Is a Texas county on-site sewage (septic) system inspector a peace officer?

Plain-English summary

Hale County acts as an "authorized agent" of the state environmental agency (then the Texas Natural Resource Conservation Commission, or TNRCC) for regulating on-site sewage disposal systems, the septic systems governed by chapter 366 of the Health and Safety Code. The county designated one of its employees as a "designated representative" to review permit applications, site evaluations, and planning materials and to inspect septic systems. The Hale County Attorney asked the Attorney General whether that inspector counts as a peace officer under sections 7.193 and 26.215 of the Water Code.

The Attorney General concluded the inspector is not a peace officer. The text of both Water Code sections is narrow: each says that "the authorized agents and employees of the Parks and Wildlife Department" are peace officers for purposes of their respective subchapters. The county septic inspector is not an agent or employee of the Parks and Wildlife Department; he is a representative of a TNRCC authorized agent under chapter 366 of the Health and Safety Code, and he is licensed by the Commission under chapter 37 of the Water Code, the occupational licensing and registration chapter. Chapter 37 has no connection to the Parks and Wildlife Department or to sections 7.193 and 26.215, and nothing in it says that people licensed under it are peace officers. Reading the statutes by their plain language, the Attorney General held the inspector does not have peace officer authority under those sections.

Currency note

This opinion was issued in 2002. 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. The Texas Natural Resource Conservation Commission was renamed the Texas Commission on Environmental Quality after this opinion, so confirm the current agency name and statutes before relying on it.

What the opinion meant for those who asked

Counties acting as authorized agents and their septic inspectors (what the opinion held for them): The opinion concluded that a county's designated representative under section 366.014, licensed under chapter 37 of the Water Code, is not a peace officer under Water Code sections 7.193 or 26.215, which reach only Parks and Wildlife Department agents and employees.

The Hale County Attorney, who asked (the scope of the answer): The opinion answered the single question presented, that the county's septic-system designated representative is not a peace officer for purposes of the two cited Water Code sections, based on the plain language limiting those sections to the Parks and Wildlife Department.

Common questions

Does a county septic inspector have peace officer powers in Texas?
Under this opinion, not by virtue of Water Code sections 7.193 and 26.215. Those sections give peace officer status only to authorized agents and employees of the Parks and Wildlife Department, not to TNRCC authorized agents or their representatives.

Why does the Parks and Wildlife Department matter to a sewage inspector?
It does not, which was the point. The opinion read sections 7.193 and 26.215 as written, granting peace officer status only to Parks and Wildlife personnel, so a chapter 366 septic inspector falls outside them.

Where does a county septic inspector's authority come from instead?
The opinion noted the inspector is designated under section 366.014 of the Health and Safety Code and must hold a license issued by the Commission under chapter 37 of the Water Code, which is about occupational licensing and does not confer peace officer status.

Background and statutory framework

Chapter 366 of the Health and Safety Code governs on-site sewage disposal systems and is administered by the TNRCC. Tex. Health & Safety Code Ann. §§ 366.002(2), .011(2) (Vernon 2001 & Supp. 2002). Section 366.014 lets the Commission or an authorized agent designate a person to review permit applications, site evaluations, or planning materials, or to inspect on-site sewage disposal systems. Id. § 366.014 (Vernon Supp. 2002). An "authorized agent" is a local governmental entity authorized by the Commission to implement and enforce the chapter's rules, id. § 366.002(1), and a person so designated "must hold a license issued by the commission under Chapter 37, Water Code," id. § 366.071(b).

Sections 7.193 and 26.215 of the Water Code each provide that "the authorized agents and employees of the Parks and Wildlife Department" are peace officers for purposes of their respective subchapters, with the powers and duties of peace officers under the Code of Criminal Procedure. Tex. Water Code Ann. §§ 7.193, 26.215 (Vernon 2000). The opinion reasoned that because the inspector is a representative of a TNRCC authorized agent rather than an agent or employee of the Parks and Wildlife Department, and is licensed under chapter 37 of the Water Code (occupational licensing and registration, administered by the TNRCC), the plain language of sections 7.193 and 26.215 does not reach him, and chapter 37 itself does not declare its licensees to be peace officers. Tex. Water Code Ann. ch. 37, § 37.003 (Vernon Supp. 2002). The opinion applied the rule that a plain and unambiguous statute is construed according to its literal language. Bd. of Ins. Comm'rs v. Guardian Life Ins. Co., 180 S.W.2d 906, 909 (Tex. 1944); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (en banc).

