JIM MATTOX Attorney General

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# The Attorney General of Texas

Iecember 31, 1985

Robert Bernstein,M.D., F.A.C.P. Opinion No. JM-414 Commissioner Texas Department o,E Health 1100West 49th Stmet Austin, Texas 73'156 Re: Rulemakingauthorityof the Texas Board of Healthwith regard tomassage therapistsunder House Bill No. 2012, Acts 1985, SixtyninthLegislature
Dear Dr. Berusteil:
You ask for clarification of the rulemaking authority of the Texas Board of Htralthwith regard to massage therapists under House Bill No. 2012,Acts 1985, 69th Leg., ch. 752, at 5388, to be codified ae article 45121:,V.T.C.S. Applying well established rules for statutory coustruction,we conclude that a court would find that the legislature intends the Texas Board of Health to adopt rules on matters pertaining to the regulation of massage therapy with the advice of theAdvisoryCouncil onMassage Therapy.
House Bill NO. 2012,which relates to the regulation of massage therapy,containsthe followingpertinentprovisions:

SECTXIN 3. APPLICATIONFOR REGISTRATION. Each licani for registration under this Act shall %&-&lication forms provided by the department; azcompanied by the application fee set by the dep&nent.

. . I . SECTXIN 7. POWERS AND DUTIES OF THE BOARD AND THE DFZZRTMENT. (a) The board shall adopt rules consistmt with this Act as necessary for the perform&e of its duties under this Act. The board slhl adopt the rules in themauuer provided by the lhdministrative Procedureand TexasRegister Act (Article 6252-13a. Vernon's Texas Civil ScatuterI)

. (b) ZXe departmut shall administer thisAct.

. . .

p. 1891Dr. Robert Bernstein - Page 2 (JM-414)

SECTION 8. ADVISORY COUNCIL. (a)The Advisory Council 011Masasge Therapy is created as an advisory councilJo thedepartment.

. . . . SECTION 9. POWERS AND DUTIES OF THE ADVISORY COUNCIL. (a) T&e advisory council by rule shall prescribe applicationforms and registrationfees. The advisory cou&l shall set the fees in mounts reasonable and xs:cessaryto administer this Act. (Emphasisadded). The issw before us is the effect of the language in section 9 on the general rulemakingpower of the Texas Board of Health as providedby section 7. The dominant consideration in construing statutes is legislative intent. That intention is derived from a general review of an entire enactment and, when ascert,ained, shall be given effect to attain the object and purpose of the legislation. See City of Houston v. Morgan Guaranty InternationalBank_,666 S.W.2d524, 529 (Tex.App. - Houston tlst Dim..] 1983, writ rt,f'dn.r.e.), **cert.** denied, 105 S.Ct. 1185 (1985). The Texas courts repeatedlyhave held that the intention of the legislature controls the language used in an act and that in construingan act, a court is not necessarily confined to the literal meaning of the words used in the act. The intent rather than the strict letter of the act xl11 control. See Texas Turnpike Authority v. Sheooerd, 279 S.W.2d 3X!, 306 (Tex. 1955); City of Mason v. **West** Texas Ut

xties Co., 237 S.W.2d 273, 278 (Tex. 1951); Nichols v. Aldlne Indeuendent District, 356 S.W.2d 182, 184 (Tex. Civ. APP. - Houston 1962, no w&z); Holcombe v. Levy, 301 S.W.Zd 507, 518 (Tex. Civ. App. - Galvestmo 1957, writ raf'd n.r.e.). In cases of ambiguity, statutas must be given a practical and reasonable construction that will malcathem valid, if possible, and that will accowmlish as nearly as roeaible the intention of the lenislature. See B&a & Root v.-Durl~xl, 84 S.W.2d 1073, 1075 (Tex. 1935). See also Huntsville Independm~~ School District v. McAdams, 221 S.Wx z67 548 (Tex. 1949). It &o iswell settledthat statutes thatdeal with the same general subject constitutingparts of the same general plan are considered as being in pari materia and are considered together, even thouah ther,are passed at different times and do not refer to one another. Se;:Cal&t v. Fort Worth National Bank, 356 S.W.2d 918, 921 (Tex. lmj; Robp **V.** Hawthorne, 84 S.w.2d 1108, 1109 (Tex.Civ.App. - Dallas 1535.writ dima'd). Chapter 109 of the Sicey-eighthLegislature, codified as article 4419b. V.T.C.S., was enac,tedin 1983 to clarify the structure and duties of the Texas Board cf Health, theDepartment of Health, and the Commissioner of Health. As:ts1985, 69th Leg., ch. 109, at 521. See -

