Case Information
*1 The Attorney General of Texas Iecember 31, 1985 JIM MATTOX
Attorney General Robert Bernstein, M.D., F.A.C.P. Opinion No. JM-414
Supreme Court Building Commissioner P. 0. BOX 12549 Re: Rulemaking authority of the Texas Department o,E Health Justin, TX. 78711.2549 Texas Board of Health with regard 512/475-2501 1100 West 49th Stmet Telex 9101974.1367 Austin, Texas 7 3'156 to massage therapists under House Telecobler 51214754% Bill No. 2012, Acts 1985, Sixty-
ninth Legislature 714 Jackson. SUM 700 Dallas, TX. 75202.4508 Dear Dr. Berusteil: 214l7428Q44
You ask for clarification of the rulemaking authority of the Texas Board of Htralth with regard to massage therapists under House 4924 Alberta Ave., Suite 160 Bill No. 2012, Acts 1985, 69th Leg., ch. 752, at 5388, to be codified El Paso, TX. 799052793 915/533.34&l ae article 45121:, V.T.C.S. Applying well established rules for
statutory coustruction, we conclude that a court would find that the legislature intends the Texas Board of Health to adopt rules on 1001 Texas, Suite 700 matters pertaining to the regulation of massage therapy with the Houston, TX. 77002-3111 advice of the Advisory Council on Massage Therapy. 713l223.5886 House Bill NO. 2012, which relates to the regulation of massage 90s Broadway, Suite 312 therapy, contains the following pertinent provisions: Lubbock, TX. 79401.3479 9091747~5239 SECTXIN 3. APPLICATION FOR REGISTRATION. Each licani for registration under this Act shall 4309 N. Tenth, Suite S %&-&lication forms provided by the depart- McAllen, TX. 78501-1885 ment; azcompanied by the application fee set by 5121682.4547 the dep&nent. 200 h4ah Plaza, suite 400 . . I . San Antonio, TX. 78205-2797
512/2254191 SECTXIN 7. POWERS AND DUTIES OF THE BOARD AND
THE DFZZRTMENT. (a) The board shall adopt rules consistmt with this Act as necessary for the An Equal OpportUnitYI perform&e of its duties under this Act. The Affirmative Action Employer board slhl adopt the rules in the mauuer provided
by the lhdministrative Procedure and Texas Register Act (Article 6252-13a. Vernon's Texas Civil ScatuterI) .
(b) ZXe departmut shall administer this Act. *2 SECTION 8. ADVISORY COUNCIL. (a) The Advisory Council 011 Masasge Therapy is created as an advisory councilJo the department.
. . . . SECTION 9. POWERS AND DUTIES OF THE ADVISORY COUNCIL. (a) T&e advisory council by rule shall prescribe application forms and registration fees. The advisory cou&l shall set the fees in mounts reasonable and xs:cessary to administer this Act. (Emphasis added).
The issw before us is the effect of the language in section 9 on the general rulemaking power of the Texas Board of Health as provided by section 7.
The dominant consideration in construing statutes is legislative intent. That intention is derived from a general review of an entire enactment and, when ascert,ained, shall be given effect to attain the object and purpose of the legislation. See City of Houston v. Morgan Guaranty International Bank_, 666 S.W.2d 524, 529 (Tex. App. - Houston tlst Dim..] 1983, writ rt,f'd n.r.e.), cert. denied, 105 S.Ct. 1185 (1985). The Texas courts repeatedly have held that the intention of the legislature controls the language used in an act and that in construing an act, a court is not necessarily confined to the literal meaning of the words used in the act. The intent rather than the strict letter of the act xl11 control. See Texas Turnpike Authority v. Sheooerd, 279 S.W.2d 3X!, 306 (Tex. 1955); City of Mason v. West Texas Ut xties Co., 237 S.W.2d 273, 278 (Tex. 1951); Nichols v. Aldlne Indeuendent District, 356 S.W.2d 182, 184 (Tex. Civ. APP. - Houston 1962, no w&z); Holcombe v. Levy, 301 S.W.Zd 507, 518 (Tex. Civ. App. - Galvestmo 1957, writ raf'd n.r.e.). In cases of ambiguity, statutas must be given a practical and reasonable construction that will malca them valid, if possible, and that will accowmlish as nearly as roeaible the intention of the lenislature. See B&a & Root v.-Durl~xl, 84 S.W.2d 1073, 1075 (Tex. 1935). See also Huntsville Independm~~ School District v. McAdams, 221 S.Wx z67 548 (Tex. 1949). It &o is well settled that statutes that deal with the same general subject constituting parts of the same general plan are considered as being in pari materia and are considered together, even thouah ther, are passed at different times and do not refer to one another. Se;: Cal&t v. Fort Worth National Bank, 356 S.W.2d 918, 921 (Tex. lmj; Robp V. Hawthorne, 84 S.w.2d 1108, 1109 (Tex. Civ. App. - Dallas 1535. writ dima'd).
