Can a Texas water district make rules about weeds and illegal dumping?

Plain-English summary

State Senator Glenn Hegar asked the Attorney General whether a water control and improvement district (WCID) may adopt and enforce rules about weed control and illegal dumping. The question grew out of a request by residents in the Victoria County WCID No. 1, in the unincorporated community of Bloomington, who wanted the district to deal with overgrown lots and dumping. They argued that weeds breed disease-carrying pests and that dumping can contaminate the water supply, so the district's police powers should reach the problem. The AG answered the general legal question, not the validity of any particular ordinance.

A WCID, the opinion explained, has only the powers a statute expressly grants plus those necessarily implied as an incident to the express powers. Neither chapter 49 nor chapter 51 of the Water Code says anything specific about weeds. But chapter 49 gives general-law water districts the functions and powers needed to accomplish their statutory purposes, and one stated WCID purpose is to protect, preserve, and restore the purity and sanitary condition of water "by any practical means." A WCID is also specifically authorized to adopt and enforce reasonable rules to preserve the sanitary condition of the water it controls. From that, the AG concluded a WCID has implied authority to adopt a weed-control ordinance, but only where the ordinance is reasonable and is a practical means to accomplish a district purpose such as protecting water purity. The district itself must make that reasonableness determination.

On illegal dumping, the opinion drew a line between enforcing state law and regulating by ordinance. Health and Safety Code section 365.012 makes certain dumping a criminal offense, and Water Code chapter 49 lets a district employ peace officers to prevent or abate offenses against state law and district rules. So a WCID has express authority to enforce the state criminal dumping prohibition. As for adopting its own dumping ordinance, the same implied-authority test applies: it is permissible only if reasonable and a practical means to accomplish a district purpose.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Senator Hegar and the Senate Committee on Nominations (as the opinion described it): The opinion answered the two questions in the abstract. A WCID has implied authority to adopt a weed-control or illegal-dumping ordinance only if the ordinance is reasonable and a practical means to accomplish a district purpose like water-purity protection, and it has express authority to enforce the state criminal prohibition on illegal dumping.

Water control and improvement districts (as the opinion described it): The opinion described the district itself as the body that must decide whether a particular ordinance is reasonable and a practical means to preserve the sanitary condition of the water it controls. It pointed to the peace-officer authority in chapter 49 as the basis for enforcing the state dumping offense.

Residents of the district (as the opinion described it): The opinion noted the residents' asserted link between overgrown lots, pests, dumping, and the water supply, but treated that nexus as something the district must evaluate for itself rather than a conclusion the AG could reach. The opinion did not decide whether any specific Bloomington ordinance would be valid.

Common questions

Can a Texas water district pass a weed-control ordinance?
The opinion concluded a WCID has implied authority to do so only if the ordinance is reasonable and a practical means to accomplish a district purpose, such as protecting water purity. The district must make that determination itself.

Where does that authority come from if the Water Code doesn't mention weeds?
The opinion relied on the general grant in Water Code section 49.211(a) plus the WCID purposes in sections 51.121(b)(6), (c) and 51.122(2), which let a district preserve the sanitary condition of its water by any practical means and adopt reasonable rules to do so.

Can a water district enforce laws against illegal dumping?
Yes. The opinion explained that Health and Safety Code section 365.012 makes certain dumping a criminal offense, and Water Code section 49.216 lets a district employ peace officers to prevent or abate offenses against state law, giving a WCID express authority to enforce that prohibition.

Can the district also write its own anti-dumping ordinance?
The opinion said the same implied-authority test applies: a dumping ordinance is permissible only if it is reasonable and a practical means to accomplish a district purpose such as protecting water purity.

Background and statutory framework

The opinion described a WCID as a general-law water district organized under section 59 of article XVI of the Texas Constitution and governed by chapters 49 and 51 of the Water Code. It applied the limited-powers rule from Harris Cnty. Water Control & Improvement Dist. No. 58 v. City of Houston (express powers plus those necessarily implied). The implied-authority analysis drew on Water Code section 49.211(a) (general functions and powers), section 51.121(b)(6), (c) (water-purity purpose, accomplished by any practical means), and section 51.122(2) (reasonable rules to preserve sanitary conditions). It cited St. Clair v. Harris Cnty. Water Control & Improvement Dist. No. 21 for deference to a WCID board's reasonable, evidence-supported decisions.

On dumping, the opinion combined Health and Safety Code section 365.012 (criminal dumping offense) with Water Code section 49.216(a)(1), (3) (district peace-officer authority over offenses against district rules and state law) to find express enforcement authority, while treating any dumping ordinance under the same implied-authority standard as weed control.