Citations

Statutory provisions:

• Tex. Health & Safety Code Ann. §§ 366.002(2), .011(2) (Vernon 2001 & Supp. 2002)
• Tex. Health & Safety Code Ann. § 366.014 (Vernon Supp. 2002)
• Tex. Health & Safety Code Ann. § 366.002(1) (Vernon Supp. 2002)
• Tex. Health & Safety Code Ann. § 366.071(b) (Vernon Supp. 2002)
• Tex. Water Code Ann. § 7.193 (Vernon 2000)
• Tex. Water Code Ann. § 26.215 (Vernon 2000)
• Tex. Water Code Ann. ch. 37 (Vernon Supp. 2002)
• Tex. Water Code Ann. § 37.003 (Vernon Supp. 2002)

Cases:

• Bd. of Ins. Comm'rs v. Guardian Life Ins. Co., 180 S.W.2d 906 (Tex. 1944)
• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999)
• Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0468
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0468.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

February 21, 2002

The Honorable Chris D. Prentice
Hale County Attorney
500 Broadway, Suite 80
Plainview, Texas 79072-8050

Opinion No. JC-0468

Re: Whether the designated representative of an authorized agent of the Texas Natural Resource Conservation Commission is a peace officer for purposes of sections 7.193 and 26.215 of the Texas Water Code (RQ number illegible in source scan)

Dear Mr. Prentice:

You have requested our opinion as to whether the designated representative of an authorized agent of the Texas Natural Resource Conservation Commission (the "TNRCC") is a peace officer for purposes of sections 7.193 and 26.215 of the Texas Water Code. For the reasons set forth below, we conclude that he is not such a peace officer.

Chapter 366 of the Texas Health and Safety Code relates to on-site sewage disposal systems. The TNRCC is charged with administration of this chapter. See TEX. HEALTH & SAFETY CODE ANN. §§ 366.002(2), .011(2) (Vernon 2001 & Supp. 2002). Section 366.014 provides:

Subject to the requirements of Section 366.071(b), the commission or an authorized agent may designate a person to:

    (1) review permit applications, site evaluations, or planning materials; or

    (2) inspect on-site sewage disposal systems.

Id. § 366.014 (Vernon Supp. 2002). "Authorized agent" is defined as "a local governmental entity authorized by the commission to implement and enforce rules under this chapter." Id. § 366.002(1). According to subsection 366.071(b), "[a] person designated by an authorized agent under Section 366.014 must hold a license issued by the commission under Chapter 37, Water Code." Id. § 366.071(b). You indicate that Hale County is an "authorized agent" of the TNRCC for purposes of chapter 366 and that it has designated a county employee as its "designated representative" under section 366.014. You ask whether that individual is empowered to act as a peace officer under sections 7.193 and 26.215 of the Water Code.[1]

Chapter 7.193 of the Water Code provides:

For purposes of this subchapter, the authorized agents and employees of the Parks and Wildlife Department are peace officers. Those agents and employees are empowered to enforce this subchapter the same as any other peace officer and for that purpose have the powers and duties of peace officers assigned by Chapter 2, Code of Criminal Procedure.

TEX. WATER CODE ANN. § 7.193 (Vernon 2000).

Likewise, section 26.215 provides:

For purposes of this subchapter, the authorized agents and employees of the Parks and Wildlife Department are constituted peace officers. These agents and employees are empowered to enforce the provisions of this subchapter the same as any other peace officer, and for such purpose shall have the powers and duties of peace officers as set forth in the Code of Criminal Procedure, 1965, as amended.

Id. § 26.215.

In our opinion, it is evident that sections 7.193 and 26.215 of the Water Code apply only to "the authorized agents and employees of the Parks and Wildlife Department." See id. §§ 7.193, 26.215. As we have noted, the individual of whom you inquire is a designated representative of an authorized agent (Hale County) of the TNRCC. Section 366.071, Health and Safety Code, requires that a "person designated by an authorized agent under Section 366.014 must hold a license issued by the commission under Chapter 37, Water Code." TEX. HEALTH & SAFETY CODE ANN. § 366.071(b) (Vernon Supp. 2002). Chapter 37 of the Water Code relates to "[o]ccupational [l]icensing [a]nd [r]egistration" by the TNRCC. TEX. WATER CODE ANN. ch. 37 (Vernon Supp. 2002). Section 37.003 provides that "[a] person may not engage in a business, occupation, or profession described by," inter alia, section 366.071 of the Health and Safety Code, "unless the person holds the appropriate license or registration issued by the commission." Id. § 37.003. Chapter 37 has no relation in general to the Parks and Wildlife Department, or specifically, to sections 7.193 or 26.215 of the Water Code. Chapter 37 declares the TNRCC, not the Parks and Wildlife Department, to be the entity authorized to issue licenses under that chapter. Furthermore, chapter 37 does not state that persons licensed thereunder are peace officers.

A statute that is plain and unambiguous will ordinarily be construed according to its literal language. Bd. of Ins. Comm'rs v. Guardian Life Ins. Co., 180 S.W.2d 906, 909 (Tex. 1944); see also Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (en banc). We conclude, therefore, that the designated representative of an authorized agent (Hale County) of the TNRCC under chapter 366, Health and Safety Code, is not a peace officer for purposes of sections 7.193 and 26.215 of the Water Code.

SUMMARY

The designated representative of an authorized agent of the Texas Natural Resource Conservation Commission under chapter 366, Texas Health and Safety Code, is not a peace officer for purposes of sections 7.193 and 26.215 of the Texas Water Code.

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Chris D. Prentice, Hale County Attorney, to Susan Denmon Gusky, Chair, Opinion Committee, Office of the Attorney General (Sept. 18, 2001) (on file with Opinion Committee) [hereinafter Request Letter].