ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### July 22, 2009

David L. 

### Lakey, M.D. Commissioner Texas Department ofState Health Services Post Office Box 149347 Austin, Texas 78714-9347
Dear Commissioner Lakey: Opinion No. GA-0729
Re: Authority ofthe Department ofState Health Services to enforce state asbestos regulations against municipalities (RQ-0775-GA)

You ask the following questions regarding the authority ofthe Texas Department ofState Health Services (the "DSHS")to enforce certainprovisions of theTexas Asbestos HealthProtection Act (the "TAHPA"), chapter 1954 ofthe Texas Occupations Code, against municipalities:
1. 

### Does the scope ofthe term "person" in the TAHPA sections 1954.351 and 1954.401 encompass any person not licensed or registered under TAHPA that appears to have violated, is violating, or is threatening to violate the TAHPA or a rule adopted or an order issued under the TAHPA?
2. Is the scope ofthe term "person" in the TAHPA sections 1954.351 and 1954.401 consistent with the meaning of "person" in the Code Construction Act, such that it encompasses municipalities violating the TAHPA section 1954.259? 3. Ifa municipality requires permits for renovation or demolition ofpublic or commercial buildings and issues a permit without requiring the applicant to provide evidence acceptable to the municipality that an asbestos survey of all parts of the building affected by the planned renovation or demolition has been completedby a person licensed under the TAHPAto performthe survey, orwithoutrequiring a certification as provided by section 1954.259(b)(2), may DSHS pursue enforcement action against that municipality as provided in the TAHPA? 4. Is DSHS authorized to pursue enforcement action against municipalities to collect administrative penalties from them?David 

### L. Lakey, M.D.

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5. If DSHS is not authorized to pursue enforcement action against municipalities, maythe Attorney General or any other entity enforce the TAHP A section 1954.259?1
Your questions relate to Occupations Code sections 1954.351, 1954.401, and 1954.259. Request Letter at 5-6. Section 1954.351 provides that "[t]he commissioner may impose an administrative penalty onaperson who violates this chapterora rule adopted ororder issued under this chapter." 

### TEx. Occ. CODE 

### ANN. 

### § 1954.351 (Vernon 2004) (emphasis added). Section 1954.401 provides, in relevant part, that (a) The commissioner may request the attorney general or the district, county, or city attorney havingjurisdiction to bring a civil suit for injunctive relief, the assessment and recovery of a civil penalty, or both, against aperson who: (1) appears to have violated, is violating, or is threatening to violate this chapter or a rule adopted or order issued under this chapter

.... Id. 

### § 1954.401(a)(1) (emphasis added); see also Request Letter at 

### 3-4 (clarifying thatyour concern relates to section 1954.401(a)(1)). Section 1954.259(b) provides: (b) A municipality that requires a person to obtain a permit before renovating or demolishing a public or commercial building may not issuethe permitunlessthe applicant provides: (1) evidence acceptable·to the municipality that an asbestos survey, asrequiredbythis chapter, ofallparts of thebuilding affected by the planned renovation or demolition has been completed by a person licensed under this chapter to perform a survey; or (2) a certification from a licensed engineer or registered architect, stating that: (A) the engineer or architect has reviewed the material safetydata sheets for thematerialsused,

... and any asbestos surveys ofthebuildingpreviouslyconducted in accordance withthis chapter; and

ISee Request Letter at 5-6 (available at http://www.texasattorneygeneral.gov); TEX. OCC. CODE ANN. §§ 1954.001-.402 (Vernon 2004).David L. Lakey, M.D.

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(B) in the engineer's or architect's professional opinion, all parts of the building affected by the planned renovation or demolition do not contain asbestos. 

### TEx. Occ.CODEANN. 

### § 1954.259(b) (Vernon 2004); 

### see also id 

### §§ 1954.002(11) (defining "public building"), 1954.259(a) (defining "permit").
We first address your questions regarding the scope ofthe term "person" in chapter 1954. Priorto its codification, the TAHPA definedthe termperson to include a governmental subdivision. 

### See Act ofMay 24, 1991, 72d Leg., R.S., ch. 610, § 1, sec. 2(10)(B), 1991 Tex. Gen. Laws 2218, 2219. When the TAHPA was codified in 2001, the Act's definition ofthe term person was omitted with a revisor's note indicating that the definition was omitted because it was "substantively identical to the definition provided by Section 311.005(2), Government Code (Code Construction Act)." TEX. OCC. CODE ANN. § 1954.002, revisor's note 2 (Vernon Supp. 2008). The Code Construction Act applies to the Occupations Code and expressly includes a governmental subdivision within its definition of the term person. 

### See 

### TEx. GOy'T CODE ANN. § 311.005(2) (Vernon 2005); TEX. OCC. CODE ANN. 

### § 1.002 (Vernon 2004) ("Chapter 311, Government Code (Code Construction Act), applies to the construction of each provision in this code except as otherwise expresslyprovidedbythis code."). Consideringboththe source lawandthe codified law, it is evident that the term person in chapter 1954 includes a governmental subdivision such as a municipality. 

