Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
Iecember 31, 1985
JIM MATTOX
Attorney General
Supreme Court Building Robert Bernstein, M.D., F.A.C.P. Opinion No. JM-414
P. 0. BOX 12549 Commissioner
Justin, TX. 78711.2549 Texas Department o,EHealth Re: Rulemaking authority of the
512/475-2501 1100 West 49th Stmet Texas Board of Health with regard
Telex 9101974.1367
Austin, Texas 7 3'156 to massage therapists under House
Telecobler 51214754%
Bill No. 2012, Acts 1985, Sixty-
ninth Legislature
714 Jackson. SUM 700
Dallas, TX. 75202.4508
Dear Dr. Berusteil:
214l7428Q44
You ask for clarification of the rulemaking authority of the
4924 Alberta Ave., Suite 160 Texas Board of Htralthwith regard to massage therapists under House
El Paso, TX. 799052793 Bill No. 2012, Acts 1985, 69th Leg., ch. 752, at 5388, to be codified
915/533.34&l ae article 45121:, V.T.C.S. Applying well established rules for
statutory coustruction, we conclude that a court would find that the
1001 Texas, Suite 700
legislature intends the Texas Board of Health to adopt rules on
Houston, TX. 77002-3111 matters pertaining to the regulation of massage therapy with the
713l223.5886 advice of the Advisory Council on Massage Therapy.
House Bill NO. 2012, which relates to the regulation of massage
90s Broadway, Suite 312
Lubbock, TX. 79401.3479
therapy, contains the following pertinent provisions:
9091747~5239
SECTXIN 3. APPLICATION FOR REGISTRATION. Each
licani for registration under this Act shall
4309 N. Tenth, Suite S
%&-&lication forms provided by the depart-
McAllen, TX. 78501-1885
5121682.4547
ment; azcompanied by the application fee set by
the dep&nent.
200 h4ah Plaza, suite 400 . . I .
San Antonio, TX. 78205-2797
512/2254191
SECTXIN 7. POWERS AND DUTIES OF THE BOARD AND
THE DFZZRTMENT. (a) The board shall adopt rules
An Equal OpportUnitYI consistmt with this Act as necessary for the
Affirmative Action Employer perform&e of its duties under this Act. The
board slhl adopt the rules in the mauuer provided
by the lhdministrativeProcedure and Texas Register
Act (Article 6252-13a. Vernon's Texas Civil
ScatuterI) .
(b) ZXe departmut shall administer this Act.
. . .
p. 1891
Dr. Robert Bernstein - Page 2 (JM-414)
SECTION 8. ADVISORY COUNCIL. (a) The Advisory
Council 011 Masasge Therapy is created as an
advisory councilJo the department.
. . . .
SECTION 9. POWERS AND DUTIES OF THE ADVISORY
COUNCIL. (a) T&e advisory council by rule shall
prescribe application forms and registration fees.
The advisory cou&l shall set the fees in mounts
reasonable and xs:cessaryto administer this Act.
(Emphasis added).
The issw before us is the effect of the language in section 9 on the
general rulemaking power of the Texas Board of Health as provided by
section 7.
The dominant consideration in construing statutes is legislative
intent. That intention is derived from a general review of an entire
enactment and, when ascert,ained,shall be given effect to attain the
object and purpose of the legislation. See City of Houston v. Morgan
Guaranty International Bank_,666 S.W.2d 524, 529 (Tex. App. - Houston
tlst Dim..] 1983, writ rt,f'd n.r.e.), cert. denied, 105 S. Ct. 1185
(1985). The Texas courts repeatedly have held that the intention of
the legislature controls the language used in an act and that in
construing an act, a court is not necessarily confined to the literal
meaning of the words used in the act. The intent rather than the
strict letter of the act xl11 control. See Texas Turnpike Authority
v. Sheooerd, 279 S.W.2d 3X!, 306 (Tex. 1955); City of Mason v. West
Texas Utxties Co., 237 S.W.2d 273, 278 (Tex. 1951); Nichols v.
Aldlne Indeuendent District, 356 S.W.2d 182, 184 (Tex. Civ.
