                          April 7, 1987




Robert
     Bernstein, M.D.              Opinion No. JM-669
Commissioner of Health
Texas Department of Health        Re:   Reconciliation of conflicting
1100 West 49th Street             portions of House Bill No. 1732, Acts
Austin, Texas   78756             1985, 69th Leg., ch. 913, and House
                                  Bill No. 2091, Acts 1985 69th Leg.,
                                  ch. 931, which amend article 4476-5,
                                  V.T.C.S.. the Texas Food, Drug and
                                  Cosmetic Act

Dear Dr. Bernstein:

     You ask about the construction of two conflicting statutory
provisions enacted by the 69th Legislature. Acts 1985, 69th Leg., ch.
913, il. at 3054, 3061 (adding 55A to the Texas Food, Drug and
Cosmetic Act, article 4476-5, V.T.C.S.) (introduced as and hereinafter
referred to as House Bill No. 1732); Acts 1985. 69th Leg., ch. 931,
art. 5. 57. at 3121, 3140 (adding 523b [editorially renumbered by
Veruon's ds 5291 to the Texas Food, Drug and Cosmetic Act, article
4476-5, V.T.C.S.) (introduced as and hereinafter House Bill No. 2091).
House Bill No. 1732 amends only article 4476-5, whereas Eouse Bill No.
2091 amends a umber of statutes, including article 4476-5.

     You point out that the cited bills both provide for adminis-
trative monetary penalties to be assessed against persons who violate
article 4476-5. The provisions in Eousr Bill No. 1732, however,
differ from those in House Bill No. 2091. Fortunately. the legisla-
ture was aware that House Bill No. 1732 and Eouse Bill No. 2091
contained similar, but conflicting, provisions and provided in House
Bill No. 2091 that if the legislature enacted both bills, the
provisions of Rouse Bill No. 1732 would prevail over the provisions of
House Bill No. 2091 to the extent of any conflict. Acts 1985, 69th
Leg., ch. 931. art. 21. 13, at 3175.

     Your question is whether the provisions regarding monetary
penalties in House Bill No. 1732 prevail "over the entirety of" the
provisions regarding monetary penalties in House Bill No. 2091 or
whether "a line by line reconciliation" is necessary.

     Eouse Bill No. 2091 states, in part:

               If a person violates [article 4476-51 or a rule
          or    order adopted or registration issued under



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          [article 4476-51, the Department of Eealth may
          assess a civil penalty against that person as
          provided by this section.

Acts 1985, 69th Leg., ch. 931. art. 5. 17. at 3140.    Eouse Bill No.
1732 states, in part:

             If a person violates any provision of Section 3
          of [article 4476-51 or an order adopted or regis-
          tration issued under [article 4476-51. the commis-
          sioner may assess an administrative penalty
          against that person as provided by this section.

Acts 1985. 69th Leg., ch. 913, 21. at 3061.l Eouse Bill No. 1732
provides for a maximum penalty of $25,000 a day for each violation,
while House Bill No. 2091 provides for a maximum penalty of $10,000 a
day. Both bills set out factors to be considered in determining the
penalty to be imposed, both contain notice and hearing requirements,
and both provide for judicial reviev of the administrative action.

     We understand your question about line-by-line reconciliation to
be whether provisions regarding monetary penalties in House Bill No.
2091 that are not in direct conflict with provisions regarding
monetary penalties in House Bill No. 1732 are valid provisions of
article 4476-5. For example, Eouse Bill No. 2091 provides that the
Department of Eealth may issue a report stating that the depart-
ment has concluded that a violation has occurred and recommending
a proposed penalty. Such a report operates as a charge against the




     1. At first glance, House Bill No. 1732 appears to be narrower
than House Bill No. 2091 because Rouse Bill No. 1732 provides for
penalties for violations of section 3 of article 4476-5, while House
Bill No. 2091 provides for penalties for any violation of article
4476-5. Section 3 of article 4476-5, however, is a list of unlawful
and prohibited acts. Most other sections of article 4476-5 are not
phrased in terms of prohibitions, see, e.g., S51. 2, 4 though 9. Other
sections of the act simply define or explain terms used in section 3.
           V.T.C.S. art. 4476-5, S110, 11 (defining "adulterated" and
%k%%d"       food). See also V.T.C.S. art. 4476-5. 53(e) (prohibiting
introducciou into coavserceof any article in violation of sections 12,
18, and 19 of articla 4476-S); 13(d) (prohibiting the distribution in
comserce of commodities not labeled in conformity with provisions of
article 4476-S). Therefore, the scope of House Bill No. 1732 is not
significantly narrower than the scope of the provision in House Bill
No. 2091. Consequently, we do not think that House Bill No. 1732 can
be read as a specific exception to the general provisious set out in
House Bill No. 2091. See generally Flowers v. Pecos River Railroad
co., 156 S.W.2d 260, 263-64 (Tax. 1941).


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     possible violator named in the report. House Bill No. 1732. in
     contrast, is silent on the subject of how a charge concerning a
     possible violation is to be wade. In that context yout question would
     be whether the provisions in House Bill No. 2091 regarding reports by
     the Eealth Department are to be incorporated into the provisions of
     Eouse Bill No. 1732.

           We conclude that the scheme set out in liouse Bill No. 1732 is
    . the law and that the scheme set out in House Bill No. 2091 is
      nugatory. Because the legislature provided chat House Bill No. 1732
      would prevail in the case of conflict. it was obviously aware that
      House Bill No. 1732 and House Bill No. 2091 contained similar, but
      conflicting, schemes for the assessment of monetary penalties under
      article 4476-5. Each scheme covers essentially the same ground even
      though each is more detailed than the other in some respects. We
      think, therefore, that the legislature intended.that if both bills
      were enacted, the entire scheme set out in House Bill No. 1732 would
      prevail over the scheme set out in House Bill No. 2091. We do not
      chink that the legislature intended to give the Health Department the
      formidable task of carving out any detail of House Bill No. 2091 not
      in direct conflict with House Bill No. 1732 and making it part of the
      law governing assessment of monetary penalties.       See Wilson v.
     Underhill. 131 S.W.2d 19, 23 (Tex. Civ. App. -Dallas             1929)
      (lenislacive act should never be construed as to render it
      &p;acticable of enforcement), rev'd on other grounds. Wilson v.
     Wilson, 155 S.W.2d 601 (Tex. 1941). Therefore, the scheme set out in
     House Bill No. 1732 regarding monetary penalties in its entirety
     prevails over the scheme set out in Eouse Bill No. 2091.

          Our conclusion should not be interperted, however, to mean that
     the Board of Eealth is prohibited from adopting by rule details of the
     scheme set out in House Bill No. 2091 that complement the scheme set
     out in Eouse Bill No. 1732. See V.T.C.S. art. 4476-5. 924(a) (Board
     of Health may adopt rules for efficient enforcement of article
     4476-5).

                                 SUMMARY

                   The provisions regarding monetary penalties
              under article 4476-5, V.T.C.S.. Acts 1985, 69th
              Leg., ch. 913. 51, at 3061, prevail over the
              provisions regarding monetary penalties under
              article 4476-5. V.T.C.S., in Acts 1985. 69th Leg.,
              ch. 931, art. 5. 17. at 3140.




                                            JIM        MATTOX
                                            Attorney    General of Texas



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Dr. Robert Bernstein - Page 4      (m-669)




JACK HIGHTOWER
Firsr Assistant Attorney     General

MARYKELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLET
Special Assistant Attorney    General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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