9 OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS JOHN CORNYN

June 3,2002

Mr. William H. Kuntz, Jr. Executive Director Texas Department ofLicensing and Regulation P.O. Box 12157 Austin, Texas 78711 Opinion No. JC-05 10

Re: Whether the Texas Department ofLicensing and Regulation’s executive director may adopt, as standards for installing, altering, operating, and inspecting elevators, escalators, andrelated equipment, the current version of safety codes Al 7.1 and A17.3, adopted by the American Society of Mechanical Engineers, and related questions (RQ-0479-JC)

Dear Mr. Kuntz:

To be constitutional, astatute requiring astate agency to adopt aparticular code promulgated by a private entity must be construed to refer only to the code as it existed when the legislature adopted the statute, unless the statute expressly provides the agency with discretion to review and adopt subsequent versions ofthe code. See Tex. Att’y Gen. Op. Nos. JC-0012 (1999) at 3;DM-211 (1993) at 7; JM-509 (1986) at 3. Section 754.014 of the Health and Safety Code requires the executive director ofthe Texas Department ofLicensing and Regulation (the “Department”) to adopt standards “for the installation, alteration, operation, and inspection of elevators, escalators, and related equipment [EER equipment] used by the public” in certain buildings, and those standards “may not contain requirements in addition to the requirements in” Al 7.1 orAl 7.3 ofthe American Society ofMechanical Engineers (ASME) Safety Code for Elevators and Escalators. TEX. HEALTH & SAFETYCODEANN. 754.014(a), (b) (Vemon Supp. 2002); see also id. 8754.011 (l), (2) (defining “ASME Code Al 7.1” and “ASME Code Al 7.3”); TEX.Oct. CODEANN.051.203 (Vernon 2002) (requiring Department’s executive director to adopt rules). You ask several questions about the executive director’s authority under section 754.014 of the Health and Safety Code to adopt standards “for the installation, alteration, operation, and inspection of elevators, escalators, and related equipment used by the public” in certain buildings.’ TEX. HEALTH & SAFETYCODEANN. tj754.014( a ,see also TEX.OCC.CODE ANN.551.203 (requiring executive director to adopt rules )*

“as necessary to implement each law establishing aprogram regulated by the [Dlepartment”).

‘SeeLetter from Mr. William H. Kuntz, Jr., Executive Director, Texas Department ofLicensing &Regulation, to Honorable John Comyn, Texas Attorney General (Dec. 14, 2001) (on file with Opinion Committee) [hereinafter Request Letter].Mr. William H. Kuntz, Jr. - Page 2

You expressly raise five issues:

Ouestion One: Whether [slubsection 754.014(c) authorizes the [elxecutive [dlirector to require EER equipment to comply with the current version of ASME Code Al 7.1.

Ouestion Two: Whether the term “installation requirements” in [slection 754.017(c) refers only tothose [c]ode requirements directly related to the original installation of EER equipment, or whether it also refers to those [c]ode requirements related to the alteration, operation (e.g., maintenance and repair), or inspection of EER equipment after ithas been installed.

Ouestion Three: To which versions of ASME Code A17.1 and ASME Code Al 7.3 does [slubsection 754.017(b) refer, and does the [elxecutive [dlirector

. . . have discretion to determine whether to approve and adopt future amendments to ASME Codes A17.1 and Al 7.3?
Question Four: Whether [slubsection 754.014(d) authorizes the [elxecutive [dlirector to require EER equipment to comply with the current version of ASME Code A17.1 or the current version of ASME Code A17.3.
Question Five: To which version of ASME Code A17.3 does [slubsection 754.014(d) refer?
Request Letter, supra note 1, at 2-5. Your letter indicates that, while you believe requiring EER equipment “to comply with the most effective, up-to-date safety features available in the industry” would make the equipment safer, you recognize “the interests ofbuilding owners who have EER equipment located in their buildings,” many of whom, you report, “believe that the changes in industry safety standards for EER equipment often” increase expenses without increasing public safety. Id. at l-2.

