                                    The Attorney General of Texas

JIM MAlTOX                                            October 22. 1985
Attorney General


S~ppme    Own Bullding             Mr. Charles D. Trmia                  Opinion No. JM-366
P. 0. Box 12548                    Executive Director
Austin. TX. ?8711- 2540            Texas Parks and W!.l.dlife             Re: Whether the Parks and Wildlife
5121475-2501
                                      Department                          Columisslon may delegate certain
Telex 9101874.1367
Telecopier   51214754266
                                   4200 Smith School Road                 permitting authority to the execu-
                                   Austin. Texas   711?44                 tive director of the department

714 .hckson. Suite 7M)             Dear Mr. Travis:
Dallas, TX. 75202-r506
2lU742.8944
                                          You ask us tixther the Parks and Wildlife Conmisslon [hereinafter
                                   the "Comission"] is authorized, through its rulemaking powers, to
4824 Alberta     Ave.. Suite 160   delegate to the Ih:ecutiveDirector the authority to issue permits in
El Paso. TX. 799052793             compliance with chapter 86 of the Parks and Wildlife Code. See Parks
915/-                              & Wild. Code 586.001 et seq. You qlso Inform us that the C~ission
                                   has already delegated this permitting authority to the Executive
 lo0I   TBXPS. Suite 7W            Director through rules promulgated more than ten years ago. See 31
 Houston,     TX. 77002~3111       T.A.C.   157.45.
 713l223ea6
                                        Section   86.002(a) of the Parks and Wildlife Cod2 provides:
 808 Broadway. Suite 312
 Lubbock, TX. 7B401-3419
                                                 (a) No person may disturb or take marl, sand,
 8081747-5238                                 gravel, shell, or mudshell under the management
                                              and protection of the eomission or operate in or
                                              disturt any oyster  bed or fishing water for any
 4309 N. Tenth, Suite B
 McAllen. TX. 78501~1685
                                              purpoac:other than that necessary or incidental to
 51218824547                                  navlgat:ion or dredging under state or federal
                                              authorj.tywithout first having acquired from the
                                              commisc~Joa a permit authorizing the activity.
 200 Mdn      Plaza. Suite 409
                                              (Empha~~isadded).
 San Antonio.     TX. 792052797
 51212254191
                                   Section 86.004 provides:

  A” Equal DOpo~unWl                             The mmmisslon may grant a permit to an appli-
  Alllrmtive Action Employer                  cant &I has complied with all requiramancs of the
                                              zsoion     if the commission finds that  the dis-
                                              turbinlc,,
                                                       taking, and carrying away of marl, sand.
                                              gravel, shell, or mudshell will not:

                                                     (I) damage or    injurlously affect   any
                                                  isl.md, reef, bar, channel, river. creek, or
                                                  bays   used for navigation, or any oysters,




                                                                p, 1677
Mr. Charles D. Travis - Page 2    (JM-366)




                oyster beds, or fish in or near the water used
                in the oper#.tion;and

                   (2) cbar.g,a or   injuriously   affect any
                current    t'aat would    affect    navigation.
                (Emphasis atided).

Moreover, any person desj.ringa permit must make a written application
to the Conmission. See I'arks& Wild. Code 186.003. If the Commission
refuses to grant a=Lt       to an applicant. the body is required to
make written findings of facts explaining the reason for the refusal.
See Parks h Wild. Code IE6.008; see also V.T.C.S. art. 6252-13a, 5515,
ma) . Therefore, the legislature has explicitly designated to the
Comrtssion the pemittinl; authority under chapter 86 of the Parks and
Wildlife Code.

       Through its rulemak~iag authority, the Commission has delegated
its authority to issue permlts to the executive director. -See 31
T.A.C.   557.45. The agemy roles provide in part:

                (a) The f&.owiag procedures will be followed
          for    the issuance of general permits:

                   (1) All requests for shell dredging permits
                will be made,in writing to the director. . . ..

                   (6) The +irector may consider the following
                criteria in determining vhether to grant or
                deny a permit. . . . (Emphasis added).

See 31 T.A.C. s57.45. The rules also provide for the director or any
Gloyee    authorized by 1:be director to hold a hearing to determine
vbether a permit will bl! granted. See 31 T.A.C. 1557.45(a)(4)-(8).
These rules make no provisions for the Conmission to make a final
datermination of wbetber a permit will be granted. Accordingly, they
are in conflict with sec,tion 15 of article 6252-13a. V.T.C.S. See
Citizens Bank of Bryan 7'. First State Bank, Eearne. 580 S.W.2d 344.
347 (Tex. 1979); ---see t?iso V.T.C.S. art. 6252-13a. 422 (lam in
conflict vith the Adminl~~trativeProcedure and Texas Register Act are
repealed). We also conclude that the rules In question are in direct
conflict with the legis:.ativemandate that the Commission grant or
deny permit applications.

     Despite the fact that these rules bave been In effect and have
been followed by the agency for ten years, they are contrary to the
plain meaning of the applicable statutes; and therefore, afford no
basis for the continuation of this agency practice. --     See Brown
Express, Inc. v, Railroad~Comission, 415 S.U.2d 394 (Tex. 1967).




                                  p. 1678
Mr. Charles D. Travis - Page 3   (JM-366)




     We do not imply that the Commiaaion is totally precluded from
promulgating rules delegatir,g,
                              its authority to hold hearings on permit
applications. The legislatwe has not prohibited the Coamissio~ from
                           See Attorney
delegating this function. me-            General Opinion JM-244 (1984).
But the Administrative Procedure and Texas Register Act requires that
the granting of an agency 'permitmust comply with the provision6 of
the act concerning contested cases.       See V.T.C.S. art. 6252-13a.
113(3), 18(a).   Although  section   15 ofrhe  act clearly allovs the
appointment of a hearing examiner in such cases, see Grace v.
Structural Pest Control Boa::dof Texas, 620 S.W.2d 157 (K     Civ. App.
- Waco 1981, vrit ref'd n.r~~ommission           mst sake the ultimate
decision and include findluns of fact and conclusions of law in
compliance with sections 15 and 16. See Citizens Bank of Bryan v.
First State Bank, Hearne, supra. at 347; Texas Health Facilities
colmission v. Charter Medical-Dallas, Inc.. 665 S.W.2d 446 (Tex.
1984); Consusars Water, In-. v. Public Utility Commission of Texas,
651 S.W.2d 335 (Tex. App. -Austin 1983. no writ).

                              SUMMARP

             Section 57.45 of chapter 31 of the Texas
          Administrative Code is invalid because it is
          inconsistent with chapter 86 of the Parks and
          Wildlife Code an'3 article 6252-13a. the Adminis-
          trative Procedure and Texas Register Act. The
          Parks and Wildl:.fe Commission is not precluded
          from delegating :;tsauthority to hold hearings on
          permit applications so long as the practice is in
          compliance with article 6252-13a.




                                        -
                                            JIM     HATTOX
                                            Attorney General of Texas

TOM GREN
First Assistant Attorney G'sueral

DAVID R. RICRARDS
Executive Assistant AttoNqg   General

ROBERT GRAY
Special Assistant Attorney   #General

RICR GILPIN
Chairman, Opinion Committee




                                 p. 1679
Mr. Cherlee D. Travie - Pwgc 4 (JM-366)




Prepared by Tony Cuillory
AssistautAttonley  General

APPRovm:
OPINION CCRQlITTRg

Rick Gilpin. Chelrmm
Colin Carl
Sussn Garrison
Tony Guillory
Jim Mocllinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk




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