 9 OFFICE   OF THE   ATTORNEY   GENERAL   - STATE   OF TEXAS

    JOHN     CORNYN




                                                      June 3,2002



Mr. William H. Kuntz, Jr.                               Opinion No. JC-05 10
Executive Director
Texas Department of Licensing                           Re: Whether the Texas Department of Licensing and
 and Regulation                                         Regulation’s    executive    director may adopt, as
P.O. Box 12157                                          standards for installing, altering, operating,       and
Austin, Texas 78711                                     inspecting elevators, escalators, and related equipment,
                                                        the current version of safety codes Al 7.1 and A17.3,
                                                        adopted by the American Society of Mechanical
                                                        Engineers, and related questions (RQ-0479-JC)


Dear Mr. Kuntz:

         To be constitutional, a statute requiring a state agency to adopt a particular code promulgated
by a private entity must be construed to refer only to the code as it existed when the legislature
adopted the statute, unless the statute expressly provides the agency with discretion to review and
adopt subsequent versions ofthe code. See Tex. Att’y Gen. Op. Nos. JC-0012 (1999) at 3; DM-211
(1993) at 7; JM-509 (1986) at 3. Section 754.014 of the Health and Safety Code requires the
executive director ofthe Texas Department ofLicensing and Regulation (the “Department”) to adopt
standards “for the installation, alteration, operation, and inspection of elevators, escalators, and
related equipment [EER equipment] used by the public” in certain buildings, and those standards
“may not contain requirements in addition to the requirements in” Al 7.1 or Al 7.3 of the American
Society of Mechanical Engineers (ASME) Safety Code for Elevators and Escalators. TEX. HEALTH
& SAFETY CODE ANN. 754.014(a), (b) (V emon Supp. 2002); see also id. 8 754.011 (l), (2) (defining
“ASME Code Al 7.1” and “ASME Code Al 7.3”); TEX. Oct. CODE ANN. 0 5 1.203 (Vernon 2002)
(requiring Department’s executive director to adopt rules). You ask several questions about the
executive director’s authority under section 754.014 of the Health and Safety Code to adopt
standards “for the installation, alteration, operation, and inspection of elevators, escalators, and
related equipment used by the public” in certain buildings.’ TEX. HEALTH & SAFETY CODE ANN.
tj 754.014( a)*, see also TEX.OCC. CODEANN. 5 5 1.203 (requiring executive director to adopt rules
“as necessary to implement each law establishing a program regulated by the [Dlepartment”).




         ‘See Letter from Mr. William H. Kuntz, Jr., Executive Director, Texas Department of Licensing & Regulation,
to Honorable John Comyn, Texas Attorney General (Dec. 14, 2001) (on file with Opinion Committee) [hereinafter
Request Letter].
Mr. William H. Kuntz, Jr. - Page 2




       You expressly raise five issues:

               Ouestion One: Whether [slubsection 754.014(c) authorizes the
               [elxecutive [dlirector to require EER equipment to comply with the
               current version of ASME Code Al 7.1.

               Ouestion Two: Whether the term “installation requirements” in
               [slection 754.017(c) refers only to those [c]ode requirements directly
               related to the original installation of EER equipment, or whether it
               also refers to those [c]ode requirements related to the alteration,
               operation (e.g., maintenance and repair), or inspection of EER
               equipment after it has been installed.

               Ouestion Three: To which versions of ASME Code A17.1 and
               ASME Code Al 7.3 does [slubsection 754.017(b) refer, and does the
               [elxecutive [dlirector . . . have discretion to determine whether to
               approve and adopt future amendments to ASME Codes A17.1 and
               Al 7.3?

               Question Four: Whether [slubsection 754.014(d) authorizes the
               [elxecutive [dlirector to require EER equipment to comply with the
               current version of ASME Code A17.1 or the current version of
               ASME Code A17.3.

               Question Five: To which version        of ASME Code A17.3 does
               [slubsection 754.014(d) refer?

