Honorable Wilson E. Speir                       Opinion No. MI; 896
Director
Texas Department of Public Safety               Re:   Whether regulations adopted
P. 0. Box 4087, North Austin Station                  by the Department of Public
Austin, Texas 78751                                   Saf,ety pursuant to Section 82
                                                      of S. B. 183, 62nd Leg., R. S.
                                                      1971, can be enforced by the
                                                      penalty provisions therein
                                                      provided.

Dear Mr. Speir:

    By a recent letter you have requested an opinion from this office in
regard to the above stated matter. We quote from your letter as follows:

       “This section provides that the Director of the Texas
       Department of Public Safety ‘. . . adopt such regulations
       as may be deemed necessary for the safe transportation
       of hazardous material. ’ In Section (e) a fine of $200.00
       is set as punishment for violating these regulations,

       “We would appreciate your opinion as to whether these
       regulations adopted as set out in and required by the
       statute could be enforced by the penalty provided by the
       statute. ”

    Section 82 of Senate Bill 183 amends Section 139 of Article        6701d, Vernon’s
Civil Statutes.

     Case authority upholds the proposition that the Legislature, after de-
claring a policy and fixing a primary standard, can delegate to an admin-
istrative agency the authority to prescribe duties or ascertain conditions
upon which existing law may operate to impose a criminal penalty. Tuttle
v. Wood, 35 S. W.2d 1061 (Tex.Civ.App.      1930, error ref.) The principle



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Hon. Wilson E. Speir, page 2             (M-896)




was clearly stated in Williams   v. State, 176 S. W. 2d 177 (Tex. Crim.   1943),
wherein the court said:

       ‘The question of this delegation of authority has been much
       before the courts, and especially is that true in recent
       years by the enlarged powers conferred upon administrative
       boards and tribunals.     The generally accepted rule governing
       such matters now appears to be that a legislative body may,
       after declaring a policy and fixing a primary standard, confer
       upon executive or administrative officers the power to fill up
       the details, by prescribing rules and regulations to promote
       the purpose and spirit of the legislation and to carry it into
       effect.   In such cases, the action of the Legislature in giving
       such rules and regulations the force of laws does not violate
       the constitutional inhibition against delegating the legislative
       function.     The rule finds support in Field (Marchall) v. Clark,
       143.        649, 12 S.Ct. 495, 505, 36 L. Ed. 294, wherein the
       Supreme Court said ‘The legislature cannot delegate its
       power to make a law, but it can make a law to delegate a power
       to determine some fact or state of things upon which the law
       makes, or intends to make, its own action depend. To deny
       this would be to stop the wheels of government.       There are
        many things upon which wise and useful legislation must
       depend which cannot be known to the law-making power,
       and must therefore be a subject of inquiry and determination
        outside of the halls of legislation. ’ . *. ” (Numerous authorities
        omitted)(Emphasis added)(At page 183).

     The Legislature, in Section 82 of Senate Bill 183, has fulfilled all the
requirements for the delegation of the power to make rules and regulations
to enforce criminal sanctions to an administrative agency. The statute
declares a policy regulating the transporting of hazardous materials, and
fixes a primary standard by stating in Subdivision (a):
        11 Such regulations shall duplicate or be consistent with
         ...
        current hazardous material regulations of the United States
        Department of Transportation..  ..”




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Hon. Wilson E. Speir, page 3              (M-896)



Subdivision (b) of the statute declares   that:

       “Any person operating a vehicle transporting any hazardous
       materials as a cargo or part of a cargo upon a highway shall
       at all times comply with regulations of the Department of
       Public Safety adopted pursuant to the provisions of this
       section.   Subdivision (e) declares that any person convicted
       of violating a regulation adopted pursuant to this section shall
       be punished by a fine of not more than Two Hundred Dollars
       ($200.00). ”

    Thus, the State statute adopts by reference such federal regulations,
and such a reference statute is upheld as valid and as effectual as if the
matter adopted were set out in the statute. 53 Tex. Jur. 2d 136, Statutes,
Sec. 90; 82 C. J. S. 123-124, Statutes, Sec. 70b. The statute further re-
quires the Director of the Department of Public Safety to make rules and
regulations ‘1.. as may be deemed necessary for the safe transportation
of hazardous materials. . . . ”

   The United States Department of Transportation regulations referred to
are published and available to the public. They may be found in the Code
of Federal Regulations and are cited as Title 49, Subtitle B, Chapt. 1,
C. F. R., “Hazardous Materials Regulations Board, Department of Trans-
portation.” These further evidence a primary standard or guide of re-
quiring the administrative agency to make a determination or finding of
those materials which would be unsafe or hazardous when transported
from the standpoint of the public interest. Such a standard appears
sufficient in law.

