JIM MAlTOX 

Attorney General 

S~ppme Own Bullding 

P. 0. Box 12548 

Austin. TX. ?8711- 2540 

5121475-2501 

Telex 9101874.1367 

Telecopier 51214754266 

714 .hckson. Suite 7M) 

Dallas, TX. 75202-r506 

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4824 Alberta Ave.. Suite 160 

El Paso. TX. 799052793 

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lo0I TBXPS. Suite 7W 

Houston, TX. 77002~3111 

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Lubbock, TX. 7B401-3419 

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McAllen. TX. 78501~1685 

51218824547 

200 Mdn Plaza. Suite 409 

San Antonio. TX. 792052797 

51212254191 

A” Equal DOpo~unWl 

Alllrmtive Action Employer 

The Attorney General of Texas 

October 22. 1985 

Mr. Charles D. Trmia 

Executive Director 

Texas Parks and W!.l.dlife 

Department 

4200 Smith School Road 

Austin. Texas 711?44 

Opinion No. JM-366 

Re: Whether the Parks and Wildlife 

Columisslon may delegate certain 

permitting authority to the executive director of the department 

Dear Mr. Travis: 

You ask us tixther the Parks and Wildlife Conmisslon [hereinafter 

the "Comission"] is authorized, through its rulemaking powers, to 

delegate to the Ih:ecutive Director the authority to issue permits in 

compliance with chapter 86 of the Parks and Wildlife Code. See Parks 

& Wild. Code 586.001 et seq. You qlso Inform us that the C~ission 

has already delegated this permitting authority to the Executive 

Director through rules promulgated more than ten years ago. See 31 

T.A.C. 157.45. 

Section 86.002(a) of the Parks and Wildlife Cod2 provides: 

(a) No person may disturb or take marl, sand, 

gravel, shell, or mudshell under the management 

and protection of the eomission or operate in or 

disturt any oyster bed or fishing water for any 

purpoac: other than that necessary or incidental to 

navlgat:ion or dredging under state or federal 

authorj.ty without first having acquired from the 

commisc~Joa a permit authorizing the activity. 

(Empha~~is added). 

Section 86.004 provides: 

The mmmisslon may grant a permit to an applicant &I has complied with all requiramancs of the 

zsoion if the commission finds that the disturbinlc,, taking, and carrying away of marl, sand. 

gravel, shell, or mudshell will not: 

(I) damage or injurlously affect any 

isl.md, reef, bar, channel, river. creek, or 

bays used for navigation, or any oysters, 

p, 1677 
Mr. Charles D. Travis - Page 2 (JM-366) 

oyster beds, or fish in or near the water used 

in the oper#.tion; and 

(2) cbar.g,a or injuriously affect any 

current t'aat would affect navigation. 

(Emphasis atided). 

Moreover, any person desj.ring a permit must make a written application 

to the Conmission. See I'arks & Wild. Code 186.003. If the Commission 

refuses to grant a=Lt to an applicant. the body is required to 

make written findings of facts explaining the reason for the refusal. 

See Parks h Wild. Code IE6.008; see also V.T.C.S. art. 6252-13a, 5515, 

ma) . Therefore, the legislature has explicitly designated to the 

Comrtssion the pemittinl; authority under chapter 86 of the Parks and 

Wildlife Code. 

Through its rulemak~iag authority, the Commission has delegated 

its authority to issue permlts to the executive director. - See 31 

T.A.C. 557.45. The agemy roles provide in part: 

(a) The f&.owiag procedures will be followed 

for the issuance of general permits: 

(1) All requests for shell dredging permits 

will be made, in writing to the director. . . . . 

(6) The +irector may consider the following 

criteria in determining vhether to grant or 

deny a permit. . . . (Emphasis added). 

See 31 T.A.C. s57.45. The rules also provide for the director or any 

Gloyee authorized by 1:be director to hold a hearing to determine 

vbether a permit will bl! granted. See 31 T.A.C. 1557.45(a)(4)-(8). 

These rules make no provisions for the Conmission to make a final 

datermination of wbetber a permit will be granted. Accordingly, they 

are in conflict with sec,tion 15 of article 6252-13a. V.T.C.S. See 

Citizens Bank of Bryan 7'. First State Bank, Eearne. 580 S.W.2d 344. 

347 (Tex. 1979); see t?iso V.T.C.S. art. 6252-13a. 422 (lam in --- 

conflict vith the Adminl~~trative Procedure and Texas Register Act are 

repealed). We also conclude that the rules In question are in direct 

conflict with the legis:.ative mandate that the Commission grant or 

deny permit applications. 

Despite the fact that these rules bave been In effect and have 

been followed by the agency for ten years, they are contrary to the 

plain meaning of the applicable statutes; and therefore, afford no 

basis for the continuation of this agency practice. See Brown -- 

Express, Inc. v, Railroad~Comission, 415 S.U.2d 394 (Tex. 1967). 

p. 1678 
Mr. Charles D. Travis - Page 3 (JM-366) 

We do not imply that the Commiaaion is totally precluded from 

promulgating rules delegatir,g, its authority to hold hearings on permit 

applications. The legislatwe has not prohibited the Coamissio~ from 

delegating this function. See Attorney General Opinion JM-244 (1984). meBut the Administrative Procedure and Texas Register Act requires that 

the granting of an agency 'permit must comply with the provision6 of 

the act concerning contested cases. See V.T.C.S. art. 6252-13a. 

113(3), 18(a). Although section 15 ofrhe act clearly allovs the 

appointment of a hearing examiner in such cases, see Grace v. 

Structural Pest Control Boa::d of Texas, 620 S.W.2d 157 (K Civ. App. 

- Waco 1981, vrit ref'd n.r~~ommission mst sake the ultimate 

decision and include findluns of fact and conclusions of law in 

compliance with sections 15 and 16. See Citizens Bank of Bryan v. 

First State Bank, Hearne, supra. at 347; Texas Health Facilities 

colmission v. Charter Medical-Dallas, Inc.. 665 S.W.2d 446 (Tex. 

1984); Consusars Water, In-. v. Public Utility Commission of Texas, 

651 S.W.2d 335 (Tex. App. -Austin 1983. no writ). 

SUMMARP 

Section 57.45 of chapter 31 of the Texas 

Administrative Code is invalid because it is 

inconsistent with chapter 86 of the Parks and 

Wildlife Code an'3 article 6252-13a. the Administrative Procedure and Texas Register Act. The 

Parks and Wildl:.fe Commission is not precluded 

from delegating :;ts authority to hold hearings on 

permit applications so long as the practice is in 

compliance with article 6252-13a. 

- 

JIM HATTOX 

Attorney General of Texas 

TOM GREN 

First Assistant Attorney G'sueral 

DAVID R. RICRARDS 

Executive Assistant AttoNqg General 

ROBERT GRAY 

Special Assistant Attorney #General 

RICR GILPIN 

Chairman, Opinion Committee 

p. 1679 
Mr. Cherlee D. Travie - Pwgc 4 (JM-366) 

Prepared by Tony Cuillory 

Assistaut Attonley General 

APPRovm: 

OPINION CCRQlITTRg 

Rick Gilpin. Chelrmm 

Colin Carl 

Sussn Garrison 

Tony Guillory 

Jim Mocllinger 

Jennifer Riggs 

Nancy Sutton 

Sarah Woelk 

p. 1680