Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MAlTOX October 22. 1985
Attorney General
S~ppme Own Bullding Mr. Charles D. Trmia Opinion No. JM-366
P. 0. Box 12548 Executive Director
Austin. TX. ?8711- 2540 Texas Parks and W!.l.dlife Re: Whether the Parks and Wildlife
5121475-2501
Department Columisslon may delegate certain
Telex 9101874.1367
Telecopier 51214754266
4200 Smith School Road permitting authority to the execu-
Austin. Texas 711?44 tive director of the department
714 .hckson. Suite 7M) Dear Mr. Travis:
Dallas, TX. 75202-r506
2lU742.8944
You ask us tixther the Parks and Wildlife Conmisslon [hereinafter
the "Comission"] is authorized, through its rulemaking powers, to
4824 Alberta Ave.. Suite 160 delegate to the Ih:ecutiveDirector the authority to issue permits in
El Paso. TX. 799052793 compliance with chapter 86 of the Parks and Wildlife Code. See Parks
915/- & Wild. Code 586.001 et seq. You qlso Inform us that the C~ission
has already delegated this permitting authority to the Executive
lo0I TBXPS. Suite 7W Director through rules promulgated more than ten years ago. See 31
Houston, TX. 77002~3111 T.A.C. 157.45.
713l223ea6
Section 86.002(a) of the Parks and Wildlife Cod2 provides:
808 Broadway. Suite 312
Lubbock, TX. 7B401-3419
(a) No person may disturb or take marl, sand,
8081747-5238 gravel, shell, or mudshell under the management
and protection of the eomission or operate in or
disturt any oyster bed or fishing water for any
4309 N. Tenth, Suite B
McAllen. TX. 78501~1685
purpoac:other than that necessary or incidental to
51218824547 navlgat:ion or dredging under state or federal
authorj.tywithout first having acquired from the
commisc~Joa a permit authorizing the activity.
200 Mdn Plaza. Suite 409
(Empha``isadded).
San Antonio. TX. 792052797
51212254191
Section 86.004 provides:
A” Equal DOpo~unWl The mmmisslon may grant a permit to an appli-
Alllrmtive Action Employer cant &I has complied with all requiramancs of the
zsoion if the commission finds that the dis-
turbinlc,,
taking, and carrying away of marl, sand.
gravel, shell, or mudshell will not:
(I) damage or injurlously affect any
isl.md, reef, bar, channel, river. creek, or
bays used for navigation, or any oysters,
p, 1677
Mr. Charles D. Travis - Page 2 (JM-366)
oyster beds, or fish in or near the water used
in the oper#.tion;and
(2) cbar.g,a or injuriously affect any
current t'aat would affect navigation.
(Emphasis atided).
Moreover, any person desj.ringa permit must make a written application
to the Conmission. See I'arks& Wild. Code 186.003. If the Commission
refuses to grant a=Lt to an applicant. the body is required to
make written findings of facts explaining the reason for the refusal.
See Parks h Wild. Code IE6.008; see also V.T.C.S. art. 6252-13a, 5515,
ma) . Therefore, the legislature has explicitly designated to the
Comrtssion the pemittinl; authority under chapter 86 of the Parks and
Wildlife Code.
Through its rulemak~iag authority, the Commission has delegated
its authority to issue permlts to the executive director. -See 31
T.A.C. 557.45. The agemy roles provide in part:
(a) The f&.owiag procedures will be followed
for the issuance of general permits:
(1) All requests for shell dredging permits
will be made,in writing to the director. . . ..
(6) The +irector may consider the following
criteria in determining vhether to grant or
deny a permit. . . . (Emphasis added).
See 31 T.A.C. s57.45. The rules also provide for the director or any
Gloyee authorized by 1:be director to hold a hearing to determine
vbether a permit will bl! granted. See 31 T.A.C. 1557.45(a)(4)-(8).
These rules make no provisions for the Conmission to make a final
datermination of wbetber a permit will be granted. Accordingly, they
are in conflict with sec,tion 15 of article 6252-13a. V.T.C.S. See
Citizens Bank of Bryan 7'. First State Bank, Eearne. 580 S.W.2d 344.
347 (Tex. 1979); ---see t?iso V.T.C.S. art. 6252-13a. 422 (lam in
conflict vith the Adminl``trativeProcedure and Texas Register Act are
repealed). We also conclude that the rules In question are in direct
conflict with the legis:.ativemandate that the Commission grant or
deny permit applications.
Despite the fact that these rules bave been In effect and have
been followed by the agency for ten years, they are contrary to the
plain meaning of the applicable statutes; and therefore, afford no
basis for the continuation of this agency practice. -- See Brown
Express, Inc. v, Railroad~Comission, 415 S.U.2d 394 (Tex. 1967).
p. 1678
Mr. Charles D. Travis - Page 3 (JM-366)
We do not imply that the Commiaaion is totally precluded from
promulgating rules delegatir,g,
its authority to hold hearings on permit
applications. The legislatwe has not prohibited the Coamissio~ from
See Attorney
delegating this function. me- General Opinion JM-244 (1984).
But the Administrative Procedure and Texas Register Act requires that
the granting of an agency 'permitmust comply with the provision6 of
the act concerning contested cases. See V.T.C.S. art. 6252-13a.
113(3), 18(a). Although section 15 ofrhe act clearly allovs the
appointment of a hearing examiner in such cases, see Grace v.
Structural Pest Control Boa::dof Texas, 620 S.W.2d 157 (K Civ. App.
- Waco 1981, vrit ref'd n.r``ommission mst sake the ultimate
decision and include findluns of fact and conclusions of law in
compliance with sections 15 and 16. See Citizens Bank of Bryan v.
First State Bank, Hearne, supra. at 347; Texas Health Facilities
colmission v. Charter Medical-Dallas, Inc.. 665 S.W.2d 446 (Tex.
1984); Consusars Water, In-. v. Public Utility Commission of Texas,
651 S.W.2d 335 (Tex. App. -Austin 1983. no writ).
SUMMARP
Section 57.45 of chapter 31 of the Texas
Administrative Code is invalid because it is
inconsistent with chapter 86 of the Parks and
Wildlife Code an'3 article 6252-13a. the Adminis-
trative Procedure and Texas Register Act. The
Parks and Wildl:.fe Commission is not precluded
from delegating :;tsauthority to hold hearings on
permit applications so long as the practice is in
compliance with article 6252-13a.
-
JIM HATTOX
Attorney General of Texas
TOM GREN
First Assistant Attorney G'sueral
DAVID R. RICRARDS
Executive Assistant AttoNqg General
ROBERT GRAY
Special Assistant Attorney #General
RICR GILPIN
Chairman, Opinion Committee
p. 1679
Mr. Cherlee D. Travie - Pwgc 4 (JM-366)
Prepared by Tony Cuillory
AssistautAttonley General
APPRovm:
OPINION CCRQlITTRg
Rick Gilpin. Chelrmm
Colin Carl
Sussn Garrison
Tony Guillory
Jim Mocllinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1680