TISEATFORNEY GENERAL
OF v?ExAH
AUFJTIN. -rExAs 7f3711
April 23, ,197O
Mr. Charles R. Barden, P.E. Opinion No. H- 616
Executive Secretary
Texas Air Control Board Re: Extent of authority
1100 West 49th Street of a city-county
Austin, Texas 78756 health district
establishedunder
Article 4447a, V.C.S,.
to enforce air
Dear Wr. Barden: pollution laws
You have requested our opinion as to whether a city-
county health district (Articlew7a, Vernon's Civil
Statutes),which is now defined in Article 4477-5 as a
"local government,"can make rules and regulationsor
otherwise enforce the air pollution laws. You ask whether
our former opinion M-257 (1968) has been altered by the 1969
amendatory revision of Article 4477-5, Vernon's Civil
Statutes. That opinion, insofar as thfs request is concerned,
held that a city-countyhealth un$t was not at that time
defined as a “local government"under the Texas Clean Air
Act 80 as to authorize such entity to enforce the law.
The Legislaturehas subsequentlyamended the Texas
Clean Air Act. (Acts 1969, 6lst Leg., R.S., p. 817
ch. 273, being S.B. 48, codified by Vernon as Art. b+77-5).
This Act became effective September 1, 1969; Section 1.03
(7), thereof reads as follows:
m llocal government@means a county;
an incorporatedcity or town; or a
health district establlshedunder
authority of Chapter 63, Act6 of the
51st Legislature,1949, as amended by
Chapter 239, Acts of the 56th
Legislature,1959 (Articlew?s,
Vefnon~s:.TeXasCivil Statutes)."
Article w7a, authorizes a County Commissioner
Court, the municipal authoritiesof any one or more cities,
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Mr. Charles R. Barden, page 2, (M- 616)
towns, school boards and school districts,and any other
governmentalentity to create tit -county health districts
by written "agreement." Section $ of Article 4bb7a provides
that a "health district may perform all the functions
pertaining to public health which any of its component
members is authorized to perform." We are of the opinion
that Article 4447a is a valid general grant by reference
from the TexasLegislature to this regional district of all
of the powers relating to public health and abatement of
pollution that are possessed by the component agencies who
agree to form the health district. 53 Tex. Jur. 26 137
Statutes, Sec. 92; 82 C.J.S., Statutes, Sec. 370, page h48;
50 Am. Jur., Statutes, Sec. 39, pages 58-5 ; Trimmier v.
Carlton, 1.16 Tex. 572, 296 S.W. 1070 (19273 ; z Ruli Case
Sec. 160, page 908; 59 C.J. Statutes, Sec. 624,:age
All health districtswould thus have the powers
delegated to local governmentsunder SubchapterE of the
Texas Clean Air Act, including the power to enforce the Act
and such rules and regulation8of the Texas Air Control
Board promulgated pursuant thereto.
However, the Act gives only incorporatedcities or
towns the right to enact and enforce ordinances for the
abatement of air pollution, so that a city or town would
have to be a party to the agreement enacting the district
before the city-countyhealth district would have the power
to ordain and adopt ordinances not inconsistentwith state
rules. Sec. 5.05, Texas Clean Air Act.
To the extent that Attorney General Opinion No. M-257
supra, ehould conflict. with this holding, such prior
opinion Is hereby modified to the extent of any conflict
because of the re-definitionof "local government"by the
1969 amendment to the Texas Clean Air Act. Such a Legisla-
tive Act does not take away the resent duties and powers of
cities and counties since Art. 4t.4
?a is not an exclusive act;
nor would appointment of a counsel for a city-countyhealth
unit diminish the authority of a city attorney or county
attorney should such units of local government desire to
file individual suits to abate air pollution even after
creating the health district. Attorney General Opinion c-782
(1966). A city or county would not lessen their legal duties
to abate water or air pollution by virtue of any agreement
for these duties also to be done for them by a health
district.
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or. Charles R. Rarden, Page 3, (M- 616)
A county has only those powers or duties as are
conferred by the constitutionand statutes of the state.
15 Tex. Jur. 2d, Counties, Sec. 80, page 307. A clty-
county health district, one of whose members is a city,
can ordain or adopt health and pollution rules so long
as such ordinance is not "inconsistentwith" the Texas
Clean Air Act. Section 5.05 (a) (2), Texas Clean Air
Act.
SUMMARY
-------
City-countyhealth districts (Article
u7a, V.C.S.) are defined as
local governments"under the Texas
Clean Air Act and have legal authority
to file suits in their own name to
enforce the Texas Clean Air Act, or
to enforce rules and regulationsof
Texas Clean Air Act, or to ,enforce
rules and regulationsof Texas Air
Control Board. All duties of cities
or counties to act through a "local
governmentI'to abate air pollution
continue to exist even if enforcement
is done through a city-countyhealth
district. Article V, Sec. 21,
Texas Constitution. A health district
or "local government" has the seme
power to ordain or adopt health
pollution rules as a city If an ln-
corporated city or town is a party
to the agreement creating the health
district.
General of Texas
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Mr. Charles R, Barden, page 4, (M-616)
Prepared by Roger Tyler
Assistant Attorney General
APPROVED:
OPINION coMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
Roland Allen
Houghton Brownlee
John Grace
JohnBanks
MEADE F. GRIFFIN
Staff Legal Assistant
ALFREDWA&KER
Executive Assistant
NOLA WHITE
First Assistant
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