We conclude generally that section 754.014 of the Health and Safety Code refers to the versions of ASME Code A17.1 and A17.3 that existed when the references were inserted in the statute in 1995. See Act ofMay 27,1995,74th Leg., R.S., ch. 865,§ 1,1995 Tex. Gen. Laws 43 13, 4313-15. We further conclude that the executive director may not adopt amore recent version of the ASME codes. Consequently, in answer to your questions 1, 3, and 4, we conclude that the executive director may not require EER equipment to comply with a more recent version of the ASME codes. In answer to your fifth question, we conclude that section 754.014(d), which expressly refers to “the installation requirements of the 1994 ASME Code A17.3,” designates the 1993 ASME Code together with the 1994 addenda to the code. See TEX. HEALTH& SAFETYCODEMr. William H. Kuntz, Jr. - Page 3 (JC-0510)

ANN.8754.014(d) (emphasis added). In answer to your second question, we conclude that section 754.014(c) refers only to installation, and not to alteration, operation, and inspection.

Both the Department and the Texas Commission of Licensing and Regulation (the “Commission”) have been created under chapter 51of the Occupations Code. See generally TEX. OCC.CODEANN.ch. 51. The Department is “the primary state agency responsible” for overseeing those state-regulated “businesses, industries, general trades, and occupations” that the legislature has assigned to the Department. Id. 851.051(a). The six-member Commission governs and oversees the Department and articulates Department policy. See id. $5 51.052(a), 51.201(a), (b). The Commission may adopt its own procedural rules and must “adopt rules asnecessary to implement” chapter 51. Id. 851.201(b). It also appoints an executive director, who serves atthe Commission’s will, and defines the respective duties ofthe Commission, the executive director, and Department staff. See id. 5551.10 1,51.105. The executive director must perform “any duties assigned by the [Clomrnission” or specified by law and must administer and enforce the Department’s programs. Id. 951.103(a)(l), (2). And, significantly, the executive director must “adopt rules asnecessary to implement each law establishing a program regulated by the [Dlepartment,” as opposed to the Commission’s authority to adopt only procedural rules and rules implementing chapter 51of the Occupations Code. Compare id. 8 51.203 (executive director’s rule-making authority) with id. 6 51.201(b) (Commission’s rule-making authority).

The inspection and certification of EER equipment under chapter 754 of the Health and Safety Code, subchapter B is “aprogram regulated by the [Dlepartment” forthe purposes ofchapter 51of the Occupations Code. See id. 551.203. See generally TEX.HEALTH& SAFETYCODEANN. ch. 754, subch. B. Section 754.014, part of subchapter B, expressly requires the commissioner of licensing and regulation to adopt safety standards for elevators, escalators, and related equipment:

(a) The commissioner shall adopt standards for the installation, alteration, operation, and inspection of [EER] equipment used by the public in:
(1) buildings owned or operated by the state, a stateowned institution or agency, or apolitical subdivision of the state; and
(2) buildings that contain [EER] equipment that is open to the general public, including a hotel, motel, apartment house, boardinghouse, church, office building, shopping center, or other commercial establishment.
(b) Standards adopted by the commissioner may not contain requirements in addition to the requirements in the ASME Code A17.1 or ASME Code A17.3.Mr. William H. Kuntz, Jr. - Page 4 (JC-0510)

(c) Standards adopted by the commissioner must require [EER] equipment to comply with the installation requirements of the following, whichever is the least restrictive:

(1) the ASME Code Al 7.1 that was in effect on the date of installation of the [EER] equipment; or

(2) an applicable municipal ordinance governing the installation of [EER] equipment that was in effect on the date of installation.
(d) Standards adopted by the commissioner must require [EER] equipment to comply with the installation requirements ofthe 1994 ASME Code Al 7.3 that contains minimum safety standards for all [EER] equipment, regardless ofthe date of installation.

