# The Attorney General ofTexas

March 23, 1982

MARK WHITE Attorney General

Supreme Court Building P. 0. Box 12548 Austin, TX. 76711. 2546 512/475.2501 Telex 9101674-1367 Telecopier 5121475.0266

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An Equal Opportunityl Affirmative Action Employer HonorableRay Farabee, Chairman StateAffairs Committee Texas State Senate Room 411,Archives Building Austin, Texas 78711 OpinionNo.Mw-460

lb?: Validity of legislation authorizing a legislative committeeto veto or repeal administrativerules

Dear SenatorFarabee:

Your letter to this office reads inpart:

The Sixtv-seventh Legislature nassed. and the governor signed, As Chairman, Senate State Affairs Committee, I hereby respectfully request your opinion... concerning the application and interpretation of article II, section 1, and article III, sections 28 through 40, of the Texas Constitution with respect to the authority of the legislature to delegate to legislative committees the power to nullify lY”lW proposed by agencies in the executivebranch of government.

several acts containing the following language (orwords of import): the same

If the appropriate standing committees of both houses of the legislature acting under Section 5(g), Administrative Procedure and Texas Register Act, as amended (Article 6252-13a. Vernon's Texas Civil Statutes), transmit to the board statementsopposingadoption of a ruleunder that subsection, the rule may not take effect or, if the rule has already taken effect, the rule is repealed effective on the date the board receives the committee'sstatements.

It is thevalidity of this language,now included in the enablingacts of several state agencies, that you question. See V.T.C.S. art. 46c-4(c) (AeronauticsCommission); art. 3271a, §8(d)(State Board of Registration for Professional Engineers); art. 4413 (29cc). §6(f) (Polygraph Examiners Board); art. 4512b, §4(c) (Texas Board ofHonorableRay Farabee - Page 2 (MW-460)

Chiropractic Examiners); art. 4512e. 83e (Texas Board of Physical Therapy Examiners); art; 4528~. 95(r) (Board of Vocational Nurse Examiners); art. 4552-2.14,(b) (Texas Optometry Board); art. 4551d, 3(b) (Texas State Board of Dental Examiners); art. 4568(j) (State Board of Podiatry Examiners); art. 5931-5,(10) (NationalGuard Armory Board); art. 6243-101, 84(c) (Texas State Board of Plumbing Examiners);art. 7465a, §8(c) (TexasStateBoard ofVeterinaryMedical Examiners).

The language under examinationpurports to lodge in legislative committees establishedpursuant to section 5(g) of the Administrative Procedure and Texas Register Act (APTRA),article 6252-13a,V.T.C.S., thepower toveto or repeal any rulepromulgatedby the administrative agency affected. ThatAPTRA subsection,added in 1977,provides:

Each house of the legislature shall adopt rules establishing a process under which the presiding officer of each house shall refer each proposed agency rule to the appropriate standing committee for review prior to adoption of the rule. When an agency files notice of a proposed rule with the secretary of state pursuant to Subsection (a) of this section, it shall also deliver a copy of the notice to the lieutenant governor and the speaker. On the vote of a majority of its members, a standing committeemay transmit to the agency a statement supporting or opposing adoptionof a proposed rule.

See V.T.C.S. art. 6252-13a, 85(g). We note that an agency proposing rules is also required to give notice to thepublic and invite comment from "any interestedperson." V.T.C.S. art. 6252-13a, 95(a)(6).

There is no constitutional provision, state or federal, which precludes commentary or expressions of approval or disapproval by a legislative committee addressed to an administrative body contemplating the adoption of a rule or regulation, and the validity of section 5(g) of article 6252-13a, the AdministrativeProcedure and Texas RegisterAct, has not been questioned. See Terre11v. King, 14 S.W.2d 786 (Tex. 1929). Your question reachesbnly the power of such committeesto nullify agency ruleproposals or adoptedagency rules.

