OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

floaorable George F’. Cor 

State Xeelth Offloor 

mlrtln, T8X88 

D8ar Sir: 

of ma108 aad. 

cmulgatod by the 

Hsalth under thm 

eotioo 5 of the 

$ubdlvislon (9) of +otlon 6 of tha hot then ProVl688: 

-any permit lmmml ln~ aoaordanoe wlth tho provlelans mrry bs revoked by the State Health Offloer 

upon proof or vlolatlon 0r any of the proviaionr 0r 
Ronorable Oeor&s --. COX, pago 2 

this hot. . . ." 

Your latter of October 24, 1940, requests 6 leg*1 

opinion frooP tbla DoperWent a6 to whether the state Xealth 

Officer would be authorized to revoke the permit of an operator 

who has vloiated the rul46 and regulations promulgated by the 

State Board of Health under the rula-mekl~ power of the Boer4 

net out above in Section 5. You alao ask what procedure ehould 

ba followed by the state Health Cffloer in doing so. 

The purpose of empowsrlng the State Board of Haalth 

to promulgate rule6 and regul6tlona was ‘to enable the more effective enforcamant of the Rot which ~64 enactad under the 

State*8 police power for the protaotlon of health and for the 

~avaation of tha spread of dlaeaaa. 

A vital requfrensnt of the $ot 1s that any psraon eng6sged in tha business of manutaaturlng, repairing or ranovatlng bedding ahall obtain a permit from the Depsrtmsnt of Realth 

and shell register eny &srmloldal prooeaa used in such bualneaa 

and aeoure the approv61 of the Depertment of auoh prooaaa. 

The permit provlelons of the Aot era emong those 

touching which the State Board of Bealth waa ampowerad to promuleate rules and regulatlona. That oompllenoe thar6wlth la 

required of the permittoe la lndloated by tha languaga of subaeoticn (b) of Seotlon 6 whloh l uthorlzea a ranawel permit 

-upon aubmiaalon or moor 0r oontlnued oomvllanoa with the provlilona of this AOt in4 tha regulation6 of-the Degertmant.*- 

(Bnpharle oura) -~ 

Tha validity of leglolatlon whloh Oont6re rul6-meking 

powera upon admlnl6tr6tlv6 aganaiaa ha* bean conaiatently upheld 

by our oourta. 

In San Antonlo v. Joaea, 28 Tar. 33 (quoted wfth approval in O’Brien v. ~Unemmn, 112 Tex. 264, 247 8. X’. 270). it 

wan daolarsd by the 9uprme Court of Teraat 

“The La~lalature say grant authority aa well aa 

give oomands, and a&a done under it6 authority are 

aa valid as if dons in obedlenoe to its commanan. 

Nor 1s a statute, whore complete l xeoution an4 applloetlon to the aubjectslattsar la, by its provlalona, 

meda to depend on the aaaant of 6ome other boQy, a 

Aalegatlon of laglolatlve power. The dlaoretlon &or6 
Honorable Oaorge 1%. cox, fgge 3 

to the eraroloe of the power conferred by the law, 

but not to maks ths lew itsslf. The law, in such 

c4668, may depend ror its praotloal efflolenoy on 

the sat of some other body or lndlvlAua1; still 

it in not &erlved from auoh sot, but from the laglalatlve authority.* 

It wae llkewlaa etated by the San Antonio Court of 

Civil AppeSlS in Tuttle v. Wood, 35 5. X. (2d) 1001, (writ 

or error refussd)r 

*It is true. of Course thst the Legislature 

cannot dalegate to an aAmln~atratlvs board the power 

to make a law praaorlblllg a penalty, but It la 

equally true that it 1s oompdxmt for the Leglalatura 

to author126 a ooauaiaaim or board oraatad for that; 

purpose to preaorlba dutlea or aaaertain oondltiona 

upon whioh an axlstlng law say operata ln imposing a 

penalty and in affeQtuatlng ths ;lurpoae daalgned in 

enaotlng the law. It la 1~ pursuance of this authority thet railroad oomlaalonm, publla utility 

a~leaeione, liveGtock sanitary oomutiasioaa, health 

boards and like ag;enoiee exerolae their iunotlona 

and admlnleter and enforce laws ralatlng to their 

aev*ral aepertmentm. In their varg natQr6 such lara 

muat be flaxlble in order to glte thraP pr~otloable 

&ppllaetfon to tha Elvarae oondltlona whloh adat 

wlthln the savers1 states." 

In Re Rahrar, 140 0. S. 554, it war said by Xr. Chief 

Justiae Puller: 

'The power of the mtata to impose raatrafaj;m 

anA burden:: upn parsons and property in 0onaervetlon and promotion of ths public health, good order 

and prosperity la a pomr cri&~~lly end almya bolonging to the states, not a~rranderad by them to 

the general government, nor direotly reetralnad by 

the Constitution of the United States, ain4 eeaentlally 

*xclu*lv4." 

Sam also the oaaaa of Rash &ardware Company v. tcorria, 

105 Tar. 817, 146 Y. :f. 874~ Henry v. Wate, 260 8. 3. 19Or 

Ex Part6 xhlte, 1QR ti. 3. 5331 FJebbla v. Hew York, 291 U, S. 

502. 
335 

Honorable George w. Cox, Faga 4 

It is the opinion of this Department that a vlolation of the rules and regulations promulgated by tha State 

Board of Health in accordance with Seotion 5 of the Aot, by 

a person engaged in the bualnesa of manufacturing, repairing 

or renovating bedding would constitute a Violation of any 

of the provlslone of this AOt" within the purview of Subdivislon (e) of Ssctlon 6 of the Aot, and upon proof of such, the 

gtate Health Officer would be authorized to revoke a permit 

theretofore laeued to such operator. 

The Aot does not provide any particular procedure 

for the State Health Offloer to follow in the revooatlon of 

a permit. The State Board of Health is, however, authorized 

by Qeotion 5 of th& hot to "make . . . general rules and 

regulations of prooedure ror carrying into efreot all the 

provlalone of this Act". It la our opinion that the Board 

should promulgate reaaoueble rules whereunder the permittea 

would be given notlos and a hearing before the State Health 

Offloar prior to the revocation of a permit. This would involve the giving of notice to the permittee of the exlatenoe 

of evldanoe before the State Health Officer of violations by 

the permittee of the rules and regulations promulgated'by the 

Board, togather with the right of the permittee to a hearing 

berora the Offloer at the time designated. If at such hearing it is establlahed that the permittea has violated the 

rules and regulation6 of the Board, the State Health Orflcer 

would be authorized to revoke the permit. 

Yours very truly 

ATTORNEYGENERAL OF TEXAS