DAN MORALES 

ATTORXGEXERAL ‘EY 

QXfice of the 2lttornep @eneral 

&ate of ZEexar; 

January 17,1997 

The Honorable David Sibley Opinion No. DM-430 

Chair, Senate Economic Development Committee 

Texas State Senate Re: Whether Govemment Code section 

P.O. Box 12068 417.0041 delegates rule-making authority to 

Austiq Texas 78711 fire protection advisory councils in 

contravention of the Texas Constitution, 

article III, section 1 (RQ-909) 

Dear Senator Sibley: 

You ask whether Gov ermnent Code section 417.0041 delegates rule-making authority to 

certain iire protection advisory cow&s in contzavention of the Texas Constitution. The constitutional 

provision at isstq article ll& sectioa 1, states as follows: “The Legislative power of this State shall 

be vested ‘in a Senate and House of Represenwives. I&is&tive delegations of authority are also 

often challenged under article I& section 1, the separation of powers provision. Courts have 

construed article II, section 1 and article III, section 1 to pe.rmit the legislature to delegate rulemaking authority to an administrative agency ifthe legislature “establishes ‘reasonable standards to 

guide the entity to Which the powers are delegated.‘“’ Legislative authority may evem be delegated 

to private entitk ifthe. kgklative purpose is discerniile and there is protection against the arbitrary 

exercise of power;2 

ln 1991, the legi&ture transferred certain duties relating to fire safety Tom the State Board 

of Insurance (the “board”) to the Commission on Fiie Protection (the “commission”). See Act of 

May27,1991,72dLeg.,ch. 628, $5 11, 13,15& 18, 1991 Tex. GenLaws2286,2309-11. This 

legislation shifted authority regarding 6re extinguishers, fke detection and alarm devices, fire 

protection sprinldex systems, and fireworks from the board to the commission. See id. (enacting Ins. 

‘Eh&uwdIn&p. sch Diet v. Meno, 893 S.W.2d450.414 (Tex 1995) (quoting RaihadComm h v. Lone Star 

Gac CO.. 844 S.W.2d619.689 @ex. 1992));s~ ah Tcwr Antiquities Comm. v. Dallas Cacn~ Communily CoUege, 554 

S.W.2d 924,928 crcx. 1977) (swubxy dde@iaw ofpowa may not be accanplished by overly broad m vague language); 

Commissionen Cour~ofLubbockCouniyv. M&in, 411 S.W.2d lCQ.105 (Tex. Civ. App.-Amarillo 1911. wit r&d 

n.r.e.) (Legi&tive delegation must pt-esaik suBGent standa& to guide agency in exercisii disaetiw conferred). 

‘See Oflce o/pub. IN. Counrelv. Texas Auto. Ins. Plan, 860 S.W.2d 23 I. 237 (Tex App.-Austin 1993, writ 

denied);see aLwCenhaIPmver&Lightv. Sharp, 919 S.W.2d 485,492 (Tex. App.-Austin 1996,witrequestsd). Bur 

see &fin&n v. City of Fort Worth Pkmning Comm ‘n. 786 S.W.2d 563,565 (Tcx App.-Fort Worth 1990, no wit) 

(legative power may not be delegated to nalTow sqment ofwmmunity); Attorwy General Opinion DM-135 (1992). 
The Honorable David Sibley - Page 2 (DM-430) 

Code, arts. 5.43-1, 8 ZA, 5.43-2, 3 4A, 5.43-3, 5 3A, 5.43-4, 5 5A). Section 417.0041 of the 

Government Code, which describes the role of advisory councils established under these articles of 

the Insurance Code in the commission’s n&making process, provides as follows: 

(a) This section applies to lules adopted under Articles 5.43-.l through 

5.43-4, Insurance Code, and to the advisory councils established under these 

artiCkS. 

(b) Each council pesiodidly shall review commission rules implementing 

the article under which the council was established and recommend changes 

in the rules to the commission. Notwi&tan~mg Chapter [sic] 2001.03 1, the 

commission shall submit all changes and additions to rules that implement the 

article under which an advisory council was established to that council for 

development. Ifthe commission does not approve a rule developed by the 

council, the commission shall indicate to then council the reasons that the 

commission did not approve the rule and return the rule to the council for 

further development. 

Section 2001.03 1 of the Government Code, a provision of the Administrative.Pr&ure Act (the 

“APA”) to which subsection (b) seems intended to refer states as follows: 

(a) A state agency may use an i&ormal.conference or consultation to 

obtain the opinions and advice of interested persons about contemplated 

Nlemalcing. 

@) A state agency may appoint committees of experts or interested 

persons or representatives of the public to advise the agency about 

contemplated r&making. 

(c) The power of a committee appointed under this section is advisory 

Only. 

This APA provision generally authorizes state agencies to use advisory committees in rule-making 

on the condition that the power of any committee appointed under the provision is purely advisory. 

