Untitled Texas Attorney General Opinion ( 1971 )

Honorable Ned Price, Chairman Opinion No. M-947
State Board of Insurance
1110 San Jacinto Re: S. B. 612, Acts 62nd
Austin, Texas 78701 Leg. R. S. 1971, Chap.
226, p. 1074, Amending
Article llllc-1, Vernon's
bear Mr. Price: Penal code
You have requested the opinion of this Office as to
the application of certain aspects of Senate Bill 612, (Acts
62nd Leg. R. S. 1971, Chap. 226, p.'lO74). This Bill amends
Article llllc-1, Vernon's Penal Code, by adding Section 2(d)
thereto. Specifically, you ask our opinion on the following
questions:
"(1) Are all the different provisions
of Article llllc-1 (Acts 61st Leg. R. S. 1969,
Ch. 550, p. 16921, dealing specifically with
flammable liquids at retail service stations,
;Ep;icable to mobile service units as defined
. B. 612, Acts 62nd Leg. R. S. 1971, which
amends Section 2 of Article llllc-1, supra, by
adding thereto a new section designated Section
2(d)?
"(2) Does the State Board of Insurance
have authority under the provisions of S. B.
612, supra, to create licensing requirements
for the operation of mobile service units, and
to set standards for the securing of such
licenses?"
Senate'Bill 612, codified as Section 2(d), Article llllc-1,
V.P.C., is set out as follows:
"(a) In addition to other authority
granted by this Act, the State Board of
Insurance shall formulate, adopt and pro-
mulgate rules and regulations for the safe
movement and operation of mobile service
units and for the safe dispensing of flammable
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Honorable Wed Price, page 2 (M-947)
liquids by mobile service units. As used in
this Act, and in the rules promulgated here-
under, 'mobile service units' are vehicles,
tank trucks, or other mobile devices from
which flammable liquids used as motor fuels
may, as an act of retail sale, be dispensed
into the fuel tanks of motor vehicles parked
on off-street parking facilities; provided
that any city may, by ordinance, within one
hundred eighty (180) days after promulgation
by the State Board of Insurance of Statewide
regulations hereunder, adopt rules and regu-
lations covering such units which are more
restrictive but not less restrictive than
those adopted by the State Board of Insurance
hereunder and in addition thereto any city
may license and charge a reasonable license
fee for the operation of each such mobile
service unit operating in such city. The rules
and regulations promulgated under this Act
shall have uniform force and effect through-
out the State and no municipality or county
shall hereinafter enact or enforce any ordinance,
rules or regulations inconsistent with the
rules and regulations promulgated hereunder
except as provided herein. Provided, however,
that any municipal or county ordinances, rules
or regulations in force and effect on the
effective date of this Act, including the
prohibition of mobile service units, shall not
be invalidated because of any provision of
this Act."
Prior to enactment of the above amendment, Article
llllc-1 related to the "storage, handling, and use of flammable
liquids at retail service statiops," and the rules and regula'
tions adopted by the Board presumably cover such storage,
handling and use with regard to fixed-equipment at retail
service stationsor bulk plants. The above amendment adds
the new dimension:of mobile service units to the pre-existing
coverage of Article llllc-1.
A statute must be construed as a whole so that al1
of its parts can be harmonized, if possible, in order to give
effect ,to the entire Act according to the evident leqislatlVe
intent. 53 Tex.Jur.Zd 227-228, Statute, Sec. 159. We are
unable to say that every pre-existing provision of Article
llllc-1 can be held applicable to the new Section 2(d), but
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(onorable Ned Price, page 3 (M-947)
lost can be related generally to mobile service units. The
lact that some, like Section 4, are, by their own terms, not
:oncerned with mobile units, would not mean that other provi-
3ions, not so limited in their terms, would fail of application.
3pecifically, the Sections not applicable to mobile service
mits are Sections l(4), l(S), 2 and 4. All the remaining
iections of Article llllc-1 will apply to the mobile units.