Request Letter, supra note 1, at 2-5. Your letter indicates that, while you believe requiring EER
equipment “to comply with the most effective, up-to-date safety features available in the industry”
would make the equipment safer, you recognize “the interests of building owners who have EER
equipment located in their buildings,” many of whom, you report, “believe that the changes in
industry safety standards for EER equipment often” increase expenses without increasing public
safety. Id. at l-2.

         We conclude generally that section 754.014 of the Health and Safety Code refers to the
versions of ASME Code A17.1 and A17.3 that existed when the references were inserted in the
statute in 1995. See Act of May 27,1995,74th Leg., R.S., ch. 865,§ 1,1995 Tex. Gen. Laws 43 13,
43 13- 15. We further conclude that the executive director may not adopt a more recent version of
the ASME codes. Consequently, in answer to your questions 1, 3, and 4, we conclude that the
executive director may not require EER equipment to comply with a more recent version of the
ASME codes. In answer to your fifth question, we conclude that section 754.014(d), which
expressly refers to “the installation requirements of the 1994 ASME Code A17.3,” designates the
1993 ASME Code together with the 1994 addenda to the code. See TEX. HEALTH & SAFETY CODE
Mr. William H. Kuntz, Jr. - Page 3             (JC-0510)




ANN. 8 754.014(d) ( em ph asis added). In answer to your second question, we conclude that section
754.014(c) refers only to installation, and not to alteration, operation, and inspection.

         Both the Department and the Texas Commission of Licensing and Regulation (the
“Commission”) have been created under chapter 5 1 of the Occupations Code. See generally TEX.
OCC. CODE ANN. ch. 5 1. The Department is “the primary state agency responsible” for overseeing
those state-regulated “businesses, industries, general trades, and occupations” that the legislature has
assigned to the Department. Id. 8 5 1.05 1(a). The six-member Commission governs and oversees
the Department and articulates Department policy. See id. $5 5 1.052(a), 5 1.201(a), (b). The
Commission may adopt its own procedural rules and must “adopt rules as necessary to implement”
chapter 5 1. Id. 8 5 1.201 (b). It also appoints an executive director, who serves at the Commission’s
will, and defines the respective duties of the Commission, the executive director, and Department
staff. See id. 5 5 5 1.10 1, 5 1.105. The executive director must perform “any duties assigned by the
[Clomrnission” or specified by law and must administer and enforce the Department’s programs.
Id. 9 5 1.103(a)(l), (2). And, significantly, the executive director must “adopt rules as necessary to
implement each law establishing a program regulated by the [Dlepartment,” as opposed to the
Commission’s authority to adopt only procedural rules and rules implementing chapter 5 1 of the
Occupations Code. Compare id. 8 51.203 (executive director’s rule-making authority) with id.
6 51.201(b) (C ommission’s rule-making authority).

         The inspection and certification of EER equipment under chapter 754 of the Health and
Safety Code, subchapter B is “a program regulated by the [Dlepartment” for the purposes of chapter
5 1 of the Occupations Code. See id. 5 5 1.203. See generally TEX. HEALTH& SAFETYCODE ANN.
ch. 754, subch. B. Section 754.014, part of subchapter B, expressly requires the commissioner of
licensing and regulation to adopt safety standards for elevators, escalators, and related equipment:

                     (a) The commissioner shall adopt standards for the installation,
                alteration, operation, and inspection of [EER] equipment used by the
                public in:

                            (1) buildings owned or operated by the state, a state-
                owned institution or agency, or a political subdivision of the state;
                and

                            (2) buildings that contain [EER] equipment that is open
                to the general public, including a hotel, motel, apartment house,
                boardinghouse,   church, office building, shopping center, or other
                commercial establishment.

                    (b) Standards adopted by the commissioner may not contain
                requirements in addition to the requirements in the ASME Code
                A17.1 or ASME Code A17.3.
Mr. William H. Kuntz, Jr. - Page 4               (JC-0510)




                     (c) Standards adopted by the commissioner must require [EER]
                equipment to comply with the installation requirements of the
                following, whichever is the least restrictive:

                              (1) the ASME Code Al 7.1 that was in effect on the date
                of installation of the [EER] equipment; or

                              (2) an applicable municipal ordinance governing the
                installation of [EER] equipment that was in effect on the date of
                installation.

