                      August 3, 1948

Hon. Howard Granberry, M.D.
Chairman State Board of Health
Austin, !exas
                           Opinisn No. V-646
                           Re: Authorit of State Board
                               of Healtiito rescind a
                               regulation of State Health
                               Officer.
Dear Dr. Cranberry:
          Your opinion request states that in September,
1939, pursuant to Articles l+l+65Aand 4466, the State
Health Officer promulgated rules regulating the manufac-
ture of ice cream. On June 1, 1948, he issued revised
regulations which provide that:
         "Ice cream is a clean frozen, dairy
    product made from cream ,milk'or milk prod-
    ucts, and sugar, with.or without a harmless
    flavoring and with or without eggs or egg
    products, and contains not less than 8 per-
    cent of~milk fat and may contain one-half
    of one percent of harmless.stabilizer and
    shall not contain any fats or oils other
    than milk'fat, and shall weigh not less
    than 4.5 pounds per gallon."
          There~are variations for "fruit ice cream" and
"nut ice cream" which are not relevant here.
          On June 14,'1948 the'state Board of Health
repealed the State Health bfficer(s regulation of June
1, 1948, and issued the following~in its place:
         "All ice cream shall contain not less
    than 8 percent butter fat and not less than
    4 percent vegetable fat if vegetable fat
    is added, and that all ice cream manufac-
    tured, whether under the new process or the
    old process, shall state on thenlabel just
    what it contains and the percentage of
    each."
Hon. Howard Granberry, N.D., Page 2   (V-646 )


          Your question is:
          "Was the action of the~State Board-
     of Health a valid procedure, and if not,
     are the regulations issued by the State
     Health Officer as of June 1st 1948 the
     present official regulations?"
          The respective duties of the State Board of
Health (called the Board) and the State Health Officer
are created and defined by Acts of the Legislature. By
Article 4414a, the State Department of Health consists
of the State Board of Health and the State Health Offi-
cer.
          The Health Officer is employed by the Board.
It has the power to remove him for cause after notice
and hearing. The Board is authorized to investigate
the work of the State Department of Health, and is em-
powered to adopt rules for its own procedure. Art.
4418a. The Board is given general supervision and con-
trol "of all matters pertaining to the health of the
citizens of this State." It is empowered to make stud-
ies, inspections, and investigations. It is given con-
trol over sanitary and quarantine measures, and has many
similar powers. Arts. 4419-4421. But it is nowhere au-
thorized to promulgate rules such as are here involved,
nor to repeal any regulation duly issued by the Health
Officer.
          The Health Officer, on the other hand, is ex-
pressly empowered by the Legislature with rule making
power. Thus Article 4466 provides that he shall:
          Vmke , publish and enforce rules con-
     sistent with this law, and adopt standards
     for foods, food products, beverages, drugs,
     etc. . . ."
          By way of contrast, with reference to the in-
ternal management of the Department, Article 4418d pro-
vides that:
          "He (the Health Officer) shall have
     the power,'with.the accroval of the State
     Board of Health? to prescribe and promul-
     sate such administrative rules and regu-
     rations . . . as may be deemed necessary
     for the effective performance of the duties
.


    Hon. Howard Granberry, M.D., Page 3   (v-646)


        imposed by this or any other law upon the
        State Department of Health and its sever-
        al.officers and divisions."

              You are therefore respectfully advised that
    under the respective powers given by the Legislature,
    the Health Officer is authorized to promulgate rulEi
    and adopt standards for food and food products.
    State Board is not authorized to repeal such regula-
    tions or to promulgate it& erder of June 14, 1948. As-
    suming-that the regulations of the Health,Officer lf
    June 1, 1948, are in other respects valid, they consti-
    tute the present official regulations on the subject.


             The State Board of Health is not em-
        powered to repeal a health regulation of
        the State Health Officer duly issued un-
        der Article L&66.
                                    Yours very truly,
                                ATTORNEY GENERAL OF TEXAS

                                          5?JLdu

                                    Joe R. Greenhill
                                    Executive Assistant
    JRG:erc




                                ATTORNEY GENERAL
