Can a Texas deputy sheriff also work as a septic-system installer in his own county?

TX AG Opinion GA-0390: Can a deputy sheriff also install septic systems in his own county?

Plain-English summary

This opinion grew out of a real enforcement action in Kimble County. A deputy sheriff there had been moonlighting as an installer of on-site sewage facilities (OSSFs, the regulatory term for septic-tank and similar systems), and the Texas Commission on Environmental Quality cited him for it. The Commission also cited the county's designated representative for letting someone "who acts in any capacity for the permitting authority" do that work. The citations rested on a Commission rule, title 30, section 285.50(g)(2) of the Texas Administrative Code, which bars any individual who acts in any capacity for a permitting authority from working as an OSSF installer within that authority's jurisdiction. Kimble County was the permitting authority for the OSSF program in the county. The Kimble County Attorney asked the Attorney General whether a deputy sheriff really fell within that prohibition.

The Attorney General said yes. The Commission's OSSF rules carry out its duty under chapter 366 of the Health and Safety Code, which sets statewide minimum standards for on-site sewage disposal and lets the Commission designate a local government as an "authorized agent" and "permitting authority." Administrative rules are read using the same tools as statutes, and an agency's construction of its own rule controls unless it is plainly erroneous or inconsistent with the rule's language. The key phrase was "in any capacity for." Drawing on dictionary definitions and Texas cases holding that "any" means "every" or "all," the opinion read the phrase to cover every duty, position, or role on behalf of or to the benefit of the permitting authority. A deputy sheriff performs law-enforcement duties for the county, so a law-enforcement role fits comfortably inside that broad language.

The opinion also batted down the county attorney's main argument, that a deputy sheriff is not an "employee" of the county and so should be outside the rule. The rule, the Attorney General noted, does not prohibit only employees; it prohibits anyone who acts for the permitting authority "in any capacity." Because the Commission's reading of its own rule was reasonable and not plainly inconsistent with the rule's words, the Attorney General deferred to it and concluded the deputy sheriff was covered.

Currency note

This opinion was issued in 2005. 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.

Who this opinion affected (as of 2005)

Deputy sheriffs and other county personnel: The opinion told them that, in a county that serves as the OSSF permitting authority, the section 285.50(g)(2) bar on doing OSSF installation work reached them, whether or not they were formally "employees." Acting for the county in any capacity, including a law-enforcement role, was enough.

Counties acting as OSSF permitting authorities: It confirmed that the Commission could enforce the conflict-of-interest rule against the county's designated representative for allowing a covered individual to install OSSFs, and that the county could not narrow the rule to formal employees.

The Texas Commission on Environmental Quality: It reinforced that the Commission's reasonable interpretation of its own OSSF rules would receive deference, so its broad reading of "in any capacity for" stood.

Common questions

What is an OSSF?
An on-site sewage facility, the regulatory term for septic-tank systems, aerobic treatment plants, and similar on-site sewage disposal systems that produce no more than 5,000 gallons of waste a day and serve a single site, typically used by homeowners and small businesses.

Why couldn't the deputy sheriff install septic systems in his own county?
Because Kimble County was the OSSF permitting authority, and the Commission's rule bars anyone who acts "in any capacity for" a permitting authority from working as an OSSF installer in that authority's jurisdiction. The opinion read a deputy sheriff's law-enforcement role as acting for the county.

Did it matter that a deputy sheriff might not be a county "employee"?
No. The opinion stressed that the rule is not limited to employees. It prohibits any individual who acts for the permitting authority "in any capacity," so the employment question was not dispositive.

What does "in any capacity for" mean here?
The opinion read "any" as equivalent to "every" or "all," and "for" as including "on behalf of or to the benefit of." Put together, the phrase covered every duty, position, or role on behalf of or benefiting the permitting authority.

Why did the Attorney General defer to the Commission?
Because an agency's construction of its own rule controls unless it is plainly erroneous or inconsistent with the rule's language. The Commission's reading was reasonable, so the opinion deferred to it rather than substituting its own judgment.

Background and statutory framework

The Commission's on-site sewage facilities rules implement chapter 366 of the Health and Safety Code, which directs the Commission to adopt rules governing the installation of on-site sewage disposal systems and to set minimum statewide standards (Tex. Health & Safety Code Ann. §§ 366.012(a)(1), 366.011(2) (Vernon 2001 & Supp. 2005); see generally id. ch. 366). Chapter 366 lets the Commission designate a local governmental entity as an "authorized agent," which then also serves as a "permitting authority" responsible for implementing the OSSF rules in its territory (id. §§ 366.002(1), 366.031(a), 366.033; 30 Tex. Admin. Code §§ 285.2(50), 285.10(a) (2005)). An "on-site sewage disposal system" is defined as a system producing no more than 5,000 gallons of waste daily and used only for disposal of sewage produced on site (Tex. Health & Safety Code Ann. § 366.002(7) (Vernon Supp. 2005); see Tex. Att'y Gen. Op. No. JM-1278 (1990) at 1 n.1).

