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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 bewaived (RQ-1282)
Dear Mr. Tunnell: Section 442.008 ofthe Government Code sets forth the provisions governing the preservation of historic courthouses. You askwhether the 180-day waiting period prescribed insection 442.008 ofthe code, during which a' courthouse designated by the Texas Historical Commission may not be sold 

### ordamaged, may bewaived by the commission. We conclude that itmay not. Chapter 442 ofthe 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 inthe field of historic preservation." Gov't Code !j442;003. Section 442.005 ofthe code sets forth the various powers and duties ofthe commission, which

shall furnish leadership, coordination, and services to county historical commissions, historical societies, and the organizations, agencies, institutions, museums, and individuals ofthis state interested in the preservation of historical heritage and shall act asaclearinghouse and information center for that work inthis 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 inTexas or American

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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 ofhistoric 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 issubject to-a civil penalty ofnot less than $50 nor more than $1,000 for each day of violation." And section 442.012 empowers the attorney general or any resident ofthis state to file suit in district court to restrain and enjoin a violation or threatened violation ofthe act. Section 442.008 ofthe code sets forth the following:
Sec. 442.008. HISTORIC COURTHOUSES. (a)Acounty may not demolish, sell, lease, ordamage the historical or architectural integrity ofany building that serves orhas served as a county courthouse without notifying the commission of the intended action at least six months before the date onwhich itacts. (b)Ifthe commission determines that a courthouse has historical significance worthy ofpreservation, 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, ordamaae the historical or architectural intearitv of a courthouse before the 180th dav after the date onwhich itreceived notice from the commission. The commission shall coooerate with anv interested verson durina the JSO-dav veriod tovresenre the historical intearitv ofthe courthouse. (c)Acounty maycarry 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 asastate agency in 1957. Acts 1957, 55th Leg., ch. 500, at 1460 (codified as

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V.T.C.S. article 6145). The predecessor statute to section 442.008 ofthe 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 asRecently, 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 onHistorical Preservation.
The Bill Analysis succinctly set forth the purpose of the bill: "To provide for the preservation of courthouses with historic value." Bill Analysis toH.B. No. 22, 62d Leg. (1971) (on file in Legislative Reference Library). The commission cannot ultimately prevent orproscribe the destruction ofhistoric courthouses, but it isclear that the statute was designed todelay such destruction, giving the commission the time to work with interested local officials and private persons topromote the preservation of such structures. Generally, the powers ofanadministrative.agency are derived entirely from legislative enactment. State v. Robison, 30S.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 itby statute together with those necessarily implied from the authority conferred orduties 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 donot grant an agency the power todo athing, then ithas 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 aparticular matter; the administrative agency may not so actwith respect to the matter soastonullify the legislative action even though thematter 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). Itmay not enlarge itspobers 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

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period set forth insection 443.008, Government Code. If the legislature had intended toauthorize the commission towaive the 180-day waiting period set out in section ? 442.008, itcould have done so. Se. 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 ofhistoric courthouses. Very truly your , 

# J-N/~

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JIM MATTOX Attorney General ofTexas
MARYKELLER Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared byJimMoellinger Assistant Attorney General

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