Dr. J.,E* Peavy

Commissioner of Nealth StateJDepartpent of Health Austin,.~

Texaa Opinion No, M-~783
Rer Authority of the State Departmenti

of Health to require seal of l$oensed professional engineer on plans, etc. for hospitals

Dear Dr. Peavyt

We quote:from your letterrequesting an opin$on from this office as foilowsr



### I "Under the prqvis$ons of Art. 

### 4437f, V.A.T&, Texaa Hospital Llcenaing Law) and Art, 

### 4442c, Convalescent and Nursing Homes), the State Department of Health is chargedwith the reeponslbillty of carrying out the intent of the legislature as expressed in these Acts. 'The Legislaturehas declared a# among the purposea of Article 4437f, 'toprotect and promote the public health and welfare by providing for the development, establishment,and enforcement of cerT taln standards in the construction , . . of hospitals,' Art. 4437f, 

### $3. In Article 4442~5, the Legislature has expressed as one of its purposes, 'topromote the public health, safety and welfare by providing for the develovment. establishment and enforcement of standards -. . for the

. . . constructionof such inati'tutions which ?the lights of advancing knowledge will promote safe and adequate treatment

. . l 'Art. 

### 4442c, 81. "Such ktatements of purpose are pertinent to the regulatory authority of the Department of
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Dr. J. E. Peavy, page 2 (M-783)

Health since Its legislativedelegation of authority is couched In terms of legislativepurpose. In Article 4437f the Department'srulemaking authority is expressed In part as followst 'TheLicensingAgency
. . . shall adopt, amend, promulgate, and enforce such rules, regulations, and minimum standardsas may be designed to further the purposes of the Act. Provided,however, that the rules, regulations, or minimum standards so adopted, amended, promulgated, or enforced shall be limited to safety, fire prevention, and sanitary provisions of hospitals as defined In thisAct.' Art. 4437f, 

### $5. Further statementof authority is ,asfollowst 'TheLicensing Agency shall have the authority to deny, cancel,revoke or suspend a license in any casewhere it finds there has been a substantialfailure to complywith the provisions of thisAct or the rules, regulations, or standardspromulgatedunder thisAct, or for the aiding, abetting, or permitting the commission of any Illegal act, or for conduct detrimental to the public health,morals, welfare and safety of the people of the State of Texas.'
"In regard to nursing and convalescenthomes the scope off,

the Department's regulating authority Is also defined in termsof the legislativepurpose of safeguarding the public health, safety and welfare. Reading selectively, it Is stated In part as follows: 'TheLicensing Agency is authorized to adopt, amend, promulgate,publish and enforceminimum standards in relation to: (a) Construction.ofthe home or Institution, Includingplumbing,heating, lighting,ventilation, and other housing conditions,which shall insure the health, safety and comfort of residents and protection from fire hazard; **** (c) All sanitary and related conditionswithin the nursinghome and its surroundings, including water supply, sewage disposal

. . .which shall

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Dr. J. E. Peavy, page 3 (M-783)

Insure the health, safety and comfort of the residents. ++** (e) Equipment essential to W&?i~;~l~%;~d welfare of the r$sidents , . .’ f §7. “The size and complexity of structures, to, be licensedas hospitals or nursing homes In this day and timemake It most likely that theirdesign and construction Involve structural,~mecharilcal and electrical engineering. The water sUpply, and sewagedisposal problems in connectionwith these structures Involve problems in the area of civil and sanitary engineering, When such engineering Is involved the Departmentbelieves that the public health and safety is best insuredby requiring that the plans for such structures bear the seal of a licensedprofessional engineer, and, subject to your approval, the Department has voted to make such a raquirement by administrativerule. “Accordingly,your opinion is respectfully requested as to the following:
“Does the State Department of Health have authority under Vernon’s Ann. Civ. St. art. 4437f to require the seal of a licensedprofessional engineer on plans, designs or specificationsof ‘hospitals,’as defined in such statute,which involve structural,mechanical, electrical or sanitary engineering, submitted to the Department for llcensureunder the afore.clted Texas statute? ‘Does the State Department of Health have authority under Vernon’s Ann. Civ. St. art. 4442% to require the seal of a lioensedprofessional engineer on plans, designs or speciflcations of ‘Institutions,’aa defined in such statute,which involve structural,mechanical, electrical or sanitary engineering, submitted to the Department for llcensureunder the afbrecited Texas Statute?”
-3816-Dr. J. E. Peavy, page 4 (M-783)

In construing the provisions of Article 4437f and Article 4442c,,Vernon'sCivil Statutes,Attorney General's . .

Opinion M-545 (lyoq)held, in part, as follows:

1,

. . . the Legislature intended that the Department of Health promulgate its own standards relating to the design, constructionand licensing of hospitals, nursing and convalescenthomes, and .relatedInstitutions.

. . .' 'Administrativeagenciesmay adopt and promulgate reasonable rules and regulations to carry out the performance of their specific statutoryduties. All State Insurance Company v. State Board of Insurance, 401 S.W.Td 131 (Tex.Civ.App.lqbb, error ref. n.r.e.). However, a rule must be In harmonywith the general objectives of the act involved. Gerst v. Cliff Savings & Loan Association, 432 S.W.2d 702 (Tex.Sup. 1968) In view of th holdlng In Attorney General's Opinion M-545 and in lonsideratlonofethe Department's proposed rule in light of the provisions of the respective statutes, it Is our opinion that the proposed rule of the State Department of Health appears reasonable,being in conformity with the Department's specific statutoryduties and in harmonywith the general objectives of Articles 4437f and 4442~~ Vernon's Civil Statutes. It will thereforebe valid and legally enforceable. Consequently, in answer to your questions,you are advised that the State Department of Health has the authorityunder the provisions of Article 4437f and 4442~ to require by administrative rule the seal of a licensed, Erofesslon$ engineer on plan:, designs or specificationsof hospitals and institutions as defined In the respective statuteswhich involve structural, mechanical, eleiztrlcal or sanitary engineering submitted to the State Department of Health. SUMMARY The State'Department of Health has the authority under the provisions of Articles 443i'f and 4442~ to require by administrativerule the seal of a licensed,professional engineer on plans, designs or specificationsof "hospitals" and "institutions"as defined in the-respective statuteswhich involve structural,mechanical, electrical or sanitary e the State Department of

General of Texas -3817-Dr. J. E. Peavy, page 5 (M-783)

Preparedby Ivan R., Williams, Jr. AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman Jack Sparks Harriet Burke Ed Esqulvel J. C. Davis Roger Tyler
MEADE F. GRIFFIN Staff Legal Assistant
ALFREDWALKER ExecutiveAssistant
NOLA WRITE First Assistant

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