The operative rule, section 285.50(g), prohibits any individual who acts in any capacity for a permitting authority from, within that authority's jurisdiction, working as an OSSF installer or apprentice, working for an OSSF maintenance company, working as a site evaluator, or performing other OSSF-related activities, except activities directly related to the person's duties as an employee, appointee, or contractor of the permitting authority (30 Tex. Admin. Code § 285.50(g)(1)-(5) (2005)). The rule applies to authorized agents and to persons participating in most OSSF activities (id. § 285.1(b)(2)-(3); 26 Tex. Reg. 4115, 4171 (2001)).

Administrative rules are construed under the rules used for statutory construction (Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307 (Tex. 1976); Lower Laguna Madre Found., Inc. v. Tex. Natural Res. Conservation Comm'n, 4 S.W.3d 419 (Tex. App.-Austin 1999, no pet.); Tex. Gov't Code Ann. § 311.002, Code Construction Act), giving effect to the agency's intent and the rule's plain language (City of Alvin v. Pub. Util. Comm'n of Tex., 143 S.W.3d 872 (Tex. App.-Austin 2004, no pet.)). An agency's construction of its own rule controls unless plainly erroneous or inconsistent, and a reasonable interpretation becomes part of the rule itself (Phillips Petroleum Co. v. Tex. Comm'n on Envtl. Quality, 121 S.W.3d 502 (Tex. App.-Austin 2003, no pet.); Tex. Citrus Exch. v. Sharp, 955 S.W.2d 164 (Tex. App.-Austin 1997, no pet.); Flores v. Employees Ret. Sys. of Tex., 74 S.W.3d 532 (Tex. App.-Austin 2002, pet. denied); H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., 36 S.W.3d 597 (Tex. App.-Austin 2000, pet. denied); McMillan v. Tex. Natural Res. Conservation Comm'n, 983 S.W.2d 359 (Tex. App.-Austin 1998, pet. denied)). Texas courts have read "any" to mean "each," "every," or "all" (Hime v. City of Galveston, 268 S.W.2d 543 (Tex. Civ. App.-Waco 1954, writ ref'd n.r.e.); Branham v. Minear, 199 S.W.2d 841 (Tex. Civ. App.-Eastland 1947, writ ref'd n.r.e.); Doherty v. King, 183 S.W.2d 1004 (Tex. Civ. App.-Amarillo 1944, writ dism'd)). Sheriffs and deputies are peace officers with a duty to preserve the peace in their jurisdiction, and a deputy may perform the acts and duties of the deputy's principal (Tex. Code Crim. Proc. Ann. arts. 2.12(1), 2.13; Tex. Loc. Gov't Code Ann. § 85.003(e) (Vernon 1999)).

Citations

Statutes and rules:

• 30 Tex. Admin. Code § 285.50(g), 285.50(g)(1)-(5), 285.50(g)(2) (2005) (Tex. Comm'n on Envtl. Quality)
• 30 Tex. Admin. Code § 285.1(b)(2)-(3), 285.2(50), 285.10(a) (2005); ch. 285, subch. F
• Tex. Health & Safety Code Ann. § 366.002(1), (2), (7), 366.011(2), 366.012(a)(1), 366.031(a), 366.033 (Vernon 2001 & Supp. 2005); ch. 366
• Tex. Gov't Code Ann. § 311.002 (Code Construction Act)
• Tex. Code Crim. Proc. Ann. arts. 2.12(1) (Vernon Supp. 2005), 2.13 (Vernon 2005)
• Tex. Loc. Gov't Code Ann. § 85.003(e) (Vernon 1999)
• 26 Tex. Reg. 4115, 4171 (2001)

Cases:

• Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307 (Tex. 1976)
• Lower Laguna Madre Found., Inc. v. Tex. Natural Res. Conservation Comm'n, 4 S.W.3d 419 (Tex. App.-Austin 1999, no pet.)
• City of Alvin v. Pub. Util. Comm'n of Tex., 143 S.W.3d 872 (Tex. App.-Austin 2004, no pet.)
• Phillips Petroleum Co. v. Tex. Comm'n on Envtl. Quality, 121 S.W.3d 502 (Tex. App.-Austin 2003, no pet.)
• Tex. Citrus Exch. v. Sharp, 955 S.W.2d 164 (Tex. App.-Austin 1997, no pet.)
• Flores v. Employees Ret. Sys. of Tex., 74 S.W.3d 532 (Tex. App.-Austin 2002, pet. denied)
• H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., 36 S.W.3d 597 (Tex. App.-Austin 2000, pet. denied)
• McMillan v. Tex. Natural Res. Conservation Comm'n, 983 S.W.2d 359 (Tex. App.-Austin 1998, pet. denied)
• Hime v. City of Galveston, 268 S.W.2d 543 (Tex. Civ. App.-Waco 1954, writ ref'd n.r.e.)
• Branham v. Minear, 199 S.W.2d 841 (Tex. Civ. App.-Eastland 1947, writ ref'd n.r.e.)
• Doherty v. King, 183 S.W.2d 1004 (Tex. Civ. App.-Amarillo 1944, writ dism'd)
• Tex. Att'y Gen. Op. Nos. JM-1278 (1990), GA-0281 (2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0390
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0390.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

December 28, 2005

The Honorable Lawrence F. Harrison
Kimble County Attorney
Post Office Box 385
Junction, Texas 76849

Opinion No. GA-0390

Re: Whether a deputy sheriff is an "individual who acts in any capacity for a permitting authority" for purposes of title 30, section 285.50(g) of the Texas Administrative Code, which prohibits such persons from working as an installer for an on-site sewage facility within the permitting authority's jurisdiction (RQ-0366-GA)

Dear Mr. Harrison:

You inquire whether the "elected Sheriff of a County, or a deputy hired by him, [is] 'an individual who acts in any capacity for [the county as] a permitting authority'" so as to be prohibited by the Texas Administrative Code from working as an on-site sewage facilities installer within the county.[1]

You inform us that the Texas Commission on Environmental Quality (the "Commission") has cited a Kimble County deputy sheriff[2] for working as an installer at an on-site sewage facility (an "OSSF") in Kimble County. See Request Letter, supra note 1. Kimble County, for which this individual is a deputy sheriff, is the permitting authority for the on-site sewage facility program in Kimble County.[3] According to your letter, the designated representative for Kimble County has also been cited by the Commission for allowing an individual who acts in any capacity for the permitting authority to work as an OSSF installer. See Request Letter, supra note 1. These citations were issued by the Commission pursuant to title 30, section 285.50(g)(2) of the Texas Administrative Code, which provides:

      (g) Any individual who acts in any capacity for a permitting authority shall not, within that permitting authority's area of jurisdiction:

               (1) work as an apprentice to an OSSF Installer;

               (2) work as an OSSF Installer;

               (3) work for an OSSF maintenance company;

               (4) work as a site evaluator; or

               (5) perform any other OSSF-related activities which fall under the permitting authority's regulatory jurisdiction, except those activities directly related to the individual's duties as an employee of, appointee to, or contractor for the permitting authority.

30 TEX. ADMIN. CODE § 285.50(g)(2) (2005) (Tex. Comm'n on Envtl. Quality) (emphasis added). Section 285.50(g)(2) is part of the Commission's on-site sewage facilities regulations.

The Commission adopted on-site sewage facilities regulations to fulfill its duty to administer chapter 366 of the Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 366.012(a)(1) (Vernon Supp. 2005) (Commission shall adopt rules governing installation of on-site sewage disposal systems); see also id. §§ 366.002(2) (defining "Commission"), 366.011(2) (Vernon 2001) (Commission "shall administer this chapter and the rules adopted under this chapter"). Chapter 366 provides a comprehensive statutory framework that establishes minimum statewide standards for on-site sewage disposal systems.[4] See generally id. ch. 366 (Vernon 2001 & Supp. 2005). Among other things, the OSSF regulations set forth the licensing and registration requirements for OSSF installers, apprentices, designated representatives, and site evaluators. See generally 30 TEX. ADMIN. CODE ch. 285, subch. F (2005).

To assist in its regulation of OSSFs, the Commission can designate a local governmental entity as an "authorized agent." TEX. HEALTH & SAFETY CODE ANN. §§ 366.002(1) (Vernon Supp. 2005) (defining "authorized agent"), 366.031(a) (Vernon 2001) (authorizing designation of local governmental entity as authorized agent), 366.033 (Vernon 2001) (authorizing delegation to local governmental entities of responsibility for implementation and enforcement of applicable rules). An authorized agent is responsible for the implementation of the OSSF regulations in its territory. See 30 TEX. ADMIN. CODE § 285.10(a) (2005). On becoming an authorized agent, a governmental entity also serves as a permitting authority. See id. § 285.2(50) (defining "permitting authority" as "the executive director [of the Commission] or an authorized agent"). Kimble County is a permitting authority. See TCEQ Brief, supra note 3, at 1.