We consider first the repeal of agency rules that have been already adopted and put into effect. In legal theory, the legislative power vested in the legislature by article III, section 1 of the constitutionmust be exercisedby it alone. However,many powershave been properly delegatedby the legislatureto administrativeagencies. See generally 12 Tex. Jur. 3d ConstitutionalLaw $73 et seq., at 599. Among them has been the power to make rules having the force and

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effect of law. See generally 2 Tex. Jur. 3dAdministrativeLaw 916s =, at 208.
Valid rulespromulgatedby an administrativeagency actingwithin its statutory authority have the force and effect of legislation. Lewis v. Jacksonville Building and Loan Association, 540 S.W.2d 307 (Tex

. 1976). And a rule promulgated by an administrative agency actine within its delegated suthoritv should be consideredunder the
same principles as if it were the act of the legislature. Texas Liquor Control Board '1.Attic Club, Inc., 457 S.W.2d 41 (Tex. 1970). Nevertheless,when such rulemakingpower isvested in an agency of the state, it is regarded as an incident of the executive power to administer laws enacted by the legislature, and not as a power to enact laws. It is held that an act of the legislature that is complete and comprehensive in itself and which confersupon an agency authority only to establish rules, regulations and minimum standards to reasonably carry out the expressed purposes of the legislature's act does not make a constitutionally forbidden delegation of legislativepower. Oxford v. Hill, 558 S.W.2d 557 (Tex.Civ. App. - Austin 1977, writ ref'd). It confers only the power to efficiently administer the complete law already established by the legislature. See Ex parte Granviel, 561 S.W.2d 503 (Tex. Grim. App. 1978). Cf. Lone Star Gas Companyv. State, 153 S.W.2d 681 (Tex. 1941) (deleg=d power to fix rates is‘legislativepower).
Thus, a conclusion that the languageunder scrutiny is unconstitutionalmight be rested on the ground that it attempts to conferupon members of the legislativebranch of governmentan executivepower to efficiently administer laws enacted by the legislature. Section one of article II of the Texas Constitutionprovides for the separationof governmentalpowers. It reads:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shallbe confined to a separatebody of magistracy, to wit: Those which
are Legislative to one; thosewhich are Executive to another, and those which are Judicial to another; and no person, or collection of parsons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

It was held in Ex parte Youngblood, 251 S.W. 509 (Tex. Grim. App. 1923), that when a power conferred by the constitution upon the legislature or either branch thereof is in turn conferred by the constitutionallydesignated legislativebody upon a committeecomposed of members of the house and senate, the committee is a "collection of

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persons" within the inhibition of the foregoing constitutional provision -- and one to which non-legislative powers cannot be delegated. See also Walker V. Baker, 196 S.W.Zd 324 (Tex. 1946); Attorney General Opinions V-1254 (1951); O-4609 (1942). See also Anderson v. Lamm, 579 P.2d 620 (Cola. 1978); In re Opinion of the Justices to the Governor, 341 N.E.2d 254 (Mass. 1976); Bramlette V. stringer, 195 S.E. 257 (So. Car. 1938); People V. Tremaine. 168 N.E. 817 (N.-i.

1929).

But the provisions authorizing legislative committees to repeal adopted agency rules are unconstitutionaleven if the power conferred could be said to be purely legislative in character. It was held in Parks V. West, 111 S.W. 726 (Tex. 1908), and reiterated in Walker V. Baker,w, thatwhere the constitutiongives a power and prescribes themeans by which or themanner inwhich it is to be exercised, such
means or manner is exclusiveof all others. Article III, section 1 of the constitutionvests the legislativepower of the state "in a Senate and House of Representatives, which together shall be styled 'The Legislature of the State of Texas."' Sections 29 through 40 of that article detail at great length the manner in which the legislature must exercise its right to legislate. The means by which the legislature is to accomplish the enactment of laws being expressly provided by the constitution, any authority for the legislature to exercise that right in a different mode is excluded. See Walker V. Baker, supra; American Indemnity Company V. City of Aus%, 246 S.W. 1019 (Tax. 1922).