                    (d) Standards adopted by the commissioner must require [EER]
                equipment to comply with the installation requirements of the 1994
                ASME Code Al 7.3 that contains minimum safety standards for all
                [EER] equipment, regardless of the date of installation.

Id. 8 754.014. Section 754.011, subchapter B’s definitional section, defines the terms “ASME Code
A17.1” and “ASME Code A17.3” as safety codes for EER equipment adopted by the American
Society of Mechanical Engineers. See id. 8 754.011 (l), (2). Subchapter B does not apply to EER
equipment “in a private building for a labor union, trade association, private club, or charitable
organization that has two or fewer floors,“see id. 5 754.0111, or to EER equipment “in an industrial
facility, or in a grain silo, radio antenna, bridge tower, underground facility, or dam, to which access
is limited principally to employees of or working in that facility or structure,” see id. 5 754.014(i).

          Consistently with the division of rule-making authority set forth in chapter 51 of the
Occupations Code, we presume that section 754.014 authorizes the Department’s executive director,
not a commissioner, to adopt the requisite standards. Additionally, as you aver, House Bill 1214,
adopted in 2001, deleted the term “commissioner” from various provisions of chapter 51 of the
Occupations Code and replaced it with “executive director.” See Tex. H.B. 1214, 77th Leg., R.S.
(2001); Request Letter, supra note 1, at 1. The bill analysis of the 2001 legislation notes that
references in chapter 5 1 to the “commissioner” were confusing “because [the term] is used to refer
to all six commissioners, including the one commissioner [who] serves a one-year term as executive
director.” HOUSE COMM. ON LICENSING& ADMINISTRATIVEPROCEDURES,BILL ANALYSIS, Tex. H.B.
1214,77th Leg., R.S. (2001). Throughout the rest of this opinion, we will refer to the authority of
the executive director, rather than the commissioner, under section 754.014.

         Your first, third, fourth, and fifth questions cause us to consider a limitation on the executive
director’s authority to adopt standards for EER equipment under section 754.014 of the Health and
Safety Code. See TEX. HEALTH& SAFETYCODEANN. 8 754.014; Request Letter, supra note 1, at 2-5.
While subsection (a) requires the executive director to adopt standards for installing, altering,
operating, and inspecting EER equipment, subsection (b) prohibits the executive director from
adopting requirements “in addition to the requirements in the ASME Code Al 7.1 or ASME Code
A17.3.” TEX. HEALTH & SAFETY CODE ANN. 8 754.014(a), (b). Neither ASME Code A17.1 nor
Mr. William H. Kuntz, Jr. - Page 5              (JC-0510)




Al 7.3 are defined by reference to a particular edition. See id. 8 754.011 (l), (2). Section 754.014(d),
as well as other subsections that are not otherwise relevant to your request, refer to the 1994 ASME
Code A17.3. See id. 8 754.014(d)-(h).        You explain, however, that “there is no 1994 edition of
ASME Code Al 7.3. There is a 1993 ASME Code Al 7.3, which subsequently was updated by
addenda in 1994, but there is no ‘1994 ASME Code Al 7.3. “’ Request Letter, supra note 1, at 5.

         To be constitutional, we must conclude that, except where section 754.014 refers to 1994
ASME Code A17.3, the statute refers to the version of the ASME codes that were effective when
chapter 754, subchapter B was amended to refer to the ASME codes. See Act of May 27,1994,74th
Leg., R.S., ch. 865, 8 1, 1995 Tex. Gen. Laws 4313, 4313-18.                We begin with a “‘strong
presumption’ that a statute is constitutional.” See Tex. Att’y Gen. Op. No. JC-0012 (1999) at 2 (and
cases cited therein). A statute that, without providing any sort of state-agency review and approval,
“prospectively adopts” the rules of an “unofficial agency . . . delegates legislative authority in a
manner that violates article III, section 1 of the Texas Constitution,” which vests legislative power
in the state legislature. Tex. Att’y Gen. Op. No. DM-378 (1996) at 2; see TEX. CONST. art. III, 9 1;
Tex. Att’y Gen. Op. Nos. JC-0012 (1999) at 3; DM-211 (1993) at 6-7; JM-629 (1987) at 3; JM-509
(1986) at 3. Although a state agency may consult a private entity while the agency is drafting
regulations, the agency must review and approve final rules that will be enforced against members
of the public. See Tex. Att’y Gen. Op. No. DM-211 (1993) at 7; see also Tex. Att’y Gen. Op. No.
JM-509 (1986) at 4.

