Untitled Texas Attorney General Opinion ( 1971 )

Dr. J.,E* Peavy Opinion No, M-~783
Commissioner of Nealth
State JDepartpent of Health Rer Authority of the State
Austin,.~Texaa Departmentiof Health to
require seal of l$oensed
professional engineer on
plans, etc. for hospitals
Dear Dr. Peavyt
We quote:from your letter requesting an opin$on from
this office as foilowsr
"Under the prqvis$ons of Art. 4437f, V.A.T&,
Texaa Hospital Llcenaing Law) and Art, 4442c,
I Convalescent and Nursing Homes), the State Depart-
ment of Health is charged with the reeponslbillty
of carrying out the intent of the legislature as
expressed in these Acts.
'The Legislature has declared a# among the
purposea of Article 4437f, 'to protect and promote
the public health and welfare by providing for the
development, establishment, and enforcement of cerT
taln standards in the construction , . . of hospitals, '
Art. 4437f, $3. In Article 4442~5,the Legislature
has expressed as one of its purposes, 'to promote
the public health, safety and welfare by providing
for the develovment. establishment and enforcement
of standards -. . for the . . . construction of
such inati'tutionswhich ?the lightsof advancing
knowledge will promote safe and adequate treatment
. .' Art. 4442c, 81.
l
"Such ktatements of purpose are pertinent to
the regulatory authority of the Department of
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^
Dr. J. E. Peavy, page 2 (M-783)
Health since Its legislative delegation of au-
thority is couched In terms of legislative pur-
pose. In Article 4437f the Department's rule-
making authority is expressed In part as followst
'The Licensing Agency . . . shall adopt, amend,
promulgate, and enforce such rules, regulations,
and minimum standards as may be designed to fur-
ther the purposes of the Act. Provided, however,
that the rules, regulations, or minimum standards
so adopted, amended, promulgated, or enforced shall
be limited to safety, fire prevention, and sanitary
provisions of hospitals as defined In this Act.'
Art. 4437f, $5. Further statement of authority
is ,as followst 'The Licensing Agency shall have
the authority to deny, cancel, revoke or suspend
a license in any case where it finds there has
been a substantial failure to comply with the
provisions of this Act or the rules, regulations,
or standards promulgated under this Act, or for
the aiding, abetting, or permitting the commission
of any Illegal act, or for conduct detrimental to
the public health, morals, welfare and safety of
the people of the State of Texas.'
"In regard to nursing and convalescent homes
the scope off,
the Department's regulating authority
Is also defined in termsof the legislative purpose
of safeguarding the public health, safety and wel-
fare. Reading selectively, it Is stated In part
as follows:
'The Licensing Agency is authorized to adopt,
amend, promulgate, publish and enforce minimum
standards in relation to:
(a) Construction.of the home or Institution,
Including plumbing, heating, lighting, ventilation,
and other housing conditions, which shall insure
the health, safety and comfort of residents and
protection from fire hazard;
****
(c) All sanitary and related conditions within
the nursing home and its surroundings, including
water supply, sewage disposal . . . which shall
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. .
Dr. J. E. Peavy, page 3 (M-783)
Insure the health, safety and comfort of the
residents.
++**
(e) Equipment essential to W&?i~;~l~%;~d
welfare of the r$sidents , . .’ f
§7.
“The size and complexity of structures,to,
be licensed as hospitals or nursing homes In this
day and time make It most likely that their design
and construction Involve structural, ~mecharilcal
and electrical engineering. The water sUpply,and
sewage disposal problems in connection with these
structures Involve problems in the area of civil
and sanitary engineering, When such engineering
Is involved the Department believes that the
public health and safety is best insured by
requiring that the plans for such structures
bear the seal of a licensed professional en-
gineer, and, subject to your approval, the
Department has voted to make such a raquire-
ment by administrative rule.
“Accordingly, your opinion is respectfully
requested as to the following:
“Does the State Department of Health have
authority under Vernon’s Ann. Civ. St. art. 4437f
to require the seal of a licensed professional en-
gineer on plans, designs or specifications of
‘hospitals,’ as defined in such statute, which
involve structural, mechanical, electrical or
sanitary engineering, submitted to the Depart-
ment for llcensure under the afore.cltedTexas
statute?
‘Does the State Department of Health have
authority under Vernon’s Ann. Civ. St. art.
4442% to require the seal of a lioensed pro-
fessional engineer on plans, designs or specifl-
cations of ‘Institutions,’ aa defined in such
statute, which involve structural, mechanical,
electrical or sanitary engineering, submitted
to the Department for llcensure under the afbre-
cited Texas Statute?”
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. .
Dr. J. E. Peavy, page 4 (M-783)
In construing the provisions of Article 4437f and
Article 4442c,,Vernon's Civil Statutes, Attorney General's
Opinion M-545 (lyoq) held, in part, as follows:
1,
. . . the Legislature intended that the
Department of Health promulgate its own standards
relating to the design, construction and licensing
of hospitals, nursing and convalescent homes, and
.related Institutions. . . .'
'Administrative agencies may adopt and promulgate
reasonable rules and regulations to carry out the performance of
their specific statutory duties. All State Insurance Company v.
State Board of Insurance, 401 S.W.Td 131 (Tex.Civ.App. lqbb, error
ref. n.r.e.). However, a rule must be In harmony with the general
objectives of the act involved. Gerst v. Cliff Savings & Loan
Association, 432 S.W.2d 702 (Tex.Sup. 1968) In view of th holdlng
In Attorney General's Opinion M-545 and in lonsideratlon ofethe
Department's proposed rule in light of the provisions of the re-
spective statutes, it Is our opinion that the proposed rule of the
State Department of Health appears reasonable, being in conformity
with the Department's specific statutory duties and in harmony with
the general objectives of Articles 4437f and 4442`` Vernon's Civil
Statutes. It will therefore be valid and legally enforceable.
Consequently, in answer to your questions, you are advised that
the State Department of Health has the authority under the pro-
visions of Article 4437f and 4442~ to require by administrative
rule the seal of a licensed, Erofesslon$ engineer on plan:,
designs or specifications of hospitals and institutions as
defined In the respective statutes which involve structural,
mechanical, eleiztrlcalor sanitary engineering submitted to the
State Department of Health.
SUMMARY
The State'Department of Health has the au-
thority under the provisions of Articles 443i'f
and 4442~ to require by administrative rule the
seal of a licensed, professional engineer on
plans, designs or specifications of "hospitals"
and "institutions" as defined in the-respective
statutes which involve structural, mechanical,
electrical or sanitary e
the State Department of
General of Texas
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Dr. J. E. Peavy, page 5 (M-783)
Prepared by Ivan R.,Williams, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jack Sparks
Harriet Burke
Ed Esqulvel
J. C. Davis
Roger Tyler
MEADE F. GRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLA WRITE
First Assistant
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