Untitled Texas Attorney General Opinion ( 1985 )


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  •                                The Attorney General of Texas
    Iecember 31, 1985
    JIM MATTOX
    Attorney General
    Supreme Court Building         Robert Bernstein, M.D., F.A.C.P.         Opinion No.   JM-414
    P. 0. BOX 12549                Commissioner
    Justin, TX. 78711.2549         Texas Department o,EHealth               Re:   Rulemaking authority of the
    512/475-2501                   1100 West 49th Stmet                     Texas Board of Health with regard
    Telex 9101974.1367
    Austin, Texas   7 3'156                  to massage therapists under House
    Telecobler   51214754%
    Bill No. 2012, Acts 1985, Sixty-
    ninth Legislature
    714 Jackson. SUM 700
    Dallas, TX. 75202.4508
    Dear Dr. Berusteil:
    214l7428Q44
    You ask for clarification of the rulemaking authority of the
    4924 Alberta Ave., Suite 160   Texas Board of Htralthwith regard to massage therapists under House
    El Paso, TX. 799052793         Bill No. 2012, Acts 1985, 69th Leg., ch. 752, at 5388, to be codified
    915/533.34&l                   ae article 45121:, V.T.C.S. Applying well established rules for
    statutory coustruction, we conclude that a court would find that the
    1001 Texas, Suite 700
    legislature intends the Texas Board of Health to adopt rules on
    Houston, TX. 77002-3111        matters pertaining to the regulation of massage therapy with the
    713l223.5886                   advice of the Advisory Council on Massage Therapy.
    House Bill NO. 2012, which relates to the regulation of massage
    90s Broadway, Suite 312
    Lubbock, TX. 79401.3479
    therapy, contains the following pertinent provisions:
    9091747~5239
    SECTXIN 3. APPLICATION FOR REGISTRATION. Each
    licani for registration under this Act shall
    4309 N. Tenth, Suite S
    %&-&lication       forms provided by the depart-
    McAllen, TX. 78501-1885
    5121682.4547
    ment; azcompanied by the application fee set by
    the dep&nent.
    200 h4ah Plaza, suite 400                  . . I .
    San Antonio, TX. 78205-2797
    512/2254191
    SECTXIN 7. POWERS AND DUTIES OF THE BOARD AND
    THE DFZZRTMENT. (a) The board shall adopt rules
    An Equal OpportUnitYI                   consistmt with this Act as necessary for the
    Affirmative Action Employer             perform&e     of its duties under this Act. The
    board slhl   adopt the rules in the mauuer provided
    by the lhdministrativeProcedure and Texas Register
    Act   (Article 6252-13a. Vernon's Texas Civil
    ScatuterI) .
    (b) ZXe departmut shall administer this Act.
    .   .      .
    p. 1891
    Dr. Robert Bernstein - Page 2    (JM-414)
    SECTION 8. ADVISORY COUNCIL. (a) The Advisory
    Council 011 Masasge Therapy is created as an
    advisory councilJo the department.
    . . . .
    SECTION 9. POWERS AND DUTIES OF THE ADVISORY
    COUNCIL. (a) T&e advisory council by rule shall
    prescribe application forms and registration fees.
    The advisory cou&l   shall set the fees in mounts
    reasonable and xs:cessaryto administer this Act.
    (Emphasis added).
    The issw before us is the effect of the language in section 9 on the
    general rulemaking power of the Texas Board of Health as provided by
    section 7.
    The dominant consideration in construing statutes is legislative
    intent. That intention is derived from a general review of an entire
    enactment and, when ascert,ained,shall be given effect to attain the
    object and purpose of the legislation. See City of Houston v. Morgan
    Guaranty International Bank_,666 S.W.2d 524, 529 (Tex. App. - Houston
    tlst Dim..] 1983, writ rt,f'd n.r.e.), cert.    denied, 
    105 S. Ct. 1185
    (1985). The Texas courts repeatedly have held that the intention of
    the legislature controls the language used in an act and that in
    construing an act, a court is not necessarily confined to the literal
    meaning of the words used in the act. The intent rather than the
    strict letter of the act xl11 control. See Texas Turnpike Authority
    v. Sheooerd, 
    279 S.W.2d 3X
    !, 306 (Tex. 1955); City of Mason v. West
    Texas Utxties     Co., 
    237 S.W.2d 273
    , 278 (Tex. 1951); Nichols v.
    Aldlne Indeuendent          District, 
    356 S.W.2d 182
    , 184 (Tex. Civ.
