April 7, 1987 

Robert Bernstein, M.D. 

Commissioner of Health 

Texas Department of Health 

1100 West 49th Street 

Austin, Texas 78756 

Opinion No. JM-669 

Re: Reconciliation of conflicting 

portions of House Bill No. 1732, Acts 

1985, 69th Leg., ch. 913, and House 

Bill No. 2091, Acts 1985 69th Leg., 

ch. 931, which amend article 4476-5, 

V.T.C.S.. the Texas Food, Drug and 

Cosmetic Act 

Dear Dr. Bernstein: 

You ask about the construction of two conflicting statutory 

provisions enacted by the 69th Legislature. Acts 1985, 69th Leg., ch. 

913, il. at 3054, 3061 (adding 55A to the Texas Food, Drug and 

Cosmetic Act, article 4476-5, V.T.C.S.) (introduced as and hereinafter 

referred to as House Bill No. 1732); Acts 1985. 69th Leg., ch. 931, 

art. 5. 57. at 3121, 3140 (adding 523b [editorially renumbered by 

Veruon's ds 5291 to the Texas Food, Drug and Cosmetic Act, article 

4476-5, V.T.C.S.) (introduced as and hereinafter House Bill No. 2091). 

House Bill No. 1732 amends only article 4476-5, whereas Eouse Bill No. 

2091 amends a umber of statutes, including article 4476-5. 

You point out that the cited bills both provide for administrative monetary penalties to be assessed against persons who violate 

article 4476-5. The provisions in Eousr Bill No. 1732, however, 

differ from those in House Bill No. 2091. Fortunately. the legislature was aware that House Bill No. 1732 and Eouse Bill No. 2091 

contained similar, but conflicting, provisions and provided in House 

Bill No. 2091 that if the legislature enacted both bills, the 

provisions of Rouse Bill No. 1732 would prevail over the provisions of 

House Bill No. 2091 to the extent of any conflict. Acts 1985, 69th 

Leg., ch. 931. art. 21. 13, at 3175. 

Your question is whether the provisions regarding monetary 

penalties in House Bill No. 1732 prevail "over the entirety of" the 

provisions regarding monetary penalties in House Bill No. 2091 or 

whether "a line by line reconciliation" is necessary. 

Eouse Bill No. 2091 states, in part: 

If a person violates [article 4476-51 or a rule 

or order adopted or registration issued under 

p. 3063 
Dr. Robert Bernstein - Page 2 (JM-669) 

[article 4476-51, the Department of Eealth may 

assess a civil penalty against that person as 

provided by this section. 

Acts 1985, 69th Leg., ch. 931. art. 5. 17. at 3140. Eouse Bill No. 

1732 states, in part: 

If a person violates any provision of Section 3 

of [article 4476-51 or an order adopted or registration issued under [article 4476-51. the commissioner may assess an administrative penalty 

against that person as provided by this section. 

Acts 1985. 69th Leg., ch. 913, 21. at 3061.l Eouse Bill No. 1732 

provides for a maximum penalty of $25,000 a day for each violation, 

while House Bill No. 2091 provides for a maximum penalty of $10,000 a 

day. Both bills set out factors to be considered in determining the 

penalty to be imposed, both contain notice and hearing requirements, 

and both provide for judicial reviev of the administrative action. 

We understand your question about line-by-line reconciliation to 

be whether provisions regarding monetary penalties in House Bill No. 

2091 that are not in direct conflict with provisions regarding 

monetary penalties in House Bill No. 1732 are valid provisions of 

article 4476-5. For example, Eouse Bill No. 2091 provides that the 

Department of Eealth may issue a report stating that the department has concluded that a violation has occurred and recommending 

a proposed penalty. Such a report operates as a charge against the 

1. At first glance, House Bill No. 1732 appears to be narrower 

than House Bill No. 2091 because Rouse Bill No. 1732 provides for 

penalties for violations of section 3 of article 4476-5, while House 

Bill No. 2091 provides for penalties for any violation of article 

4476-5. Section 3 of article 4476-5, however, is a list of unlawful 

and prohibited acts. Most other sections of article 4476-5 are not 

phrased in terms of prohibitions, see, e.g., S51. 2, 4 though 9. Other 

sections of the act simply define or explain terms used in section 3. 