p. 1892Dr. RobertBernstein - Page 3 (JM-414)

BillAnalyses to S.B.No. '38, 69thLeg., prepared for Senate Committee ou Bealth and Eumaa Resources and House Comittee ou Public Health, Bill File to S.B. No. 98, Legislative Reference Library. See also Attorney General Opinion B-949 (1977) (relatingto general rulemaking power of Department of Health Resources in 1977). Chapter 109 provided, inpertiuentpar:, that

(a) The boarlishall:

. . . . (b) The boar'iis responsible for the adoption of policies and rules and for the government of the department. The board shall supervise the commissioner's administration and enforcement of health laws of the state. The board may delegate inwriting anypower or duty imposed on itby law, except the power'or duty to adopt rules, to the commissionerof Ilealthor, in his absence, to the person acting as commissionerofhealth, including the authority tomake final orders or decisions.



### . . . . (d) The board may appoint advisory committees to assist the board in performing 

### its duties.
. . . (Lmphasisadded). V.T.C.S.art. 4414b, 81.05. Section 1.06 of that act furtherprovided that the commissiouer of health shall administer and enforce the health laws of this state lmnderthe board's supervision and perform the duties assigned tohim by theboard and state law, subject to the provisionsof that act. We believe that the legislature granted to the Texas Board of Health general authority to adopt rules and policies for the department and authorized the appointment of advisory committees to assist the board with its duties. The rules establishedby that act, whereby the board adopts **rules** and sets policy based on advfce of advisory committees and the commissioner and staff of the department administer the adopted rules and policies, were reaffirmed and

p. 1893Dr. Robert Bernstein - Page!4 (JM-414)

reenacted during the Texas Sunset Act review of the Texas Department of Bealth by the same session of the legislature that enacted the statute regulatingmassage ,therapy.See V.T.C.S. art. 4414b. Sg1.05, 1.08 (asenactedby Acts l!lE;5, 69th LeK ch. 931, at 6746, 6749). We believe articles 4414b and 4512k, V.T.C.S., are in pari materia and shouldbe consideredtogether. Article 4512k, as enacted by House Bill No. 2012, expressly grantsrulemakingauthorit ;'to theTexas Board of Health and expressly creates the Advisory Coum:il on Massage Therapy "as an advisory council to the department." We believe that the intent of the Sixty-ninth Legislature mm to adopt the same rules and basic structure for the Texas Department of Health in chapter.752 that It adopted for the department in chapter 931. As such, the Texas Board of Health adopts rulesbasc!CI on the advice of theAdvisory Council for the regulationof massage therapyunder article 4512k, includingrules thatprescribe applicationforms and registrationfees.
SUMMARY The Texas Bcsrd of Health adopts rules on matters pertaining to the regulation of massage therapywith the advice of theAdvisory Council on Message Therapy.

JIM MATTOX Attorney General of Texas JACKHIGHTOWER First AssistantAttorney Gmeral
MARY KELLER ExecutiveAssistantAttommy General
ROBERT GRAY SpecialAssistantAttorney General RICK GILPIN Chairman.Opinion Committea! Preparedby Nancy Sutton AssistantAttorney General

p. 1894