                               The Attorney General of Texas
                                                    Iecember 31, 1985
JIM MATTOX
Attorney General


Supreme Court Building         Robert Bernstein, M.D., F.A.C.P.         Opinion No.   JM-414
P. 0. BOX 12549                Commissioner
Justin, TX. 78711.2549         Texas Department o,EHealth               Re:   Rulemaking authority of the
512/475-2501                   1100 West 49th Stmet                     Texas Board of Health with regard
Telex 9101974.1367
                               Austin, Texas   7 3'156                  to massage therapists under House
Telecobler   51214754%
                                                                        Bill No. 2012, Acts 1985, Sixty-
                                                                        ninth Legislature
714 Jackson. SUM 700
Dallas, TX. 75202.4508
                               Dear Dr. Berusteil:
214l7428Q44

                                    You ask for clarification of the rulemaking authority of the
4924 Alberta Ave., Suite 160   Texas Board of Htralthwith regard to massage therapists under House
El Paso, TX. 799052793         Bill No. 2012, Acts 1985, 69th Leg., ch. 752, at 5388, to be codified
915/533.34&l                   ae article 45121:, V.T.C.S. Applying well established rules for
                               statutory coustruction, we conclude that a court would find that the
1001 Texas, Suite 700
                               legislature intends the Texas Board of Health to adopt rules on
Houston, TX. 77002-3111        matters pertaining to the regulation of massage therapy with the
713l223.5886                   advice of the Advisory Council on Massage Therapy.

                                    House Bill NO. 2012, which relates to the regulation of massage
90s Broadway, Suite 312
Lubbock, TX. 79401.3479
                               therapy, contains the following pertinent provisions:
9091747~5239
                                            SECTXIN 3. APPLICATION FOR REGISTRATION. Each
                                            licani for registration under this Act shall
4309 N. Tenth, Suite S
                                         %&-&lication       forms provided by the depart-
McAllen, TX. 78501-1885
5121682.4547
                                         ment; azcompanied by the application fee set by
                                         the dep&nent.
 200 h4ah Plaza, suite 400                  . . I .
 San Antonio, TX. 78205-2797
 512/2254191
                                            SECTXIN 7. POWERS AND DUTIES OF THE BOARD AND
                                         THE DFZZRTMENT. (a) The board shall adopt rules
 An Equal OpportUnitYI                   consistmt with this Act as necessary for the
 Affirmative Action Employer             perform&e     of its duties under this Act. The
                                         board slhl   adopt the rules in the mauuer provided
                                         by the lhdministrativeProcedure and Texas Register
                                         Act   (Article 6252-13a. Vernon's Texas Civil
                                         ScatuterI) .

                                            (b) ZXe departmut shall administer this Act.

                                            .   .      .




                                                                   p. 1891
Dr. Robert Bernstein - Page 2    (JM-414)




             SECTION 8. ADVISORY COUNCIL. (a) The Advisory
          Council 011 Masasge Therapy is created as an
          advisory councilJo the department.

             . . . .

             SECTION 9. POWERS AND DUTIES OF THE ADVISORY
          COUNCIL. (a) T&e advisory council by rule shall
          prescribe application forms and registration fees.
          The advisory cou&l   shall set the fees in mounts
          reasonable and xs:cessaryto administer this Act.
          (Emphasis added).

The issw before us is the effect of the language in section 9 on the
general rulemaking power of the Texas Board of Health as provided by
section 7.

     The dominant consideration in construing statutes is legislative
intent. That intention is derived from a general review of an entire
enactment and, when ascert,ained,shall be given effect to attain the
object and purpose of the legislation. See City of Houston v. Morgan
Guaranty International Bank_,666 S.W.2d 524, 529 (Tex. App. - Houston
tlst Dim..] 1983, writ rt,f'd n.r.e.), cert.    denied, 105 S.Ct. 1185
(1985). The Texas courts repeatedly have held that the intention of
the legislature controls the language used in an act and that in
construing an act, a court is not necessarily confined to the literal
meaning of the words used in the act. The intent rather than the
strict letter of the act xl11 control. See Texas Turnpike Authority
v. Sheooerd, 279 S.W.2d 3X!, 306 (Tex. 1955); City of Mason v. West
Texas Utxties     Co., 237 S.W.2d 273, 278 (Tex. 1951); Nichols v.
Aldlne Indeuendent          District, 356 S.W.2d 182, 184 (Tex. Civ.
APP.  - Houston  1962, no w&z);  Holcombe v. Levy, 301 S.W.Zd 507, 518
 (Tex. Civ. App. - Galvestmo 1957, writ raf'd n.r.e.). In cases of
ambiguity, statutas must be given a practical and reasonable
construction that will malca them valid, if possible, and that will
accowmlish as nearly as roeaible the intention of the lenislature.
See B&a     & Root v.-Durl~xl, 84 S.W.2d 1073, 1075 (Tex. 1935). See
also Huntsville Independm~~ School District v. McAdams, 221 S.Wx
z67 548 (Tex. 1949). It &o      is well settled that statutes that deal
with the same general subject constituting parts of the same general
plan are considered as being in pari materia and are considered
together, even thouah ther, are passed at different times and do not
refer to one another. Se;: Cal&t      v. Fort Worth National Bank, 356
S.W.2d 918, 921 (Tex. lmj;     Robp V. Hawthorne, 84 S.w.2d 1108, 1109
 (Tex. Civ. App. - Dallas 1535. writ dima'd).

