, 1990
Robert Bernstein, M.D. Opinion No. JR-1278
Commissioner
Texas Department of Health Re: Registration of installers
1100 West 49th Street of on-site sewage disposal
Austin, Texas 78756-3199 systems, and related questions
under chapter 366 of the
Health and Safety Code
(RQ-2037)
Dear Dr. Bernstein:
you ask three questions concerning state and local
regulation of installers of on-site sewage disposal systems1
under chapter 366 of the Health and Safety Code. Chapter
366 codifies article 4477-7e, V.T.C.S., which was repealed
effective September 1, 1989, the date the Health and Safety
.Code took effect. Acts 1989, 71st Leg., ch. 678, § 13, at
3165.
Since your second question is narrower than your first,
we will address it first. you ask whether an "authorized
agent" as defined in chapter 366 may require installers to
meet more stringent registration standards than those
required by the Texas Department of Health [the "depart-
ment"] pursuant to section 366.073. The registration of
1. On-site sewage disposal systems for purposes of
chapter 366 are treatment devices and disposal facilities
that produce not more than 5,000 gallons of waste each day,
are used only for disposal of sewage produced on site, and
are not regulated by the Texas Water Commission. Id.
S 366.002(B). For the most part, these systems are septic
tank systems, aerobic treatment plants and other treatment
devices used by homeowners and small businesses. m
generallv Tex. Engineering ExtensiontServ:c;,toTyi4 A z ;
Univ. System, Qn-Site Seweraae Facili ies -
to 6-12 (July 1989). Installers are persons who are chmpen-
sated by others to construct.,install, alter or repair
on-site sewage disposal systems. Health & Safety Code
5 366.002(5).
P. 6848
Dr. Robert Bernstein - Page 2 (JM-1278)
installers is covered by subchapter E of chapter 366. It
provides that no person may operate as an installer in Texas
unless registered by the department or an authorized agent.
Health & Safety Code 8 366.071. Section 366.073(a) requires
the department to issue or authorize the issuance of
installer registrations. Section 366.073(b) provides that
the department shall issue a registration to an installer if
he completes both an application in compliance with chapter
366 and the training program provided by the department.
"Authorized agents" are local governmental entities
designated by the department to implement and enforce
chapter 366 and the rules adopted by the Texas Board
of Health under chapter 366. Health & Safety Code
5 366.002(l); gee also iB, 5 366.033. For purposes of
chapter 366, the phrase "local governmental entities" refers
to municipalities, counties, river authorities or special
districts. & 0 366.002(6). According to section 366.011,
either the department or an authorized agent has "general
authority over the location, design, construction, installa-
tion, and proper functioning of on-site sewage disposal
systems." Neither subchapter E nor any other provision in
chapter 366 or its predecessor, article 4477-7e, states that
state registration in accordance with chapter 366 '
exclusive .or that authorized agents may not impose rnoi:
stringent installer registration standards or require state
registered installers to register locally. In fact, the one
reference in chapter 366 describing departmental registra-
tion of installers as "statewide" does not indicate any
legislative intent to prohibit more stringent local regula-
tion of installers. a ia, 0 366.077(a) (permitting an
authorized agent as well as the department to revoke an
installer's "statewide registration" for violating chapter
366 or rules adopted under the chapter).
Subchapter C of chapter 366 requires a local govern-
mental entity desiring designation as an authorized agent
to hold a public hearing and adopt an order or resolution
satisfying certain statutory requirements so that it
rather than the department may exercise the general author-
ity provided by section 366.011. Health 6 Safety Code
SS 366.031-.032. Designation takes effect when the
department approves the order or resolution in writing.
L S 366.031(b).
The order or resolution must satisfy the departmentIs
minimum requirements for on-site sewage disposal systems and
include a written enforcement plan. Ig, S 366.032(a); -
&EQ j,& S 366.034(b)'(revocation of an authorized agent's
designation if it does not consistently enforce the minimum
requirements). More stringent requirements are permissible,
P. 6849
Dr. Robert Bernstein - Page 3 (JM-1278)
however, in accordance with section 366.032(b) which
provides:
If the order or resolution adopts more strin-
gent standards for on-site sewage disposal
systems than this chapter or the department's
standards and provides greater public health
and safety protection, the authorized agent's
order or resolution prevails over this
chapter or the standards.