Id. 8754.014. Section 754.011, subchapter B’s definitional section, defines the terms “ASME Code A17.1” and “ASME Code A17.3” as safety codes for EER equipment adopted by the American Society of Mechanical Engineers. See id. 8 754.011 (l), (2). Subchapter B does not apply to EER equipment “in a private building for a labor union, trade association, private club, or charitable organization that has two orfewer floors,“see id. 5754.0111, orto EER equipment “in an industrial facility, orin agrain silo, radio antenna, bridge tower, underground facility, or dam, to which access is limited principally to employees of orworking in that facility or structure,” see id. 5754.014(i). Consistently with the division of rule-making authority set forth in chapter 51 of the Occupations Code, we presume that section 754.014 authorizes the Department’s executive director, not a commissioner, to adopt the requisite standards. Additionally, as you aver, House Bill 1214, adopted in 2001, deleted the term “commissioner” from various provisions of chapter 51 of the Occupations Code and replaced it with “executive director.” See Tex. H.B. 1214, 77th Leg., R.S. (2001); Request Letter, supra note 1, at 1. The bill analysis of the 2001 legislation notes that references in chapter 51to the “commissioner” were confusing “because [the term] isused to refer to all six commissioners, including the one commissioner [who] serves aone-year term asexecutive director.” HOUSECOMM.ONLICENSING & ADMINISTRATIVE PROCEDURES,

BILLANALYSIS,Tex. H.B. 1214,77th Leg., R.S. (2001). Throughout the rest ofthis opinion, we will refer to the authority of the executive director, rather than the commissioner, under section 754.014.

Your first, third, fourth, and fifth questions cause us to consider alimitation on the executive director’s authority to adopt standards for EER equipment under section 754.014 ofthe Health and Safety Code. See TEX.HEALTH& SAFETYCODE ANN.8754.014; Request Letter, supra note 1,at2-5. While subsection (a) requires the executive director to adopt standards for installing, altering, operating, and inspecting EER equipment, subsection (b) prohibits the executive director from adopting requirements “in addition to the requirements in the ASME Code Al 7.1 or ASME Code A17.3.” TEX. HEALTH& SAFETYCODEANN. 8 754.014(a), (b). Neither ASME Code A17.1 norMr. William H. Kuntz, Jr. - Page 5 (JC-0510)

Al 7.3 are defined by reference to aparticular edition. See id. 8754.011 (l), (2). Section 754.014(d),
aswell as other subsections that are not otherwise relevant to your request, refer to the 1994 ASME Code A17.3. See id. 8 754.014(d)-(h). You explain, however, that “there is no 1994 edition of ASME Code Al 7.3. There is a 1993 ASME Code Al 7.3, which subsequently was updated by addenda in 1994, but there is no ‘1994 ASME Code Al 7.3.“’ Request Letter, supra note 1, at 5.