The Commission's OSSF rules, including section 285.50, apply to governmental entities designated as authorized agents and to persons who participate in most activities relating to OSSFs.[5] See 30 TEX. ADMIN. CODE § 285.1(b)(2)-(3) (2005). Among other things, section 285.50 prohibits any individual who acts in any capacity for a permitting authority from working as an OSSF installer in the permitting authority's jurisdiction. See id. § 285.50(g).

Agency administrative rules are construed pursuant to the rules used for statutory construction. See Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976); see also Lower Laguna Madre Found., Inc., et al. v. Tex. Natural Res. Conservation Comm'n, 4 S.W.3d 419, 423 (Tex. App.-Austin 1999, no pet.) (citing TEX. GOV'T CODE ANN. § 311.002, Code Construction Act). We must strive to give effect to the agency's intent and to follow the plain language of the rule unless it is ambiguous. See City of Alvin v. Pub. Util. Comm'n of Tex., 143 S.W.3d 872, 881 (Tex. App.-Austin 2004, no pet.). Furthermore, an "agency's construction of its rule is controlling unless it is plainly erroneous or inconsistent." Phillips Petroleum Co. v. Tex. Comm'n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex. App.-Austin 2003, no pet.); see also Tex. Citrus Exch. v. Sharp, 955 S.W.2d 164, 169-70 (Tex. App.-Austin 1997, no pet.); Tex. Att'y Gen. Op. No. GA-0281 (2004) at 7 ("[A]gency's interpretation of its own rule is entitled to deference."). Moreover, courts defer to policy determinations in agency rules unless plainly inconsistent with the language of the rule. See Flores v. Employees Ret. Sys. of Tex., 74 S.W.3d 532, 554 (Tex. App.-Austin 2002, pet. denied) ("Absent evidence that the Board is disregarding the plain language of its rules, we look to its expertise in calibrating the technical aspects and integrating the policy considerations of this complex statutory scheme."); see also H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., 36 S.W.3d 597, 603-04 (Tex. App.-Austin 2000, pet. denied) ("We may not substitute our judgment for that of the state agency 'on questions committed to agency discretion.'"). Further, "[b]ecause the interpretation represents the view of the regulatory body that drafted and administers the rule, the agency interpretation, if reasonable, becomes part of the rule itself." Phillips Petroleum Co., 121 S.W.3d at 508; see also H.G. Sledge, Inc., 36 S.W.3d at 604 ("'The agency interpretation becomes a part of the rule itself and represents the view of a regulatory body that must deal with the practicalities of administering the rule.'") (citing McMillan v. Tex. Natural Res. Conservation Comm'n, 983 S.W.2d 359, 362 (Tex. App.-Austin 1998, pet. denied)).

By issuing the two citations that relate to the deputy sheriff in Kimble County, the Commission has indicated that it interprets the rule in section 285.50(g) to apply to the deputy. Moreover, in briefing to this office the Commission stated that section 285.50(g) was to be broadly construed to apply to those "whose job is to serve the County." TCEQ Brief, supra note 3, at 3. The Commission also informs us that the "purpose and policy [of the rule] is to prevent a conflict of interest between those who install OSSFs in the permitting authority's jurisdiction and those who act on behalf of the permitting authority." Id. at 4; see also 26 Tex. Reg. 4115, 4171 (2001) (codified at 30 TEX. ADMIN. CODE § 285.50(g)). We must consider the rule and the Commission's interpretation of it to determine whether that interpretation is plainly erroneous or inconsistent with the rule's language.

