P 

September 23, 1987 

Honorable Joe Lucas 

El Paso County Attorney 

Opinion No.JM-793 

Room 201, City-County Building 

El Paso, Texas 79901 

Dear Mr. Lucas: 

lte: Authority of a local administrative public health board to 

adopt rules 

: 

You ask: 

May au administrative public health board adopt 

substantive and procedural rules or have those 

rulemaking powers been effectively repealed by the 

1985 amendment to Rev. Civ. Stat. Ann. Art. 4436b? 

Factual information furnished by you reflects that the city of El 

Paso and El Paso County established a public health district pursuant 

to article 4436b, V.T.C.S. 

Section 4.02, of article 4436b provides as follows: 

A public health district is authorized to 

perform the public health functions that any of 

its members is authorized to perform unless 

otherwise restricted by law. 

Section 4.03(b) states in pertinent part: 

An ‘administrative public health board’ shall have 

the authority to adopt substantive and procedural 

rules which are necessary and appropriate to 

promote and preserve the health and safety of the 

An ‘administrative public health board’ shall have 

the authority to adopt substantive and procedural 

rules which are necessary and appropriate to 

promote and preserve the health and safety of the 

public within its jurisdiction; jurisdiction; provided provided that no 

rule adopted adopted shall be in conflict conflict with the laws of 

the state or the ordinances of any member 

municipality or county. (Emphasis added .) 

The 1985 amendment about which you inquire, section 4.09(f), of 

article 4436(b) states that 

p. 3750 
Honorable Joe Lucas - Page 2 (JM-793) 

nothing in this Act shall be construed to grant 

the board of any district created hereunder the 

power to adopt rules or regulations for any part 

of the district which are not otherwise 

specifically authorized by state law. (Emphasis 

added.) 

In Attorney General Opinion JM-336 (1985). it was concluded that 

the 1985 amendment was a further limitation upon the board’s authority 

to adopt rules and regulations. In responding to questions about the 

authority of a public health district’s administrative board’to issue 

licenses, exact fees, and impose fines for non-compliance with its 

rules. Attorney General Opinion m-336 stated that there must be 

specific statutory support for a board to take such action. 

We believe the analysis made in Attorney General Opinion JM-336 

on the matter of whether a public health district has authority to 

impose fines for noncompliance with its rules provides a good example 

of the limitation imposed upon the board’s authority by section 

4.09(f). There it was stated: 

Next we consider whether the authority granted 

to governing bodies of cities and counties under 

section 2.01 to ‘enforce’ any law to protect the 

public health is specific statutory authority for 

the imposition of fines by a public health 

district for noncompliance with its rules. We 

think not. Section 2.01 is a general provision 

which authorizes cities and counties to enforce 

laws enacted to protect the public health. The 

provision does not prescribe any particular method 

for the enforcement of these laws. When read 

together with the specific limitation on the 

authority of the board imposed in section 4.09(f), 

the provision is insufficient to authorize the 

public health district’s administrative board to 

impose fines for noncomnliance with its rules. 

Se; City of Baytown v. An’gel, 469 S.W.2d 923 (Tex. 

civ. App. - Houston 114th Dist.] 1971, writ ref’d 

n.r.e.) (a general provision in a statute Is 

limited or controlled by a specific provision). 

We have not discovered any specific state law 

authorizing this manner of enforcement by a public 

health district. 

p. 3751 
Honorable Joe Lucas - Page 3 .(JM-793) 

We conclude that a public health board maylenact only such rules 

as may be specifically authorized by state law. No rule adopted may 

be in conflict with the laws of the state or the ordinances of any 

member municipality or county. 

SUMMARY 

A public health district's administrative board 

organized pursuant to article 4436b. V.T.C.S.. may 

adopt such rules and regulations as may be 

specifically authorized by state law. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAXLN 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

1 Additional authority was given to cities, towns and villages by 

amendment to article 4436, V.T.C.S., by the recent regular session of 

the legislature. Senate Bill 1395. Acts 1987, 70th Leg., ch. 329, at 

3452, eff. Aug. 31, 1987, authorizes ordinances requiring owners of 

property to eliminate certain unsanitary conditions. 

p. 3752