Your second question asks us to determine whether
the State Board of Insurance has the authority under the pro-
visions of Senate Bill 612 to create licensing requirements for
the operation of mobile service units and to set standards for
the securinq of such licenses. It is fundamental that the
powers of an administrative agency such as the State Board of
Insurance are derived entirely from legislative enactment.
The agency has'only such powers as are expressly conferred upon
it by statute, together with those necessarily implied from
powers ana duties expressly given or imposed. 1 Tex.Jur.26,
Administrative Law, Sec. 6, p. 652. The scope of the powers
under consideration here granted to the State Board of Insurance
are to, "formulate, adopt and promulgate rules and regulations
for the safe movement and operation of mobile service units
and for the safe .dispensingof flammable liquids by mobile
service units." The extent of the expressed and implied powers
Of the State Board of Insurance is defined by this phrase.
However, without ,attemptingto discuss the entire scope of these
powers, it is relevant to our question here to point out that
among those powers which the Board does not have is the power
to "license" mobile service units absent an express statutory
grant of that vower. We are fully supported in this positions
by the case of-State of Texas, acting-by Andythrough State
Board of Morticians vs. Cortez, 160 Tex. 532, 333 s.w.2a 839
119601 _
This case involves, among other things, the scope of
authority of the State Board of Morticians as defined in
Article 4582b, Vernon's Civil Statutes, being Acts 1953, 53rd
%I., p. 661, ch.'251. The Board acting pursuant to Sec. 2
(4)(D), which said that "the Board shall have the power . . .
to prescribe rules and regulations pertaining to the operation
of all funeral establishments. . .", sought, pursuant to this
l*guage , to license a funeral establishment. Other provisions
Of the Act expressly granted the Board the power to license
an embalmer and a funeral director and specified the require-
ments therefor, including grounds for removal. The Supreme
Court held, and we quote from page 841:
"The Board which is set up by the Act
is an administrative agency and has no power
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Honorable Ned Price, page 4 (M-947)
to require a license or payment of a license
by a funeral establishment as a prerequisite
to its operation. 1 Tex.Jur.Zd 652, Sec. 6."
and further at page 841:
"The Board does have the right to
prescribe the rules and regulations govern-
ing the operation of a funeral establishment
but not to require licenses . . . ."
It is our opinion that the power of the State Board of
Insurance to promulgate rules and regulations does not en-
compass the power to license. The Legislature subsequently
responded to this case in 1963 by completely amending Article
4582b by Acts 1963, 58th Leg., p. 1283, ch. 494, Art. 1. The
Act as amended contains express authority for the Board to
license a funeral establishment pursuant to the statutory
requirement set out in Sec. 4 thereof.
However, the State Board of Insurance by the terms of
Senate Bill 612 does have the power to formulate, adopt and
promulgate rules and regulations for (1) the safe movement
and operation of mobile service units, and (2) for the safe
dispensing of
. flammable liquids by those units. The rules
and regulations promulgated set the minimum standards of
uniform statewide application for the safe movement and opera-
tion of mobile service units and dispensing of the flammable
liquids. Any city which enacts a licensing ordinance would,
of necessity, have to set the requirements for such a license
in liqht of the minimum standards established in the Board's
rules and regulations.
SUMMARY
Sections l(4), l(5), 2 and 4, Vernon's
Penal code, are by their very terms related
solely to retail service stations or bulk
plants, and are not applicable to mobile
service units as defined in Section 2(a),
Article llllc-1, Vernon's Penal code.
While the State Board of Insurance does
not have the authority under Section 2(d) of
Article llllc-1, Vernon's Penal code, to
license mobile service units, however, it
does have power to formulate, adopt and
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Honorable Ned Price, page 5 (M-947)
promulgate rules and regulations for the
safe movement and operation of mobile serv-
ice units and for the safe dispensing of
flammable liquids by these units.
Any city which enacts a licensing ordi-
nance would, of necessity, have to set the
requirements for such a license in light of
the minimum standards established in the
Board's rules and
truly yours,
Prepared by:
Rex H. White, Jr.
James H. Quick
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Scott Garrison
James Mabry
Bob Lattimore
Sig Aronson
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
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