Untitled Texas Attorney General Opinion ( 1997 )

QXfice of the 2lttornep @eneral
&ate of ZEexar;
DAN MORALES January 17,1997
ATTORX‘
GEXERAL
EY
The Honorable David Sibley Opinion No. DM-430
Chair, Senate Economic Development Committee
Texas State Senate Re: Whether Govemment Code section
P.O. Box 12068 417.0041 delegates rule-making authority to
Austiq Texas 78711 fire protection advisory councils in
contravention of the Texas Constitution,
article III, section 1 (RQ-909)
Dear Senator Sibley:
You ask whether Gov ermnent Code section 417.0041 delegates rule-making authority to
certain iire protection advisory cow&s in contzavention of the Texas Constitution. The constitutional
provision at isstq article ll& sectioa 1, states as follows: “The Legislative power of this State shall
be vested ‘in a Senate and House of Represenwives. I&is&tive delegations of authority are also
often challenged under article I& section 1, the separation of powers provision. Courts have
construed article II, section 1 and article III, section 1 to pe.rmit the legislature to delegate rule-
making authority to an administrative agency ifthe legislature “establishes ‘reasonable standards to
guide the entity to Which the powers are delegated.‘“’ Legislative authority may evem be delegated
to private entitk ifthe. kgklative purpose is discerniile and there is protection against the arbitrary
exercise of power;2
ln 1991, the legi&ture transferred certain duties relating to fire safety Tom the State Board
of Insurance (the “board”) to the Commission on Fiie Protection (the “commission”). See Act of
May27,1991,72dLeg.,ch. 628, $5 11, 13,15& 18, 1991 Tex. GenLaws2286,2309-11. This
legislation shifted authority regarding 6re extinguishers, fke detection and alarm devices, fire
protection sprinldex systems, and fireworks from the board to the commission. See id. (enacting Ins.
‘Eh&uwdIn&p. sch Diet v. Meno, 893 S.W.2d450.414 (Tex 1995) (quoting RaihadComm h v. Lone Star
Gac CO..844 S.W.2d619.689 @ex. 1992));s~ ah Tcwr Antiquities Comm. v. Dallas Cacn~ Communily CoUege, 554
S.W.2d 924,928 crcx. 1977) (swubxy dde@iaw ofpowa may not be accanplished by overly broad m vague language);
Commissionen Cour~ofLubbockCouniyv. M&in, 411 S.W.2d lCQ.105 (Tex. Civ. App.-Amarillo 1911. wit r&d
n.r.e.) (Legi&tive delegation must pt-esaik suBGent standa& to guide agency in exercisii disaetiw conferred).
‘See Oflce o/pub. IN. Counrelv. Texas Auto. Ins. Plan, 860 S.W.2d 23 I. 237 (Tex App.-Austin 1993, writ
denied);see aLwCenhaIPmver&Lightv. Sharp, 919 S.W.2d 485,492 (Tex. App.-Austin 1996,witrequestsd). Bur
see &fin&n v. City of Fort Worth Pkmning Comm ‘n. 786 S.W.2d 563,565 (Tcx App.-Fort Worth 1990, no wit)
(legative power may not be delegated to nalTow sqment ofwmmunity); Attorwy General Opinion DM-135 (1992).
The Honorable David Sibley - Page 2 (DM-430)
Code, arts. 5.43-1, 8 ZA, 5.43-2, 3 4A, 5.43-3, 5 3A, 5.43-4, 5 5A). Section 417.0041 of the
Government Code, which describes the role of advisory councils established under these articles of
the Insurance Code in the commission’s n&making process, provides as follows:
(a) This section applies to lules adopted under Articles 5.43-.l through
5.43-4, Insurance Code, and to the advisory councils established under these
artiCkS.
(b) Each council pesiodidly shall review commission rules implementing
the article under which the council was established and recommend changes
in the rules to the commission. Notwi&tan~mg Chapter [sic] 2001.03 1, the
commission shall submit all changes and additions to rules that implement the
article under which an advisory council was established to that council for
development. Ifthe commission does not approve a rule developed by the
council, the commission shall indicate to then council the reasons that the
commission did not approve the rule and return the rule to the council for
further development.
Section 2001.03 1 of the Government Code, a provision of the Administrative.Pr&ure Act (the
“APA”) to which subsection (b) seems intended to refer states as follows:
(a) A state agency may use an i&ormal.conference or consultation to
obtain the opinions and advice of interested persons about contemplated
Nlemalcing.
@) A state agency may appoint committees of experts or interested
persons or representatives of the public to advise the agency about
contemplated r&making.
(c) The power of a committee appointed under this section is advisory
Only.
This APA provision generally authorizes state agencies to use advisory committees in rule-making
on the condition that the power of any committee appointed under the provision is purely advisory.
