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September 23, 1987

Honorable Joe Lucas ElPaso County Attorney Opinion No.JM-793 Room201, City-County Building ElPaso, Texas 79901

DearMr. Lucas: lte: Authority of alocal administrative public health board to adopt rules :
Youask:Mayauadministrative public health board adopt substantive and procedural rules or have those rulemaking powers been effectively repealed bythe 1985amendment to Rev. Civ. Stat. Ann. Art. 4436b? Factual information furnished byyou reflects that the city of El Paso andEl Paso County established apublic 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 andprocedural 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 andprocedural rules which are necessary and appropriate to promote and preserve the health and safety of the public within its jurisdiction; provided that no jurisdiction; provided rule adopted shall be in conflict with the laws of adopted conflict 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

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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 1985amendmentwasafurther limitation upon the board’s authority to adopt rules andregulations. In responding to questions about the authority of apublic 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 aboard to take such action. Webelieve 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 agood example of the limitation imposed upon the board’s authority by section 4.09(f). There it was stated:

Next weconsider 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 anyparticular 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, 469S.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 byapublic health district.

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Weconclude that apublic health board maylenact only such rules as maybe specifically authorized by state law. Norule adopted may be in conflict with the laws of the state or the ordinances of any membermunicipality or county.SUMMARY

Apublic 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 MARYKELLER Executive Assistant Attorney General JUDGEZOLLIESTEAXLN Special Assistant Attorney General RICKGILPIN Chairman, Opinion Committee Prepared byTomG.Davis Assistant Attorney General

1 Additional authority was given to cities, towns andvillages 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.

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