THE ATIXBRSEY GESERAI.
OF TEXAS
Honorable Hugh Yantis Opinion No. M-891
Executive Director
Texas Water Quality Board Re: Power to Contract on
Austin, Texas 78701 behalf of State of
Texas for Federal
grants or loans under
the Federal Water
Dear Mr. Yantis: Pollution Control Act.
You have asked our opinion as to the powers of Texas
Water Quality Board and of yourself as Executive Director
thereof to contract with the Federal Government. You ask
three questions:
1) Based on the Water Quality Fund Program,
does the Texas Water Quality Board, acting
on behalf of the State of Texas and through
its Executive Director, have the authority
to certify and agree that the State of Texas
will pay 25% of the estimated reasonable
costs of all treatment works projects for
which Federal grants are to be made under
the Federal Water Pollution Control Act,
the construction contracts on which are
let on or after July 1, 19707
2) Would such a certification and agreement
of the Texas Water Quality Board be binding
on the State of Texas?
3) Is the Executive Director of this agency,
acting on behalf of and pursuant to the
directive of the Texas Water Quality Board,
authorized to execute such a certification
and agreement and bind the State?
With two exceptions, to,be hereinafter discussed, all
three questions are answered in the affirmative. Your
organic law authorizes agreements with the Federal
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-Honorable Hugh Yantis, Page 2 (M-891)
Government. Section 3.25, Texas Water Quality Act;
Article 7621d-1; Section 21.087, Texas Water Code. This
law specifically relates to Texas Water Quality Board
and provides:
Federal grants
Sec. 3.25. The board may execute agree-
ments with the Department of the Interior, the
Federal Water Pollution Control Administration
or any other federal agency that administers
programs providing federal cooperation,
assistance, grants, or loans for research,
development, investigation, training, planning,
studies, programming, and construction related
to methods, procedures, and facilities for the
collection, treatment, and disposal of waste
or other water quality control activities.
The board may accept federal funds for these
purposes and for other purposes consistent
with the objectives of this Act and may use
the funds as prescribed by law or as provided
by agreement.
To further assure that Texas Water Quality Board can
contract with the United States Government on behalf of
the State of Texas, your attention is invited to your
further authorizations found in Section 7.12 of House
Bill 1440, Acts of the 62nd Leg., Regular Session,
effective May 14, 1971. Related authority and support
for such contracts by Texas Water Quality Board on
behalf of the State of Texas is found in Section 21.095,
of House Bill 1412, Acts of the 62nd Leg., Regular
Session, effective May 31, 1971; Section 21.095, of the
Texas Water Code. This office had already approved the
River Authority Compact plan in Opinion M-822, dated
March 30, 1971.
In view of the foregoing discussion of the statutory
authority of your~Board to contract, and after considering
the Resolution of Texas Water Quality Board dated May
20, 1971, authorizing you as Executive Director to sign
for the Texas WaterQuality Board, you can bind the
State, subject to two objections to be hereinafter
discussed.
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Honorable Hugh Yantis, Page 3 (M-891)
Your first question also encompasses whether the
Board, or you as Executive Director thereof, may apply
to the Environmental Protection Agency to certify waste
water treatment works within Texas back to July 1,
1970. Section 8, of the Federal Water Pollution Control
Act specifically provides for such a procedure and we
find the basic authority of your Board broad enough to
contract and certify to the Federal Government such
reimbursable projects as your Board find have met or can
meet the Federal law.
Likewise, under Section 8(b) (71, Federal Water
Pollution Control Act, we find no reasons under the broad
provisions of Texas law why the percentage limitations
on previous grants cannot be increased and related back
to July 1, 1970.
One impediment to the contracts you mention is
found in Article 9.32 of the Texas Election Code which
reads in part as follows:
"Within sixty (60) days from the date of
any election upon any proposed amendment to the
Constitution, and not thereafter, any citizen
of this State who is a qualified voter, should
have the right to contest said election by
filing his petition in a district court of
Travis County, fully stating his grounds for
contest,..."
Senate Joint Resolution No. 17, which was adopted by
the Texas electorate at an election held on May 18, 1971,
added a new Section 49-d-l to Article III of the Texas
Constitution. This is the real basis for the new proce-
dures whether to obtain waste water treatment by issuance
of bonds or by direct assistance contracts, and any
certification to the United States Government would by
law be subject to the said Article 9.32 election contest
until after July 18, 1971, (60 days after the election
of May 18, 1971).
Any contract with the Federal Government by Texas
Water Quality Board must bear the approval of the Governor
of Texas. Art. IV, Sec. 10, Texas Constitution. This
requirement for the Texas Governor's approval is explained
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Honorable Hugh Yantis, Page 4 (M-891)
in Opinion M-312, dated December 10, 1968, which sets
forth a proper endorsement for the Governor.
SUMMARY
Texas Water Quality Board through its
Executive Director may contract for the State
of Texas with the Federal Government for
Federal grants or loans available under Sec-
tion 8 of the Federal Water Pollution Control
Act. This contractual authority is subject
to the 60-day limitation contained in Article
9.32 of the Texas Election Code and to the
Constitutional requirement that the Governor
of Texas approve the Federal Contract.
Prepared by Roger Tyler
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Scott Garrison
Mike Stork
Pat Bailey
R. D. Green
Bob Flowers
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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