Honorable Ned Price, Chairman       Opinion No. M-947
State Board of Insurance
1110 San Jacinto                    Re:   S. B. 612, Acts 62nd
Austin, Texas 78701                       Leg. R. S. 1971, Chap.
                                          226, p. 1074, Amending
                                          Article llllc-1, Vernon's
bear Mr. Price:                           Penal code
          You have requested the opinion of this Office as to
the application of certain aspects of Senate Bill 612, (Acts
62nd Leg. R. S. 1971, Chap. 226, p.'lO74). This Bill amends
Article llllc-1, Vernon's Penal Code, by adding Section 2(d)
thereto. Specifically, you ask our opinion on the following
questions:
               "(1) Are all the different provisions
          of Article llllc-1 (Acts 61st Leg. R. S. 1969,
          Ch. 550, p. 16921, dealing specifically with
          flammable liquids at retail service stations,
          ;Ep;icable to mobile service units as defined
              . B. 612, Acts 62nd Leg. R. S. 1971, which
          amends Section 2 of Article llllc-1, supra, by
          adding thereto a new section designated Section
          2(d)?
               "(2) Does the State Board of Insurance
          have authority under the provisions of S. B.
          612, supra, to create licensing requirements
          for the operation of mobile service units, and
          to set standards for the securing of such
          licenses?"
Senate'Bill 612, codified as Section 2(d), Article llllc-1,
V.P.C., is set out as follows:
               "(a) In addition to other authority
          granted by this Act, the State Board of
          Insurance shall formulate, adopt and pro-
          mulgate rules and regulations for the safe
          movement and operation of mobile service
          units and for the safe dispensing of flammable

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Honorable Wed Price, page 2      (M-947)



         liquids by mobile service units. As used in
         this Act, and in the rules promulgated here-
         under, 'mobile service units' are vehicles,
         tank trucks, or other mobile devices from
         which flammable liquids used as motor fuels
         may, as an act of retail sale, be dispensed
         into the fuel tanks of motor vehicles parked
         on off-street parking facilities; provided
         that any city may, by ordinance, within one
         hundred eighty (180) days after promulgation
         by the State Board of Insurance of Statewide
         regulations hereunder, adopt rules and regu-
         lations covering such units which are more
         restrictive but not less restrictive than
         those adopted by the State Board of Insurance
         hereunder and in addition thereto any city
         may license and charge a reasonable license
         fee for the operation of each such mobile
         service unit operating in such city. The rules
         and regulations promulgated under this Act
         shall have uniform force and effect through-
         out the State and no municipality or county
         shall hereinafter enact or enforce any ordinance,
         rules or regulations inconsistent with the
         rules and regulations promulgated hereunder
         except as provided herein. Provided, however,
         that any municipal or county ordinances, rules
         or regulations in force and effect on the
         effective date of this Act, including the
         prohibition of mobile service units, shall not
         be invalidated because of any provision of
         this Act."
          Prior to enactment of the above amendment, Article
llllc-1 related to the "storage, handling, and use of flammable
liquids at retail service statiops," and the rules and regula'
tions adopted by the Board presumably cover such storage,
handling and use with regard to fixed-equipment at retail
service stationsor bulk plants. The above amendment adds
the new dimension:of mobile service units to the pre-existing
coverage of Article llllc-1.
          A statute must be construed as a whole so that al1
of its parts can be harmonized, if possible, in order to give
effect ,to the entire Act according to the evident leqislatlVe
intent. 53 Tex.Jur.Zd 227-228, Statute, Sec. 159. We are
unable to say that every pre-existing provision of Article
llllc-1 can be held applicable to the new Section 2(d), but
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(onorable Ned Price, page 3     (M-947)