     Chapter 109 of the Sicey-eighth Legislature, codified as article
4419b. V.T.C.S., was enac,ted in 1983 to clarify the structure and
duties of the Texas Board cf Health, the Department of Health, and the
Commissioner of Health. As:ts 1985, 69th Leg., ch. 109, at 521. -See



                                p. 1892
Dr. Robert Bernstein - Page 3   (JM-414)




Bill Analyses to S.B. No. '38,69th Leg., prepared for Senate Committee
ou Bealth and Eumaa Resources and House Comittee ou Public Health,
Bill File to S.B. No. 98, Legislative Reference Library. See also
Attorney General Opinion B-949 (1977) (relating to general rulemaking
power of Department of Health Resources in 1977). Chapter 109
provided, in pertiuent par:, that

             (a) The boarlishall:




             .   .   .   .

             (b) The boar'i is responsible for the adoption
          of policies and rules and for the government of
          the department. The board shall supervise the
          commissioner's administration and enforcement of
          health laws of the state. The board may delegate
          in writing any power or duty imposed on it by law,
          except the power' or duty to adopt rules, to the
          commissioner of Ilealthor, in his absence, to the
          person acting as commissioner of health, including
          the authority to make final orders or decisions.

             . . . .
             (d) The board may appoint advisory committees
          to   assist   the  board    in  performing   its
          duties. . . . (Lmphasis added).

V.T.C.S. art. 4414b, 81.05. Section 1.06 of that act further provided
that the commissiouer of health shall administer and enforce the
health laws of this state lmnder the board's supervision and perform
the duties assigned to him by the board and state law, subject to the
provisions of that act.

     We believe that the legislature granted to the Texas Board of
Health general authority to adopt rules and policies for the
department and authorized the appointment of advisory committees to
assist the board with its duties. The rules established by that act,
whereby the board adopts rules and sets policy based on advfce of
advisory committees and the commissioner and staff of the department
administer the adopted rules and policies, were reaffirmed and




                                 p. 1893
Dr. Robert Bernstein - Page!4     (JM-414)




reenacted during the Texas Sunset Act review of the Texas Department
of Bealth by the same session of the legislature that enacted the
statute regulating massage ,therapy. See V.T.C.S. art. 4414b. Sg1.05,
1.08 (as enacted by Acts l!lE;5,
                               69th LeK   ch. 931, at 6746, 6749). We
believe articles 4414b and 4512k, V.T.C.S., are in pari materia and
should be considered together.

     Article 4512k, as enacted by House Bill No. 2012, expressly
grants rulemaking authorit;' to the Texas Board of Health and expressly
creates the Advisory Coum:il on Massage Therapy "as an advisory
council to the department." We believe that the intent of the
Sixty-ninth Legislature mm      to adopt the same rules and basic
structure for the Texas Department of Health in chapter.752 that It
adopted for the department in chapter 931. As such, the Texas Board
of Health adopts rules basc!CIon the advice of the Advisory Council for
the regulation of massage therapy under article 4512k, including rules
that prescribe application forms and registration fees.

                               SUMMARY

            The    Texas Bcsrd of Health adopts rules on
         matters    pertaining to the regulation of massage
         therapy   with the advice of the Advisory Council on
         Message   Therapy.




                                            JIM     MATTOX
                                            Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney Gmeral

MARY KELLER
Executive Assistant Attommy    General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman. Opinion Committea!

Prepared by Nancy Sutton
Assistant Attorney General




                                  p. 1894