To be constitutional, we must conclude that, except where section 754.014 refers to 1994 ASME Code A17.3, the statute refers to the version of the ASME codes that were effective when chapter 754, subchapter Bwas amended torefer to the ASME codes. See Act ofMay 27,1994,74th Leg., R.S., ch. 865, 8 1, 1995 Tex. Gen. Laws 4313, 4313-18. We begin with a “‘strong presumption’ that astatute isconstitutional.” See Tex. Att’y Gen. Op. No. JC-0012 (1999) at2(and
cases cited therein). A statute that, without providing any sort of state-agency review and approval, “prospectively adopts” the rules of an “unofficial agency
. . . delegates legislative authority in a manner that violates article III, section 1ofthe Texas Constitution,” which vests legislative power in the state legislature. Tex. Att’y Gen. Op. No. DM-378 (1996) at 2; see TEX. CONST.art. III, 9 1; Tex. Att’y Gen. Op. Nos. JC-0012 (1999) at 3; DM-211 (1993) at 6-7; JM-629 (1987) at 3;JM-509 (1986) at 3. Although a state agency may consult a private entity while the agency is drafting regulations, the agency must review and approve final rules that will be enforced against members ofthe public. See Tex. Att’y Gen. Op. No. DM-211 (1993) at 7; see also Tex. Att’y Gen. Op. No. JM-509 (1986) at 4. Consistently with article III, section 1ofthe Texas Constitution, therefore, section 754.014 and the related definitions in section 754.011 of the Health and Safety Codes cannot incorporate revisions made to the ASME codes since 1995. See Tex. Att ‘y Gen. Op. No. JC-0012 (1999) at 3. The ASME is aprivate “nonprofit educational and technical organization” that promotes “the art, science and practice ofmechanical engineering.” See ASME International, About ASME, available at <http://www.asme.org/about/> (accessed March 26, 2002). The Al7 Elevator Standards Committee of the ASME develops standards “covering the design, construction, installation, operation, inspection, testing, maintenance, alteration, and repair of elevators, dumbwaiters, escalators, moving walks, and materials lifts.” See ASME International, Al 7Elevators &Escalators Standards Committee, available at <http://www.asme.org/cns/departments/Safety/Public/A 17/> (accessed March 26,2002). Moreover, section 754.014 does not authorize the executive director to review and approve prospective editions of the ASME codes. Rather, subsection (b) expressly forbids the executive director to adopt “requirements in addition to the requirements in the ASME Code A17.1 or ASME Code A17.3.” TEX. HEALTH& SAFETYCODEANN. 5754.014(b).

Our conclusion regarding the executive director’s authority to adopt editions ofthe ASME codes that were promulgated after 1995 comports with Attorney General Opinion JM-629, which concludes that the Department ofHealth may not substitute the 1985 edition ofthe Life Safety Code for the 1976 edition ofthe code named in the relevant statute. See Tex. Att’y Gen. Op. No. JM-629 (1987) at 3-4. The statute in that instance, article 4442~ ofthe Revised Civil Statutes, section 4A, provided the Department of Health with “discretionary powers to grant exceptions” to the 1976 edition ofthe Life Safety Code. See id. at2; TEX.HEALTH& SAFETYCODEANN.8242.039 (VernonMr. William H. Kuntz, Jr. - Page 6 (JC-0510)

2001) (replacing TEX.REV.CIV. STAT.ANN.art.4442c, 54A). This limited discretionary power does not include authority to “impose additional burdens, conditions[,] or restrictions” exceeding or inconsistent with statutory provisions, however. Tex. Att’y Gen. Op. No. JM-629 (1987) at 3. Although the opinion does not expressly indicate that the 1985 edition of the Life Safety Code imposed burdens, conditions, or restrictions in addition to or inconsistent with the 1976 code, we presume that it did. Accordingly, to answer your first question, we conclude that the executive director has no authority to require EER equipment to comply with the “current version of ASME Code Al 7.1.” Request Letter, supra note 1, at 2.

To answer your third question, we conclude that section 754.014(b) ofthe Health and Safety Code, aswell asthe related definitions in section 754.011(l) and (2), refer to the editions ofASME Codes Al 7.1 and Al 7.3 that were in effect in 1995 when the legislature inserted the references into chapter 754. See id. at 3. Section 754.014(b) thus prohibits the executive director to adopt any

“requirements in addition tothose” found inASME Codes Al 7.1 and Al 7.3 asthey existed in 1995. See TEX. HEALTH& SAFETYCODEANN.8754.014(b). In addition, the executive director may not adopt any requirements that are inconsistent with the ASME codes asthey existed in 1995. See Tex. Att’y Gen. Op. No. JM-629 (1987) at 3.

To answer your fourth question, we conclude section 754.014(d) does not authorize the executive director to require EER equipment to comply with either the current version of ASME Code A17.1 or A17.3. See Request Letter, supra note 1, at 4. Section 754.014(d) requires the executive director to adopt standards mandating EER equipment “to comply with the installation requirements of the 1994 ASME Code Al 7.3

.” TEX. HEALTH& SAFETYCODEANN.5754.014(d). Because section 754.014(d) explicitly refers tothe 1994 edition, the executive director isprohibited from adopting standards requiring EER equipment to comply with the installation requirements of any subsequent revisions of the ASME codes. See id.

