HonorableNed 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 specificallywith 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 thisAct, 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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liquidsby mobile service units. As used in this Act, **and** in the rules promulgatedhereunder, 'mobileservice units' are vehicles, tank trucks, **or** other mobile devices from which flammable liquidsused asmotor 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 regulationshereunder, adopt rules and regulations covering such unitswhich are more restrictive but not less restrictive than those adoptedby 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 suchmobile serviceunit operating in such city. The rules and regulations promulgatedunder this Act shallhave uniform force and effect throughout the State and no municipality or county shallhereinafter enact or enforce any ordinance, rules or regulations inconsistentwith the rules and regulationspromulgatedhereunder except as provided herein. Provided,however, that any municipal or county ordinances, rules
or regulations in force and effect on the effective date of thisAct, including the prohibition of mobile serviceunits, shall not be invalidatedbecause 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 adoptedby the Board presumably **cover** such storage, handling and use with regard to fixed-equipmentat retail service stationsor bulk plants. The above amendment adds the new dimension:of mobile serviceunits to the pre-existing coverage of Article llllc-1.

A statutemust be construed as a whole so that al1 **of** itsparts can be harmonized, if possible, in order to give effect ,tothe 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-existingprovision of Article llllc-1 can be held applicable to the new Section 2(d),but
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lostcan be related generally to mobile serviceunits. The lactthat some, like Section 4, are, by their own terms, not :oncernedwith mobile units,would not mean that other provi3ions,not so limited in their terms, would fail of application. 3pecifically,the Sectionsnot applicable tomobile service mits are Sections l(4), l(S), 2 and 4. All the remaining iectionsof Article llllc-1will apply to themobile units.

Your second question **asks** us to determinewhether the State Board of Insurancehas the authorityunder the provisions of Senate Bill 612 to create licensingrequirements for the operation of mobile service units and to set standards for the securinq of such licenses. It is fundamentalthat the powers of an administrativeagency such as the State Board of Insurance are derived entirely from legislativeenactment. The agency has'only suchpowers as are expressly conferred upon it by statute, togetherwith those necessarily implied from powers ana duties expressly given or imposed. 1 Tex.Jur.26, AdministrativeLaw, Sec. 6, p. 652. The scope of the powers under considerationhere granted to the State Board of Insurance are to, "formulate, adopt and promulgate rules and regulations for the safemovement and operation of mobile service units and for the safe .dispensingof flammable liquids by mobile serviceunits." The extent of the expressed and implied powers Of the State Board of Insurance is defined by this phrase. However,without ,attemptingto 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 serviceunits absent an express statutory **grant** of that vower. We are fully supported in this positions by the case of-State of Texas, acting-by Andythrough State Board of Morticians vs. Cortez, 160 Tex. 532, 119601

_ 333 s.w.2a 839

This case involves, among other things, the scope of authorityof 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 "theBoard shallhave the power
. . . toprescribe 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 theAct expressly granted the Board the power to license
an embalmer and a funeraldirector and specified the requirements therefor, includinggrounds for **removal.** Courtheld, andwe quote frompage 841: The Supreme

"TheBoard which is set up by the Act is an administrative agency andhas no power -4636-Honorable Ned Price, page 4 (M-947)

to require a licenseor payment of a license by a funeralestablishmentas a prerequisite to its operation. 1 Tex.Jur.Zd 652, Sec. 6."

and further at page 841:

"TheBoard 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 thepower 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 1963by completely amendingArticle 4582b by Acts 1963, 58thLeg., p. 1283, ch. 494,Art. 1. The Act as amended contains express authority for the Board to license a funeral establishmentpursuant to the statutory requirement set out in Sec. 4 thereof.

However, the StateBoard of Insuranceby the terms of Senate Bill 612 does have the power to formulate, adopt and promulgate rules and regulations for (1) the safemovement and operation of mobile serviceunits, and (2) for the safe dispensing of flammable liquidsby those units. The rules

. and regulations promulgated set theminimum standards of uniform statewide application for the safe movement and operation of mobile serviceunits and dispensing of the flammable liquids. Any citywhich enacts a licensing ordinancewould, 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, areby theirvery terms related solely to retail service stations or bulk plants, and arenot applicable tomobile 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 authorityunder Section 2(d) of Article llllc-1,Vernon's Penal code, to licensemobile serviceunits, however, it does have power to formulate, adopt and

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promulgate rules and regulations for the safe movement and operation of mobile service units and for the safe dispensing of flammable liquidsby these units.
Any citywhich enacts a licensing ordinance would, of necessity,have to set the requirements for such a license in light of theminimum standardsestablished in the Board's rules and trulyyours,

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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