We conclude the legislature intended section 366.032(b) to
authorize any governmental entity that is an authorized
agent to adopt more stringent standards and for such
standards to prevail after their adoption. Our construction
is consistent with the language of article 4477-7e, from
which section 366.032(b) was derived, and with the testimony
presented to the legislature in 1987 on behalf of House Bill
1875, the bill that enacted article 4477-7e.
Section 366.032(b) modifies and combines language from
sections 5(c) and 13 of article 4477-76, V.T.C.S. Acts
1987, 70th Leg., ch. 406, at 1935, 1938. Section 5(c)
stated "[t]he order or resolution may adopt more stringent
standards for on-site sewage disposal systems than the
department's standards." L at 1935. Section 13 stated:
A local governmental. entity's orders and
rules that are more stringent than this
article or rules adopted under this article
and that provide greater protection to the
public health or safety prevail in the local
governmental entity's jurisdiction.
J,& at 1938. The language in section 5(c) that an "order or
resolution may adopt more stringent standards for on-site
sewage disposal systems" clearly constitutes authority for
any governmental entity who is an authorized agent to adopt
more stringent standards, and we conclude that the modifi-
cation of this language from section 5(c) and its combina-
tion with language from section 13 was not intended to make
a change in the law.2
2. Repeal of these and other sections of article
4477-7e and enactment of chapter 366 was part of a non-
substantive codification of existing health and safety laws
and thus was not intended to make substantive legal changes.
(Footnote Continued)
P. 6850
Dr. Robert Bernstein - Page 4 (JM-1278)
Furthermore, the testimony offered in 1987 on behalf of
House Bill 1875 supports our conclusion that the legislature
intended counties and other local entities to have the power
to adopt more stringent standards. Several speakers at a
public hearing held in 1987 on House Bill 1875 referred to
the bill as a means of implementing minimum standards
statewide. Those speakers stated that minimum state stan-
dards would discourage incompetent installers from moving
from counties that currently regulated sewage disposal
systems and installers to counties without such regula-
tions.3 They also testified that the adoption of minimum
state standards in conjunction with a grant of authority to
authorized agents to collect permit fees, 5ee Health &
Safety Code S 366.059, would encourage additional counties
to regulate sewage disposal systems locally and thereby
avoid departmental regulation within their jurisdictions.
No mention was made of any intent to restrict more stringent
(Footnote Continued)
Acts 1989, 71st Leg., ch. 678, g 14, at 3165 (legislation
adopting the Health and Safety Code intended as
recodification only: no substantive change intended);
see alSp -on V. itv of Fort ,Worth, 774 S.W.2d 653,
654-55 (Tex. 1989) (with regard to nonsubstantive revisions
of statutory law, former statutes control over codified
language in cases of conflict): Attorney General Opinion
JM-1230 (1990).
3. In 1987 sections 26.031 and 26.032 of the Water
Code authorized county commissioners courts to regulate
private sewage facilities within their jurisdictions.
Testimony at the public hearing indicated that between 70
and 110 counties were regulating sewage facilities and their
installers locally. winas on Tex. H.B. 1875 Before the
Hou e Comm. on Natural Resources, 70th Leg. (March 25, 1987)
(teztimonies of Larry Soward and R.J. King) (tapes on file
with House Technical Services). House Bill 1875 repealed
sections 26.031 and 26.032 effective September 1, 1989, the
date that the bill required the rules to be adopted by the
state under article 4477-7e to take effect. Acts 1987, 70th
Leg., ch. 406, SS 2-3, at 1938. Given the current language
of section 366.032(b) of the Health and Safety Code, the
prior language of section 5(c), and the public testimony
stating minimum state standards were needed for counties not
regulating sewage disposal facilities, the repeal of
sections 26.031 and 26.032 does not indicate any intent to
deprive counties of their authority to regulate on-site
sewage disposal facilities more stringently than the
department.
P. 6851
Dr. Robert Bernstein - Page 5 (JM-1278)
local regulation or deprive entities such as counties that
were currently regulating sewage facilities or their
installers of their power to do so. See. e.a,, -inas on
Tex. H.B. 1875 Before the House Co- on Natural Resources,
70th Leg. (March 25, 1987) (testimonies of Mark Hoelscher,
Larry Soward, Jack Purcell, R.J. King, representatives of
various state and local entities) (tapes available from
House Technical Services).4
The department's brief filed with us states that sec-
tion 366.032(b) of the Health and Safety Code does permit
authorized agents to adopt more stringent standards. The
brief, however, concludes that authorized agents may adopt
more stringent standards only with regard to on-site sewage
disposal systems and not more stringent standards'for the
registration of installers who hold state registrations, We
disagree with this conclusion.