APP. - Houston 1962, no w&z); Holcombe v. Levy, 301 S.W.Zd 507, 518
(Tex. Civ. App. - Galvestmo 1957, writ raf'd n.r.e.). In cases of
ambiguity, statutas must be given a practical and reasonable
construction that will malca them valid, if possible, and that will
accowmlish as nearly as roeaible the intention of the lenislature.
See B&a & Root v.-Durl~xl, 84 S.W.2d 1073, 1075 (Tex. 1935). See
also Huntsville Independm`` School District v. McAdams, 221 S.Wx
z67 548 (Tex. 1949). It &o is well settled that statutes that deal
with the same general subject constituting parts of the same general
plan are considered as being in pari materia and are considered
together, even thouah ther, are passed at different times and do not
refer to one another. Se;: Cal&t v. Fort Worth National Bank, 356
S.W.2d 918, 921 (Tex. lmj; Robp V. Hawthorne, 84 S.w.2d 1108, 1109
(Tex. Civ. App. - Dallas 1535. writ dima'd).
Chapter 109 of the Sicey-eighth Legislature, codified as article
4419b. V.T.C.S., was enac,ted in 1983 to clarify the structure and
duties of the Texas Board cf Health, the Department of Health, and the
Commissioner of Health. As:ts 1985, 69th Leg., ch. 109, at 521. -See
p. 1892
Dr. Robert Bernstein - Page 3 (JM-414)
Bill Analyses to S.B. No. '38,69th Leg., prepared for Senate Committee
ou Bealth and Eumaa Resources and House Comittee ou Public Health,
Bill File to S.B. No. 98, Legislative Reference Library. See also
Attorney General Opinion B-949 (1977) (relating to general rulemaking
power of Department of Health Resources in 1977). Chapter 109
provided, in pertiuent par:, that
(a) The boarlishall:
. . . .
(b) The boar'i is responsible for the adoption
of policies and rules and for the government of
the department. The board shall supervise the
commissioner's administration and enforcement of
health laws of the state. The board may delegate
in writing any power or duty imposed on it by law,
except the power' or duty to adopt rules, to the
commissioner of Ilealthor, in his absence, to the
person acting as commissioner of health, including
the authority to make final orders or decisions.
. . . .
(d) The board may appoint advisory committees
to assist the board in performing its
duties. . . . (Lmphasis added).
V.T.C.S. art. 4414b, 81.05. Section 1.06 of that act further provided
that the commissiouer of health shall administer and enforce the
health laws of this state lmnder the board's supervision and perform
the duties assigned to him by the board and state law, subject to the
provisions of that act.
We believe that the legislature granted to the Texas Board of
Health general authority to adopt rules and policies for the
department and authorized the appointment of advisory committees to
assist the board with its duties. The rules established by that act,
whereby the board adopts rules and sets policy based on advfce of
advisory committees and the commissioner and staff of the department
administer the adopted rules and policies, were reaffirmed and
p. 1893
Dr. Robert Bernstein - Page!4 (JM-414)
reenacted during the Texas Sunset Act review of the Texas Department
of Bealth by the same session of the legislature that enacted the
statute regulating massage ,therapy. See V.T.C.S. art. 4414b. Sg1.05,
1.08 (as enacted by Acts l!lE;5,
69th LeK ch. 931, at 6746, 6749). We
believe articles 4414b and 4512k, V.T.C.S., are in pari materia and
should be considered together.
Article 4512k, as enacted by House Bill No. 2012, expressly
grants rulemaking authorit;' to the Texas Board of Health and expressly
creates the Advisory Coum:il on Massage Therapy "as an advisory
council to the department." We believe that the intent of the
Sixty-ninth Legislature mm to adopt the same rules and basic
structure for the Texas Department of Health in chapter.752 that It
adopted for the department in chapter 931. As such, the Texas Board
of Health adopts rules basc!CIon the advice of the Advisory Council for
the regulation of massage therapy under article 4512k, including rules
that prescribe application forms and registration fees.
SUMMARY
The Texas Bcsrd of Health adopts rules on
matters pertaining to the regulation of massage
therapy with the advice of the Advisory Council on
Message Therapy.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Gmeral
MARY KELLER
Executive Assistant Attommy General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committea!
Prepared by Nancy Sutton
Assistant Attorney General
p. 1894