Untitled Texas Attorney General Opinion ( 1987 )

THE ATTO~~NEP GENERAL
OF TEXAS
Nwder la, 1987
Mr. Curtis Tunnel1 Opinion No. JM%!2
Executive Director
Texas Historical Commission Re: Whether the 180-day wait-
P. 0. Box 12276 ing period set forth in
Austin, Texas 78711 section 442.008, Government
Code, may be waived (RQ-1282)
Dear Mr. Tunnell:
Section 442.008 of the Government Code sets forth
the provisions governing the preservation of historic
courthouses. You ask whether the 180-day waiting period
prescribed in section 442.008 of the code, during which a'
courthouse designated by the Texas Historical Commission
- may not be sold or damaged, may be waived by the commis-
sion. We conclude that it may not.
Chapter 442 of the recently-codified Government Code
sets forth the duties and authority of the Texas
Historical Commission [hereinafter the commission]. Acts
1987, 70th Leg., ch. 147, §l, p. 1010-19 (formerly cod-
ified as V.T.C.S. article 6145). The purpose of the
commission is to "provide leadership and coordinate
services in the field of historic preservation." Gov't
Code !j442;003. Section 442.005 of the code sets forth the
various powers and duties of the commission, which
shall furnish leadership, coordination, and
services to county historical commissions,
historical societies, and the organizations,
agencies, institutions, museums, and
individuals of this state interested in the
preservation of historical heritage and
shall act as a clearinghouse and information
center for that work in this state.
,- Gov't Code §442.005(a). The commission is required to
"give direction and coordination to the state historical
marker program," id. at 5442.006(a), and to '*install
markers recognizing districts, sites, individuals, events,
-
structures, and objects significant in Texas or American
p. 3910
Mr. Curtis Tunnel1 - Page 2 cm-822)
history, architecture, archeology, or culture and shall
keep a register of those markers," & at 5442.006(b).
The commission, together with the state archeologist, must
direct the state archeological program, id. at 5442.007,
encourage the preservation of historic courthouses, id. at
5442.008, and prepare information of consumer interest and
accept and act upon consumer complaints, id. at 9442.009.
Section 442.011 of the code provides: "A person who
violates this chapter is subject to-a civil penalty of not
less than $50 nor more than $1,000 for each day of
violation." And section 442.012 empowers the attorney
general or any resident of this state to file suit in
district court to restrain and enjoin a violation or
threatened violation of the act.
Section 442.008 of the code sets forth the following:
Sec. 442.008. HISTORIC COURTHOUSES.
(a) A county may not demolish, sell, lease,
or damage the historical or architectural
integrity of any building that serves or has
served as a county courthouse without
notifying the commission of the intended
action at least six months before the date
on which it acts.
(b) If the commission determines that a
courthouse has historical significance
worthy of preservation, the commission shall
notify the commissioners court of the county
of the fact not later than the 30th day
after the date on which the commission
received notice from the county. A countv
mav not demolish, sell. lease, or damaae the
historical or architectural intearitv of a
courthouse before the 180th dav after the
date on which it received notice from the
commission. The commission shall coooerate
with anv interested verson durina the
JSO-dav veriod to vresenre the historical
intearitv of the courthouse.
(c) A county may carry out ordinary main-
tenance of and repairs to a courthouse
without notifying the commission. (V.A.C.S.
Art. 6145, Sec. 14.) (Emphasis added.)
The commission was first created as a state agency in
1957. Acts 1957, 55th Leg., ch. 500, at 1460 (codified as
p. 3911
Mr. Curtis Tunnel1 - Page 3 (JM-822)
V.T.C.S. article 6145). The predecessor statute to
section 442.008 of the code was added by amendment in
1971. Acts 1971, 62d Leg., ch. 496, 51, at 1718. The
Bill Analysis accompanying the bill sets forth the follow-
ing as
Recently, several county courthouses of
historic value have been destroyed. This
has come to the attention of and caused
concern in not only the Historical Survey
Committee, but also the Speaker's Committee
on Historical Preservation.
The Bill Analysis succinctly set forth the purpose of the
bill: "To provide for the preservation of courthouses
with historic value." Bill Analysis to H.B. No. 22, 62d
Leg. (1971) (on file in Legislative Reference Library).
The commission cannot ultimately prevent or proscribe the
destruction of historic courthouses, but it is clear that
the statute was designed to delay such destruction, giving
the commission the time to work with interested local
officials and private persons to promote the preservation
of such structures.
Generally, the powers of an administrative.agency are
derived entirely from legislative enactment. State v.
Robison, 30 S.W.2d 292 (Tex. 1930): Railroad Commission v.
Fort Worth & D. C. RY. Co., 161 S.W.2d 560 (Tex. Civ. App.
- Austin 1942, writ ref'd w.0.m.). An agency has only
those powers that are expressly granted to it by statute
together with those necessarily implied from the authority
conferred or duties imposed. State v. Jackson, 376 S.W.2d
341 (Tex. 1964); Stauffer v. Citv of San Antonio, 344
S.W.2d 158 (Tex. 1961). If the statutes do not grant an
agency the power to do a thing, then it has no such power.
Nieces Countv Water Conservation & Imorovement District v.
Texas Water Riahts Commission, 481 S.W.2d 924 (Tex. Civ.
ADD. - Austin 1972, writ ref'd n.r.e.). When the
legislature acts with'respect to a particular matter; the
administrative agency may not so act with respect to the
matter so as to nullify the legislative action even though
the matter be within the agency's general regulatory
field. Cobra Oil & Gas Corvoration v. Sadler, 447 S.W.2d
887 (Tex. 1968): State v. Jackson 376 S.W.2d 341 (Tex.
1964). It may not enlarge its pobers by its own orders.
Railroad Commission of Texas v. Fort Worth & D. C. Rv.
co., suvra. We have found no authority, either
constitutional or statutory, which expressly or impliedly
authorizes the commission to waive the 180-day waiting
p. 3912
Mr. Curtis Tunnel1 - Page 4 (JM-822)
period set forth in section 443.008, Government Code. If
the legislature had intended to authorize the commission
to waive the 180-day waiting period set out in section ?
442.008, it could have done so. S e. e.a section
442.006 (authorizing the commission toewaive th; waiting
period with respect to a structure designated "Texas
Historical Landmark").
SUMMARY.
The Texas Historical Commission is not
authorized to waive the 180-day waiting
period set forth in section 442.008 of the
Government Code, governing the preservation
of historic courthouses.
J-N/~
Very truly your ,
e
JIM MATTOX
Attorney General of Texas
MARYKELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 3913