                  THE        ATTO~~NEP   GENERAL
                                OF TEXAS

                                Nwder      la, 1987




     Mr. Curtis Tunnel1                     Opinion   No.   JM%!2
     Executive  Director
     Texas Historical    Commission         Re: Whether the 180-day wait-
     P. 0. Box 12276                        ing   period     set forth     in
     Austin, Texas    78711                 section    442.008,  Government
                                            Code, may be waived    (RQ-1282)

     Dear   Mr.   Tunnell:

           Section 442.008     of the   Government   Code  sets    forth
     the provisions     governing   the   preservation    of   historic
     courthouses.     You ask whether    the 180-day waiting      period
     prescribed   in section 442.008 of the code, during which          a'
     courthouse   designated   by  the Texas Historical      Commission
-    may not be sold or damaged,      may be waived by the      commis-
     sion.   We conclude that it may not.

           Chapter 442 of the recently-codified          Government       Code
     sets   forth    the    duties      and   authority    of   the      Texas
     Historical   Commission     [hereinafter     the commission].        Acts
     1987, 70th Leg.,       ch. 147, §l,      p. 1010-19    (formerly     cod-
     ified as    V.T.C.S.     article     6145).    The   purpose     of   the
     commission     is   to    "provide     leadership    and     coordinate
     services   in the    field of     historic preservation."           Gov't
     Code !j442;003.     Section 442.005 of the code sets forth the
     various powers and duties of the commission,             which

              shall furnish leadership,     coordination,     and
              services to    county historical     commissions,
              historical   societies,   and the organizations,
              agencies,     institutions,      museums,       and
              individuals   of this state interested      in  the
              preservation    of   historical    heritage     and
              shall act as a clearinghouse      and information
              center for that work in this state.

,-   Gov't Code   §442.005(a).    The   commission  is  required     to
     "give direction   and coordination    to the state    historical
     marker program,"    id.   at  5442.006(a),    and  to    '*install
     markers recognizing   districts,   sites, individuals,    events,
-
     structures,  and objects significant      in Texas or   American




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history,   architecture,      archeology,    or    culture and      shall
keep a register      of   those markers,"       &     at   5442.006(b).
The commission,     together with the state archeologist,            must
direct the state archeological          program, id. at        5442.007,
encourage   the preservation      of historic     courthouses,    id. at
5442.008,   and prepare information       of consumer      interest and
accept and act upon consumer complaints,            id. at     9442.009.
Section 442.011      of   the   code provides:         "A   person    who
violates   this chapter is subject to-a civil penalty of not
less than     $50   nor   more    than $1,000      for    each   day    of
violation."     And    section    442.012 empowers        the   attorney
general or     any resident     of this     state to      file suit     in
district   court    to   restrain     and enjoin      a violation       or
threatened   violation    of the act.

        Section   442.008   of the    code   sets   forth   the   following:

              Sec.   442.008.       HISTORIC     COURTHOUSES.
          (a) A county may not demolish,        sell,   lease,
          or damage     the historical      or  architectural
          integrity    of any building that serves or has
          served    as   a    county    courthouse     without
          notifying    the  commission      of  the   intended
          action at least six       months before the      date
          on which it acts.

              (b) If the commission       determines    that    a
          courthouse      has    historical       significance
          worthy of preservation,      the commission      shall
          notify the commissioners       court of the county
          of the    fact not    later    than the     30th    day
          after   the    date   on   which    the   commission
          received notice from       the county.     A    countv
          mav not demolish,     sell. lease, or damaae the
          historical   or architectural       intearitv    of   a
          courthouse   before    the 180th     dav after      the
          date on which      it received     notice from      the
          commission.     The commission     shall    coooerate
          with   anv    interested     verson     durina      the
          JSO-dav veriod      to vresenre     the   historical
          intearitv   of the courthouse.

              (c) A county may carry out ordinary main-
          tenance   of   and repairs    to  a courthouse
          without notifying  the commission.    (V.A.C.S.
          Art. 6145, Sec. 14.)    (Emphasis added.)

