DAN MORALES

ATT”RNEY GENERAL 

## QEVfice

of tip gIttornep @eneral state ofIBexas 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 28.011ofthe 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, BB1.6, at 432-33 (enactment ofpredecessor 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 28.011ofthe Texas Water Code or itspredecessor.

lAlmost identical to itspredecessor, section 28.011ofthe TexasWater 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 forthese purposes.

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It is well settled that a statute must be construed as constitutional, if at all possible. smith v.Decker, 312 S.W.2d632,635 (Tex. 1958). The court will indulge every possible presumption in favor ofconstitutionality. 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 OilCo., 198S.W.2d424 (Tex. 1946). Although a legislative delegation ofrulemaking 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 -agencythe 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 ofthe 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 ofIns, 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 “notworthy ofpublic confidence” standard, stating that the term “isno more extensive than the public interest demands,” and that “the

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idea embodied within the phrase is reasonably clear and hence acceptable as a standard ofmeasurement.” Id at 280. In Clark v. Briscoe ZwigationCo., 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 willreasonably admit Id at 684. In Mmtinezv. 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 “grosslyunprofessional or dishonorable conduct, or a character which in the opinion ofthe 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 ofthe board “bestknow 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.

2Railnmd

Gmm’n ofTermY.LoneStar GasCo.,34Tcx. Sup. Ct. J. 3% (March 9, 1991) (wit panted on points oferror involving federal preemption).

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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 ofTexas WILL PRYOR First Assistant Attorney General MARYKBLLER Executive Assistant Attorney General JUDGE ZOLUE STEAKLEY (Ret) Special Assistant Attorney General

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RENBAHIcKs Special Assistant Attorney General MADBLEINE B.JOHNSON Chair, Opinion Committee Prepared by Rick Gilpin Assistant Attorney General

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