Section 5(c) does expressly refer only to "more strin-
gent standards for on-site sewage disposal systems" and does
not contain express language referring to more stringent
standards for installer registrations. Nevertheless, the
language of section 366.032(b) permitting authorized agents
in their orders or resolutions to adopt more stringent stan-
dards for on-site sewage disposal systems implies the powers
necessary to carry out the grant of the express power.
Terre11 v. Saark& 135 S.W. 519, 521 (Tex. 1911); Austin
Boad Co. v. Rvg~~g,499 S.W.2d 194, 203 (Tex. Civ. App. -
Fort Worth 1973, writ refrd n.r.e.); 67 Tex. Jur. 3d
Statutes 0 118, at 701-02 (grant of express power conveys
every incidental power necessary and proper to effectuate
legislative grant). As stated earlier, no provision of
chapter 366 or its predecessor, article 4477-7e, states that
state registration is exclusive or that localities may not
impose more stringent registration requirements.5 Thus, an
4. See also House Research Organization Daily Floor
Report - Pt. Two on C.S.H.B. 1875 at 47 (May 6, 1987) (local
government may adopt more stringent standards than the
department).
5. One speaker testifying at the 1987 public hearing
on House Bill 1875 stated that the bill would not prevent a
local entity from imposing more stringent standards if it
wanted to license installers and require some additional
training. That speaker had participated in the Texas Rural
Water Quality Task Force whose work resulted in House Bill
(Footnote Continued)
p. 6852
Dr. Robert Bernstein - Page 6 (JW-1278)
authorized agent who adopts more stringent standards for
on-site sewage disposal systems in its order or resolution
pursuant to section 366.032(b) may adopt more stringent
standards for local registration of installers if those
standards are necessary to ensure that local installers will
satisfy the agent's more stringent disposal system
standards.6
We now turn to your first question. you ask if local
governmental entities, whether or not designated as
authorized agents, may impose certain specific requirements
on installers who hold state registrations. you describe
the requirements as "paying fees, attending training cours-
es, posting surety bonds, or obtaining licenses or registra-
tions." The department's brief contends that chapter 366
preempts all local regulation not in conformance with its
provisions. You have not provided us with the texts of any
existing local orders, resolutions or ordinances adopting
such requirements. You also have not indicated either the
type of entity imposing the requirements or the legal
authority relied upon to impose specific local requirements.
Accordingly, we answer your question only generally.
We address this question first with regard to local
governmental entities that have been designated as author-
ized agents and that possess the power to regulate on-site
sewage disposal systems only under chapter 366. Consistent
with our first answer, authorized agents that have adopted
in their orders or resolutions more stringent standards for
on-site sewage disposal systems pursuant to section 366.032
may adopt additional regulatory requirements necessary to
achieve those more stringent standards as long as the addi-
tional requirements do not directly conflict with chapter
366! Consequently, to be valid, requirements for local
fees,,
1 training, bonds, licenses, or registrations must
ensure compliance with the more stringent standards adopted
(Footnote Continued)
i875. winas on Tex. H.B. 1875, sunra (testimony of R.J.
King, speaking on behalf of the Texas Department of
Agriculture).
6. An agent's more stringent system or installer
standards must not directly conflict with the department's
minimum standards. &8 infra Note 7 and accompanying text;
gee al Q Attorney General Opinion JW-790 (1987) (local
regulation preempted if in direct conflict with state law
that does not exclusively occupy the field).
p. 6853
Dr. Robert Bernstein - Page 7 (JM-1278)
by authorized agents for sewage disposal systems within
their jurisdictions.
We next turn to local governmental entities that
possess statutory or other legal authority outside of
chapter 366 to regulate on-site sewage disposal systems and
their potential threat to the environment and public health.
These entities may or may not be designated as authorized
agents. Local regulations are preempted by state law only
if the regulations are expressly prohibited by state law, if
the legislature intended state law to exclusively occupy the
field, or if the regulations directly conflict with state
law. &.8 Attorney General Opinions JW-790, 374-619 (1987).
