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JIM MATTOX Attorney General

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An Equal Opportunity/ Alfirmative Actlon Employer 

# The Attorney General of Texas
Au];ust14, 1985

Robert Bernstein, M.D., F.A.C.P. opinionNO. ~~-336 Commissionerof Realth Texas Department of Eealth 1100West 49th Street Auetin,Texas 78756 Re: Authority of e joint citycounty public health district to issue licenses, exact fees and impose fines for noncompliancewith its rules
Dear Dr. Bernstein:
You have requmted our opinion regarding the authority of a public health distr:lctorganized pursuant to the Local Public Health Reorganization Act [hereinafter the “Act”] to issue licenses, exact fees,and impose fires fornoncompliancewith the rules throughout the jurisdictionof the public health district. Article 4436b of the Act was amendedby the Mxty-ninth Legislaturewith the enactmentof Rouse Bill No. 1114. See Acts 1985, 69th Leg., ch. i I at (not yet published). ?% amendedprovisions of theAct willgo intoeffect on August 26, 1985. Although it appears that your question did not contemplate the enactment of Eouse Bill No. 1114, this opinion will consider the effect of that recent enactment. Section 4.02 of article 4436b.V.T.C.S., provides that:
A public 'wealthdistrict is authorized to perform the publ:k:health functions that any of its members i3 authorized to perform unless otherwise restrictedby law.
A public health dilit:rict ma9 be composed of a combination of cities and/or counties. See V.T.C.S. art. 4436b. 94.01. Section 2.01 of --- article 443613.

V.T.l:..S.,

authorizesthe governingbodies of cities and counties "to enforce any lawwhich is reasonably necessary to protect the public health." Once s public health districthas establishedan administrativeboar& theboard is authorized:

to adopt substantive and procedural rules which *re necei313ary

and appropriate to promote and preserve the health and safety of the public within it.8jurisdiction; provided that no rule adopted tin;311

be in conflictwith the laws of the

p. 1530.- .I

Dr. Robert Bernstein - Page 2 (JM-336)

state or the ordinanfzes of anymember municipality or county. (EmphasEsadded).
V.T.C.S. art. 443613,54.03(b). In addition to the underlinedportions above, the legislaturehas further limited the board's authority to adopt rules and regulations in.the most recent amendmentby providing that: nothing in this'Act shall be construed to grant

the board of any d:tstrictcreated hereunder the power to adopt rules or regulations for any part of the district which are not otherwise specifically authol+ed by state law. (Emphasis added).
Acts 1985, 69th Leg., ch. (V.T.C.S. art. 4436b, §4.0!)1m: 17, at Accordingly,(not yet published)

we must determine whether there is specific statutory authority for the public health district's administrative board to issue licenses, exact fees, and impose fines for noncompliancewith its rules.
A public health district has been granted the limited authority to exact fees. The Act specjficallyprovides:

Sec. 4.08(a). The governing body of an incorporatedmunicjpality, the commissionerscourt of a county, or i.headministrative board of a public health dis,:rictme9 adopt ordinances or rules to charge fues for public health services subject to the follc%ng: (1) no individual shell be denied public health services because of inability to pa9 for services, end the
. . . district shall make provisions for a reduced fee or no fee for individualsunable to pa9 for services inwhole or in part; end (2) if a . . .Flublic health district receives state support for the provision of public health services, then the Uniform Grant and Contract Management Act Of 1981 (Article 4413(32g), Vernon's Texas C:.vil Statutes), and standards adopted pursuant to thst Act shall controlwhere applicable. V.T.C.S. ert. 4436b, §4.08(a:'? as amendedby Acts 1985, 69thLeg., ch. -9 06. et (not yet published). See also section 4.08(b) (definftionof"public health services"). We conclude that it is only

:?.1531Dr. Robert Bernstein - Page 3 (JM-336)

under these limited circumstances that an administrativeboard of a public health district may axact fees for the provision of health services. Cf. Nueces County-v. Currington, 162 S.W.2d 687 (Tex. 1942). Next we consider wheth'arthe authority granted to governing bodies of cities and countiesunder section 2.01 to "enforce" any law to protect the public health is specific statutory authority for the impositionof finesby a public: health district for noncompliancewith its rules. We think not. Section 2.01 is a general provisionwhich authorizes cities and counties to enforce laws enacted to protect the publichealth. The provision doesnot prescribe any particularmethod for the enforcement of theof!laws. When read together with the specific limitation on the authority of the board imposed in section 4.09(f), the provision is insufficient to authorize the public health district'sadministrativeboard to impose fines for noncompliancewith its rules. See City of Baytown v. Angel, 469 S.W.2d 923 (Tex. Civ. APP. - Houston [14th Dist.:r 1971, writ ref'd n.r.e.) (a general provision in a statute is limited or controlled by a specific provision). We have not discrreredany specific state law authorizing thismanner of enforcementby a3publichealth district. With regard to the authority of the administrative board of a public health district to issue licenses, we have not found any specific statutory provision authorizing this conduct by the board. We believe that the limitation imposed in section 4.09(f) prohibits the issuance of licenses unless the legislature determines to specificallyauthorize it.

SUMMARY

A public health district'sadministrativeboard organized pursuant to the Local Public Realth Reorganization Act, article 4436b, V.T.C.S., is authorized to exact fees for health services within the limitations imposed in section 4.08. However, the district is without specific statutory authority to issue licenses, or impose fines fornoncompliancewith its rules.

JIM MATTOX Attorney General of Texas

p. 1532Dr.Robert Bernstein - Page 4 (JM-336)

TOM GREEN First AssistantAttorney General
DAVID R. RICRARDS ExecutiveAssistant Attorney Genersl
ROBERT GRAY SpecialAssistantAttorney Gevaral
RICK GILPIN Chairman,Opinion Committee Preparedby Ton9 Guillory AssistantAttorney General APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Guillory JimMoellinger JenniferRiggs Nancy Sutton SarahWoelk