THE A~TORNEP $~ENEWAL
Honorable Hugh C. Yantis, Jr. Opinion No. M-894
Executive Director
Texas Water Quality Board Re: Power to Contract on behalf of
1108 Lavaca Street State for increased Federal
Austin, Texas 78701 grants under the Federal Water
Pollution Control Act.
Dear Mr. Yantis:
You request our opinion as to the powers of the Texas Water Duality
Board, acting through you as Executive Director thereof, to bind the State
of Texas under a certification and agreement with the Federal Government
to provide state financial assistance of not less than 25% of the estimated
reasonable cost of construction of every waste treatment works project in
this State on which the Federal Government makes a grant offer under Section
8(b) of the Federal Water Pollution Control Act (33 U. S. C. 1158) and on which
a construction contract had not been let prior to July 1, 1970. Your opinion
request is predicated on the adoption by the people of the State of Texas on
May 18, 1971, of the constitutional amendment codified as Article III; Section
49-d-1,. Constitution of Texas, and the passage by the 62nd Texas Legislature
at its Regular Session, 1971, of House Bills Nos. 1412 and 1440, which es-
tablish a program authorizing the sale of State bonds to obtain funds with which
to provide state financial assistance for the construction of waste treatment
works.
We have previously issued Attorney General Opinion No. M-822 (1971),
in which we approved the State of Texas Water Pollution Control Compact as a
State Agency to provide the state construction assistance required under the
Federal Water Pollution Control Act, on the basis of which you state you have
previously submitted a certification and agreement with an effective date of
April 15, 1971.
The effect of your present request is to inquire whether you may make
a new certification and agreement based on the recently established state bond
program, supplemented by the State of Texas Water Pollution Control Compact,
and move the effective date of the state construction assistance program back
to July 1, 1970. In connection with this opinion request, you have submitted the
following items:
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Honorable Hugh Yantis, Jr., Page 2 (M-894)
(a) Excerpt from the minutes of the meeting of
the Texas Water Quality Board on May 20, 1971, author-
izing the new certification and agreement with an effective
date of July 1 r 1970, and authorizing the Executive Di-
rector to execute it on behalf of the Board.
(b) The new certification and agreement dated
June 22, 1971, (with an effective date of July 1, 1970),
to be submitted to the Environmental Protection Agency.
(c) Proposed proclamation suggested for issuance
by the Governor of Texas approving the new certification
and agreement.
The specific questions you ask are as follows:
(1) Is the new certification and agreement dated
June 22, 1971, valid and binding on the State of Texas?
(2) Is the Executive Director of this agency, act-
ing on behalf of and pursuant to the directive of the Texas
Water Quality Board, authorized to execute the new cer-
tification and agreement and bind the State?
(3) Should the new certification and agreement be
approved by the Governor?
(4) If your answer to question (3) is in,the af-
firmative, will the enclosed proclamation suggested for
issuance by the Governo~r satisfy the requirement of the
Governor’s approval?
All four questions are answered in the affirmative. Reference is
made, however, to our recommendation discussed hereafter concerning
the date of issuance of bonds.
Your organic law authorizes agreements with the Federal Govern-
ment. Section 3. 25, Texas Water Quality Act; Article 7621d-1; Section
21.. 087, T.exas Water Code. This law specifically relates to the Texas
Water Quality Board and provides with reference to federal grants:
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Honorable Hugh Yantis, Jr., Page 3 (M-894).
“Sec. 3. 25. The board may execute agreements with
the Department of the Interior,,. the Federal Water Pollution
Control Administration or any other federal agency that ad-
ministers programs providing federal cooperation, assistance,
grants, or loans’for research, development, investigation,
tr.aining, 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 pur-
poses and for other ,purposes consistent with the objectives of
this Act and may use the funds as prescribed by law or as pro-
vided by~agreement. ”
To further assure that the Texas Water QdityBoard 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
1.4, 1971. Related authority and .support for such contracts by the Texas
Water Quality Board on behalf of the. State of T~exae is found in Section 20
of House Bill 1412,. Acts of the, 62nd Leg. , Regular. Session, effective May
31, 1971; Section 21.095, of,the Texas Water Code.
In view of the foregoing discussion of the statutory authority of your
Board to contract and consideration of the resolution of the Texas Water
Quality Board, dated May 20, 1971, authorizing you as Executive Director
to sign for the Texas Water Quality Board, it is our opinion that you are em-
powered to bind~the State, with an effective date of July 1, 1970, subject to
the approval by the Governor, as hereinafter discussed. The Amendment
becomes effective upon the ascertainment that it received a majority of the
votes cast at the election. Attorney General Opinion No. O-6821 (1945) and
cases there cited.
With respect to the issuance of bonds under the State water quality
enhancement program, reference is made to Article 9. 32 of the Texas Election
Code which reads in part as follows:
“Within sixty (60) days from the date of anyelec-
tion 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, . . . ”
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Honorable Hugh Yantis, Jr., Page 4 (M-894)
We interpret this provision as providing a limitation statute for the
bringing of suits to contest such election; it does not suspend the effective
date of the election.
Section 49-d-l .was added to Article III of the Texas Constitution by
the Texas electorate at an election held on May 18, 1971. The official
canvass of this election was conducted on June 4, 1971, which confirmed
the adoption of the constitutional provision. The amendment became ef-
fective as a part of the organic law of this State on that date. See Attorney
General’s Opinions Nos. O-6821 (1945), supra; S-148 (1954) and M-318
(1968). It is our suggestion, however, that no bonds be issued based on
the constitutional provision until after the sixty day election contest limita-
tion period has passed to facilitate the approval of the bonds by this office,
as required by law. However, this does not in any way limit the authority
of the State of Texas to make at this time a valid and binding certification
and agreement with the Federal Government.
Any contract with the Federal Government by the Texas Water Quality
Board must bear the approval of the Governor of Texas. Article IV, Section
10, Texas Constitution. This requirement for the Texas Governor’s approval
is explained in Opinion M-312 (1968) dated December 10, 1968. The proposed
proclsmation of the Governor submitted with your opinion request will satisfy
this requirement.
SUMMARY
The Texas Water Quality Board, through its Execu-
tive Director, acting for and on behalf of the State of Texas,
may contract now with the Federal Government for the in-
creased percentage limitations for Federal grants available
under Section 8 of the Federal Water Pollution Control Act.
The Governor of Texas must ve the Federal’contract.
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Honorable Hugh Yantis, Jr., Page 5 (M-894)
Prepared by Kerns Tayldr
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. E. Allen, Acting Chairman
Joseph Sharpley
2. T. Fortescue
S. J. Aronson
Michael Stork
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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