As we previously stated, we do not find in chapter 366
or in its predecessor, article 4477-7e, any express prohibi-
tion against local regulations that reflect local soil and
water conditions as well as local public health concerns.
m Attorney General Opinion JW-1195 (1990) (express
statutory provision that local licenses not required) with
Attorney General Opinion JW-994 (1988) (no express prohibi-
tion in Controlled Substances Act on local regulation of
abusable glues). Furthermore, the legislature expressly
repealed only sections 26.031 and 26.032 of the Water Code
when it passed House Bill 1875, and even then it replaced
those sections with section 5(c) of article 4477-7e, now
section 366.032(b) of the code. w a, n-3. No provi-
sion of either chapter 366 or article 4477-7e suggests the
legislature intended to repeal by implication any legal
authority to regulate on-site sewage disposal systems at the
local level.
Implicit in our first answer was the determination that
the legislature did not intend chapter 366 or its prede-
cessor, article 4477-7e, to exclusively occupy the' field
of on-site sewage disposal regulation. Read as a whole,
chapter 366 imposes minimum statewide standards and a state
registration requirement to protect communities within
counties imposing little or no regulation. Chapter 366 does
not indicate any legislative intent to negate equivalent or
more stringent local regulation authorized by the charters
of home rule cities or by state laws. Comnare Attorney
General Opinion JW-1195 (1990) (insurance coverage required
by state law indicates legislative intent to preempt local
bond requirements) & Attorney General Opinion JW-790
(1987) (detailed state landlord and tenant law indicates
legislative intent to occupy field and preempt all local
regulation) a Attorney General Opinion JW-994 (1988)
(state authority to regulate sale of abusable glues does not
per se preempt local ordinance requiring business personnel
to assist customers in such sales) ti Attorney General
p. 6854
Dr. Robert Bernstein - Page 8 (JM-1278)
Opinion JM-226 (1984) (state public health statutes do not
preempt municipal standards for storage of hazardous waste).
In addition, various speakers at the public hearing in
1987 referred to a need for statewide minimum requirements
and the creation of incentives to encourage more counties to
regulate on-site systems. No speaker described House Bill
1875 Asia restriction on or implied repeal of local powers
to promote the public health and protect the environment.
See. e .a. &&rinas on TeX. H.B. 1875 m (testimonies of
Mark Hoe&her. Wavne Farrell, Larrv ioward and R.J. Kina).
Thus, we conclude -that the iegisliture did not intend -to
occupy the field of on-site sewage disposal system
regulation.
Nevertheless, local governmental entities may not adopt
regulations that impose standards in direct conflict with
chapter 366.7 Standards less stringent than those imposed
under chapter 366 would directly conflict with state law
and thus would be preempted. &8 Health 61 Safety Code
55 366.032(a)(2), 366.034(b). Also preempted would be local
regulations allowing installers to construct or alter on-
site sewage disposal systems locally without state registra-
tions or approved permits as required by chapter 366. See
& 59 366.051, 366.071. Furthermore, additional pea
fees for costs covered by the state permit fees would
directly conflict with state law. Additional registration
and licensing fees also may not be charged by local entities
for costs already covered by the state registration fees.
~n§~o;66.001(2), 366.058, 366.074. Conclusive determina-
the validity of a particular fee, license,
7. Local entities, however, may adopt local regula-
tions that are ancillary to and in harmony with then general
scope and purpose of the state law. mv of Brookside
Villaae C meau, 633 S.W.2d 790, 796 (Tex.), cert. denied,
459 U.S.";OBy (1982) (general law city). A local regulation
and a state law should not be found repugnant if any
reasonable construction can give effect to both provisions.
v. c of Dallu 702 S.W.2d 291 (Tex. APP. -
Dallas 1985, writ ref'd n.i.e.) (home rule city). Limita-
tions on local power will not be implied unless the pro-
visions of the .-qeneral law 'are clear and compellinq.l@
Jh)wr C 1 r d Ri er Auth . Citv of San Marcos, 523 S.W;Zd
641: 64; O(geE. lz75) (h:rnzrule city) ; ss3uUc2 Citv of
peslaco v. Melt n 308 S.W.Zd 18, 21 (Tex. 1957) (more
stringent regula% by home rule city in some instances
constitutes a separate field of regulation).
p. 6855
Dr. Robert Bernstein - Page 9 (JM-1278)
registration, bonding or training requirement, however,
would depend on factual determinations that cannot be made
as part of the opinion process.
