The Attorney General of Texas 

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 

1607 Main St., Suite 1400 

Dallas. TX. 75201-4709 

2141742.6944 

4624 Alberta Ave.. Suite 160 

El Paso, TX. 79905.2793 

915/533.3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002-6966 

713B50.0666 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

6061747-5236 

4309 N. Tenth, Suite 6 

McAlle”, TX. 76501-1665 

5121662-4547 

200 Maln Plaza, Suite 400 

San Antonio. TX. 76205.2797 

5121225.4191 

An Equal Opportunityl 

Affirmative Action Employer 

Honorable Ray Farabee, Chairman 

State Affairs Committee 

Texas State Senate 

Room 411, Archives Building 

Austin, Texas 78711 

Opinion No. Mw-460 

lb?: Validity of legislation 

authorizing a legislative 

committee to veto or repeal 

administrative rules 

Dear Senator Farabee: 

Your letter to this office reads in part: 

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 

executive branch of government. 

several acts containing the following language (or words 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 statements opposing adoption of a rule under 

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repealed effective on the date the board receives 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's statements. 

It is the validity of this language, now included in the enabling acts 

of several state agencies, that you question. See V.T.C.S. art. 

46c-4(c) (Aeronautics Commission); 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 of 
Honorable Ray 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) (National Guard Armory 

Board); art. 6243-101, 84(c) (Texas State Board of Plumbing 

Examiners); art. 7465a, §8(c) (Texas State Board of Veterinary Medical 

Examiners). 

The language under examination purports to lodge in legislative 

committees established pursuant to section 5(g) of the Administrative 

Procedure and Texas Register Act (APTRA), article 6252-13a, V.T.C.S., 

the power to veto or repeal any rule promulgated by the administrative 

agency affected. That APTRA 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 committee may 

transmit to the agency a statement supporting or 

opposing adoption of 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 the public and invite comment 

from "any interested person." 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 Administrative Procedure and 

Texas Register Act, has not been questioned. See Terre11 v. King, 14 

S.W.2d 786 (Tex. 1929). Your question reachesbnly the power of such 

committees to nullify agency rule proposals or adopted agency 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 

constitution must be exercised by it alone. However, many powers have 

been properly delegated by the legislature to administrative agencies. 

See generally 12 Tex. Jur. 3d Constitutional Law $73 et seq., at 599. 

Among them has been the power to make rules having the force and 

p. 1600 
. 

Honorable Ray Farabee - Page 3 (MW-460) 

effect of law. See generally 2 Tex. Jur. 3d Administrative Law 916 s 

=, at 208. 

Valid rules promulgated by an administrative agency acting within 

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 considered under 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 rulemaking power is vested 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 confers upon 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 

legislative power. 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 Company v. State, 153 S.W.2d 681 (Tex. 1941) (deleg=d 

power to fix rates is‘legislative power). 

Thus, a conclusion that the language under scrutiny is unconstitutional might be rested on the ground that it attempts to confer upon 

members of the legislative branch of government an executive power to 

efficiently administer laws enacted by the legislature. Section one 

of article II of the Texas Constitution provides for the separation of 

governmental powers. It reads: 

The powers of the Government of the State of 

Texas shall be divided into three distinct 

departments, each of which shall be confined to a 

separate body of magistracy, to wit: Those which 

are Legislative to one; those which 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 

constitutionally designated legislative body upon a committee composed 

of members of the house and senate, the committee is a "collection of 

p. 1601 
Honorable Ray Farabea - Page 4 (Mw-460) 

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 unconstitutional even 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, that where the constitution gives a power and prescribes 

the means by which or the manner in which it is to be exercised, such 

means or manner is exclusive of all others. Article III, section 1 of 

the constitution vests the legislative power 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 should be of equal dignity with that which 

establishes. City of Hutchins V. Prasifka, 450 S.W.2d 829 (Tex. 

1970); City of San Antonio 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'd n.r.e.). Inasmuch as the legislature is 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 

augmented by a properly adopted administrative rule -- except in the 

same manner. - See State V. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 

1980). 

Turning to the authorization for such committees to veto proposed 

rules, we reach the same result for essentially the same reasons. The 

power to control or correct decisions committed to administrators by 

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 thoroughly detailing legislation before it leaves its hands that 

, 

p. 1602 
. . 

Honorable Ray Farabee - Page 5 (MW-460) 

little or no room is left for administrative interpretation. See Fire -- 

Department of City of Fort Worth v. City of Fort Worth, 217 S.W.2d 664 

(Tex. 1949); Letter Advisory No. 2 (1973). And by the proper exercise 

of its law-making powers the legislature may supercede or repeal any 

agency rule or decision that has acquired the force and 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 

legislative policy embodied therein, neither the legislature nor one 

of its committees may exercise a continuing ad hoc veto over the 

executive discretion 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 Supreme Court observed that where 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 could not 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 

impermissible for the legislature (or one of its committees) to usurp 

the function. Tex. Const. art. II. §l; Walker v. Baker, supra; Ex 

parte Youngblood, supra; Attorney General Opinit ,ns V-1254 (1951E 

O-4609 (1942). e State v. Legislative Finance Committee, et al, 54j 

P.2d 1317 (Mont. 1975). See also Anderson v. Lamm, supra; In re 

Opinion of the Justices 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 

Appropriations Act supplied "legislative approval" to certain projects 

without the consent of the College Coordinating Board. In the Jessen 

Associates case the supreme court held that the legislature had fully 

complied with the procedural requirements of the constitution and 

properly exercised its law-making powers while doing so. There was no 

attempt there to usurp an executive function. A proper and complete 

legislative act legitimately restricted the discretion allowed 

administrative officers. Moreover, the court in Jesse* Associates did 

not have before it the question of separation of powers. 

We conclude that it is constitutionally impermissible for the 

legislature to delegate to legislative committees the power to nullify 

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 committees was proposed in 1979 but defeated by 

the people. See H.J.R. No. 133, Acts 1979, 66th Leg., at 3232. 

p. 1603 
. . 

Honorable Ray Farabee - Page 6 (MW-460) 

SUMMARY 

It is constitutionally impermissible for the 

legislature to delegate to legislative committees 

the power to nullify rules proposed or adopted by 

agencies in the executive branch of government. 

Az& 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Bruce Youngblood 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Patricia Hinojosa 

Margaret McGloin 

Jim Moellinger 

Bruce Youngblood 

p. 1604