The Honorable Fratis L. Duff           Opinion No. H949
Director
Texas Department of Health             Re: Rule-making power
     Resources                         of Director of Health
1100 West 49th Street                  Resources.
Austin, Texas 78756

Dear Dr. Duff:

     You have requested our opinion concerning the effect
of House Bill 2164 of the 64th Legislature upon the general
rule-making powers of the Department of Health Resources.
You have not presented any specific rule or regulation for
our review.

     Prior to 1975, article 4418d, V.T.C.S., provided that
the State Health Officer would be the "executive head" of
the State Department of Health and that he could promulgate
"administrative rules and regulations" for the effective
performance of his duties. House Bill 2164 amended article
4418d to provide for a Director of Health Resources in the
place of the State Health Officer.  In so doing, the language
regarding rules and regulations was deleted. Acts 1975,
64th Leg., ch. 323, 832 at 847.
     House Bill 2164 also amended article 4418a. V.T.C.S.,
to provide:

          The Texas Board of Health Resources shall:

             .   .   .   .

              (3) adopt rules, not inconsistent
         with law, for its own procedure . . . .
         Id.




                             P. 3967
   The Honorable Fratis L. Duff - page 2     (H-949)



        The Board of Health Resources is a creation of the
   Leaislature: as such it has "onlv such powers as are delesated
   to>it, expressly and impliedly, by the Legislature."  State
   v. Jackson, 376 S.W.2d 341, 344 (Tex. 1964); Stauffer v.
   m    of San Antonio, 344 S.W.2d 158 (Tex. 1961). Attorney
   Genera Opinion M-610 (1970). - See Attorney General Opinion
   H-475 (1974).

         Since the general rule-making power contained in article
   4418d was deleted and since this general power is not
   elsewhere provided, in our opinion the Director of Health
   Resources has no general rule-making power. Of course,
   the Board of Health Resources has the power to issue pro-
   cedural rules under article 4418a, but this power does not
   extend to substantive rules. See Kee v. Baber, 303 S.W.2d
   376  (Tex. 1957).  However, thislack of general rule-making
   power does not affect the specific grants of rule-making
   power contained in other statutes, e.g. articles 4476-7, -8,
   -11, -13, -15, 4477-6, 4477-7, V.T.C.S.   See V.T.C.S. art.
   44189. In addition, some rules may be valid as impliedly
   authorized to effectuate a power expressly granted by statute.
   See Terre11 v.
   -             - Sparks, 135 S.W. 519 (Tex. 1911).
                          SUMMARY

             The Department of Health Resources has
             no general rule-making power. Whether a
             rule is valid under some specific statutory
             authorization or is impliedly authorized to
             effectuate an expressly granted power would
             depend upon the particular rule involved.

                               ery truly yours,




                      /
                           Al. J    ,&T&>

                            /'Attorney General of Texas
                           ,"
/,.~~,--+E?PROVED
            :




   c. ROBERT HEATH, Chairman
   Opinion Committee

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                                   P. 3968