Your letter assumes that section 417.0041 establishes a rule-making role for the fire
protection advisory councils that is not merely advisory or ministerial in nature and therefore
delegates to the advisory councils at least some degree of substantive rule-making authority. We
agree. Section 417.0041 requires the commission to submit all changes and additions to rules to the
relevant advisory council for development. The advisory council must develop the rule. If the
commission does not approve a rule developed by the advisory council, the commission is not f?ee
to dr& its own rule but rather must return the rule to the advisory council for finther development.
p. 2402
The Honorable David Sibley - Page 3 (DM-430)
ln essenoe, section 417.0041 establishes joint r&-making authority. No amendment or new rule may
be adopted unless both the wmmission and the &vant advisory wuncil agree. Furthermore, section
417.0041 gives the 6re pmtection advisory cauxils an dikctive veto over any rules the commission
may propose to adopt that would change rules previously adopted to implement articles 5.43-l
through 5.434. Thus, the legislature has delegated at least some authority to amend rules
implementing these articles to the advisory councils. As this office has recognized in the past, the
power to amend rules is in itselfrulsmaking authority. See Attorney General Opinion DM-135
(1992) at 5.
Sewnd, we wndude that the legislature intended to delegate at least some substantive rule-
making authority to .the 6re protection advisory wuncils based on its use of ihe words
“[n]otwithstanding [Governmen code section] 2001.03 1” in section 4 17.004 1. We believe that this
language demonstrates that the legi&ure sought to distinguish the fire protection advisory councils’
rule-making role from that of other advisory wmmittees and that it indicates that the.legislature
inknded the tire protection advisory wuncils’ role in the rule-making process to be more &UI merely
advisory. With the exception of three other advisory wmmittees - the tire protection personnel
advisory ~mmitke,~ the fimds allocation advisory committee,’ and the volunteer 6re fighter advisory
wmmittee,’ each of which is aswciated with the commission - we have been unable to locate any
other statute using this language to describe the role of another advisory committee or cckmcil in an
agency’s ~hnaking processP The uniqumess of this ianguage further suggests it is intended to
wnfer special authority on these advisory councils.
We note that in Attorney General Opiion DM-149 this office examined identical language
desuibii the. role of the tire protection personnel advisory committee and the volunteer tire fighter
advisory committee in rulemaking and concluded that it does not delegate any substantive,
no~G&erial rulsmaking authority to those wmmittees. See Attorney General Opinion DM-149
p. 2403
The Honorable David Sibley - Page 4 (DM-430)
(1992) at 4-5.’ For the reasons stated above, we believe this conclusion was inwrrect. Attorney
General Opinion DM-149 is overruled to the extent it wnflicts with this opinion.
You suggest that the delegation of rule-making authority to the fire protection advisory
wttnciis in section 417.0041 violates article III, section 1, asking, “With these parameters, does an
agency then become subject to governance by its advisory council? Is this a proper delegation of
legi&tive authority?” Provided that the legiskure prescribes sufficient standards, article III, section
1 does not limit the kgi&tu& ability to create and structure governmental agencies’ and to allocate
its~delegated legislative authority between (and within) governmental agencies as it sees fit. The
advisory wuncils, created by statute and with members who are appointed by the wmmission, are
public entities? Nothing in article III, section 1 prevents the legislature Corn delegating rule-making
authority to the advisory councils as opposed to the wmmission.‘0 Whether this joint r&making
arrangement has proven workable or is in the public interest is another matter and is ultimately a
public policy determination that is within the province of the legislature rather than this office. The
legislature is always free to amend section 417.0041 to limit the fire protection advisory councils
rule-making role should it choose to do so.
Attcmey General Opiion DM-149 (1992) at 4-5.
‘Texas Turnpike Auth v. shcppcrd 279 S.W.2d 302.304 (Tex. 1955) (no oollstitufiollal provision prohibits
4w-=fimrcrrafiogsorenrmental agarcy dbody politic); Thomas v. HavardCoun~Iioap. Ad., 489 S.W.2d 403.
405 (-kx App.-Eastland1972),wrilrefdnr.r.prrcuriam. 498 S.W.2d 146 (Tex 1973) (same).
%r Ins. Code irk 5.43-1,s 9 (creating Fire Exdquisk Advisxy Ccmcil qpohted by State Board of
lIlsmE,nmvo cm), 5.43-2,s 2(3) (pmiding for tire d&e&m and alarm devices advisory council ,xn&ing of
sevenmembersappoilltedbystateBoardofIns\lrsnoc,llow commissiom), 5.43-3, $5 l(4). 6(a) (aeat& Fire Ptutechm
Advisory Cmncil casisthg of - members appointed by State Ekmd of Insurencc, IKW coormissioqwhoserveti
plelmrc oftbebmd), 5.43-4,s 5El (providing for fireworks 8dvisce-y .zamcil ooosisting of five members who save at will
Ofcommissioo).
p. 2404
The Honorable David Sibley - Page 5 (DM-430)
SUMMARY
The delegation of rule-making authority to advisory councils in
Government Code section 417.004 1 does not wntmvene article III, section
1 of the Texas Constitution. A
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion committee
Prepardby Mary R Grouter
As&ant Attorney General
p. 2405