lost can be related generally to mobile service units. The
lact that some, like Section 4, are, by their own terms, not
:oncerned with mobile units, would not mean that other provi-
3ions, not so limited in their terms, would fail of application.
3pecifically, the Sections not applicable to mobile service
mits are Sections l(4), l(S), 2 and 4. All the remaining
iections of Article llllc-1 will apply to the mobile units.
           Your second question asks us to determine whether
the State Board of Insurance has the authority under the pro-
visions of Senate Bill 612 to create licensing requirements for
the operation of mobile service units and to set standards for
the securinq of such licenses. It is fundamental that the
powers of an administrative agency such as the State Board of
Insurance are derived entirely from legislative enactment.
The agency has'only such powers as are expressly conferred upon
it by statute, together with those necessarily implied from
powers ana duties expressly given or imposed. 1 Tex.Jur.26,
Administrative Law, Sec. 6, p. 652. The scope of the powers
under consideration here granted to the State Board of Insurance
are to, "formulate, adopt and promulgate rules and regulations
for the safe movement and operation of mobile service units
and for the safe .dispensingof flammable liquids by mobile
service units." The extent of the expressed and implied powers
Of the State Board of Insurance is defined by this phrase.
However, without ,attemptingto discuss the entire scope of these
powers, it is relevant to our question here to point out that
among those powers which the Board does not have is the power
to "license" mobile service units absent an express statutory
grant of that vower. We are fully supported in this positions
by the case of-State of Texas, acting-by Andythrough State
Board of Morticians vs. Cortez, 160 Tex. 532, 333 s.w.2a 839
119601 _
           This case involves, among other things, the scope of
authority of the State Board of Morticians as defined in
Article 4582b, Vernon's Civil Statutes, being Acts 1953, 53rd
%I., p. 661, ch.'251. The Board acting pursuant to Sec. 2
 (4)(D), which said that "the Board shall have the power . . .
to prescribe rules and regulations pertaining to the operation
of all funeral establishments.   . .", sought, pursuant to this
 l*guage , to license  a funeral establishment.  Other provisions
Of the Act expressly granted the Board the power to license
an embalmer and a funeral director and specified the require-
ments therefor, including grounds for removal.    The Supreme
 Court held, and we quote from page 841:
               "The Board which is set up by the Act
          is an administrative agency and has no power
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Honorable   Ned   Price, page 4     (M-947)



            to require a license or payment of a license
            by a funeral establishment as a prerequisite
            to its operation. 1 Tex.Jur.Zd 652, Sec. 6."

and further at page 841:
                 "The Board does have the right to
            prescribe the rules and regulations govern-
            ing the operation of a funeral establishment
            but not to require licenses . . . ."
It is our opinion that the power of the State Board of
Insurance to promulgate rules and regulations does not en-
compass the power to license. The Legislature subsequently
responded to this case in 1963 by completely amending Article
4582b by Acts 1963, 58th Leg., p. 1283, ch. 494, Art. 1. The
Act as amended contains express authority for the Board to
license a funeral establishment pursuant to the statutory
requirement set out in Sec. 4 thereof.
          However, the State Board of Insurance by the terms of
Senate Bill 612 does have the power to formulate, adopt and
promulgate rules and regulations for (1) the safe movement
and operation of mobile service units, and (2) for the safe
dispensing of
           . flammable liquids by those units. The rules
and regulations promulgated set the minimum standards of
uniform statewide application for the safe movement and opera-
tion of mobile service units and dispensing of the flammable
liquids. Any city which enacts a licensing ordinance would,
of necessity, have to set the requirements for such a license
in liqht of the minimum standards established in the Board's
rules and regulations.
                                  SUMMARY
                 Sections l(4), l(5), 2 and 4, Vernon's
            Penal code, are by their very terms related
            solely to retail service stations or bulk
            plants, and are not applicable to mobile
            service units as defined in Section 2(a),
            Article llllc-1, Vernon's Penal code.
                 While the State Board of Insurance does
            not have the authority under Section 2(d) of
            Article llllc-1, Vernon's Penal code, to
            license mobile service units, however, it
            does have power to formulate, adopt and

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Honorable Ned Price, page 5   (M-947)


          promulgate rules and regulations for the
          safe movement and operation of mobile serv-
          ice units and for the safe dispensing of
          flammable liquids by these units.
              Any city which enacts a licensing ordi-
         nance would, of necessity, have to set the
         requirements for such a license in light of
         the minimum standards established in the
         Board's rules and
                                    truly yours,




Prepared by:
Rex H. White, Jr.
James H. Quick
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Scott Garrison
James Mabry
Bob Lattimore
Sig Aronson
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant




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