JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12549 

Justin, TX. 78711.2549 

512/475-2501 

Telex 9101974.1367 

Telecobler 51214754% 

714 Jackson. SUM 700 

Dallas, TX. 75202.4508 

214l7428Q44 

4924 Alberta Ave., Suite 160 

El Paso, TX. 799052793 

915/533.34&l 

1001 Texas, Suite 700 

Houston, TX. 77002-3111 

713l223.5886 

90s Broadway, Suite 312 

Lubbock, TX. 79401.3479 

9091747~5239 

4309 N. Tenth, Suite S 

McAllen, TX. 78501-1885 

5121682.4547 

200 h4ah Plaza, suite 400 

San Antonio, TX. 78205-2797 

512/2254191 

An Equal OpportUnitYI 

Affirmative Action Employer 

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 

1100 West 49th Stmet 

Austin, Texas 7 3'156 

Re: Rulemaking authority of the 

Texas Board of Health with regard 

to massage therapists under House 

Bill No. 2012, Acts 1985, Sixtyninth Legislature 

Dear Dr. Berusteil: 

You ask for clarification of the rulemaking authority of the 

Texas Board of Htralth with 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 the Advisory Council on Massage Therapy. 

House Bill NO. 2012, which relates to the regulation of massage 

therapy, contains the following pertinent provisions: 

SECTXIN 3. APPLICATION FOR 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 the mauuer provided 

by the lhdministrative Procedure and Texas Register 

Act (Article 6252-13a. Vernon's Texas Civil 

ScatuterI) .

(b) ZXe departmut shall administer this Act. 

. . . 

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

SECTION 8. ADVISORY COUNCIL. (a) The Advisory 

Council 011 Masasge Therapy is created as an 

advisory councilJo the department. 

. . . . 

SECTION 9. POWERS AND DUTIES OF THE ADVISORY 

COUNCIL. (a) T&e advisory council by rule shall 

prescribe application forms and registration fees. 

The advisory cou&l shall set the fees in mounts 

reasonable and xs:cessary to administer this Act. 

(Emphasis added). 

The issw before us is the effect of the language in section 9 on the 

general rulemaking power of the Texas Board of Health as provided by 

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 International Bank_, 666 S.W.2d 524, 529 (Tex. App. - Houston 

tlst Dim..] 1983, writ rt,f'd n.r.e.), cert. denied, 105 S.Ct. 1185 

(1985). The Texas courts repeatedly have held that the intention of 

the legislature controls the language used in an act and that in 

construing an 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 malca them 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 is well settled that statutes that deal 

with the same general subject constituting parts 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-eighth Legislature, codified as article 

4419b. V.T.C.S., was enac,ted in 1983 to clarify the structure and 

duties of the Texas Board cf Health, the Department of Health, and the 

Commissioner of Health. As:ts 1985, 69th Leg., ch. 109, at 521. See - 

p. 1892 
Dr. Robert Bernstein - Page 3 (JM-414) 

Bill Analyses to S.B. No. '38, 69th Leg., 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) (relating to general rulemaking 

power of Department of Health Resources in 1977). Chapter 109 

provided, in pertiuent par:, that 

(a) The boarli shall: 

. . . . 

(b) The boar'i is 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 

in writing any power or duty imposed on it by law, 

except the power' or duty to adopt rules, to the 

commissioner of Ilealth or, in his absence, to the 

person acting as commissioner of health, including 

the authority to make final orders or decisions. 

. . . . 

(d) The board may appoint advisory committees 

to assist the board in performing its 

duties. . . . (Lmphasis added). 

V.T.C.S. art. 4414b, 81.05. Section 1.06 of that act further provided 

that the commissiouer of health shall administer and enforce the 

health laws of this state lmnder the board's supervision and perform 

the duties assigned to him by the board and state law, subject to the 

provisions of 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 established by 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. 1893 
Dr. 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 regulating massage ,therapy. See V.T.C.S. art. 4414b. Sg1.05, 

1.08 (as enacted by 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 

should be considered together. 

Article 4512k, as enacted by House Bill No. 2012, expressly 

grants rulemaking authorit ;' to the Texas 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 rules basc!CI on the advice of the Advisory Council for 

the regulation of massage therapy under article 4512k, including rules 

that prescribe application forms and registration fees. 

SUMMARY 

The Texas Bcsrd of Health adopts rules on 

matters pertaining to the regulation of massage 

therapy with the advice of the Advisory Council on 

Message Therapy. 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Gmeral 

MARY KELLER 

Executive Assistant Attommy General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman. Opinion Committea! 

Prepared by Nancy Sutton 

Assistant Attorney General 

p. 1894