        The commission was first created            as a state agency      in
1957.     Acts 1957, 55th Leg., ch. 500,            at 1460 (codified      as




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V.T.C.S.     article    6145).    The   predecessor   statute   to
section 442.008      of the    code was   added by   amendment  in
1971.    Acts 1971,     62d Leg.,   ch. 496, 51,    at 1718.   The
Bill Analysis     accompanying   the bill sets forth the follow-
ing as

         Recently,   several    county  courthouses       of
         historic value    have been   destroyed.      This
         has come   to   the attention    of  and    caused
         concern in    not only   the Historical     Survey
         Committee,  but also the Speaker's      Committee
         on Historical   Preservation.

The Bill Analysis     succinctly   set forth the purpose of         the
bill:   "To   provide for     the preservation       of   courthouses
with historic value."       Bill Analysis      to H.B. No. 22,      62d
Leg. (1971) (on     file in     Legislative    Reference     Library).
The commission    cannot ultimately      prevent or proscribe       the
destruction   of historic    courthouses,     but it is clear      that
the statute was designed to delay such destruction,             giving
the commission     the time     to   work with     interested     local
officials   and private persons to promote the           preservation
of such structures.

      Generally,    the powers of an administrative.agency             are
derived entirely       from   legislative     enactment.       State    v.
Robison,   30 S.W.2d 292 (Tex. 1930): Railroad           Commission     v.
Fort Worth & D. C. RY. Co., 161 S.W.2d 560 (Tex. Civ. App.
- Austin 1942,      writ ref'd     w.0.m.).     An   agency has       only
those powers that are expressly           granted to it by        statute
together with those necessarily         implied from the authority
conferred   or duties imposed.        State v. Jackson,       376 S.W.2d
341 (Tex.    1964); Stauffer       v. Citv     of San    Antonio,      344
S.W.2d 158 (Tex. 1961).        If    the statutes do not grant          an
agency the power to do a thing, then it has no such power.
Nieces Countv Water Conservation          & Imorovement      District v.
Texas Water Riahts Commission,          481 S.W.2d 924 (Tex.          Civ.
ADD.   - Austin       1972,   writ    ref'd    n.r.e.).       When     the
legislature    acts with'respect      to a particular      matter;     the
administrative     agency may not so       act with respect to         the
matter so as to nullify the legislative            action even though
the matter     be   within    the    agency's     general     regulatory
field.    Cobra Oil & Gas Corvoration         v. Sadler, 447       S.W.2d
887 (Tex. 1968):       State v. Jackson        376 S.W.2d 341        (Tex.
1964).    It may not enlarge       its pobers by its own          orders.
Railroad   Commission    of   Texas v.     Fort Worth & D. C.          Rv.
co.,   suvra.       We   have     found    no     authority,       either
constitutional     or statutory,     which expressly      or    impliedly
authorizes    the   commission    to   waive the      180-day     waiting




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period set forth in section 443.008, Government          Code.     If
the legislature    had intended    to authorize    the   commission
to waive the     180-day waiting    period set     out in    section              ?
442.008,    it could    have  done   so.    S e.    e.a      section
442.006   (authorizing   the commission    toewaive    th;  waiting
period with    respect    to  a structure      designated     "Texas
Historical   Landmark").

                                SUMMARY.

            The Texas    Historical   Commission     is   not
         authorized   to   waive    the   180-day    waiting
         period set forth in     section 442.008 of       the
         Government  Code, governing    the    preservation
         of historic  courthouses.




                                                J-N/~
                                                 Very   truly   your   ,
                                                          e


                                                 JIM      MATTOX
                                                 Attorney  General     of Texas

MARYKELLER
Executive      Assistant     Attorney        General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney                General

RICK GILPIN
Chairman,  Opinion         Committee

Prepared by Jim Moellinger
Assistant Attorney  General




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