Honorable Ned Price, Chairman Opinion No. M-947 

State Board of Insurance 

1110 San Jacinto Re: S. B. 612, Acts 62nd 

Austin, Texas 78701 Leg. R. S. 1971, Chap. 

226, p. 1074, Amending 

Article llllc-1, Vernon's 

bear Mr. Price: Penal code 

You have requested the opinion of this Office as to 

the application of certain aspects of Senate Bill 612, (Acts 

62nd Leg. R. S. 1971, Chap. 226, p.'lO74). This Bill amends 

Article llllc-1, Vernon's Penal Code, by adding Section 2(d) 

thereto. Specifically, you ask our opinion on the following 

questions: 

"(1) Are all the different provisions 

of Article llllc-1 (Acts 61st Leg. R. S. 1969, 

Ch. 550, p. 16921, dealing specifically with 

flammable liquids at retail service stations, 

;Ep;icable to mobile service units as defined 

. B. 612, Acts 62nd Leg. R. S. 1971, which 

amends Section 2 of Article llllc-1, supra, by 

adding thereto a new section designated Section 

2(d)? 

"(2) Does the State Board of Insurance 

have authority under the provisions of S. B. 

612, supra, to create licensing requirements 

for the operation of mobile service units, and 

to set standards for the securing of such 

licenses?" 

Senate' Bill 612, codified as Section 2(d), Article llllc-1, 

V.P.C., is set out as follows: 

"(a) In addition to other authority 

granted by this Act, the State Board of 

Insurance shall formulate, adopt and promulgate rules and regulations for the safe 

movement and operation of mobile service 

units and for the safe dispensing of flammable 

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Honorable Wed Price, page 2 (M-947) 

liquids by mobile service units. As used in 

this Act, and in the rules promulgated hereunder, 'mobile service units' are vehicles, 

tank trucks, or other mobile devices from 

which flammable liquids used as motor fuels 

may, as an act of retail sale, be dispensed 

into the fuel tanks of motor vehicles parked 

on off-street parking facilities; provided 

that any city may, by ordinance, within one 

hundred eighty (180) days after promulgation 

by the State Board of Insurance of Statewide 

regulations hereunder, adopt rules and regulations covering such units which are more 

restrictive but not less restrictive than 

those adopted by the State Board of Insurance 

hereunder and in addition thereto any city 

may license and charge a reasonable license 

fee for the operation of each such mobile 

service unit operating in such city. The rules 

and regulations promulgated under this Act 

shall have uniform force and effect throughout the State and no municipality or county 

shall hereinafter enact or enforce any ordinance, 

rules or regulations inconsistent with the 

rules and regulations promulgated hereunder 

except as provided herein. Provided, however, 

that any municipal or county ordinances, rules 

or regulations in force and effect on the 

effective date of this Act, including the 

prohibition of mobile service units, shall not 

be invalidated because of any provision of 

this Act." 

Prior to enactment of the above amendment, Article 

llllc-1 related to the "storage, handling, and use of flammable 

liquids at retail service statiops," and the rules and regula' 

tions adopted by the Board presumably cover such storage, 

handling and use with regard to fixed-equipment at retail 

service stationsor bulk plants. The above amendment adds 

the new dimension: of mobile service units to the pre-existing 

coverage of Article llllc-1. 

A statute must be construed as a whole so that al1 

of its parts can be harmonized, if possible, in order to give 

effect ,to the entire Act according to the evident leqislatlVe 

intent. 53 Tex.Jur.Zd 227-228, Statute, Sec. 159. We are 

unable to say that every pre-existing provision of Article 

llllc-1 can be held applicable to the new Section 2(d), but 

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(onorable Ned Price, page 3 (M-947) 

lost can be related generally to mobile service units. The 

lact that some, like Section 4, are, by their own terms, not 

:oncerned with mobile units, would not mean that other provi3ions, not so limited in their terms, would fail of application. 

3pecifically, the Sections not applicable to mobile service 

mits are Sections l(4), l(S), 2 and 4. All the remaining 

iections of Article llllc-1 will apply to the mobile units. 