### See City a/Midlothian v. 

### Black, 271 S.W.3d 791, 796-98 (Tex. App.-Waco 2008, no pet.) (equating "governmental subdivision" with a municipality). Moreover, we find nothing in chapter 1954 that limits the applicability ofsections 1954.351 or 1954.401 (a)(1)-the enforcement provisions about which you ask-to only a person licensed or registered under chapter 1954. 2 

### CompareTEx.Occ.CODEANN. 

### §§ 1954.351, .401(a)(I) (Vemon2004),with, 

### e.g., id §1954.402(a) (providing expressly that it is applicable to a license holder). Section 1954.259(b) prohibits a municipality that requires permits for the renovation or demolition ofa public or commercial building from issuing such permits unless the municipality receives either evidence acceptable to the municipality that a qualifying asbestos survey has been conducted or certain asbestos-related certifications. 

### See id § 1954.259(b); TEX. GOy'TCODE ANN. § 311.016(5) (Vernon 2005) ("'May not' imposes a prohibition and is synonymous with 'shall not. "'). If a municipality that is subject to section 1954.259(b) were to issue a permit without obtaining the required evidence or certifications it would violate section 1954.259(b). Sections 1954.351 and 1954.40 1(a)(1) authorize enforcement actions against a person, which term includes a municipality, whenthe personviolates the statute. TEX. Occ.CODEANN. §§ 1954.351, .401 (a)(1) (Vernon 2004). Therefore, we find thatthe plainlanguage ofthe statute supportsthe conclusionthat the DSHS commissioner may impose an administrative penalty, and upon the request ofthe DSHS

2We note that the provision you are concerned about enforcing-section 1954.259(b)-utilizesboth the tenn "municipality" and "person," arguably suggestingthata municipality is to betreateddifferentlythan otherpersonsunder section 1954.259(b). Because a municipality isjust one ofthe various entities encompassed withinthe tennperson, we conclude that the tenn municipality is used in section 1954.259(b) for the purpose ofclearly identifying the entity to which the section 1954.259(b) mandate applies.David L. Lakey, M.D.

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commissioner, the attorney general, or the appropriate district, county or city attorney may pursue enforcement actions against a municipality for failure to comply with section 1954.259(b). However, we caution that while this conclusion addresses the literal questions you ask, it does not address an issue fundamental to the ability to pursue an enforcement action against a municipality-whether chapter 1954 operates to waive a municipality's governmental immunity.
Governmental immunity consists ofimmunity from suit and immunity from liability. 

### See Tooke v. City o/Mexia, 197 S.W.3d 325,332 (Tex. 2006) (explaining immunity from liability bars the enforcement.ofajudgment against a governmental entity and immunity from suit bars a suit against the entity). Your last three questions are phrased in terms of the ability to pursue enforcement actions against a municipality. Request Letter at 5-6. Thus, we understand those questions to relate to a municipality's 

### immunityfrom suit, which works to bar an action unless consent to suit can be established. 

### See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692,695 (Tex. 2003) (explaining consent to suit is usually found in a constitutional provision or legislative enactment). Our discussion ofimmunity is limited accordingly.
"Political subdivisions in Texas have long enjoyed immunity from suit when performing governmental functions[,],,3 though it was only recently held that municipalities enjoy immunity from suit as to the Stateitself. 

### City o/Galveston v. State, 217 S.W.3d 466,469,473 (Tex. 2007). There is a "presumption in favor ofimmunity." 

### Id. at 469. Any waiver ofimmunity must be clear and unambiguous. 

### See TEx. GOy'TCODEANN. 

### § 311.034 (Vernon Supp. 2008) ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."); 

### City o/Galveston, 217 S.W.3dat469. Thefact thatthetermpersonunder chapter 1954 includes a municipality does not, alone, constitute a clear and unambiguous waiver. 

### See TEX. GOy'T CODE ANN. 311.034 (Vernon Supp. 2008) ("use of'person,' as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunityunlessthe contextofthe statuteindicatesno otherreasonable construction"); 

### see also, e.g., 

### City ojMidlothian, 271 S.W.3d at 796-98 (concludingthatincorporation ofthe definition ofperson from the Code Construction Act did not waive governmental immunity).
The Texas Supreme Court has identified four factors to consider in determining whether immunity from suit is waived by "necessary implication" when a statute, like the one here, does not explicitly waive immunity.4 