         Consistently with article III, section 1 of the Texas Constitution, therefore, section 754.014
and the related definitions in section 754.011 of the Health and Safety Codes cannot incorporate
revisions made to the ASME codes since 1995. See Tex. Att ‘y Gen. Op. No. JC-0012 (1999) at 3.
The ASME is a private “nonprofit educational and technical organization” that promotes “the art,
science and practice of mechanical engineering.” See ASME International, About ASME, available
at <http://www.asme.org/about/>        (accessed March 26, 2002). The Al7 Elevator Standards
Committee of the ASME develops standards “covering the design, construction, installation,
operation, inspection, testing, maintenance,       alteration, and repair of elevators, dumbwaiters,
escalators, moving walks, and materials lifts.” See ASME International, Al 7 Elevators & Escalators
Standards Committee, available at <http://www.asme.org/cns/departments/Safety/Public/A              17/>
(accessed March 26,2002). Moreover, section 754.014 does not authorize the executive director to
review and approve prospective editions of the ASME codes. Rather, subsection (b) expressly
forbids the executive director to adopt “requirements in addition to the requirements in the ASME
Code A17.1 or ASME Code A17.3.” TEX. HEALTH & SAFETY CODE ANN. 5 754.014(b).

        Our conclusion regarding the executive director’s authority to adopt editions of the ASME
codes that were promulgated after 1995 comports with Attorney General Opinion JM-629, which
concludes that the Department of Health may not substitute the 1985 edition of the Life Safety Code
for the 1976 edition of the code named in the relevant statute. See Tex. Att’y Gen. Op. No. JM-629
(1987) at 3-4. The statute in that instance, article 4442~ of the Revised Civil Statutes, section 4A,
provided the Department of Health with “discretionary powers to grant exceptions” to the 1976
edition of the Life Safety Code. See id. at 2; TEX. HEALTH& SAFETYCODE ANN. 8 242.039 (Vernon
Mr. William H. Kuntz, Jr. - Page 6               (JC-0510)




2001) (replacing TEX. REV. CIV. STAT. ANN. art. 4442c, 5 4A). This limited discretionary power does
not include authority to “impose additional burdens, conditions[,] or restrictions” exceeding or
inconsistent with statutory provisions, however. Tex. Att’y Gen. Op. No. JM-629 (1987) at 3.
Although the opinion does not expressly indicate that the 1985 edition of the Life Safety Code
imposed burdens, conditions, or restrictions in addition to or inconsistent with the 1976 code, we
presume that it did.

         Accordingly, to answer your first question, we conclude that the executive director has no
authority to require EER equipment to comply with the “current version of ASME Code Al 7.1.”
Request Letter, supra note 1, at 2.

        To answer your third question, we conclude that section 754.014(b) of the Health and Safety
Code, as well as the related definitions in section 754.011(l) and (2), refer to the editions of ASME
Codes Al 7.1 and Al 7.3 that were in effect in 1995 when the legislature inserted the references into
chapter 754. See id. at 3. Section 754.014(b) thus prohibits the executive director to adopt any
“requirements in addition to those” found in ASME Codes Al 7.1 and Al 7.3 as they existed in 1995.
See TEX. HEALTH & SAFETY CODE ANN. 8 754.014(b). In addition, the executive director may not
adopt any requirements that are inconsistent with the ASME codes as they existed in 1995. See Tex.
Att’y Gen. Op. No. JM-629 (1987) at 3.

