DAN MORALES

ATTORX‘EY GEXERAL 

## QXficeof 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 Govermnent Code section 417.0041 delegates rule-making authority to certainiireprotection advisorycow&s incontzavention ofthe TexasConstitution. The constitutional provision atisstq article ll& sectioa 1, states as follows: “The Legislative power ofthis State shall be vested ‘ina Senate and House ofRepresenwives. 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 1and article III, section 1to pe.rmitthe legislature to delegate rulemaking authority to an administrative agency ifthe legislature “establishes ‘reasonable standards to guidethe entity to Whichthe powers are delegated.‘“’ Legislative authority may evembe delegated to private entitk ifthe. kgklative purpose is discerniile and there isprotection against the arbitrary exercise ofpower;2
ln 1991,thelegi&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, 1991Tex. GenLaws2286,2309-11. This legislation shifted authority regarding 6re extinguishers, fke detection and alarm devices, fire protection sprinldexsystems,andfireworks 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 GacCO.. 844S.W.2d619.689 @ex. 1992));s~ ah TcwrAntiquities Comm.v.Dallas Cacn~ CommunilyCoUege,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).

‘SeeOflce o/pub. IN. Counrelv. TexasAuto.Ins.Plan, 860 S.W.2d 23I.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&nv. City ofFort WorthPkmning 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 shallreviewcommission rules implementing the article under which the council was established and recommend changes intherulesto thecommission. Notwi&tan~mg Chapter [sic] 2001.03 1,the commission shallsubmitallchanges 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 thencouncil the reasons that the commission did not approve the rule and return the rule to the council for further development. Section 2001.03 1of 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 onthe condition that the power of any committee appointed under the provision ispurely 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. Section417.0041 requiresthe 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 isnot f?ee to dr& its own rulebut rather must return the rule to the advisory council for finther development.

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

ln essenoe,section 417.0041establishes joint r&-making authority. No amendment or new rule may be adopted unlessboth the wmmission andthe &vant advisory wuncil agree. Furthermore, section 417.0041 givesthe 6repmtection 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 thatthe 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 417.0041. We believe that this language demonstrates thatthe legi&ure soughtto distinguish the fire protection advisory councils’ rule-making role from that of other advisory wmmittees and that it indicates that the.legislature inknded thetireprotection advisorywuncils’ roleinthe rule-making process to be more &UImerely advisory. With the exception of three other advisory wmmittees - the tire protection personnel advisory ~mmitke,~ the fimdsallocation advisorycommittee,’ and the volunteer 6re fighter advisory wmmittee,’ each of which is aswciated with the commission - we have been unable to locate any other statute usingthis language to describe the role of another advisory committee or cckmcilin an agency’s ~hnaking processP The uniqumess ofthis 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 ofthe 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. 2403The 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 thatthelegiskure prescribes sufficient standards, article III, section 1does not limitthe kgi&tu& abilityto createand 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 publicentities? Nothing inarticleIII, section 1prevents the legislature Corn delegating rule-making authority to the advisory councils as opposed to the wmmission.‘0 Whether thisjoint r&making arrangement has proven workable or is in the public interest is another matter and is ultimately a publicpolicy determination that is within the province ofthe 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 TurnpikeAuth 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. 2404The Honorable David Sibley - Page 5 (DM-430)

SUMMARY The delegation of rule-making authority to advisory councils in Government Code section 417.004 1does not wntmvene article III, section 1ofthe Texas Constitution. A

DAN MORALES Attorney General ofTexas
JORGE VEGA First Assistant Attorney General
SARAH J. SHIRLEY Chair, Opinion committee Prepardby Mary R Grouter As&ant Attorney General

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