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,- 

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THE ATTO~~NEP GENERAL 

OF TEXAS 

Nwder la, 1987 

Mr. Curtis Tunnel1 

Executive Director 

Texas Historical Commission 

P. 0. Box 12276 

Austin, Texas 78711 

Opinion No. JM%!2 

Re: Whether the 180-day waiting period set forth in 

section 442.008, Government 

Code, may be waived (RQ-1282) 

Dear Mr. Tunnell: 

Section 442.008 of the Government Code sets forth 

the provisions governing the preservation of historic 

courthouses. You ask whether the 180-day waiting period 

prescribed in section 442.008 of the code, during which a' 

courthouse designated by the Texas Historical Commission 

may not be sold or damaged, may be waived by the commission. We conclude that it may not. 

Chapter 442 of the recently-codified Government Code 

sets forth the duties and authority of the Texas 

Historical Commission [hereinafter the commission]. Acts 

1987, 70th Leg., ch. 147, §l, p. 1010-19 (formerly codified as V.T.C.S. article 6145). The purpose of the 

commission is to "provide leadership and coordinate 

services in the field of historic preservation." Gov't 

Code !j442;003. Section 442.005 of the code sets forth the 

various powers and duties of the commission, which 

shall furnish leadership, coordination, and 

services to county historical commissions, 

historical societies, and the organizations, 

agencies, institutions, museums, and 

individuals of this state interested in the 

preservation of historical heritage and 

shall act as a clearinghouse and information 

center for that work in this state. 

Gov't Code §442.005(a). The commission is required to 

"give direction and coordination to the state historical 

marker program," id. at 5442.006(a), and to '*install 

markers recognizing districts, sites, individuals, events, 

structures, and objects significant in Texas or American 

p. 3910 
Mr. Curtis Tunnel1 - Page 2 cm-822) 

history, architecture, archeology, or culture and shall 

keep a register of those markers," & at 5442.006(b). 

The commission, together with the state archeologist, must 

direct the state archeological program, id. at 5442.007, 

encourage the preservation of historic courthouses, id. at 

5442.008, and prepare information of consumer interest and 

accept and act upon consumer complaints, id. at 9442.009. 

Section 442.011 of the code provides: "A person who 

violates this chapter is subject to-a civil penalty of not 

less than $50 nor more than $1,000 for each day of 

violation." And section 442.012 empowers the attorney 

general or any resident of this state to file suit in 

district court to restrain and enjoin a violation or 

threatened violation of the act. 

Section 442.008 of the code sets forth the following: 

Sec. 442.008. HISTORIC COURTHOUSES. 

(a) A county may not demolish, sell, lease, 

or damage the historical or architectural 

integrity of any building that serves or has 

served as a county courthouse without 

notifying the commission of the intended 

action at least six months before the date 

on which it acts. 

(b) If the commission determines that a 

courthouse has historical significance 

worthy of preservation, the commission shall 

notify the commissioners court of the county 

of the fact not later than the 30th day 

after the date on which the commission 

received notice from the county. A countv 

mav not demolish, sell. lease, or damaae the 

historical or architectural intearitv of a 

courthouse before the 180th dav after the 

date on which it received notice from the 

commission. The commission shall coooerate 

with anv interested verson durina the 

JSO-dav veriod to vresenre the historical 

intearitv of the courthouse. 

(c) A county may carry out ordinary maintenance of and repairs to a courthouse 

without notifying the commission. (V.A.C.S. 

Art. 6145, Sec. 14.) (Emphasis added.) 

The commission was first created as a state agency in 

1957. Acts 1957, 55th Leg., ch. 500, at 1460 (codified as 

p. 3911 
Mr. Curtis Tunnel1 - Page 3 (JM-822) 

V.T.C.S. article 6145). The predecessor statute to 

section 442.008 of the code was added by amendment in 

1971. Acts 1971, 62d Leg., ch. 496, 51, at 1718. The 

Bill Analysis accompanying the bill sets forth the following as 

Recently, several county courthouses of 

historic value have been destroyed. This 

has come to the attention of and caused 

concern in not only the Historical Survey 

Committee, but also the Speaker's Committee 

on Historical Preservation. 

The Bill Analysis succinctly set forth the purpose of the 

bill: "To provide for the preservation of courthouses 

with historic value." Bill Analysis to H.B. No. 22, 62d 

Leg. (1971) (on file in Legislative Reference Library). 

The commission cannot ultimately prevent or proscribe the 

destruction of historic courthouses, but it is clear that 

the statute was designed to delay such destruction, giving 

the commission the time to work with interested local 

officials and private persons to promote the preservation 

of such structures. 

Generally, the powers of an administrative.agency are 

derived entirely from legislative enactment. State v. 

Robison, 30 S.W.2d 292 (Tex. 1930): Railroad Commission v. 

Fort Worth & D. C. RY. Co., 161 S.W.2d 560 (Tex. Civ. App. 

- Austin 1942, writ ref'd w.0.m.). An agency has only 

those powers that are expressly granted to it by statute 

together with those necessarily implied from the authority 

conferred or duties imposed. State v. Jackson, 376 S.W.2d 

341 (Tex. 1964); Stauffer v. Citv of San Antonio, 344 

S.W.2d 158 (Tex. 1961). If the statutes do not grant an 

agency the power to do a thing, then it has no such power. 

Nieces Countv Water Conservation & Imorovement District v. 

Texas Water Riahts Commission, 481 S.W.2d 924 (Tex. Civ. 

ADD. - Austin 1972, writ ref'd n.r.e.). When the 

legislature acts with'respect to a particular matter; the 

administrative agency may not so act with respect to the 

matter so as to nullify the legislative action even though 

the matter be within the agency's general regulatory 

field. Cobra Oil & Gas Corvoration v. Sadler, 447 S.W.2d 

887 (Tex. 1968): State v. Jackson 376 S.W.2d 341 (Tex. 

1964). It may not enlarge its pobers by its own orders. 

Railroad Commission of Texas v. Fort Worth & D. C. Rv. 

co., suvra. We have found no authority, either 

constitutional or statutory, which expressly or impliedly 

authorizes the commission to waive the 180-day waiting 

p. 3912 
Mr. Curtis Tunnel1 - Page 4 (JM-822) 

period set forth in section 443.008, Government Code. If 

the legislature had intended to authorize the commission 

to waive the 180-day waiting period set out in section ? 

442.008, it could have done so. S e. e.a section 

442.006 (authorizing the commission toewaive th; waiting 

period with respect to a structure designated "Texas 

Historical Landmark"). 

SUMMARY. 

The Texas Historical Commission is not 

authorized to waive the 180-day waiting 

period set forth in section 442.008 of the 

Government Code, governing the preservation 

of historic courthouses. 

Very truly your , J-N/~ e 

JIM MATTOX 

Attorney General of Texas 

MARYKELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 3913