V.T.C.S. art. 4476-5, S110, 11 (defining "adulterated" and 

%k%%d" food). See also V.T.C.S. art. 4476-5. 53(e) (prohibiting 

introducciou into coavserce of any article in violation of sections 12, 

18, and 19 of articla 4476-S); 13(d) (prohibiting the distribution in 

comserce of commodities not labeled in conformity with provisions of 

article 4476-S). Therefore, the scope of House Bill No. 1732 is not 

significantly narrower than the scope of the provision in House Bill 

No. 2091. Consequently, we do not think that House Bill No. 1732 can 

be read as a specific exception to the general provisious set out in 

House Bill No. 2091. See generally Flowers v. Pecos River Railroad 

co., 156 S.W.2d 260, 263-64 (Tax. 1941). 

p. 3064 
Dr. Robert Bernstein - Page 3 (J-M-669) 

possible violator named in the report. House Bill No. 1732. in 

contrast, is silent on the subject of how a charge concerning a 

possible violation is to be wade. In that context yout question would 

be whether the provisions in House Bill No. 2091 regarding reports by 

the Eealth Department are to be incorporated into the provisions of 

Eouse Bill No. 1732. 

We conclude that the scheme set out in liouse Bill No. 1732 is 

. the law and that the scheme set out in House Bill No. 2091 is 

nugatory. Because the legislature provided chat House Bill No. 1732 

would prevail in the case of conflict. it was obviously aware that 

House Bill No. 1732 and House Bill No. 2091 contained similar, but 

conflicting, schemes for the assessment of monetary penalties under 

article 4476-5. Each scheme covers essentially the same ground even 

though each is more detailed than the other in some respects. We 

think, therefore, that the legislature intended.that if both bills 

were enacted, the entire scheme set out in House Bill No. 1732 would 

prevail over the scheme set out in House Bill No. 2091. We do not 

chink that the legislature intended to give the Health Department the 

formidable task of carving out any detail of House Bill No. 2091 not 

in direct conflict with House Bill No. 1732 and making it part of the 

law governing assessment of monetary penalties. See Wilson v. 

Underhill. 131 S.W.2d 19, 23 (Tex. Civ. App. -Dallas 1929) 

(lenislacive act should never be construed as to render it 

&p;acticable of enforcement), rev'd on other grounds. Wilson v. 

Wilson, 155 S.W.2d 601 (Tex. 1941). Therefore, the scheme set out in 

House Bill No. 1732 regarding monetary penalties in its entirety 

prevails over the scheme set out in Eouse Bill No. 2091. 

Our conclusion should not be interperted, however, to mean that 

the Board of Eealth is prohibited from adopting by rule details of the 

scheme set out in House Bill No. 2091 that complement the scheme set 

out in Eouse Bill No. 1732. See V.T.C.S. art. 4476-5. 924(a) (Board 

of Health may adopt rules for efficient enforcement of article 

4476-5). 

SUMMARY 

The provisions regarding monetary penalties 

under article 4476-5, V.T.C.S.. Acts 1985, 69th 

Leg., ch. 913. 51, at 3061, prevail over the 

provisions regarding monetary penalties under 

article 4476-5. V.T.C.S., in Acts 1985. 69th Leg., 

ch. 931, art. 5. 17. at 3140. 

JIM MATTOX 

Attorney General of Texas 

p. 3065 

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Dr. Robert Bernstein - Page 4 (m-669) 

JACK HIGHTOWER 

Firsr Assistant Attorney General 

MARYKELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLET 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 3066