The critical language of section 285.50(g) is "in any capacity for." The words "any," "capacity," and "for" are undefined in Texas statutes. The term "capacity" has a multitude of meanings. In context, we believe the most appropriate definition is "duty, position, role." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 168 (10th ed. 1993). The term "any" has been defined by our courts as being equivalent to the words "every" and "all." See Hime v. City of Galveston, 268 S.W.2d 543, 545 (Tex. Civ. App.-Waco 1954, writ ref'd n.r.e.) ("[T]he word 'any' has been judicially construed to mean 'each' or 'every' or 'all.'"); Branham v. Minear, 199 S.W.2d 841, 846 (Tex. Civ. App.-Eastland 1947, writ ref'd n.r.e.) ("'[A]ny' is equivalent to and has force of 'every' or 'all.'"); Doherty v. King, 183 S.W.2d 1004, 1007 (Tex. Civ. App.-Amarillo 1944, writ dism'd) (same). The term "for" also has many meanings. See NEW OXFORD AMERICAN DICTIONARY 661 (2001). In addition to meaning "employed by," the term "for" is also broadly defined as "on behalf of or to the benefit of." Id. Pursuant to these definitions, the phrase "in any capacity for" as used in section 285.50(g) could reasonably be construed to mean every or all duties, positions or roles on behalf of or to the benefit of the permitting authority. A deputy sheriff acts in a law enforcement role or position in a county pursuant to the law enforcement duties the deputy owes to the county.[6] See TEX. CODE CRIM. PROC. ANN. arts. 2.12(1) (Vernon Supp. 2005) (sheriffs and deputies are peace officers), 2.13 (Vernon 2005) (peace officers have duty to preserve the peace in their jurisdiction); TEX. LOC. GOV'T CODE ANN. § 85.003(e) (Vernon 1999) (deputy may perform the acts and duties of the deputy's principal). Because it is reasonable to conclude that a law enforcement duty, position, or role is within the scope of language that includes every and all duties, positions or roles on behalf of or to the benefit of a permitting authority, the Commission's interpretation is not plainly erroneous or inconsistent. Accordingly, we defer to the Commission's interpretation and conclude that a deputy sheriff is an individual who "act[s] in any capacity for a permitting authority" as contemplated by section 285.50(g)(2) of the Texas Administrative Code, when the county for which the individual acts as deputy is the OSSF permitting authority.

                                   SUMMARY

            Title 30, section 285.50(g)(2) of the Texas Administrative Code prohibits an individual who "acts in any capacity for a permitting authority" from working as an on-site sewage facility installer within the permitting authority's jurisdiction. The Texas Commission on Environmental Quality interprets this rule to apply to a deputy sheriff in a county where the county is the permitting authority. Because the language "in any capacity for" may be construed to mean every or all duties, positions, or roles on behalf of or to the benefit of the permitting authority, the Commission's interpretation is not clearly erroneous or inconsistent with the rule's language. Accordingly, we defer to the Commission's interpretation and conclude that a deputy sheriff is an individual who "acts in any capacity for a permitting authority" when the county for which the deputy provides law enforcement services is the on-site sewage facility permitting authority.

                                          Very truly yours,

BARRY R. McBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

Footnotes

[1] Letter from Honorable Lawrence F. Harrison, Kimble County Attorney, to Honorable Greg Abbott, Attorney General of Texas (July 13, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] You inquire about both a sheriff and a deputy sheriff. See Request Letter, supra note 1. Because the citations issued by the Commission involve only a deputy sheriff, we limit our opinion to the position of deputy sheriff.

[3] Brief from Sarah Jane Utley, Attorney, Litigation Division, Texas Commission on Environmental Quality, to Nancy S. Fuller, Chair, Opinion Committee, Office of the Attorney General of Texas (Sept. 20, 2005) (on file with Opinion Committee) [hereinafter TCEQ Brief].

[4] An on-site sewage disposal system is "one or more systems of treatment devices and disposal facilities that: (A) produce not more than 5,000 gallons of waste each day; and (B) are used only for disposal of sewage produced [on site]." TEX. HEALTH & SAFETY CODE ANN. § 366.002(7) (Vernon Supp. 2005). For the most part on-site sewage disposal systems are "septic tank systems, aerobic treatment plants and other treatment devices used by homeowners and small businesses." Tex. Att'y Gen. Op. No. JM-1278 (1990) at 1 n.1.

[5] "This chapter applies to: . . . any person who participates in any activity relating to the development of planning materials, construction, installation, alteration, repair, extension, operation, maintenance, permitting, inspection, or investigation of an OSSF." 30 TEX. ADMIN. CODE § 285.1(b)(2) (2005).

[6] You argue that a deputy sheriff is not an employee of Kimble County (the permitting authority) and therefore does not fall within the scope of the prohibition in section 285.50(g)(2). See Request Letter, supra note 1. Whether a deputy sheriff is employed by the county is not dispositive. The plain language of section 285.50(g)(2) does not prohibit only employees of a permitting authority from working as an OSSF installer for the permitting authority. Rather, it prohibits any individual from working as an OSSF installer if that individual acts for the permitting authority "in any capacity." See 30 TEX. ADMIN. CODE § 285.50(g)(2) (2005).