Untitled Texas Attorney General Opinion ( 1963 )

THEATTORNEY GENERAL
OF TEXAS
Ausnlv``.TExas
December 2, 1963
Honorable Joe Carter Opinion No. C-188
Chairman
Texas Water Commission Re: Various questions regardin the
P. 0. BOX 2311 interpretation of Article 7531 l),
Austin 11, Texas V.C.S., in light of subsequent en-
actment of Article 6252-13, v.c.S.,
relative to publication of revised
rules and regulations, etc. of the
Dear Mr. Carter: Water Commission. RQ 214
This opinion is In response to your request regarding
the above cited matter, set out specifically in your letter
as follows:
"1 . Do the publication requirements of Article
7531, Revised Civil Statutes control as to the
publication in a newspaper of general circulation
In each of the three water districts of a revision
of the rules, regulations, etc. of the Commission
in light of the subsequent enactment of Article
6252-13~
"2 . If the above question is answered in the
negative, would Section 2(c) of Article 6252-13 be
authority for the Commission to publish a 'notice
of revision of its rules’ and Indicate to the
general public that full and complete copies of
such revised rules were available on request?
"3. If question No. 1 is answered in the af-
firmative or question No. 2 is answered in the
negative, in light of the two statutes, what would
be the minimum publication requirements for such a
revision of Commission rules, regulations, etc.,
particularly as to:
"a. Scope of material (i.e., rules, regula-
tions, etc.) required to be published;
"b. Place cr places required to be publish-
ed; and
‘?C . Nature, type, circulation, etc. of pub-
lj.cationwhich must be utilized."
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Honorable Joe Carter, page 2, Opinion No. C-188
Article 7531,Vernon's Civil Statutes, as amended by Acts
1953, 53rd Legislature, ch. 356, p. 872, f41, provides:
(1 After the ,&ommissiog rules and regulations
shail'have been adopted and printed, no amendment
of an existing rule or no new rule shall be made
effective until at least thirty (30) days after
copy of same shall have been published one time In
a newspaper of general circulation in each of the
three Water Divisions described in Article 7475 of
the Revised Civil Statutes of Texas, 1925."
Article 6252-13, Vernon's Civil Statutes, as amended b
Acts 1962, 57th Legislature, 3rd C.S., ch. 31, p. 90, 8 l(b3
provides:
"'Rule' is hereby defined to mean and shall in-
clude only rules and.regulations promulgated or
adopted by any agency governing or relating to
rules of procedure or practice before such agency
or to govern its organization or procedure, inclui-
ing the amendment, change, or repeal thereof,
whether with or without orior hearing: Drovided
that such definition shall not include br be appli-
cable to rules, regulations, orders, rates, stand-
ards, or classifications adopted, promulgated, or
prescribed by any agency to properly perform its
statutory duties or to implement or make specific
the law enforced or administered by any such agency,
or to rules, regulations, or orders concerning the
internal management of the agency and not directly
affecting the rights of or procedure available to
the public. (Emphasis added.)
"Sec. 2. In addition to the rule-making require-
ments imposed or authorized by law:
'I** *
"(c) Prior to the adoption of any rule as defined
in Section l(b) hereof or the amendment or repeal
thereof, the:adopting agency shall, so far as-prac-
tical, publish or otherwise circulate notice of its
intended action and afford interested persons oppor-
tunity to submit data or views orally or in writing."
(Emphasis added.)
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Honorable Joe Carter, page 3,,Opinion No. C-188
The 1953 Legislature passed Article 7531(l), dealing
specifically with the Board of Water Engineers (Water Com-
mission), and positively outlining the duty to publish copies
of new rules, regulations, or amendments thereof for 30 days
whether they be procedural rules or substantive rules made in
performance of its duty under Chapter I, Title 128, V.C.S.
The 1962 Legislature passed Article 6252-13 to deal with
the broad general requirements for all authorized rule making
agencies with a few limited exceptions. However, this statute
by Section l(b) thereof is limited by definition to cover only
those rules, regulations, or amendments relating to procedure
or practice before such agency, or rules, regulations or
amendments to govern its organization, which for convenience
will be referred to as 'procedural rules.11 Specifically ex-
cluded from this Act are all rules, regulations or amendments
promulgated by an agency to perform its statutory duty or make
specific the law enforced or administered by it, which for
convenience we shall call "substantive rules." The publica-
tion or circulation of notice requirement of Section 2(c)
prior to the adoption of said "procedural rules" is to permit
interested persons the opportunity to submit their views be-
fore the rules become final.
Before the passage of Article 6252-13, Article 7531(l)
was the only requirement as to publication of new rules or
amendments. The sole question remaining is whether the pas-
sage of Article 6252-13 repealed or altered this requirement.
There being no express repeal of Article 7531(l) in Article
6252-13, the next inquiry must be whether such is implied.
The established rules of statutory construction which
immediately appear applicable are:
(1) Statutes which deal with the same general subject
even though one statute may deal with the subject in compre-
hensive terms and another deals with a portion of the same
subject in a more definite way, must be considered as "in
pari materia," but in case there exists irreconcilable con-
flict, then the special will prevail over the general statute.
Ex parte Townsend, 64 Tex. Crim. 350, 144 S.W. 628 (1911).
