Judges: MARK WHITE, Attorney General of Texas
Filed Date: 3/23/1982
Status: Precedential
Modified Date: 7/6/2016
Honorable Ray Farabee Chairman State Affairs Committee Texas State Senate Room 411, Archives Building Austin, Texas 78711
Re: Validity of legislation authorizing a legislative committee to veto or repeal administrative rules
Dear Senator Farabee:
Your letter to this office reads in part:
As Chairman, Senate State Affairs Committee, I hereby respectfully request your opinion . . . concerning the application and interpretation of article II, section 1, and article
The Sixty-seventh Legislature passed, and the governor signed, several acts containing the following language (or words of the same import):
If the appropriate standing committees of both houses of the legislature acting under Section 5(g), Administrative Procedure and Texas Register Act, as amended (Article
6252-13a , Vernon's Texas Civil Statutes), transmit to the board statements opposing adoption of a rule under that subsection, the rule may not take effect or, if the rule has already taken effect, the rule is repealed effective on the date the board receives the committee's statements.
It is the validity of this language, now included in the enabling acts of several state agencies, that you question. See V.T.C.S., art. 46c-4(c) (Aeronautics Commission); art. 3271a, § 8(d) (State Board of Registration for Professional Engineers); art. 4413 (29cc), § 6(f) (Polygraph Examiners Board); art. 4512b, § 4(c) (Texas Board of Chiropractic Examiners); art. 4512e, § 3e (Texas Board of Physical Therapy Examiners); art. 4528c, § 5(r) (Board of Vocational Nurse Examiners); art. 4552-2.14, (b) (Texas Optometry Board); art. 4551d, 3(b) (Texas State Board of Dental Examiners); art. 4568(j) (State Board of Podiatry Examiners); art. 5931-5, (10) (National Guard Armory Board); art. 6243-101, § 4(c) (Texas State Board of Plumbing Examiners); art. 7465a, § 8(c) (Texas State Board of Veterinary Medical Examiners).
The language under examination purports to lodge in legislative committees established pursuant to section 5(g) of the Administrative Procedure and Texas Register Act (APTRA), article 6252-13a, V.T.C.S., the power to veto or repeal any rule promulgated by the administrative agency affected. That APTRA subsection, added in 1977, provides:
Each house of the legislature shall adopt rules establishing a process under which the presiding officer of each house shall refer each proposed agency rule to the appropriate standing committee for review prior to adoption of the rule. When an agency files notice of a proposed rule with the secretary of state pursuant to Subsection (a) of this section, if shall also deliver a copy of the notice to the lieutenant governor and the speaker. On the vote of a majority of its members, a standing committee may transmit to the agency a statement supporting or opposing adoption of a proposed rule.
See V.T.C.S. art. 6252-13a, § 5(g). We note that an agency proposing rules if also required to give notice to the public and invite comment from `any interested person.' V.T.C.S. art. 6252-13a, § 5(a)(6).
There is no constitutional provision, state or federal, which precludes commentary or expressions of approval or disapproval by a legislative committee addressed to an administrative body contemplating the adoption of a rule or regulation, and the validity of section 5(g) of article 6252-13a, the Administrative Procedure and Texas Register Act, has not been questioned. See Terrell v. King,
We consider first the repeal of agency rules that have been already adopted and put into effect. In legal theory, the legislative power vested in the legislature by article III, section 1 of the constitution must be exercised by it alone. However, many powers have been properly delegated by the legislature to administrative agencies. See generally 12 Tex. Jur.3d Constitutional Law § 73 et seq., at 599. Among them has been the power to make rules having the force and effect of law. See generally 2 Tex. Jur.3d Administrative Law § 16 et seq., at 208.
Valid rules promulgated by an administrative agency acting within its statutory authority have the force and effect of legislation. Lewis v. Jacksonville Building and Loan Association,
Thus, a conclusion that the language under scrutiny is unconstitutional might be rested on the ground that it attempts to confer upon members of the legislative branch of government an executive power to efficiently administer laws enacted by the legislature. Section one of article
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confined to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.
It was held in Ex parte Youngblood,
But the provisions authorizing legislative committees to repeal adopted agency rules are unconstitutional even if the power conferred could be said to be purely legislative in character. It was held in Parks v. West,
The legislature is compelled to follow those procedures in the enactment of all laws, including repeals, unless the constitution itself provides exceptions thereto. It takes a law to repeal a law, and the act which destroys should be of equal dignity with that which establishes. City of Hutchins v. Prasifka,
Turning to the authorization for such committees to veto proposed rules, we reach the same result for essentially the same reasons. The power to control or correct Decisions committed to administrators by law is an executive function. Walker v. Baker supra. The legislature, of course, may in the first instance severely restrict the discretion of executive officers or administrators to make rules by so thoroughly detailing legislation before it leaves its hands that little or no room is left for administrative interpretation. See Fire Department of City of Fort Worth v. City of Fort Worth,
In Railroad Commission v. Shell Oil Company,
The foregoing conclusion is not inconsistent with the case of Jessen Associates, Inc. v. Bullock,
We conclude that it is constitutionally impermissible for the legislature to delegate to legislative committees the power to nullify rules proposed or adopted by agencies in the executive branch of government. As a matter of interest we note that a constitutional amendment which would have expressly allowed a delegation of such power to legislative committees was proposed in 1979 but defeated by the people. See H.J.R. No. 133, Acts 1979, 66th Leg., at 3232.
Very truly yours,
Mark White Attorney General of Texas
John W. Fainter, Jr. First Assistant Attorney General
Richard E. Gray III Executive Assistant Attorney General
Prepared by Bruce Youngblood Assistant Attorney General
State v. A.L.I.V.E. Voluntary , 606 P.2d 769 ( 1980 )
Anderson v. Lamm , 195 Colo. 437 ( 1978 )
Lewis v. Jacksonville Building & Loan Ass'n , 540 S.W.2d 307 ( 1976 )
City of Hutchins v. Prasifka , 450 S.W.2d 829 ( 1970 )
State Ex Rel. Judge v. Legislative Finance Committee , 168 Mont. 470 ( 1975 )
Texas Liquor Control Board v. Attic Club, Inc. , 457 S.W.2d 41 ( 1970 )
Oxford v. Hill , 558 S.W.2d 557 ( 1977 )
Jessen Associates, Inc. v. Bullock , 531 S.W.2d 593 ( 1975 )
J. D. Abrams, Inc. v. Sebastian , 570 S.W.2d 81 ( 1978 )
Parks v. West , 102 Tex. 11 ( 1908 )
Railroad Commission of Texas v. Shell Oil Co. , 139 Tex. 66 ( 1942 )
City of San Antonio v. Micklejohn , 89 Tex. 79 ( 1895 )
Terrell v. King , 118 Tex. 237 ( 1929 )
American Indemnity Co. v. Austin , 112 Tex. 239 ( 1922 )