We conclude, in answer to your fifth question, that section 754.014(d) refers to the 1993 ASME Code together with the 1994 addenda. See Request Letter, supra note 1, at 5. Given that,
asyou point out, there is, strictly speaking, “no 1994 edition ofASME Code Al 7.3,” we admit that the statute is less than clear. See id. Nevertheless, when the legislature inserted the references tothe ASME codes in 1995, we presume it had access to the 1993 edition and the 1994 addenda and specified the year “1994” to expressly include the addenda.

We finally reach your second question regarding whether the term “installation requirements” in section 754.014(c) refers only to ASME code requirements “directly related to the original installation of EER equipment or whether it also refers to those Code requirements related to the alteration, operation (e.g., maintenance and repair), orinspection ofEER equipment after ithas been installed.” Request Letter, supra note 1, at 3. As you state, section 754.014(c) mandates that the executive director adopt standards that require EER equipment “to comply with the installation requirements of’ the least restrictive of either (1) ASME Code Al 7.1 that was in effect on the dateMr. William H. Kuntz, Jr. - Page 7 (JC-0510)

of installation of’ the EER equipment, or (2) “an applicable municipal ordinance

. . .that was in effect on the date of installation.” TEX. HEALTH& SAFETYCODEANN. 5 754.014(c) (emphasis added); see also id. 5754.014(k) (defining “date ofinstallation”). By contrast, section 754.014(a) requires the executive director to adopt standards “for the installation, aIteration, operation, and inspection of [EER] equipment.” Id. 4754.014(a) (emphasis added). You appear to suggest that, because subsection (c) refers to “installation” only, the executive director may adopt standards for

“alteration, operation, and inspection” that have been added in later editions of the ASME codes. See Request Letter, supra note 1, at 3.

We conclude that the executive director may not adopt standards relating to the alteration, operation, or inspection of EER equipment that are in addition to or inconsistent with the ASME codes that existed in 1995 when the references were inserted in section 754.014 and defined in section 754.011. While subsection (c) lists only installation, subsection (b) plainly prohibits the executive director from adopting any standards additional to “the requirements in the ASME Code A17.1 or ASME Code A17.3.” TEX. HEALTH& SAFETYCODEANN. 5 754.014(b). Moreover, subsection (b) is not limited to the installation of EER equipment; rather, given that it does not modify the term “standards,” it encompasses installation, alteration, operation, and inspection of EER equipment.Mr. William H. Kuntz, Jr. - Page 8 (JC-05 10)

SUMMARY

To construe section 754.014 of the Health and Safety Code constitutionally, it must be read to refer only to the editions of the ASME Codes A17.1 and A17.3 that were in effect when the legislature inserted these references into the section in 1995, except where the statute expressly names an earlier edition. Accordingly, neither subsection (c) nor subsection (d) of section 754.014 authorizes the executive director of the Texas Department of Licensing and Regulation to require elevators, escalators, and related equipment to comply with the current edition ofASME Code Al 7.1
or A17.3. Similarly, the executive director lacks authority to determine whether to adopt revisions to the ASME codes that have occurred since 1995. Regardless of whether section 754.014(c) refers only to “installation requirements” for elevators, escalators, and related equipment, section 754.0 14(b)plainly prohibits the executive director ofthe Texas Department ofLicensing and Regulation from adopting standards relating to the alteration, operation, or inspection of such equipment that add to the requirements in the 1995 versions of ASME Code A17.1 or ASME Code A17.3.

Yo rsv tru 35 

# 4”1

. c ~IhAm-‘

r JOHN CORNYN Attorney General of Texas

HOWARD G. BALDWIN, JR. First Assistant Attorney General

NANCY FULLER Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee