DAN MORALES 

ATT”RNEY GENERAL 

QEVfice of tip gIttornep @eneral 

state of IBexas 

November 4.1991 

Honorable John Hall 

chairman 

Texas Water Commission 

P. 0. Box 13087, Capitol Station 

Austin, Texas 787113087 

Opinion No. DM-54 

Re: Whether Attorney General Opinion 

0-3205-A (1941). which held that the 

predecessor to section 28.011 of 

the Texas Water Code was an 

unconstitutional delegation of authority, 

continues to be valid ‘(RQ-177) 

Dear Commissioner Hall: 

You,..have, Jequested our opinion regarding the continuing efficacy of 

Attorney C&&ml Opinion -0-3205-A (1941). On March 11, 1941, the attorney 

general issued Attorney General Opinion 03205, which held that the predecessor 

statute to section 28.011 of the Texas Water Code,’ former Penal Cdde article, 848a, 

authorized the Board of Water Engineers to regulate privately-owned wells. See 

Acts 1931, 42d Leg., ch. 261, BB 1. 6, at 432-33 (enactment of predecessor statute). 

On April 18, 1941, the attorney general withdrew this answer and held, in Attorney 

General Opinion 0-3205-A, that the provision failed to contain sufficient standards 

so as to be a constitutionally valid delegation of rule-making authority. You 

indicate that as a result of this decision, “the Board and its successor agencies have 

never adopted mles pursuant to this statute.” Accordingly, you ask that we “reexamine [our] position in light of subsequent court decisions relating to the 

delegation doctrine.” In this opinion, we consider only the continued validity of 

Attorney General Opinion 0-3205-k We do not address the scope of section 

28.011 of the Texas Water Code or its predecessor. 

lAlmost identical to its predecessor, section 28.011 of the Texas Water Cede provides: 

The vexas Water Commission] shall make and enforce rules and 

regulations for conserving, protecting, preserving. and distriiuting 

underground, subterranean, and percolating water located in this state and 

shall do all otherthings necessary for these purposes. 

p. 274 
Honorable John Hall - Page 2 (DM-54) 

It is well settled that a statute must be construed as constitutional, if at all 

possible. smith v. Decker, 312 S.W.2d 632,635 (Tex. 1958). The court will indulge 

every possible presumption in favor of constitutionality. Med-Safe, Inc v. State, 752 

S.W.2d 638, 640 (Tex. App.-Houston [lst Dist.] 1988, no writ); see u&o Tmpp v. 

Shell Oil Co., 198 S.W.2d 424 (Tex. 1946). Although a legislative delegation of rulemaking authority to an administrative body must establish standards in order to be 

valid, 

[t]he standards set up by the legislature may be broad where 

conditions that must be considered camrot conveniently be 

investigated by the legislative branch. The legislature may 

properly delegate to an administrative -agency the authority to 

establish rules and regulations, or minimum standards, that 

reasonably carry out the expressed purpose of the statutory act 

in question. 

Med-Sde, supm, at 640 (citations omitted). 

In &d-Safe, for example, the appellant challenged a requirement that the 

Department of Health issue a permit for operation of a nonhazardous solid waste 

site. The court observed that 

the “purpose of the Act” is to “safeguard the health, welfare, and 

physical property of the people” and to “protect the 

environment.” 

Id. In upholding the,delegation, the court noted that under past cases, 

similarly broad standards have been found to provide sufficient 

guidance for administrative agencies to properly exercise 

delegated functions. 

Id Likewise+ in Jordan v. State Bd of Ins, 334 S.W.2d 278, 279 (Tex. NO), the 

appellant complained of the lack of standards in a statute that permitted the State 

Board of Insurance to revoke an insurer’s certificate if it determined that the 

officers or directors of the company were “not worthy of public confidence.” The 

Texas Supreme Court upheld the “not worthy of public confidence” standard, stating 

that the term “is no more extensive than the public interest demands,” and that “the 

p. 275 
Honorable John Hall - Page 3 (DM-54) 

idea embodied within the phrase is reasonably clear and hence acceptable as a 

standard of measurement.” Id at 280. 

In Clark v. Briscoe Zwigation Co., 200 S.W.2d 674 (Tex. Civ. App.-Austin 

1947, no writ), the court upheld a challenge to a statute that allowed the Board of 

Water Engineers to grant a permit if it found that appropriation of water in a 

particular instance “would not be detrimental to the public welfare.” The court 

noted that 

[t]he criteria are as definite as the subject in its varied 

applications will reasonably admit 

Id at 684. 

In Mmtinez v. Texas State Bd. of Medical Eamniners, 476 S.W.2d 400, 404 

(Tex. Civ. App.-San Antonio 1972, writ refd n.r.e.), the court upheld a challenge to 

a statute that authorized the Board of Medical Examiners to revoke a physician’s 

license for “grossly unprofessional or dishonorable conduct, or a character which in 

the opinion of the Board is likely to deceive or defraud the pub&.” The court held 

that requiring a definition of all the acts that would constitute a violation would be 

unduly burdensome, that the statutory language was “reasonably clear,” and that the 

members of the board “best know the professional and moral standards~required of 

practitioners.” Id 

Finally, in Lone Star Gas Co. v. Railmad Cothm’n of Texas, 798 S.W.2d 888 

(Tex. App.-Austin 1990, writ granted),l the Railroad Commission had promulgated 

rules for the regulation of the purchase of gas by special marketing programs. In 

rejecting the argument that the statute lacked appropriate standards, the court 

noted that 

.[t]he, standards here are found in the statutes directing the 

Commission to prevent waste, promote conservation, and 

protect correlative rights. 

Id. at 894. 

2 Railnmd Gmm’n of Term Y. Lone Star Gas Co., 34 Tcx. Sup. Ct. J. 3% (March 9, 1991) 

(wit panted on points of error involving federal preemption). 

p. 276 
Honorable John Hall - Page 4 (DM-54) 

In our opinion, these cases furnish ample authority to conclude that section 

28.011 and its predecessor provide sufkient standards to constitute a proper 

delegation of legislative authority. A directive to “conserve, protect, preserve, and 

distriiute” water is, in our view, as specific as most of the other statutes considered 

and upheld in the cases discussed above. We conclude that neither section 28.011 

nor its predecessor offend the delegation doctrine. Accordingly, Attorney General 

opinion G-3205-A (1941) is overruled to the extent it is inconsistent with this 

OpilliOll. 

Section 28.011 of the Texas Water Code, which authorizes 

the Texas Water Commission to “make and enforce rules and 

regulations for conserving, protecting, preserving, and 

distributing underground, subterranean, and percolating water 

located in this state,” is not an unconstitutional delegation of 

legislative authority. Attorney General Gpiion G-3205-A 

(1941) is overruled to the extent it is. inconsistent with this 

opinion. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARYKBLLER 

Executive Assistant Attorney General 

JUDGE ZOLUE STEAKLEY (Ret) 

Special Assistant Attorney General 

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Honorable John Hall - Page 5 (DM-54) 

RENBAHIcKs 

Special Assistant Attorney General 

MADBLEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 270