     OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                                AUSTIN




floaorable George F’. Cor
State Xeelth Offloor
mlrtln,   T8X88
D8ar Sir:




                                                   of ma108aad.
                                                cmulgatod by the
                                                 Hsalth under thm
                                                eotioo  5 of the




            $ubdlvislon   (9)    of +otlon   6 of tha hot then    ProVl688:
             -any permit lmmml ln~ aoaordanoe wlth tho pro-
     vlelans    mrry bs revoked by the State Health Offloer
     upon proof or vlolatlon     0r any of the proviaionr   0r
Ronorable    Oeor&s --. COX, pago 2

      this   hot.   . . ."

            Your latter   of October 24, 1940,       requests  6 leg*1
opinion frooP tbla DoperWent a6 to whether           the state Xealth
Officer   would be authorized    to revoke the      permit of an operator
who  has vloiated    the rul46 and regulations       promulgated by the
State Board of Health under the rula-mekl~             power of the Boer4
net out above in Section 5. You alao ask            what procedure ehould
ba followed    by the state Health Cffloer     in    doing so.
             The purpose of empowsrlng the State Board of Haalth
to promulgate rule6 and regul6tlona       was ‘to enable the more ef-
fective   enforcamant   of the Rot which ~64 enactad under the
State*8   police   power for the protaotlon   of health and for the
~avaation     of tha spread of dlaeaaa.
           A vital  requfrensnt   of the $ot 1s that any psraon en-
g6sged in tha business   of manutaaturlng,    repairing or ranovat-
lng bedding ahall obtain a permit from the Depsrtmsnt of Realth
and shell register    eny &srmloldal   prooeaa used in such bualneaa
and aeoure the approv61 of the Depertment of auoh prooaaa.
            The permit provlelons    of the Aot era emong those
touching which the State Board of Bealth waa ampowerad to pro-
muleate rules and regulatlona.       That oompllenoe     thar6wlth    la
required of the permittoe     la lndloated by tha languaga of sub-
aeoticn (b) of Seotlon     6 whloh luthorlzea     a ranawel permit
-upon   aubmiaalon or moor    0r oontlnued    oomvllanoa with the pro-
vlilona   of this AOt in4 tha regulation6      of-the   Degertmant.*-
(Bnpharle oura)       -~


          Tha validity     of leglolatlon     whloh Oont6re rul6-meking
powera upon admlnl6tr6tlv6      aganaiaa    ha* bean conaiatently  upheld
by our oourta.
            In San Antonlo v. Joaea, 28 Tar. 33 (quoted wfth ap-
proval in O’Brien v. ~Unemmn,   112 Tex. 264, 247 8. X’. 270). it
wan daolarsd   by the 9uprme  Court  of Teraat

            “The La~lalature     say grant authority   aa well aa
      give oomands,     and a&a done under it6 authority        are
      aa valid as if dons in obedlenoe       to its commanan.
      Nor 1s a statute,    whore complete    lxeoution   an4 appll-
      oetlon to the aubjectslattsar      la, by its provlalona,
      meda to depend on the aaaant of 6ome other boQy, a
      Aalegatlon  of laglolatlve     power.   The dlaoretlon    &or6
Honorable      Oaorge 1%. cox,    fgge    3



      to the eraroloe       of the power conferred   by the law,
      but    not to maks ths lew itsslf.      The law, in such
      c4668, may depend ror its praotloal efflolenoy          on
      the sat of some other body or lndlvlAua1;         still
      it in not &erlved from auoh sot, but from the lagla-
      latlve    authority.*
          It wae llkewlaa    etated by the San Antonio Court of
Civil AppeSlS in Tuttle   v. Wood, 35 5. X. (2d)  1001, (writ
or error refussd)r
               *It is true.     of Course       thst the Legislature
      cannot dalegate        to an aAmln~atratlvs         board the power
      to make a law praaorlblllg           a penalty,     but It la
      equally    true that it 1s oompdxmt for the Leglalatura
      to author126 a ooauaiaaim            or board oraatad for that;
      purpose to preaorlba          dutlea    or aaaertain     oondltiona
      upon whioh an axlstlng           law say operata ln imposing a
      penalty and in affeQtuatlng             ths ;lurpoae    daalgned in
      enaotlng    the law. It la 1~ pursuance of this au-
      thority   thet railroad        oomlaalonm,       publla utility
      a~leaeione,       liveGtock      sanitary     oomutiasioaa,   health
      boards and like ag;enoiee exerolae               their iunotlona
      and admlnleter       and enforce laws ralatlng           to their
      aev*ral aepertmentm.           In their varg natQr6 such lara
      muat   be flaxlble      in order to glte thraP pr~otloable
      &ppllaetfon     to tha Elvarae oondltlona            whloh adat
      wlthln the savers1         states."
               In Re Rahrar,     140 0.       S. 554,   it war   said   by Xr. Chief
Justiae     Puller:

             'The power of the mtata to impose raatrafaj;m
      anA burden:: upn parsons and property in 0onaerve-
      tlon and promotion of ths public health,       good order
      and prosperity    la a pomr cri&~~lly     end almya bo-
      longing    to the states, not a~rranderad by them to
      the general government,    nor direotly   reetralnad by
      the Constitution    of the United States,   ain4 eeaentlally
      *xclu*lv4."
              Sam also the oaaaa of Rash &ardware Company v. tcorria,
105 Tar.     817, 146 Y. :f. 874~ Henry v. Wate,    260 8. 3. 19Or
Ex Part6     xhlte,  1QR ti. 3. 5331 FJebbla v. Hew York, 291 U, S.
502.
                                                                             335



Honorable   George   w. Cox,   Faga 4


            It is the opinion of this Department that a vlola-
tion of the rules and regulations      promulgated    by tha State
Board of Health in accordance     with Seotion    5 of the Aot, by
a person engaged in the bualnesa      of manufacturing,     repairing
or renovating    bedding would constitute    a Violation     of any
of the provlslone     of this AOt" within the purview of Subdivi-
slon (e) of Ssctlon     6 of the Aot, and upon proof of such, the
gtate Health Officer     would be authorized   to revoke a permit
theretofore   laeued to such operator.
            The Aot does not provide any particular          procedure
for the State Health Offloer       to follow   in the revooatlon      of
a permit.    The State Board of Health is, however, authorized
by Qeotion 5 of th& hot to "make . . . general           rules and
regulations   of prooedure ror carrying      into efreot     all the
provlalone   of this Act".     It la our opinion that the Board
should promulgate reaaoueble       rules whereunder the permittea
would be given notlos     and a hearing before the State Health
Offloar prior to the revocation        of a permit.    This would in-
volve the giving of notice       to the permittee    of the exlatenoe
of evldanoe   before the State Health Officer        of violations     by
the permittee    of the rules and regulations       promulgated'by     the
Board, togather    with the right of the permittee        to a hearing
berora the Offloer     at the time designated.       If at such hear-
ing it is establlahed     that the permittea      has violated    the
rules and regulation6     of the Board, the State Health Orflcer
would be authorized     to revoke the permit.
                                                 Yours very   truly
                                            ATTORNEYGENERAL
                                                          OF TEXAS
