Untitled Texas Attorney General Opinion ( 1987 )

P
September 23, 1987
Honorable Joe Lucas Opinion No.JM-793
El Paso County Attorney
Room 201, City-County Building lte: Authority of a local adminis-
El Paso, Texas 79901 trative public health board to
adopt rules
:
Dear Mr. Lucas:
You ask:
May au administrative public health board adopt
substantive and procedural rules or have those
rulemaking powers been effectively repealed by the
1985 amendment to Rev. Civ. Stat. Ann. Art. 4436b?
Factual information furnished by you reflects that the city of El
Paso and El Paso County established a public health district pursuant
to article 4436b, V.T.C.S.
Section 4.02, of article 4436b provides as follows:
A public health district is authorized to
perform the public health functions that any of
its members is authorized to perform unless
otherwise restricted by law.
Section 4.03(b) states in pertinent part:
An ‘administrative public health board’ shall have
the authority to adopt substantive and procedural
rules which are necessary and appropriate to
promote and preserve the health and safety of the
public within its jurisdiction; provided that no
rule adopted shall be in conflict with the laws of
the state or the ordinances of any member
municipality or county. (Emphasis added .)
The 1985 amendment about which you inquire, section 4.09(f), of
article 4436(b) states that
p. 3750
Honorable Joe Lucas - Page 2 (JM-793)
nothing in this Act shall be construed to grant
the board of any district created hereunder the
power to adopt rules or regulations for any part
of the district which are not otherwise
specifically authorized by state law. (Emphasis
added.)
In Attorney General Opinion JM-336 (1985). it was concluded that
the 1985 amendment was a further limitation upon the board’s authority
to adopt rules and regulations. In responding to questions about the
authority of a public health district’s administrative board’to issue
licenses, exact fees, and impose fines for non-compliance with its
rules. Attorney General Opinion m-336 stated that there must be
specific statutory support for a board to take such action.
We believe the analysis made in Attorney General Opinion JM-336
on the matter of whether a public health district has authority to
impose fines for noncompliance with its rules provides a good example
of the limitation imposed upon the board’s authority by section
4.09(f). There it was stated:
Next we consider whether the authority granted
to governing bodies of cities and counties under
section 2.01 to ‘enforce’ any law to protect the
public health is specific statutory authority for
the imposition of fines by a public health
district for noncompliance with its rules. We
think not. Section 2.01 is a general provision
which authorizes cities and counties to enforce
laws enacted to protect the public health. The
provision does not prescribe any particular method
for the enforcement of these laws. When read
together with the specific limitation on the
authority of the board imposed in section 4.09(f),
the provision is insufficient to authorize the
public health district’s administrative board to
impose fines for noncomnliance with its rules.
Se; City of Baytown v. An’gel, 469 S.W.2d 923 (Tex.
civ. App. - Houston 114th Dist.] 1971, writ ref’d
n.r.e.) (a general provision in a statute Is
limited or controlled by a specific provision).
We have not discovered any specific state law
authorizing this manner of enforcement by a public
health district.
p. 3751
Honorable Joe Lucas - Page 3 .(JM-793)
We conclude that a public health board maylenact only such rules
as may be specifically authorized by state law. No rule adopted may
be in conflict with the laws of the state or the ordinances of any
member municipality or county.
SUMMARY
A public health district's administrative board
organized pursuant to article 4436b. V.T.C.S.. may
adopt such rules and regulations as may be
specifically authorized by state law.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLN
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
1
Additional authority was given to cities, towns and villages by
amendment to article 4436, V.T.C.S., by the recent regular session of
the legislature. Senate Bill 1395. Acts 1987, 70th Leg., ch. 329, at
3452, eff. Aug. 31, 1987, authorizes ordinances requiring owners of
property to eliminate certain unsanitary conditions.
p. 3752