Your letter assumes that section 417.0041 establishes a rule-making role for the fire 

protection advisory councils that is not merely advisory or ministerial in nature and therefore 

delegates to the advisory councils at least some degree of substantive rule-making authority. We 

agree. Section 417.0041 requires the commission to submit all changes and additions to rules to the 

relevant advisory council for development. The advisory council must develop the rule. If the 

commission does not approve a rule developed by the advisory council, the commission is not f?ee 

to dr& its own rule but rather must return the rule to the advisory council for finther development. 

p. 2402 
The Honorable David Sibley - Page 3 (DM-430) 

ln essenoe, section 417.0041 establishes joint r&-making authority. No amendment or new rule may 

be adopted unless both the wmmission and the &vant advisory wuncil agree. Furthermore, section 

417.0041 gives the 6re pmtection advisory cauxils an dikctive veto over any rules the commission 

may propose to adopt that would change rules previously adopted to implement articles 5.43-l 

through 5.434. Thus, the legislature has delegated at least some authority to amend rules 

implementing these articles to the advisory councils. As this office has recognized in the past, the 

power to amend rules is in itselfrulsmaking authority. See Attorney General Opinion DM-135 

(1992) at 5. 

Sewnd, we wndude that the legislature intended to delegate at least some substantive rulemaking authority to .the 6re protection advisory wuncils based on its use of ihe words 

“[n]otwithstanding [Governmen code section] 2001.03 1” in section 4 17.004 1. We believe that this 

language demonstrates that the legi&ure sought to distinguish the fire protection advisory councils’ 

rule-making role from that of other advisory wmmittees and that it indicates that the.legislature 

inknded the tire protection advisory wuncils’ role in the rule-making process to be more &UI merely 

advisory. With the exception of three other advisory wmmittees - the tire protection personnel 

advisory ~mmitke,~ the fimds allocation advisory committee,’ and the volunteer 6re fighter advisory 

wmmittee,’ each of which is aswciated with the commission - we have been unable to locate any 

other statute using this language to describe the role of another advisory committee or cckmcil in an 

agency’s ~hnaking processP The uniqumess of this ianguage further suggests it is intended to 

wnfer special authority on these advisory councils. 

We note that in Attorney General Opiion DM-149 this office examined identical language 

desuibii the. role of the tire protection personnel advisory committee and the volunteer tire fighter 

advisory committee in rulemaking and concluded that it does not delegate any substantive, 

no~G&erial rulsmaking authority to those wmmittees. See Attorney General Opinion DM-149 

p. 2403 
The Honorable David Sibley - Page 4 (DM-430) 

(1992) at 4-5.’ For the reasons stated above, we believe this conclusion was inwrrect. Attorney 

General Opinion DM-149 is overruled to the extent it wnflicts with this opinion. 

You suggest that the delegation of rule-making authority to the fire protection advisory 

wttnciis in section 417.0041 violates article III, section 1, asking, “With these parameters, does an 

agency then become subject to governance by its advisory council? Is this a proper delegation of 

legi&tive authority?” Provided that the legiskure prescribes sufficient standards, article III, section 

1 does not limit the kgi&tu& ability to create and structure governmental agencies’ and to allocate 

its~ delegated legislative authority between (and within) governmental agencies as it sees fit. The 

advisory wuncils, created by statute and with members who are appointed by the wmmission, are 

public entities? Nothing in article III, section 1 prevents the legislature Corn delegating rule-making 

authority to the advisory councils as opposed to the wmmission.‘0 Whether this joint r&making 

arrangement has proven workable or is in the public interest is another matter and is ultimately a 

public policy determination that is within the province of the legislature rather than this office. The 

legislature is always free to amend section 417.0041 to limit the fire protection advisory councils 

rule-making role should it choose to do so. 

Attcmey General Opiion DM-149 (1992) at 4-5. 

‘Texas Turnpike Auth v. shcppcrd 279 S.W.2d 302.304 (Tex. 1955) (no oollstitufiollal provision prohibits 

4w-=fimrcrrafiogsorenrmental agarcy dbody politic); Thomas v. HavardCoun~Iioap. Ad., 489 S.W.2d 403. 

405 (-kx App.-Eastland 1972),wrilrefdnr.r.prrcuriam. 498 S.W.2d 146 (Tex 1973) (same). 

%r Ins. Code irk 5.43-1,s 9 (creating Fire Exdquisk Advisxy Ccmcil qpohted by State Board of 

lIlsmE,nmvo cm), 5.43-2,s 2(3) (pmiding for tire d&e&m and alarm devices advisory council ,xn&ing of 

sevenmembersappoilltedbystateBoardofIns\lrsnoc,llow commissiom), 5.43-3, $5 l(4). 6(a) (aeat& Fire Ptutechm 

Advisory Cmncil casisthg of - members appointed by State Ekmd of Insurencc, IKW coormissioqwhoserveti 

plelmrc oftbebmd), 5.43-4,s 5El (providing for fireworks 8dvisce-y .zamcil ooosisting of five members who save at will 

Ofcommissioo). 

p. 2404 
The Honorable David Sibley - Page 5 (DM-430) 

SUMMARY 

The delegation of rule-making authority to advisory councils in 

Government Code section 417.004 1 does not wntmvene article III, section 

1 of the Texas Constitution. A 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion committee 

Prepardby Mary R Grouter 

As&ant Attorney General 

p. 2405