        To answer your fourth question, we conclude section 754.014(d) does not authorize the
executive director to require EER equipment to comply with either the current version of ASME
Code A17.1 or A17.3. See Request Letter, supra note 1, at 4. Section 754.014(d) requires the
executive director to adopt standards mandating EER equipment “to comply with the installation
requirements of the 1994 ASME Code Al 7.3 .” TEX. HEALTH& SAFETY CODE ANN. 5 754.014(d).
Because section 754.014(d) explicitly refers to the 1994 edition, the executive director is prohibited
from adopting standards requiring EER equipment to comply with the installation requirements of
any subsequent revisions of the ASME codes. See id.

         We conclude, in answer to your fifth question, that section 754.014(d) refers to the 1993
ASME Code together with the 1994 addenda. See Request Letter, supra note 1, at 5. Given that,
as you point out, there is, strictly speaking, “no 1994 edition of ASME Code Al 7.3,” we admit that
the statute is less than clear. See id. Nevertheless, when the legislature inserted the references to the
ASME codes in 1995, we presume it had access to the 1993 edition and the 1994 addenda and
specified the year “1994” to expressly include the addenda.

          We finally reach your second question regarding whether the term “installation requirements”
in section 754.014(c) refers only to ASME code requirements “directly related to the original
installation of EER equipment or whether it also refers to those Code requirements related to the
alteration, operation (e.g., maintenance and repair), or inspection of EER equipment after it has been
installed.” Request Letter, supra note 1, at 3. As you state, section 754.014(c) mandates that the
executive director adopt standards that require EER equipment “to comply with the installation
requirements of’ the least restrictive of either (1) ASME Code Al 7.1 that was in effect on the date
Mr. William H. Kuntz, Jr. - Page 7            (JC-0510)




of installation of’ the EER equipment, or (2) “an applicable municipal ordinance . . . that was in
effect on the date of installation.”   TEX. HEALTH & SAFETY CODE ANN. 5 754.014(c) (emphasis
added); see also id. 5 754.014(k) (defining “date of installation”). By contrast, section 754.014(a)
requires the executive director to adopt standards “for the installation, aIteration, operation, and
inspection of [EER] equipment.” Id. 4 754.014(a) (emphasis added). You appear to suggest that,
because subsection (c) refers to “installation” only, the executive director may adopt standards for
“alteration, operation, and inspection” that have been added in later editions of the ASME codes.
See Request Letter, supra note 1, at 3.

         We conclude that the executive director may not adopt standards relating to the alteration,
operation, or inspection of EER equipment that are in addition to or inconsistent with the ASME
codes that existed in 1995 when the references were inserted in section 754.014 and defined in
section 754.011. While subsection (c) lists only installation, subsection (b) plainly prohibits the
executive director from adopting any standards additional to “the requirements in the ASME Code
A17.1 or ASME Code A17.3.” TEX. HEALTH & SAFETY CODE ANN. 5 754.014(b).                  Moreover,
subsection (b) is not limited to the installation of EER equipment; rather, given that it does not
modify the term “standards,” it encompasses installation, alteration, operation, and inspection of
EER equipment.
Mr. William H. Kuntz, Jr. - Page 8            (JC-05 10)




                                       SUMMARY

                        To construe section 754.014 of the Health and Safety Code
               constitutionally, it must be read to refer only to the editions of the
               ASME Codes A17.1 and A17.3 that were in effect when the
               legislature inserted these references into the section in 1995, except
               where the statute expressly names an earlier edition. Accordingly,
               neither subsection (c) nor subsection (d) of section 754.014
               authorizes the executive director of the Texas Department of
               Licensing and Regulation to require elevators, escalators, and related
               equipment to comply with the current edition of ASME Code Al 7.1
               or A17.3.       Similarly, the executive director lacks authority to
               determine whether to adopt revisions to the ASME codes that have
               occurred since 1995.

                        Regardless of whether section 754.014(c) refers only to
               “installation requirements” for elevators, escalators, and related
               equipment, section 754.0 14(b) plainly prohibits the executive director
               of the Texas Department of Licensing and Regulation from adopting
               standards relating to the alteration, operation, or inspection of such
               equipment that add to the requirements in the 1995 versions of
               ASME Code A17.1 or ASME Code A17.3.

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                                              JOHN
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                                                       CORNYN
                                                               ~IhAm-‘
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                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