    It is stated in 42 American Jurisprudence       at pages 345-347,   Section
45, Public Administrative Law:
        1,. . . The rule requiring an express standard to guide dis-
        cretion is recognized as properly applied to statutes or
        ordinances regulating lawful activity, but to be subject to the
        exception that where it is impracticable to lay down a definite
        comprehensive rule, such as where the regulation turns upon
        the question of personal fitness or where the act relates to the
        administration of a police regulation and is necessary to pro-
        tect the general welfare, morals, and safety of the public, it
        is not essential that a specific prescribed standard be expressed.


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Hon. Wilson E. Speir, page 4                    (M-896)




                The courts will infer that the standard of reasonableness
                is to be applied where it can take its meaning from the
                expressed policy of the statute.. . A requirement that an
                act shall be ‘in the public interest’ has been held to be a
                sufficient criterion and standard where the subject matter
                of the statutes renders this an intelligible and not
                limitless criterion.. . ”

       accord. Avent v. United States. 266 U. S. 127 (1924). upholding a
           Tn
standard of “in the interest of the public and of commerce “; FederalRadio
Commission v. Nelson Bros. Bond & Mortg. Co., 289 U. S. 266 (1933),
upholding a standard of “as public convenience, interest or necessity
requires”; Red ‘C” Oil Mfg. Co. v. Board of Agriculture, 222 U. S. 380
(1911). unholding a standard in an Oil Inspection Act of “safe, pure, and
\   --,,         I



afford a satisfacyory light. ” For Texas cases, see Jordan v. State Board of
Ins., 160 Tex. 506, 334 S. W. 2d 278, and numerous authorities there cited.

    In Ex Parte Smith, 441 S. W. 2d 544 (Tex. Crim. 1969), a habeas corpus
proceeding,  Smith sought relief solely on the ground that Article 6701~~3,
Vernon’s Civil Statutes, was unconstitutional on several grounds, two of
which were: first, that the statute was too vague and indefinite, and second,
                ,*
                 . . . because the legislature has by said statute improperly
                delegated legislative authority to the Texas Department of
                Public Safety; . . . ”

Section 2 of that Article required that all persons riding a motorcycle should
wear protective headgear “. . . which has been approved by the Department of
Public Safety, . . . ‘: Section 7 provided that a violation of the Article was a
misdemeanor punishable by a fine. Section 3 related to “Minimum safety
standards for protective headgear” and reads:

                ‘The department shall prescribe minimum safety standards
                for protective headgear used by motorcyclists   in this state
                in order to provide for the safety and welfare of motorcycle
                operators and passengers.     The-department may adopt all or
                any part of the standards of the United States of America
                Standards Institute for protective headgear for vehicular
                users. ” (Emphasis added. )


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 -      .




Hon. Wilson E. Speir, page 5                 (M-896)



     In upholding the constitutionality     of the statute, the Court held:

             ‘The delegation of authority by the legislature to the
             Department of Public Safety to promulgate rules and
             regulations capable of reasonable application which
             are necessary to carry out the purpose of the act
             does not render the statute void. ”

    We also observe that the Act in question is similar to Article 67Olc-3,
Section 3, Vernon’s Civil Statutes, which gives the Department of Public
Safety the authority to ‘:, . prescribe the minimum safety standards for
protective headgear used by motorcyclists.     . . . I1 Section 2 of Article
6701c-3 states that “. . . no person may operate a motorcycle on a public
street or highway . . . unless he wears protective headgear which has
been approved by the Department of Public Safety, . . . ” and Section 7
states that anyone who violates Section 2 “. . . is guilty of a misdemeanor
and upon conviction is punishable by a fine of not less than $10 nor more
than $50. ”

   In view of the fact that the primary standard established by Article
67Olc-3 is less specific than the standard set out by the Legislature in
Section 82 of Senate Bill 183, the grant of authority to the Department of
Public Safety to adopt rules and regulations consistent with the primary
standard established in Section 82 of Senate Bill 183 is a constitutional
delegation of legislative authority,

    In view of the foregoing, it is our opinion that those regulations adopted
 by the Department of Public Safety pursuant to Senate Bill 183, Section 82,
 62nd Legislature,   Regular Session, 1971, which are consistent with the
 safety standards prescribed by the current hazardous materials regulations
 of the United States Department of Transportation,     can be enforced by the
 criminal penalty provisions provided therein.

                                  SUMMARY

      Those regulations adopted by the Director of the Texas Depart-
      ment of Public Safety pursuant to Section 82 of Senate Bill 183,
      62nd Legislature,   Regular Session, 1971, (Article 6701d, Sec.
      139, V. C. S. ), which are consistent with me safety standards
      prescribed by the United States Department of Transportation




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Hon. Wilson E. Speir, page 6        (M-8961



   Regulations for current hazardous materials can be en-
   forced by the criminal penalty provisions provided therein.
   The Legislature has validly delegated to the Texas Department
   of Public Safety the authority to prescribe duties and ascertain
   conditions upon which the statute may operate to impose a
   criminal penalty.




Prepared by Thomas F. Sedberry
Assistant Attorney General

APPROVED

OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

James M. Mabry
John Reeves
Fisher Tyler
R. D. Green

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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