Case Information
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September 23, 1987 Opinion No.JM-793 El Paso County Attorney
Room 201, City-County Building lte: Authority of a local adminis- El Paso, Texas trative public health to
adopt rules
: Dear Mr. Lucas:
You ask:
May au administrative public health board adopt substantive and procedural or have those rulemaking powers been effectively repealed by the 1985 amendment to Rev. Civ. Stat. Ann. Art. 4436b?
Factual information furnished by you reflects that the city of El Paso and El Paso County established a public health district 4436b, V.T.C.S.
Section 4.02, of article 4436b provides as follows:
A public health is authorized to perform the public functions that any of its members to perform unless restricted by law. Section 4.03(b) states in pertinent part:
An ‘administrative An ‘administrative public health board’ public health board’ shall have shall have the authority to adopt substantive to adopt substantive and procedural and procedural rules which rules which are necessary are necessary and appropriate and appropriate promote and preserve promote and preserve the health and safety the health and safety of the of the public within public within jurisdiction; jurisdiction; provided provided that no that no rule adopted shall be in conflict with the laws of rule adopted shall be in conflict with the laws of the the state state or or the the ordinances ordinances of of any member any member municipality municipality or county. (Emphasis added .) (Emphasis added .) The 1985 amendment about which you inquire, article 4436(b) states
Honorable Joe Lucas - Page 2 (JM-793)
nothing in this Act shall be construed to grant the board of any district created hereunder the power to adopt rules or regulations for any part of the district which are not (Emphasis added.)
In Attorney General Opinion JM-336 (1985). it was concluded that the 1985 amendment was a further limitation upon the board’s authority to adopt rules and regulations. In responding to questions about the authority of a public health district’s administrative board’to issue licenses, exact fees, impose fines for non-compliance with its Attorney General Opinion m-336 stated there must be rules. specific statutory support for a board to take such action. We believe the analysis made in Attorney General Opinion JM-336 on the matter of whether a public health district has authority impose fines for noncompliance with its rules provides a good example of the limitation imposed upon the board’s authority by section 4.09(f). There it was stated:
Next we consider whether granted to governing bodies of cities and counties under 2.01 to ‘enforce’ any law to protect the public health is specific statutory authority for the imposition of fines by a public for noncompliance with rules. We think not. Section 2.01 is a general provision which authorizes cities and counties to enforce laws enacted to protect the public health. The provision does not prescribe any particular method for the enforcement these laws. When read together with the specific limitation on the authority of the board imposed in section the provision insufficient to authorize public health district’s
impose fines for noncomnliance rules.
Se; City of Baytown v. An’gel, 469 S.W.2d 923 (Tex. civ. App. - Houston 114th Dist.] 1971, writ ref’d n.r.e.) (a general provision in a statute Is limited or controlled by a specific provision).
We have not discovered any specific state law authorizing this manner of enforcement by a public health district. *3 - Page 3 .(JM-793)
We conclude that a public health board maylenact only such rules as may be specifically authorized by state law. No rule adopted may be in conflict laws of the state or the ordinances of any member municipality
SUMMARY A public health district's
organized 4436b. V.T.C.S.. may adopt such regulations as may be
JIM MATTOX Attorney General of Texas MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLN
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General Additional authority was given to cities, towns and villages by by the recent regular session
amendment to article 4436, V.T.C.S., the legislature. Senate Bill 1395. Acts 1987, 70th Leg., ch. 329, at 3452, eff. Aug. 31, 1987, authorizes ordinances requiring owners of property to eliminate certain unsanitary conditions.