The legislature is compelled to follow those procedures in the enactment of all laws, including repeals, unless the constitution itself provides exceptions thereto. It takes a law to repeal a law, and the act which destroys shouldbe of equal dignitywith that which establishes. City of Hutchins V. Prasifka, 450 S.W.2d 829 (Tex. 1970);City of SanAntonio V. Micklejohn, 33 S.W. 735 (Tex. 1895);JD. Abrams, Inc.v. Sebastian,570 S.W.2d 81 (Tex.Civ.App. - El Paso, 1978,writ ref'dn.r.e.). Inasmuchas the legislatureis empowered to establish a law only by following the aforesaid constitutional procedures,and cannot do so by delegating that task to a legislative committee, it cannot effect the repeal of a subsisting law -- as augmentedby a properly adopted administrativerule -- except in the
samemanner. See StateV. A.L.I.V.E.Voluntary, 606 P.2d 769 (Alaska

- 1980). Turning to the authorizationfor such committeestovetoproposed rules,we reach the same result for essentiallythe same reasons. The power to control or correct decisions committed to administratorsby law is an executive function. Walker V. Baker, supra. The legislature, of course, may in the first instance severely restrict the discretion of executive officers or administrators to make rules by so thoroughlydetailing legislationbefore it leaves itshands that ,

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littleor no room is left for administrativeinterpretation. See Fire -- Department of City of FortWorthv. City of FortWorth, 217 S.W.2d 664 (Tex. 1949);LetterAdvisoryNo. 2 (1973). And by theproper exercise of its law-makingpowers the legislaturemay supercede or repeal any agency rule or decision thathas acquired the forceand effect of law. But when a statute commits to an administrative agency's hands the power to promulgate rules in order to better administer the legislativepolicy embodied therein, neither the legislaturenor one of its committees may exercise a continuing ad hoc veto over the executivediscretion thus reposed. Tex. Const. art. II. §l.

In Railroad Commission v. Shell Oil Company, 161 S.W.2d 1022 (Tex. 1942),at 1029, the Texas SupremeCourt observed thatwhere the legislature has seen fit to vest in an administrative agency the authority to exercise sound judgment and discretion in a particular matter, the courts couldnot usurp the powers committed to the agency or undertake to exercise the agency's judgment and discretion for it. See also Denison v. State, 61 S.W.2d 1017 (Tex. Civ. App. - Austin), writ ref'd per curiam, 61 S.W.2d 1022 (Tex. 1933). No less than the courts, the legislature is bound by the constitution. If a discretionary rule-making function delegated to an administrative agency is an executive function -- as we think it is -- it is equally impermissiblefor the legislature (or one of its committees) to usurp the function. Tex. Const. art. II. §l; Walker v. Baker, supra; Ex ,ns V-1254 (1951E parte Youngblood, supra; Attorney General Opinit O-4609 (1942). e Statev. LegislativeFinanceCommittee,et al, 54j P.2d 1317 (Mont. 1975). See also Anderson v. Lamm, supra; In re Opinion of theJustices to the Governor,B.

The foregoing conclusion is not inconsistent with the case of Jessen Associates, Inc. V. Bullock, 531 S.W.2d 593 (Tex. 1975), in which the Texas Supreme Court concluded that a rider to the General AppropriationsAct supplied "legislativeapproval" to certainprojects without the consent of the College CoordinatingBoard. In the Jessen Associates case the supreme courtheld that the legislaturehad fully complied with the procedural requirements of the constitution and properly exercised its law-makingpowerswhile doing so. Therewas no attempt there to usurp an executive function. A proper and complete legislative act legitimately restricted the discretion allowed administrativeofficers. Moreover, the court in Jesse*Associatesdid not have before it the questionof separationof powers.

We conclude that it is constitutionally impermissible for the legislatureto delegate to legislativecommitteesthepower tonullify rules proposed or adopted by agencies in the executive branch of government. As a matter of interest we note that a constitutional amendment which would have expressly allowed a delegation of such power to legislative committeeswas proposed in 1979 but defeated by thepeople. See H.J.R.No. 133,Acts 1979, 66thLeg., at 3232.

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SUMMARY

It is constitutionallyimpermissible for the legislature to delegate to legislative committees the power to nullify rules proposed or adopted by agencies in the executivebranch of government.

Az&

MARK WHITE AttorneyGeneral of Texas

JOHN W. FAINTER,JR. FirstAssistantAttorney General

RICHARDE. GRAY III ExecutiveAssistantAttorney General
Preparedby BruceYoungblood AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE

SusanL. Garrison, Chairman Jon Bible PatriciaHinojosa MargaretMcGloin Jim Moellinger BruceYoungblood

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