Chapter 109 of the Sicey-eighth Legislature, codified as article 4419b. V.T.C.S., was enac,ted in 1983 to clarify the structure and duties of the Texas Board cf Health, the Department of Health, and the Commissioner of Health. As:ts 1985, 69th Leg., ch. 109, at 521. See - *3 Bill Analyses to S.B. No. '38, 69th Leg., prepared for Senate Committee ou Bealth and Eumaa Resources and House Comittee ou Public Health, Bill File to S.B. No. 98, Legislative Reference Library. See also Attorney General Opinion B-949 (1977) (relating to general rulemaking power of Department of Health Resources in 1977). Chapter 109 provided, in pertiuent par:, that
(a) The boarli shall: .
(b) The boar'i is responsible for the adoption of policies and rules and for the government of the department. The board shall supervise the commissioner's administration and enforcement of health laws of the state. The board may delegate in writing any power or duty imposed on it by law, except the power' or duty to adopt rules, to the commissioner of Ilealth or, in his absence, to the person acting as commissioner of health, including the authority to make final orders or decisions. . . . . (d) The board may appoint advisory committees
to assist the board in performing its duties. . . . (Lmphasis added).
V.T.C.S. art. 4414b, 81.05. Section 1.06 of that act further provided that the commissiouer of health shall administer and enforce the health laws of this state lmnder the board's supervision and perform the duties assigned to him by the board and state law, subject to the provisions of that act.
We believe that the legislature granted to the Texas Board of Health general authority to adopt rules and policies for the department and authorized the appointment of advisory committees to assist the board with its duties. The rules established by that act, whereby the board adopts rules and sets policy based on advfce of advisory committees and the commissioner and staff of the department administer the adopted rules and policies, were reaffirmed and *4 Dr. Robert Bernstein - Page! 4 (JM-414)
reenacted during the Texas Sunset Act review of the Texas Department of Bealth by the same session of the legislature that enacted the statute regulating massage ,therapy. See V.T.C.S. art. 4414b. Sg1.05, 1.08 (as enacted by Acts l!lE;5, 69th LeK ch. 931, at 6746, 6749). We believe articles 4414b and 4512k, V.T.C.S., are in pari materia and should be considered together.
Article 4512k, as enacted by House Bill No. 2012, expressly grants rulemaking authorit ;' to the Texas Board of Health and expressly creates the Advisory Coum:il on Massage Therapy "as an advisory council to the department." We believe that the intent of the Sixty-ninth Legislature mm to adopt the same rules and basic structure for the Texas Department of Health in chapter. 752 that It adopted for the department in chapter 931. As such, the Texas Board of Health adopts rules basc!CI on the advice of the Advisory Council for the regulation of massage therapy under article 4512k, including rules that prescribe application forms and registration fees.
SUMMARY The Texas Bcsrd of Health adopts rules on matters pertaining to the regulation of massage therapy with the advice of the Advisory Council on Message Therapy.
JIM MATTOX Attorney General of Texas JACK HIGHTOWER
First Assistant Attorney Gmeral
MARY KELLER
Executive Assistant Attommy General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committea!
Prepared by Nancy Sutton
Assistant Attorney General