April 7, 1987



## Robert

Bernstein,M.D. CommissionerofHealth Texas Department

## ofHealth 1100West 49th Street Austin,Texas 78756 OpinionNo. 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 CosmeticAct
Dear Dr. Bernstein:
You ask about the construction of two conflicting statutory provisions enactedby the 69thLegislature. **Acts** 1985, 69thLeg., ch. 913, il. at 3054, 3061 (adding 55A **to** the Texas Food, Drug and CosmeticAct, article 4476-5,V.T.C.S.) (introducedas andhereinafter 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.) (introducedas andhereinafterHouse BillNo. 2091). House BillNo. 1732amendsonly article 4476-5,**whereas** Eouse BillNo. 2091 amendsa umber of statutes, includingarticle 4476-5.
You point out that the cited bills both provide for administrativemonetary penalties tobe assessed againstpersons who violate article 4476-5. The provisions in Eousr BillNo. 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 provisionsofRouse BillNo. 1732would prevail **over** theprovisions 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 lineby line reconciliation"isnecessary.
Eouse BillNo. 2091 states, inpart:

If a personviolates [article4476-51or a rule or order adopted or registration issued under

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[article 4476-51, the Department of Eealth may assess a civil penalty against that person as providedby this section.
Acts 1985, 69th Leg., ch. 931. art. 5. 17. at 3140. Eouse Bill No. 1732 states, in part:

**If** a personviolates any provision of Section 3 of [article 4476-51 **or** an order adopted or registration issuedunder [article4476-51. the commissioner may assess an administrative penalty against thatperson as providedby 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.** 2091provides 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, andboth provide for judicial reviev of the administrativeaction.
We understand your question about line-by-line reconciliation to be whether provisions regardingmonetary 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 proposedpenalty. 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 termsof prohibitions, see, e.g., S51. 2, 4 though 9. Other sections of the **act** simply define or explain termsused in section 3.

V.T.C.S. art. 4476-5, S110, 11 (defining "adulterated" and %k%%d" food). See alsoV.T.C.S. art. 4476-5. 53(e) (prohibiting introducciouinto coavserce **of** any article inviolation of sections 12, 18, and 19 of articla 4476-S); 13(d) (prohibiting the distribution in comserce of commodities not labeled in conformitywith provisions of article 4476-S). Therefore, the scope of House Bill No. 1732 is not significantlynarrower than the scope of the provision in House Bill No. 2091. Consequently,we do not think thatHouse 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).

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possible violator named in the report. House Bill No. 1732. in contrast, is silent on the subject of how a charge concerning a possibleviolation is tobe wade. In that contextyout questionwould be whether theprovisions inHouse Bill No. 2091 regarding reportsby the Eealth Department are to be incorporated into the provisions of Eouse BillNo. 1732.
We conclude that the scheme set **out** in liouseBill No. 1732 is

.the law and that the scheme set out in House Bill No. 2091 is nugatory. Because the legislatureprovided 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. 1732would prevail over the scheme set out in House Bill No. 2091. We do not chink that the legislatureintended to give theHealth Department the formidable task of carving **out** any detail of House Bill No. 2091 not in direct conflictwith House Bill No. 1732andmaking itpart 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 prevailsover the scheme set out inEouse BillNo. 2091.
Our conclusion should not be interperted,however, tomean that theBoard of Eealth isprohibited fromadoptingby rule details of the scheme **set** out in House Bill No. 2091 that complement the scheme set out in Eouse Bill No. 1732. SeeV.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., inActs 1985. 69thLeg., ch. 931, art. 5. 17.at 3140.

**JIM** MATTOX **Attorney** General of Texas

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

JACK HIGHTOWER FirsrAssistant **Attorney** General

MARYKELLER ExecutiveAssistantAttorney General
JUDGE ZOLLIE STEAKLET SpecialAssistant **Attorney** General
RICK GILPIN Chairman,OpinionCommittee Preparedby SarahWoelk AssistantAttorney General

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