Your second question asks us to determine whether 

the State Board of Insurance has the authority under the provisions of Senate Bill 612 to create licensing requirements for 

the operation of mobile service units and to set standards for 

the securinq of such licenses. It is fundamental that the 

powers of an administrative agency such as the State Board of 

Insurance are derived entirely from legislative enactment. 

The agency has'only such powers as are expressly conferred upon 

it by statute, together with those necessarily implied from 

powers ana duties expressly given or imposed. 1 Tex.Jur.26, 

Administrative Law, Sec. 6, p. 652. The scope of the powers 

under consideration here granted to the State Board of Insurance 

are to, "formulate, adopt and promulgate rules and regulations 

for the safe movement and operation of mobile service units 

and for the safe .dispensing of flammable liquids by mobile 

service units." The extent of the expressed and implied powers 

Of the State Board of Insurance is defined by this phrase. 

However, without ,attempting to discuss the entire scope of these 

powers, it is relevant to our question here to point out that 

among those powers which the Board does not have is the power 

to "license" mobile service units absent an express statutory 

grant of that vower. We are fully supported in this positions 

by the case of-State of Texas, acting-by Andy through State 

Board of Morticians vs. Cortez, 160 Tex. 532, 

119601 _ 

3 33 s.w.2a 839 

This case involves, among other things, the scope of 

authority of the State Board of Morticians as defined in 

Article 4582b, Vernon's Civil Statutes, being Acts 1953, 53rd 

%I., p. 661, ch.'251. The Board acting pursuant to Sec. 2 

(4)(D), which said that "the Board shall have the power . . . 

to prescribe rules and regulations pertaining to the operation 

of all funeral establishments. . .", sought, pursuant to this 

l*guage , to license a funeral establishment. Other provisions 

Of the Act expressly granted the Board the power to license 

an embalmer and a funeral director and specified the requirements therefor, including grounds for removal. 

Court held, and we quote from page 841: 

The Supreme 

"The Board which is set up by the Act 

is an administrative agency and has no power 

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Honorable Ned Price, page 4 (M-947) 

to require a license or payment of a license 

by a funeral establishment as a prerequisite 

to its operation. 1 Tex.Jur.Zd 652, Sec. 6." 

and further at page 841: 

"The Board does have the right to 

prescribe the rules and regulations governing the operation of a funeral establishment 

but not to require licenses . . . ." 

It is our opinion that the power of the State Board of 

Insurance to promulgate rules and regulations does not encompass the power to license. The Legislature subsequently 

responded to this case in 1963 by completely amending Article 

4582b by Acts 1963, 58th Leg., p. 1283, ch. 494, Art. 1. The 

Act as amended contains express authority for the Board to 

license a funeral establishment pursuant to the statutory 

requirement set out in Sec. 4 thereof. 

However, the State Board of Insurance by the terms of 

Senate Bill 612 does have the power to formulate, adopt and 

promulgate rules and regulations for (1) the safe movement 

and operation of mobile service units, and (2) for the safe 

dispensing of flammable liquids by those units. The rules 

. and regulations promulgated set the minimum standards of 

uniform statewide application for the safe movement and operation of mobile service units and dispensing of the flammable 

liquids. Any city which enacts a licensing ordinance would, 

of necessity, have to set the requirements for such a license 

in liqht of the minimum standards established in the Board's 

rules and regulations. 

SUMMARY 

Sections l(4), l(5), 2 and 4, Vernon's 

Penal code, are by their very terms related 

solely to retail service stations or bulk 

plants, and are not applicable to mobile 

service units as defined in Section 2(a), 

Article llllc-1, Vernon's Penal code. 

While the State Board of Insurance does 

not have the authority under Section 2(d) of 

Article llllc-1, Vernon's Penal code, to 

license mobile service units, however, it 

does have power to formulate, adopt and 

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Honorable Ned Price, page 5 (M-947) 

promulgate rules and regulations for the 

safe movement and operation of mobile service units and for the safe dispensing of 

flammable liquids by these units. 

Any city which enacts a licensing ordinance would, of necessity, have to set the 

requirements for such a license in light of 

the minimum standards established in the 

Board's rules and 

truly yours, 

Prepared by: 

Rex H. White, Jr. 

James H. Quick 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Scott Garrison 

James Mabry 

Bob Lattimore 

Sig Aronson 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WRITE 

First Assistant 

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