Untitled Texas Attorney General Opinion ( 1991 )

QEVfice
of tip gIttornep @eneral
state of IBexas
DAN MORALES November 4.1991
ATT”RNEY
GENERAL
Honorable John Hall Opinion No. DM-54
chairman
Texas Water Commission Re: Whether Attorney General Opinion
P. 0. Box 13087, Capitol Station 0-3205-A (1941). which held that the
Austin, Texas 787113087 predecessor to section 28.011 of
the Texas Water Code was an
unconstitutional delegation of authority,
continues to be valid ‘(RQ-177)
Dear Commissioner Hall:
You,..have, Jequested our opinion regarding the continuing efficacy of
Attorney C&&ml Opinion -0-3205-A (1941). On March 11, 1941, the attorney
general issued Attorney General Opinion 03205, which held that the predecessor
statute to section 28.011 of the Texas Water Code,’ former Penal Cdde article, 848a,
authorized the Board of Water Engineers to regulate privately-owned wells. See
Acts 1931, 42d Leg., ch. 261, BB1. 6, at 432-33 (enactment of predecessor statute).
On April 18, 1941, the attorney general withdrew this answer and held, in Attorney
General Opinion 0-3205-A, that the provision failed to contain sufficient standards
so as to be a constitutionally valid delegation of rule-making authority. You
indicate that as a result of this decision, “the Board and its successor agencies have
never adopted mles pursuant to this statute.” Accordingly, you ask that we “re-
examine [our] position in light of subsequent court decisions relating to the
delegation doctrine.” In this opinion, we consider only the continued validity of
Attorney General Opinion 0-3205-k We do not address the scope of section
28.011 of the Texas Water Code or its predecessor.
lAlmost identical to its predecessor, section 28.011 of the Texas Water Cede provides:
The vexas Water Commission] shall make and enforce rules and
regulations for conserving, protecting, preserving. and distriiuting
underground, subterranean, and percolating water located in this state and
shall do all otherthings necessary for these purposes.
p. 274
Honorable John Hall - Page 2 (DM-54)
It is well settled that a statute must be construed as constitutional, if at all
possible. smith v. Decker, 312 S.W.2d 632,635 (Tex. 1958). The court will indulge
every possible presumption in favor of constitutionality. Med-Safe, Inc v. State, 752
S.W.2d 638, 640 (Tex. App.-Houston [lst Dist.] 1988, no writ); see u&o Tmpp v.
Shell Oil Co., 198 S.W.2d 424 (Tex. 1946). Although a legislative delegation of rule-
making authority to an administrative body must establish standards in order to be
valid,
[t]he standards set up by the legislature may be broad where
conditions that must be considered camrot conveniently be
investigated by the legislative branch. The legislature may
properly delegate to an administrative -agency the authority to
establish rules and regulations, or minimum standards, that
reasonably carry out the expressed purpose of the statutory act
in question.
Med-Sde, supm, at 640 (citations omitted).
In &d-Safe, for example, the appellant challenged a requirement that the
Department of Health issue a permit for operation of a nonhazardous solid waste
site. The court observed that
the “purpose of the Act” is to “safeguard the health, welfare, and
physical property of the people” and to “protect the
environment.”
Id. In upholding the,delegation, the court noted that under past cases,
similarly broad standards have been found to provide sufficient
guidance for administrative agencies to properly exercise
delegated functions.
Id Likewise+ in Jordan v. State Bd of Ins, 334 S.W.2d 278, 279 (Tex. NO), the
appellant complained of the lack of standards in a statute that permitted the State
Board of Insurance to revoke an insurer’s certificate if it determined that the
officers or directors of the company were “not worthy of public confidence.” The
Texas Supreme Court upheld the “not worthy of public confidence” standard, stating
that the term “is no more extensive than the public interest demands,” and that “the
p. 275
Honorable John Hall - Page 3 (DM-54)
idea embodied within the phrase is reasonably clear and hence acceptable as a
standard of measurement.” Id at 280.
In Clark v. Briscoe Zwigation Co., 200 S.W.2d 674 (Tex. Civ. App.-Austin
1947, no writ), the court upheld a challenge to a statute that allowed the Board of
Water Engineers to grant a permit if it found that appropriation of water in a
particular instance “would not be detrimental to the public welfare.” The court
noted that
[t]he criteria are as definite as the subject in its varied
applications will reasonably admit
Id at 684.
In Mmtinez v. Texas State Bd. of MedicalEamniners, 476 S.W.2d 400, 404
(Tex. Civ. App.-San Antonio 1972, writ refd n.r.e.), the court upheld a challenge to
a statute that authorized the Board of Medical Examiners to revoke a physician’s
license for “grossly unprofessional or dishonorable conduct, or a character which in
the opinion of the Board is likely to deceive or defraud the pub&.” The court held
that requiring a definition of all the acts that would constitute a violation would be
unduly burdensome, that the statutory language was “reasonably clear,” and that the
members of the board “best know the professional and moral standards~required of
practitioners.” Id
Finally, in Lone Star Gas Co. v. Railmad Cothm’n of Texas, 798 S.W.2d 888
(Tex. App.-Austin 1990, writ granted),l the Railroad Commission had promulgated
rules for the regulation of the purchase of gas by special marketing programs. In
rejecting the argument that the statute lacked appropriate standards, the court
noted that
.[t]he, standards here are found in the statutes directing the
Commission to prevent waste, promote conservation, and
protect correlative rights.
Id. at 894.
2 RailnmdGmm’n of Term Y. Lone StarGas Co., 34 Tcx. Sup. Ct. J. 3% (March 9, 1991)
(wit panted on points of error involving federal preemption).
p. 276
Honorable John Hall - Page 4 (DM-54)
In our opinion, these cases furnish ample authority to conclude that section
28.011 and its predecessor provide sufkient standards to constitute a proper
delegation of legislative authority. A directive to “conserve, protect, preserve, and
distriiute” water is, in our view, as specific as most of the other statutes considered
and upheld in the cases discussed above. We conclude that neither section 28.011
nor its predecessor offend the delegation doctrine. Accordingly, Attorney General
opinion G-3205-A (1941) is overruled to the extent it is inconsistent with this
OpilliOll.
Section 28.011 of the Texas Water Code, which authorizes
the Texas Water Commission to “make and enforce rules and
regulations for conserving, protecting, preserving, and
distributing underground, subterranean, and percolating water
located in this state,” is not an unconstitutional delegation of
legislative authority. Attorney General Gpiion G-3205-A
(1941) is overruled to the extent it is. inconsistent with this
opinion.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARYKBLLER
Executive Assistant Attorney General
JUDGE ZOLUE STEAKLEY (Ret)
Special Assistant Attorney General
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Honorable John Hall - Page 5 (DM-54)
RENBAHIcKs
Special Assistant Attorney General
MADBLEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 270