Citations

Cases:

• Harris Cnty. Water Control & Improvement Dist. No. 58 v. City of Houston, 357 S.W.2d 789, 795 (Tex. Civ. App.-Houston 1962, writ ref'd n.r.e.)
• St. Clair v. Harris Cnty. Water Control & Improvement Dist. No. 21, 474 S.W.2d 545, 549 (Tex. Civ. App.-Houston [14th Dist.] 1971, no writ)

Statutes:

• Tex. Const. art. XVI, § 59
• Tex. Water Code Ann. § 49.211(a) (West 2008); § 51.121(b)(6), (c); § 51.122(2); § 49.216(a)(1), (3); chapters 49 and 51
• Tex. Health & Safety Code Ann. § 365.012 (West Supp. 2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1011
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1011.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

July 1, 2013

The Honorable Glenn Hegar Opinion No. GA-1011
Chair
Committee on Nominations Re: Whether a water control and improvement
Texas State Senate district may adopt and enforce rules regarding
Post Office Box 12068 illegal dumping and weed control (RQ-1109-GA)
Austin, Texas 78711

Dear Senator Hegar:

You ask whether a water control and improvement district ("WCID") may adopt and enforce rules regarding illegal dumping and weed control.[1] You inform us that the Victoria County Water Control and Improvement District No. 1 (the "District") is located in Bloomington, an unincorporated community, and has the powers and duties conferred by statute on water control districts created under Section 59, Article XVI of the Texas Constitution, including applicable provisions in chapters 49 and 51 of the Water Code. Request Letter at 1. You state that residents have asked the District to regulate weeds and illegal dumping on overgrown lots in the District. Id. The residents assert that the exercise of a WCID's police powers "would be appropriate because: (1) property overgrown with weeds creates a breeding ground for rodents and other pests that can carry and transmit diseases that, through runoff, can find its way into the water supply; and (2) similarly, illegal dumping can contaminate the local water supply." Id.

Although you provide background about the District, you ask about a WCID's authority to control weeds or illegal dumping without regard to a particular WCID or a specific ordinance. Your first question asks whether a WCID has authority "to control weeds under Chapters 49 or 51 of the Texas Water Code." Request Letter at 3. A WCID has only those powers expressly granted by statute, including those "necessarily implied as an incident to the express powers given." Harris Cnty. Water Control & Improvement Dist. No. 58 v. City of Houston, 357 S.W.2d 789, 795 (Tex. Civ. App.-Houston 1962, writ ref'd n.r.e.). As you note, neither chapter 49 nor 51 of the Water Code addresses weed control and thus does not expressly grant such powers to WCIDs. See Request Letter at 2. However, chapter 49 of the Water Code grants general-law water districts such as a WCID the "functions, powers, authority, rights, and duties that will permit accomplishment of the purposes for which it was created or the purposes authorized by the constitution, this code, or any other law." TEX. WATER CODE ANN. § 49.211(a) (West 2008). Pertinent here, one of the stated purposes of a WCID is to "provide for . . . the protection, preservation, and restoration of the purity and sanitary condition of water within the state," which it may accomplish "by any practical means." Id. § 51.121(b)(6), (c). A WCID is specifically authorized to "adopt and enforce reasonable rules and regulations to . . . preserve the sanitary condition of all water controlled by the district." Id. § 51.122(2).

Accordingly, a WCID has implied authority to adopt a particular ordinance within its jurisdiction only if it is reasonable and is a practical means to accomplish a WCID purpose, such as the protection of water purity. While the residents assert that there is a nexus between overgrown lots and the water supply, a WCID must determine for itself whether any particular weed-control ordinance is reasonable and is a practical means to "preserve the sanitary condition of all water controlled by the district." Id.; see also St. Clair v. Harris Cnty. Water Control & Improvement Dist. No. 21, 474 S.W.2d 545, 549 (Tex. Civ. App.-Houston [14th Dist.] 1971, no writ) (determining that the evidence considered by a WCID board supported its decision, and therefore its actions were not unreasonable, arbitrary, or capricious).

Your second question is whether WCIDs "have explicit and/or implied authority to regulate illegal dumping under Chapters 49 and 51 of the Texas Water Code and Texas Health and Safety Code § 365.012." Request Letter at 3. Under section 365.012 of the Texas Health and Safety Code, certain dumping of litter or other solid waste is a criminal offense. TEX. HEALTH & SAFETY CODE ANN. § 365.012 (West Supp. 2012). Chapter 49 of the Water Code authorizes a district to "contract for or employ its own peace officers with power to make arrests when necessary to prevent or abate the commission of . . . any offense against the rules of the district when the offense or threatened offense occurs on any land, water, or easement owned or controlled by the district," and "any offense against the laws of the state." TEX. WATER CODE ANN. § 49.216(a)(1), (3) (West 2008). Accordingly, a WCID has express authority to enforce the state criminal prohibition against illegal dumping pursuant to section 365.012 of the Health and Safety Code.

Neither chapters 49 nor 51 expressly addresses the authority of a WCID to regulate illegal dumping by ordinance. As discussed above with respect to weed control, a WCID has implied authority to adopt a particular illegal dumping ordinance within its jurisdiction only if doing so is reasonable and is a practical means to accomplish a WCID purpose, such as the protection of water purity.

SUMMARY

A water control and improvement district has implied authority to adopt an ordinance to control weeds or regulate illegal dumping within its jurisdiction only if the ordinance is reasonable and is a practical means to accomplish a district purpose, such as the protection of water purity.

The Water Code expressly authorizes a water control and improvement district to enforce state offenses prohibiting illegal dumping.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Glenn Hegar, Chair, Senate Comm. on Nominations, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Feb. 4, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").