    APP.  - Houston  1962, no w&z);  Holcombe v. Levy, 301 S.W.Zd 507, 518
    (Tex. Civ. App. - Galvestmo 1957, writ raf'd n.r.e.). In cases of
    ambiguity, statutas must be given a practical and reasonable
    construction that will malca them valid, if possible, and that will
    accowmlish as nearly as roeaible the intention of the lenislature.
    See B&a     & Root v.-Durl~xl, 
    84 S.W.2d 1073
    , 1075 (Tex. 1935). See
    also Huntsville Independm~~ School District v. McAdams, 221 S.Wx
    z67 548 (Tex. 1949). It &o      is well settled that statutes that deal
    with the same general subject constituting parts of the same general
    plan are considered as being in pari materia and are considered
    together, even thouah ther, are passed at different times and do not
    refer to one another. Se;: Cal&t      v. Fort Worth National Bank, 
    356 S.W.2d 918
    , 921 (Tex. lmj;     Robp V. Hawthorne, 84 S.w.2d 1108, 1109
    (Tex. Civ. App. - Dallas 1535. writ dima'd).
    Chapter 109 of the Sicey-eighth Legislature, codified as article
    4419b. V.T.C.S., was enac,ted in 1983 to clarify the structure and
    duties of the Texas Board cf Health, the Department of Health, and the
    Commissioner of Health. As:ts 1985, 69th Leg., ch. 109, at 521. -See
    p. 1892
    Dr. Robert Bernstein - Page 3   (JM-414)
    Bill Analyses to S.B. No. '38,69th Leg., prepared for Senate Committee
    ou Bealth and Eumaa Resources and House Comittee ou Public Health,
    Bill File to S.B. No. 98, Legislative Reference Library. See also
    Attorney General Opinion B-949 (1977) (relating to general rulemaking
    power of Department of Health Resources in 1977). Chapter 109
    provided, in pertiuent par:, that
    (a) The boarlishall:
    .   .   .   .
    (b) The boar'i is responsible for the adoption
    of policies and rules and for the government of
    the department. The board shall supervise the
    commissioner's administration and enforcement of
    health laws of the state. The board may delegate
    in writing any power or duty imposed on it by law,
    except the power' or duty to adopt rules, to the
    commissioner of Ilealthor, in his absence, to the
    person acting as commissioner of health, including
    the authority to make final orders or decisions.
    . . . .
    (d) The board may appoint advisory committees
    to   assist   the  board    in  performing   its
    duties. . . . (Lmphasis added).
    V.T.C.S. art. 4414b, 81.05. Section 1.06 of that act further provided
    that the commissiouer of health shall administer and enforce the
    health laws of this state lmnder the board's supervision and perform
    the duties assigned to him by the board and state law, subject to the
    provisions of that act.
    We believe that the legislature granted to the Texas Board of
    Health general authority to adopt rules and policies for the
    department and authorized the appointment of advisory committees to
    assist the board with its duties. The rules established by that act,
    whereby the board adopts rules and sets policy based on advfce of
    advisory committees and the commissioner and staff of the department
    administer the adopted rules and policies, were reaffirmed and
    p. 1893
    Dr. Robert Bernstein - Page!4     (JM-414)
    reenacted during the Texas Sunset Act review of the Texas Department
    of Bealth by the same session of the legislature that enacted the
    statute regulating massage ,therapy. See V.T.C.S. art. 4414b. Sg1.05,
    1.08 (as enacted by Acts l!lE;5,
    69th LeK   ch. 931, at 6746, 6749). We
    believe articles 4414b and 4512k, V.T.C.S., are in pari materia and
    should be considered together.
    Article 4512k, as enacted by House Bill No. 2012, expressly
    grants rulemaking authorit;' to the Texas Board of Health and expressly
    creates the Advisory Coum:il on Massage Therapy "as an advisory
    council to the department." We believe that the intent of the
    Sixty-ninth Legislature mm      to adopt the same rules and basic
    structure for the Texas Department of Health in chapter.752 that It
    adopted for the department in chapter 931. As such, the Texas Board
    of Health adopts rules basc!CIon the advice of the Advisory Council for
    the regulation of massage therapy under article 4512k, including rules
    that prescribe application forms and registration fees.
    SUMMARY
    The    Texas Bcsrd of Health adopts rules on
    matters    pertaining to the regulation of massage
    therapy   with the advice of the Advisory Council on
    Message   Therapy.
    JIM     MATTOX
    Attorney General of Texas
    JACK HIGHTOWER
    First Assistant Attorney Gmeral
    MARY KELLER
    Executive Assistant Attommy    General
    ROBERT GRAY
    Special Assistant Attorney General
    RICK GILPIN
    Chairman. Opinion Committea!
    Prepared by Nancy Sutton
    Assistant Attorney General
    p. 1894