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                                             September       23,    1987




    Honorable Joe Lucas                                        Opinion      No.JM-793
    El Paso County Attorney
    Room 201, City-County   Building                           lte:   Authority  of a local  adminis-
    El Paso, Texas    79901                                    trative    public   health   board   to
                                                               adopt rules
                                                                               :
    Dear Mr. Lucas:

          You ask:

                         May au administrative   public   health board adopt
                     substantive   and procedural     rules    or have  those
                     rulemaking  powers been effectively      repealed by the
                     1985 amendment to Rev. Civ. Stat. Ann. Art. 4436b?

         Factual   information   furnished                    by you reflects    that the          city   of El
    Paso and El Paso County established                         a public  health   district           pursuant
    to article   4436b, V.T.C.S.

          Section        4.02,     of    article     4436b     provides          as follows:

                         A public      health     district       is   authorized      to
                     perform   the public       health     functions     that any of
                     its    members     is    authorized       to    perform     unless
                     otherwise   restricted      by law.

          Section        4.03(b)        states     in pertinent          part:

                     An ‘administrative         public     health board’ shall have
                     the authority       to adopt substantive           and procedural
                     rules    which     are     necessary       and appropriate        to
                     promote and preserve           the health and safety        of the
                     public    within    its    jurisdiction;      provided    that no
                     rule adopted shall be in conflict              with the laws of
                     the    state     or     the     ordinances      of    any   member
                     municipality      or county.         (Emphasis added .)

              The     1985 amendment about            which        you   inquire,       section   4.09(f),   of
    article         4436(b)  states that




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Honorable   Joe Lucas      - Page 2        (JM-793)




            nothing      in this Act shall       be construed       to grant
            the board of any district            created    hereunder      the
            power to adopt rules           or regulations      for any part
            of     the     district       which    are     not     otherwise
            specifically       authorized     by state    law.     (Emphasis
            added.)

       In Attorney    General Opinion JM-336 (1985).           it was concluded      that
the 1985 amendment was a further          limitation     upon the board’s     authority
to adopt rules and regulations.            In responding      to questions    about the
authority     of a public    health  district’s      administrative    board’to    issue
licenses,      exact  fees,   and impose fines        for non-compliance       with its
rules.    Attorney    General    Opinion     m-336     stated    that  there    must be
specific    statutory    support for a board to take such action.

       We believe     the analysis   made in Attorney     General     Opinion JM-336
on the matter       of whether     a public health   district     has authority     to
impose fines     for noncompliance     with its rules provides        a good example
of    the limitation      imposed    upon the board’s       authority     by section
4.09(f).    There it was stated:

                 Next we consider           whether the authority              granted
            to governing         bodies      of cities       and counties         under
            section     2.01 to ‘enforce’              any law to protect             the
            public     health     is specific         statutory       authority       for
            the      imposition        of     fines      by    a public          health
            district       for    noncompliance          with     its    rules.         We
            think not.          Section       2.01 is a general             provision
            which authorizes            cities      and counties          to enforce
            laws enacted          to protect         the public        health.        The
            provision       does not prescribe            any particular         method
            for     the enforcement            of    these    laws.        When read
            together        with     the     specific       limitation         on the
            authority       of the board imposed in section                   4.09(f),
            the provision           is    insufficient         to authorize           the
            public     health      district’s         administrative         board to
            impose fines          for     noncomnliance         with     its     rules.
            Se; City of Baytown v. An’gel, 469 S.W.2d 923 (Tex.
            civ.    App. - Houston 114th Dist.]                  1971, writ ref’d
            n.r.e.)       (a general           provision       in a statute              Is
            limited      or controlled            by a specific          provision).
            We have not           discovered         any specific          state       law
            authorizing        this manner of enforcement                by a public
            health district.




                                              p.   3751
Honorable   Joe Lucas    - Page 3       .(JM-793)




     We conclude    that   a public     health  board maylenact   only such rules
as may be specifically       authorized     by state  law.    No rule adopted may
be in conflict     with the laws of the state           or the ordinances   of any
member municipality      or county.

                                       SUMMARY

                A public    health district's     administrative   board
            organized     pursuant    to article  4436b. V.T.C.S..   may
            adopt      such   rules     and regulations      as  may be
            specifically      authorized   by state law.




                                                      JIM      MATTOX
                                                      Attorney  General   of   Texas

MARY KELLER
Executive Assistant       Attorney     General

JUDGE ZOLLIE STEAXLN
Special Assistant Attorney           General

RICK GILPIN
Chairman, Opinion       Committee

Prepared    by Tom G. Davis
Assistant    Attorney General




       1
        Additional   authority    was given to cities,       towns and villages        by
amendment to article      4436, V.T.C.S.,     by the recent      regular  session      of
the legislature.      Senate Bill     1395. Acts 1987, 70th Leg.,        ch. 329,      at
3452, eff.     Aug. 31, 1987, authorizes        ordinances     requiring   owners      of
property   to eliminate    certain   unsanitary    conditions.




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