                                    QXfice of the 2lttornep @eneral
                                                   &ate       of ZEexar;
DAN MORALES                                           January 17,1997
 ATTORX‘
       GEXERAL
        EY

   The Honorable David Sibley                                         Opinion No. DM-430
   Chair, Senate Economic Development Committee
   Texas State Senate                                                Re: Whether Govemment Code section
   P.O. Box 12068                                                    417.0041 delegates rule-making authority to
   Austiq Texas 78711                                                fire protection       advisory councils in
                                                                     contravention of the Texas Constitution,
                                                                     article III, section 1 (RQ-909)

   Dear Senator Sibley:

            You ask whether Gov ermnent Code section 417.0041 delegates rule-making authority to
   certain iire protection advisory cow&s in contzavention of the Texas Constitution. The constitutional
   provision at isstq article ll& sectioa 1, states as follows: “The Legislative power of this State shall
   be vested ‘in a Senate and House of Represenwives.         I&is&tive delegations of authority are also
   often challenged under article I& section 1, the separation of powers provision. Courts have
   construed article II, section 1 and article III, section 1 to pe.rmit the legislature to delegate rule-
   making authority to an administrative agency ifthe legislature “establishes ‘reasonable standards to
   guide the entity to Which the powers are delegated.‘“’ Legislative authority may evem be delegated
   to private entitk ifthe. kgklative purpose is discerniile and there is protection against the arbitrary
   exercise of power;2

            ln 1991, the legi&ture transferred certain duties relating to fire safety Tom the State Board
   of Insurance (the “board”) to the Commission on Fiie Protection (the “commission”). See Act of
   May27,1991,72dLeg.,ch.         628, $5 11, 13,15& 18, 1991 Tex. GenLaws2286,2309-11.              This
   legislation shifted authority regarding 6re extinguishers, fke detection and alarm devices, fire
   protection sprinldex systems, and fireworks from the board to the commission. See id. (enacting Ins.



           ‘Eh&uwdIn&p. sch Diet v. Meno, 893 S.W.2d450.414 (Tex 1995) (quoting RaihadComm    h v. Lone Star
   Gac CO..844 S.W.2d619.689 @ex. 1992));s~ ah Tcwr Antiquities Comm. v. Dallas Cacn~ Communily CoUege, 554
   S.W.2d 924,928 crcx. 1977) (swubxy dde@iaw        ofpowa    may not be accanplished   by overly broad m vague language);
   Commissionen Cour~ofLubbockCouniyv.            M&in, 411 S.W.2d lCQ.105 (Tex. Civ. App.-Amarillo         1911. wit r&d
   n.r.e.) (Legi&tive delegation must pt-esaik   suBGent   standa&   to guide agency in exercisii  disaetiw conferred).

            ‘See Oflce o/pub. IN. Counrelv. Texas Auto. Ins. Plan, 860 S.W.2d 23 I. 237 (Tex App.-Austin 1993, writ
   denied);see aLwCenhaIPmver&Lightv. Sharp, 919 S.W.2d 485,492 (Tex. App.-Austin          1996,witrequestsd). Bur
   see &fin&n v. City of Fort Worth Pkmning Comm ‘n. 786 S.W.2d 563,565 (Tcx App.-Fort Worth 1990, no wit)
   (legative   power may not be delegated to nalTow sqment     ofwmmunity);    Attorwy   General Opinion DM-135 (1992).
The Honorable David Sibley - Page 2              (DM-430)




Code, arts. 5.43-1, 8 ZA, 5.43-2, 3 4A, 5.43-3, 5 3A, 5.43-4, 5 5A). Section 417.0041 of the
Government Code, which describes the role of advisory councils established under these articles of
the Insurance Code in the commission’s n&making process, provides as follows:

               (a) This section applies to lules adopted under Articles 5.43-.l through
           5.43-4, Insurance Code, and to the advisory councils established under these
           artiCkS.


                (b) Each council pesiodidly shall review commission rules implementing
           the article under which the council was established and recommend changes
           in the rules to the commission. Notwi&tan~mg Chapter [sic] 2001.03 1, the
           commission shall submit all changes and additions to rules that implement the
           article under which an advisory council was established to that council for
           development. Ifthe commission does not approve a rule developed by the
           council, the commission shall indicate to then council the reasons that the
           commission did not approve the rule and return the rule to the council for
           further development.

Section 2001.03 1 of the Government Code, a provision of the Administrative.Pr&ure         Act (the
“APA”) to which subsection (b) seems intended to refer states as follows:

               (a) A state agency may use an i&ormal.conference or consultation to
           obtain the opinions and advice of interested persons about contemplated
           Nlemalcing.

               @) A state agency may appoint committees of experts or interested
           persons or representatives of the public to advise the agency about
           contemplated r&making.

              (c) The power of a committee appointed under this section is advisory
           Only.

This APA provision generally authorizes state agencies to use advisory committees in rule-making
on the condition that the power of any committee appointed under the provision is purely advisory.

