ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

July 22, 2009 

David L. Lakey, M.D. 

Commissioner 

Texas Department of State Health Services 

Post Office Box 149347 

Austin, Texas 78714-9347 

Dear Commissioner Lakey: 

Opinion No. GA-0729 

Re: Authority of the Department of State Health 

Services to enforce state asbestos regulations 

against municipalities (RQ-0775-GA) 

You ask the following questions regarding the authority of the Texas Department of State 

Health Services (the "DSHS") to enforce certain provisions of the Texas Asbestos Health Protection 

Act (the "TAHPA"), chapter 1954 of the Texas Occupations Code, against municipalities: 

1. Does the scope of the term "person" in the TAHPA sections 1954.351 

and 1954.401 encompass any person not licensed or registered under 

T AHP A that appears to have violated, is violating, or is threatening to 

violate the T AHP A or a rule adopted or an order issued under the 

TAHPA? 

2. Is the scope of the 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 

T AHP A section 1954.259? 

3. If a municipality requires permits for renovation or demolition of public 

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 completed by a person licensed under 

the T AHPA to perform the survey, or without requiring a certification as 

provided by section 1954.259(b )(2), may DSHS pursue enforcement 

action against that municipality as provided in the T AHP A? 

4. Is DSHS authorized to pursue enforcement action against municipalities 

to collect administrative penalties from them? 
David L. Lakey, M.D. - Page 2 (GA-0729) 

5. If DSHS is not authorized to pursue enforcement action against 

municipalities, may the Attorney General or any other entity enforce the 

T AHP 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 on a person who violates this chapter or a rule adopted or order 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 having jurisdiction to bring a civil 

suit for injunctive relief, the assessment and recovery of a civil 

penalty, or both, against a person 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 that your 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 

issue the permit unless the applicant provides: 

(1) evidence acceptable· to the municipality that an asbestos 

survey, as required by this chapter, of all parts of the building 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 

safety data sheets for the materials used, ... and any asbestos surveys 

of the building previously conducted in accordance with this 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. - Page 3 (GA-0729) 

(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. CODE ANN. § 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 of the term "person" in chapter 1954. 

Prior to its codification, the T AHP A defined the term person to include a governmental subdivision. 

See Act of May 24, 1991, 72d Leg., R.S., ch. 610, § 1, sec. 2(10)(B), 1991 Tex. Gen. Laws 2218, 

2219. When the T AHP A 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 expressly provided by this code. "). Considering both the source law and the 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 of sections 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 of a 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'T CODE 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, when the person violates the statute. TEX. Occ. CODE ANN. §§ 1954.351, .401 (a)(1) 

(Vernon 2004). Therefore, we find that the plain language of the statute supports the conclusion that 

the DSHS commissioner may impose an administrative penalty, and upon the request of the DSHS 

2We note that the provision you are concerned about enforcing-section 1954.259(b)-utilizes both the tenn 

"municipality" and "person," arguably suggesting that a municipality is to be treated differently than other persons under 

section 1954.259(b). Because a municipality is just one of the various entities encompassed within the tenn person, we 

conclude that the tenn municipality is used in section 1954.259(b) for the purpose of clearly identifying the entity to 

which the section 1954.259(b) mandate applies. 
David L. Lakey, M.D. - Page 4 (GA-0729) 

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 of immunity 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. of a judgment 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 immunity from 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 of immunity 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 State itself. City o/Galveston v. State, 217 S.W.3d 466,469,473 (Tex. 2007). 

There is a "presumption in favor of immunity." Id. at 469. Any waiver of immunity 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.3d at 469. The fact that the term person under 

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 

immunity unless the context of the statute indicates no other reasonable construction"); see also, e. g., 

City oj Midlothian, 271 S. W.3d at 796-98 (concluding that incorporation of the definition of person 

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 of purely governmental matters for the interest of the public at large, 

the municipality performs a governmental function that is afforded governmental inununity. See Tooke, 197 S. W.3d at 

343. The relevance ofthe distinction between a governmental and proprietary function outside of the 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 of this 

opinion that a municipality is engaged in a governmental function when it issues a permit but does not comply with the 

requirements of section 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 of statutory language that leave a court with little or 

no doubt as to the Legislature's intent to waive inununity). 
David L. Lakey, M.D. - Page 5 (GA-0729) 

statute waives immunity beyond doubt. ld. at 697. For instance, courts have found waiver when the 

statute "would be meaningless unless immunity were waived." ld. Second, courts resolve any 

ambiguities in a statute in favor of retaining immunity. ld Third, in determining whether a statute 

waives immunity from suit, courts consider whether the statute at issue requires that the 

governmental entity "be joined in a lawsuit for which immunity would 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 that provide objective limitations on 

a governmental unit's potential liability because when waiving immunity, the Legislature often 

adopts measures to protect public resources from judgment creditors. ld. at 698. 

Application of the four factors to chapter 1954 suggests that governmental immunity is 

retained. First, the enforcement provisions of chapter 1954 apply to private parties, so they have 

both meaning and purpose if governmental immunity is retained. Cf id 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 of the definition of "person" 

from the Code Construction Act creates an ambiguity because chapter 1954 does not explicitly waive 

immunity as to a municipality. Cf City 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 

(explaining that incorporation of the section 571.003, Health and Safety Code, definition of "mental 

health facilities" "sewed ambiguity" into section 321.003, Health and Safety Code). Third, nothing 

in the T AHP A requires a municipality be joined in a lawsuit for a violation arising out of a 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 of person 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 governmental immunity may bar the pursuit of certain enforcement actions authorized 

by sections 1954.351 and 1954.401(a)(1), it may not foreclose others. See, e.g., City oj El Paso 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 in official-capacity suits against government actors who violate statutory or constitutional 

provisions."); Anderson v. City oj McKinney, 236 S.W.3d 481,482 (Tex. App.-Dallas 2007, no 

pet.). 
David L. Lakey, M.D. - Page 6 (GA-0729) 

SUMMARY 

The term "person" in the Texas Asbestos Health Protection 

Act, chapter 1954 of the Occupations Code, includes a municipality. 

However, we think it unlikely that a court would conclude the 

inclusion of a municipality in the definition of person constitutes a 

clear and unambiguous waiver of immunity from suit for a violation 

of section 1954.259(b). Even if 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