### Taylor, 106 S.W.3d at 697-98. First, courts consider whether the

3When a municipality acts in furtherance ofpurely governmental matters for the interest ofthe public at large, the municipality performs a governmental function that is afforded governmental inununity. See Tooke, 197 S.W.3d at 343. Therelevance ofthe distinction between a governmental andproprietary function outside ofthe tort context is not altogether clear. See id; Tex. Att'y Gen. Op. No. JC-0114 (1999) at 3. That being said, we assume for purposes ofthis opinion that a municipality is engaged in a governmental function when it issues a permit but does not comply with the requirements ofsection 1954.259(b)(2). Cj, e.g., Trevino & Gonzalez Co. v. R.F. Muller Co., 949 S.W.2d 39, 42 (Tex. App.-San Antonio 1997, no pet.) (explaining that the granting or denial of a building permit is a governmental function).
4See Taylor, 106 S.W.3d at 696-98 (setting out examples ofstatutory language that leave a court with little or no doubt as to the Legislature's intent to waive inununity).David 

### L. Lakey, M.D.

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statute waives immunitybeyonddoubt. 

### ld. at 697. Forinstance, courtshave found waiverwhenthe statute "would be meaningless unless immunity were waived." 

### ld. Second, courts resolve any ambiguities in a statute in favor ofretaining immunity. 

### ld Third, in determining whether a statute waives immunity from suit, courts consider whether the statute at issue requires that the governmental entity "bejoined ina lawsuitfor whichimmunitywould otherwise attach" indicating that "the Legislature has intentionally waived the state's sovereign immunity." 

### ld. at 697-98. Fourth, courts consider whether the statute includes measures thatprovide objective limitations on a governmental unit's potential liability because when waiving immunity, the Legislature often adopts measures to protect public resources fromjudgment creditors. 

### ld. at 698. Application of the four factors to chapter 1954 suggests that governmental immunity is retained. First, the enforcement provisions ofchapter 1954 apply to private parties, so they have bothmeaning andpurpose ifgovernmental immunityis retained. 

### Cfid at 700 (examining whether section 321.003, Health and Safety Code, was viable and achieved its objective even 

### if suit against a governmental entity was barred). Moreover, the Legislature has expressly provided means, other than suit, by which compliance with section 1954.259(b) may be achieved. 

### See TEx. OCC. CODE ANN. 

### § 1954.062 (authorizing the DSHS to develop, distribute, and deliver education and informational materials regarding asbestos). Second, incorporation ofthe definition of"person" fromthe CodeConstructionActcreatesanambiguitybecausechapter 1954doesnotexplicitlywaive immunity as to a municipality. 

### CfCity of Midlothian, 271 S.W.3d at 798 ("[T]he incorporation of section 311.005 of the Government Code into the Water Code creates an ambiguity."). That ambiguity is to be construed in a manner that retains immunity. 

### Cf Taylor, 106 S.W.3d at 701 (explainingthatincorporationofthe section 571.003, Healthand SafetyCode, definition of"mental health facilities" "sewed ambiguity" into section 321.003, Health and Safety Code). Third, nothing inthe TAHPA requires a municipalitybejoinedin a lawsuit for a violation arising out ofa person's failure to conduct an asbestos survey prior to renovating or demolishing a public or commercial building. 

### See, e.g., TEx. Occ. CODE ANN. 

### §§ 1954.259(b), .351, .401 (Vernon 2004). Finally, although the administrative and civil penalty provisions under the TAHP A are capped at "$10,000 a day for each violation," there are no objective limitations specifically aimed at and designed to protect the public treasury. 

### ld. 

### §§ 1954.352(a), .401(b). Thus, we think it unlikely a court would find that including a municipality in the definition ofperson constitutes a clear and unambiguous waiver of immunity from suit for a violation of section 1954.259(b). To the extent that a municipality enjoys immunity from suit, an enforcement action is barred.
While governmentalimmunitymaybarthepursuitofcertainenforcementactions authorized by sections 1954.351 and 1954.401(a)(1), itmay not foreclose others. 

### See, e.g., City ojElPaso v. 

### Heinrich, 284 S.W.3d 366,368-69 (Tex. 2009) ("We conclude that while governmental immunity generally bars suits for retrospective monetary relief, it does not preclude prospective injunctive remedies inofficial-capacity suits againstgovernment actors who violate statutory orconstitutional provisions."); 

### Anderson v. 

### City oj McKinney, 236 S.W.3d 481,482 (Tex. App.-Dallas 2007, no pet.).David 

### L. Lakey, M.D.

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### SUMMARY
The term "person" in the Texas Asbestos Health Protection Act, chapter 1954 ofthe Occupations Code, includes a municipality. However, we think it unlikely that a court would conclude the inclusion ofa municipality in the definition ofperson constitutes a clear and unambiguous waiver ofimmunity from suit for a violation ofsection 1954.259(b). Evenif governmental immunity is retained, it does not mean that every enforcement action about which you ask is necessarily barred.

ANDREW WEBER First Assistant Attorney General
JONATHAN 

### K. FRELS Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee Christy Drake-Adams Very truly yours,

Assistant Attorney General, Opinion Committee