        Your letter assumes that section 417.0041 establishes a rule-making role for the fire
protection advisory councils that is not merely advisory or ministerial in nature and therefore
delegates to the advisory councils at least some degree of substantive rule-making authority. We
agree. Section 417.0041 requires the commission to submit all changes and additions to rules to the
relevant advisory council for development. The advisory council must develop the rule. If the
commission does not approve a rule developed by the advisory council, the commission is not f?ee
to dr& its own rule but rather must return the rule to the advisory council for finther development.




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The Honorable David Sibley - Page 3           (DM-430)




ln essenoe, section 417.0041 establishes joint r&-making authority. No amendment or new rule may
be adopted unless both the wmmission and the &vant advisory wuncil agree. Furthermore, section
417.0041 gives the 6re pmtection advisory cauxils    an dikctive veto over any rules the commission
may propose    to adopt that would change rules previously adopted to implement articles       5.43-l
through 5.434.       Thus, the legislature has delegated at least some authority to amend rules
implementing these articles to the advisory councils. As this office has recognized in the past, the
power to amend rules is in itselfrulsmaking authority. See Attorney General Opinion DM-135
(1992) at 5.

        Sewnd, we wndude that the legislature intended to delegate at least some substantive rule-
making authority to .the 6re protection advisory wuncils based on its use of ihe words
“[n]otwithstanding [Governmen code section] 2001.03 1” in section 4 17.004 1. We believe that this
language demonstrates that the legi&ure sought to distinguish the fire protection advisory councils’
rule-making role from that of other advisory wmmittees and that it indicates that the.legislature
inknded the tire protection advisory wuncils’ role in the rule-making process to be more &UI merely
advisory. With the exception of three other advisory wmmittees - the tire protection personnel
advisory ~mmitke,~ the fimds allocation advisory committee,’ and the volunteer 6re fighter advisory
wmmittee,’ each of which is aswciated with the commission - we have been unable to locate any
other statute using this language to describe the role of another advisory committee or cckmcil in an
agency’s ~hnaking         processP The uniqumess of this ianguage further suggests it is intended to
wnfer special authority on these advisory councils.

        We note that in Attorney General Opiion DM-149 this office examined identical language
desuibii the. role of the tire protection personnel advisory committee and the volunteer tire fighter
advisory committee in rulemaking and concluded that it does not delegate any substantive,
no~G&erial rulsmaking authority to those wmmittees. See Attorney General Opinion DM-149




                                               p.   2403
The Honorable David Sibley - Page 4                         (DM-430)




(1992) at 4-5.’ For the reasons stated above, we believe this conclusion was inwrrect.                              Attorney
General Opinion DM-149 is overruled to the extent it wnflicts with this opinion.

         You suggest that the delegation of rule-making authority to the fire protection advisory
wttnciis in section 417.0041 violates article III, section 1, asking, “With these parameters, does an
agency then become subject to governance by its advisory council? Is this a proper delegation of
legi&tive authority?” Provided that the legiskure prescribes sufficient standards, article III, section
1 does not limit the kgi&tu& ability to create and structure governmental agencies’ and to allocate
its~delegated legislative authority between (and within) governmental agencies as it sees fit. The
advisory wuncils, created by statute and with members who are appointed by the wmmission, are
public entities? Nothing in article III, section 1 prevents the legislature Corn delegating rule-making
authority to the advisory councils as opposed to the wmmission.‘0 Whether this joint r&making
arrangement has proven workable or is in the public interest is another matter and is ultimately a
public policy determination that is within the province of the legislature rather than this office. The
legislature is always free to amend section 417.0041 to limit the fire protection advisory councils
rule-making role should it choose to do so.




Attcmey General Opiion      DM-149 (1992) at 4-5.

         ‘Texas Turnpike Auth v. shcppcrd 279 S.W.2d 302.304 (Tex. 1955) (no oollstitufiollal provision prohibits
4w-=fimrcrrafiogsorenrmental      agarcy dbody      politic); Thomas v. HavardCoun~Iioap. Ad., 489 S.W.2d 403.
405 (-kx App.-Eastland1972),wrilrefdnr.r.prrcuriam.           498 S.W.2d 146 (Tex 1973) (same).

         %r Ins. Code irk 5.43-1,s           9 (creating Fire    Exdquisk      Advisxy Ccmcil qpohted        by State Board of
lIlsmE,nmvo              cm), 5.43-2,s 2(3) (pmiding for        tire d&e&m and alarm devices advisory council ,xn&ing         of
sevenmembersappoilltedbystateBoardofIns\lrsnoc,llow                commissiom), 5.43-3, $5 l(4). 6(a) (aeat&    Fire Ptutechm
Advisory Cmncil casisthg       of -       members appointed       by State Ekmd of Insurencc, IKW coormissioqwhoserveti
plelmrc oftbebmd),    5.43-4,s 5El (providing for fireworks      8dvisce-y .zamcil ooosisting of five members who save at will
Ofcommissioo).




                                                                p.   2404
The Honorable David Sibley - Page 5          (DM-430)




                                   SUMMARY

               The delegation of rule-making authority to advisory councils in
           Government Code section 417.004 1 does not wntmvene article III, section
           1 of the Texas Constitution.                                 A




                                          DAN MORALES
                                          Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion committee

Prepardby Mary R Grouter
As&ant Attorney General




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