Your last question concerns the registration of li-
censed plumbers as installers. you ask whether individuals
licensed as plumbers in accordance with article 6243-101,
V.T.C.S., must be registered as installers as required by
chapter 366.
Chapter 366 does not exempt state licensed plumbers
from its registration requirements. Section 366.071 re-
quires all persons operating as installers of on-site sewage
disposal systems in this state to be registered by the
department or an authorized agent. As mentioned earlier, an
"installerw is defined by section 366.002(5) as any person
who receives compensation from another to construct, in-
stall, alter, or repair on-site sewage disposal systems.
See also 25 T.A.C. 55 301.107(a)(5), 301.107(j) (property
owner exempt from registration with regard to facilities on
his property).
Neither does article 6243-101 exempt licensed plumbers
from the registration requirements of chapter 366. Section
3(e) of that article currently provides that plumbers
holding a license from the Texas State Board of Plumbing
Examiners are not "required to be licensed by any other
board or agency when installing or working on a lawn irriga-
tion system.' No other provision of article 6243-101 or any
other state law exempts licensed plumbers from the registra-
tion requirements of chapter 366.
We are aware that the statutory definitions of "plumb-
ing" and "on-site sewage disposal system" create some regu-
latory overlap. &S V.T.C.S. art. 6243-101, 5 2 (plumbing
includes all piping, appurtenances and appliances for the
elimination of sewage, including disposal systems): Health &
Safety Code 5 366.002(B) (one or more treatment or disposal
systems producing not more than 5,000 gallons of on-site
waste daily). Although particular actions may fall within
only one of the two definitions or within both definitions,
we are unable to resolve questions of fact in the opinion
process. Thus, we limit our discussion to the legal issue
of whether a state licensed plumber must obtain a state
installer registration to operate as an installer for
purposes of chapter 366.
With regard to the legal issue,.this office has previ-
ously held that statutory exemptions are necessary to avoid
state licensing requirements. See.%, Attorney General
Opinion H-495 (1975); see also Attorney General Opinion
P. 6856
Dr. Robert Bernstein - Page 10 (JM-1278)
H-960 (1977) (affirming holding of H-495); Attorney General
Opinion H-890 (1976) (state agencies cannot create by
contract licensing exemptions not available by statute).
Therefore, we conclude that individuals holding valid state
plumbing licenses must also be registered as installers in
accordance with chapter 366 before constructing, installing,
repairing, or altering an on-site sewage disposal system in
this state for compensation.
SUMMARY
A local governmental entity that has been
designated an authorized agent for purposes
of chapter 366 of the Health and Safety Code
may adopt more stringent standards for on-
site sewage disposal systems in its order or
resolution pursuant to section 366.032(b) of
the code. An ~authorized agent that adopts
more stringent standards for on-site sewage
disposal systems pursuant to that section may
adopt more stringent standards for local
registration of installers if those standards
are necessary to ensure that local installers
will satisfy the agent's more stringent
disposal system standards. Thus, authorized
agents are authorized by section 366.032(b)
to require additional fees or training, local
licenses or registrations, and the posting of
surety bonds if necessary to ensure accom-
plishment of their more stringent standards
for on-site sewage disposal systems. Local
standards must not directly conflict with
chapter 366 of the Health and Safety Code.
Furthermore, chapter 366 of the Health and
Safety Code does not preempt local regula-
tions not directly in conflict with its
requirements that are adopted by local
governmental entities in accordance with
other legal authority. Thus, local govern-
mental entities, whether or not they are
designated as authorized agents, may adopt
more stringent requirements than the state
for on-site sewage disposal systems and their
installers if they possess the legal
authority to do so and if such requirements
do not directly conflict with chapter 366.
Individuals who hold state plumbing
licenses in accordance with article 6243-101,
P- 6857
Dr. Robert Bernstein - Page 11 (JM-1278)
V.T.C.S., must obtain state installer regis-
trations ;;s;IEiretltir chapter 366 to con-
struct, on-site
sewage disposal iystems fz: cz$%ation in
this state.
JIM MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
Lou MCCREARY
,ExecutiveAssistant Attorney General
JUDGE ZOLLIE STFAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chai,man, Opinion Committee
Prepared by Celeste A. Baker
Assistant Attorney General
P- 6858