Dr. J.,E* Peavy                        Opinion No, M-~783
Commissioner of Nealth
State JDepartpent of Health            Rer   Authority of the State
Austin,.~Texaa                               Departmentiof Health to
                                             require seal of l$oensed
                                             professional   engineer   on
                                             plans, etc. for hospitals


Dear Dr. Peavyt
          We quote:from your letter requesting an opin$on from
this office as foilowsr
            "Under the prqvis$ons of Art. 4437f, V.A.T&,
      Texaa Hospital Llcenaing Law) and Art, 4442c,
     I Convalescent  and Nursing Homes), the State Depart-
     ment of Health is charged with the reeponslbillty
     of carrying out the intent of the legislature as
     expressed in these Acts.
          'The Legislature has declared a# among the
     purposea of Article 4437f, 'to protect and promote
     the public health and welfare by providing for the
     development, establishment, and enforcement of cerT
     taln standards in the construction , . . of hospitals, '
     Art. 4437f, $3. In Article 4442~5,the Legislature
     has expressed as one of its purposes, 'to promote
     the public health, safety and welfare by providing
     for the develovment. establishment and enforcement
     of standards -. . for the . . . construction of
     such inati'tutionswhich ?the lightsof advancing
     knowledge will promote safe and adequate treatment
     .   .' Art. 4442c, 81.
             l




          "Such ktatements of purpose are pertinent to
     the regulatory authority of the Department of
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Dr. J. E. Peavy, page 2             (M-783)


    Health since Its legislative delegation of au-
    thority is couched In terms of legislative pur-
    pose. In Article 4437f the Department's rule-
    making authority is expressed In part as followst
     'The Licensing Agency . . . shall adopt, amend,
    promulgate, and enforce such rules, regulations,
    and minimum standards as may be designed to fur-
    ther the purposes of the Act. Provided, however,
    that the rules, regulations, or minimum standards
    so adopted, amended, promulgated, or enforced shall
    be limited to safety, fire prevention, and sanitary
    provisions of hospitals as defined In this Act.'
    Art. 4437f, $5. Further statement of authority
    is ,as followst 'The Licensing Agency shall have
    the authority to deny, cancel, revoke or suspend
    a license in any case where it finds there has
    been a substantial failure to comply with the
    provisions of this Act or the rules, regulations,
    or standards promulgated under this Act, or for
    the aiding, abetting, or permitting the commission
    of any Illegal act, or for conduct detrimental to
    the public health, morals, welfare and safety of
    the people of the State of Texas.'
          "In regard to nursing and convalescent homes
     the scope off,
                  the Department's regulating authority
     Is also defined in termsof the legislative purpose
     of safeguarding the public health, safety and wel-
     fare. Reading selectively, it Is stated In part
     as follows:
          'The Licensing Agency is authorized to adopt,
     amend, promulgate, publish and enforce minimum
     standards in relation to:
          (a) Construction.of the home or Institution,
     Including plumbing, heating, lighting, ventilation,
     and other housing conditions, which shall insure
     the health, safety and comfort of residents and
     protection from fire hazard;
                          ****

          (c) All sanitary and related conditions within
     the nursing home and its surroundings, including
     water supply, sewage disposal . . . which shall

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Dr. J. E. Peavy,   page   3             (M-783)


     Insure the health, safety and comfort of the
     residents.
                              ++**

          (e) Equipment essential to W&?i~;~l~%;~d
     welfare of the r$sidents , . .’              f
     §7.
          “The size and complexity of structures,to,
     be licensed as hospitals or nursing homes In this
     day and time make It most likely that their design
     and construction Involve structural, ~mecharilcal
     and electrical engineering. The water sUpply,and
     sewage disposal problems in connection with these
     structures Involve problems in the area of civil
     and sanitary engineering, When such engineering
     Is involved the Department believes that the
     public health and safety is best insured by
     requiring that the plans for such structures
     bear the seal of a licensed professional en-
     gineer, and, subject to your approval, the
     Department has voted to make such a raquire-
     ment by administrative rule.
          “Accordingly, your opinion is respectfully
     requested as to the following:
          “Does the State Department of Health have
     authority under Vernon’s Ann. Civ. St. art. 4437f
     to require the seal of a licensed professional en-
     gineer on plans, designs or specifications of
     ‘hospitals,’ as defined in such statute, which
     involve structural, mechanical, electrical or
     sanitary engineering, submitted to the Depart-
     ment for llcensure under the afore.cltedTexas
     statute?
          ‘Does the State Department of Health have
     authority under Vernon’s Ann. Civ. St. art.
     4442% to require the seal of a lioensed pro-
     fessional engineer on plans, designs or specifl-
     cations of ‘Institutions,’ aa defined in such
     statute, which involve structural, mechanical,
     electrical or sanitary engineering, submitted
     to the Department for llcensure under the afbre-
     cited Texas Statute?”

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Dr. J. E. Peavy, page 4           (M-783)


          In construing the provisions of Article 4437f and
Article 4442c,,Vernon's Civil Statutes, Attorney General's
Opinion M-545 (lyoq) held, in part, as follows:
          1,
           . . . the Legislature intended that the
     Department of Health promulgate its own standards
     relating to the design, construction and licensing
     of hospitals, nursing and convalescent homes, and
    .related Institutions. . . .'
          'Administrative agencies may adopt and promulgate
reasonable rules and regulations to carry out the performance of
their specific statutory duties. All State Insurance Company v.
State Board of Insurance, 401 S.W.Td 131 (Tex.Civ.App. lqbb, error
ref. n.r.e.). However, a rule must be In harmony with the general
objectives of the act involved. Gerst v. Cliff Savings & Loan
Association, 432 S.W.2d 702 (Tex.Sup. 1968)    In view of th holdlng
In Attorney General's Opinion M-545 and in lonsideratlon ofethe
Department's proposed rule in light of the provisions of the re-
spective statutes, it Is our opinion that the proposed rule of the
State Department of Health appears reasonable, being in conformity
with the Department's specific statutory duties and in harmony with
the general objectives of Articles 4437f and 4442~~ Vernon's Civil
Statutes.   It will therefore be valid and legally enforceable.
Consequently, in answer to your questions, you are advised that
the State Department of Health has the authority under the pro-
visions of Article 4437f and 4442~ to require by administrative
rule the seal of a licensed, Erofesslon$ engineer on plan:,
designs or specifications of hospitals and institutions as
defined In the respective statutes which involve structural,
mechanical, eleiztrlcalor sanitary engineering submitted to the
State Department of Health.
                     SUMMARY
          The State'Department of Health has the au-
     thority under the provisions of Articles 443i'f
     and 4442~ to require by administrative rule the
     seal of a licensed, professional engineer on
     plans, designs or specifications of "hospitals"
     and "institutions" as defined in the-respective
     statutes which involve structural, mechanical,
     electrical or sanitary e
     the State Department of




                                        General of Texas
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Dr. J. E. Peavy, page 5            (M-783)


Prepared by Ivan R.,Williams,    Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jack Sparks
Harriet Burke
Ed Esqulvel
J. C. Davis
Roger Tyler
MEADE F. GRIFFIN
Staff Legal Assistant
ALFREDWALKER
Executive Assistant
NOLA WRITE
First Assistant




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