(2) Acts in "pari materia" will be construed together
as though they were parts of law of the same act and any con-
flict between their provisions will be harmonized if possible,
and effect will be given to all the provisions of each act if
they can be made to stand together and have concurrent effi-
cacy. 39 Tex.Jur. 254.
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Honorable Joe Carter, page 4, Opinion No. C-188
(3) A statute does not abrogate or affect an earlier
law &i&s clearly so stated if there is no conflict between
the two. 39 Tex.Jur. 139.
(4) Where there is no express repeal, the presumption
is that in enacting a new law the Legislature intended the
old statute to remain in operation. If by any reasonable
construction two acts or statutory provisions can be recon-
ciled and so construed that both may stand, one will not be
held to repeal the other. Cole v. State, 106 Tex. 472, 170
S.W. 1036 (1914).
The scope of Article 6252-13, V.C.S., was clearly limit-
ed by the definition of "Rule" in Section l(b) thereof to en-
compass "procedural rules" only. The further clear evidence
that this statute was intended as additional to any other re-
quirements in the field is shown by the preface of Section 2
reading:
"In addition to the rule-making requirements
imposed or authorized by law:"
There is no inconsistency in the two questioned statutes
if each Is given its full effect and treated as two separate
requirements on the Water Commission in its rule making capa-
city. This would require the publication or circulation of
notice set out in Article 6252-13, Sec. 2(c) rior to the
adoption of the "procedural rules" as defined'-) of
that statute. Subsequent to the adoption of all rules, regu-
lations or amendments, whether “substantive” or "procedural"
as heretofore defined, Article 7531(l) requires publication
of copies thereof before they can become effective.
In light of this analysis, we must answer your question
No. 1 and question No. 2 that the requirements of both
statutes are mandatory.
We now turn to your third question in an attempt to de-
fine the minimum publication requirements of both statutes.
Besides the necessity of filing "procedural rules" with
the Secretary of State after they are adopted, Article 6252-13,
Sec. 2(c), imposes the general duty before adoption of these
"procedural rules" or amendment or repeal thereof, to publish
or otherwise circulate, as far as practical, notice of its
intended action. This seems broad enough to permit your sug-
gested procedure of publishing a "Notice of revision of its
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Honorable Joe Carter, page 5, Opinion No. C-188
rules" and indicate to the general public that full and com-
plete copies of such revised rules are available on request.
Article 7531(l) embodies the minimum publication require-
ments for all new rules, regulations or amendments, whether
they be "procedural rules" or "substantive rules."
As to the material required to be published, the language
of the statute is that:
1, no amendment of an existing rule or no new
rile shall be made effective until at least thirty
(30) days after copy of same shall have been pub-
lished . . ." @mphasis added.)
As to all new rules and regulations or amendments the
wording seems clearly to require a complete co of the same
to be published. As to renumbering or recodiff cation of al-
ready existing rules, it would seem reasonable to publish the
revised index changes only, as there is no change in the sub-
stance of the rules, and they are already in effect without
complying with Article 7531(l), V.C.S.
The places where publication must be made are spelled
out In Article 7531(l) as:
II. . . a newspaper of general circulation in each
of the three Water Divisions described in Article
7475 of the Revised Civil Statutes of Texas, 1925."
Your inquiry No. 3(c) as to nature, type, circulation,
etc. of the publication which must be utilized is best
answered by the Legislature's statutory definitions found in
Article 28a, V.C.S., with the following relevant portions
quoted:
"(2) The term 'newspaper' shall mean any news-
paper,devoting not less than twenty-five (25) per
cent of its total column lineage to the carrying of
items of general interest, published not less fre-
quently than once each week, entered as second-class
postal matter in the county where published, and
having been published re ularly and continuously for
not less than twelve (127 months prior to the making
of any publication mentioned in this Act.
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Honorable Joe Carter, page 6, Opinion No. C-188
"(5) The term 'shall' whenever used in this Act
shall be construed as indicating mandatory provl-
sions In this Act.
"(6) The officer, employee, agency or persons
charged with the duty of Inserting any publication
in a newspaper or newspapers shall select the news-
paper or newspapers in which such publication is to
be inserted. . . .'
,The term "newspaper of general circulation," although
not defined by statute, was defined In Robinson v. State, 143
S.W.2d 629 (Tex.Civ.App. 1940, error dism., judg. car.)
where the court found at that time and In that instance:
being a suit attacking a tax judgment where citation was by
publication, that a daily newspaper which had 26 years'
~standing in the city of Dallas, and a circulation of about
1000 among people in different walks of life fulfilled this
requirement.
SUMMARY
Article 6252-13, Sec. 2(c) must be complied
with before any procedural rule is adopted. In ad-
dition, all rules, whether procedural or substan-
tive, must comply with the publication requirements
of Article 7531(l) before they become effective.
The minimum publication requirements of Article
7531(l) are: (1) a copy of the entire rule, regu-
lation or amendment must be published; (2) it must
be published in each of the three Water Divisions
described in Article 7475; (3) it must be published
in a newspaper of general circulation.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
WRR:da
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Honorable Joe Carter, page 7, Opinion No. C-188
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Fred D. Ward
Frank Booth
Ernest Fortenberry
Gordon Appleman
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone
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