August 3, 1948 

Hon. Howard Granberry, M.D. 

Chairman State Board of Health 

Austin, !exas 

Opinisn No. V-646 

Re: Authorit of State Board 

of Healt ii to rescind a 

regulation of State Health 

Officer. 

Dear Dr. Cranberry: 

Your opinion request states that in September, 

1939, pursuant to Articles l+l+65A and 4466, the State 

Health Officer promulgated rules regulating the manufacture of ice cream. On June 1, 1948, he issued revised 

regulations which provide that: 

"Ice cream is a clean frozen, dairy 

product made from cream ,milk'or milk products, and sugar, with.or without a harmless 

flavoring and with or without eggs or egg 

products, and contains not less than 8 percent of~milk fat and may contain one-half 

of one percent of harmless.stabilizer and 

shall not contain any fats or oils other 

than milk'fat, and shall weigh not less 

than 4.5 pounds per gallon." 

There~ are variations for "fruit ice cream" and 

"nut ice cream" which are not relevant here. 

On June 14,'1948 the'state Board of Health 

repealed the State Health bfficer(s regulation of June 

1, 1948, and issued the following~in its place: 

"All ice cream shall contain not less 

than 8 percent butter fat and not less than 

4 percent vegetable fat if vegetable fat 

is added, and that all ice cream manufactured, whether under the new process or the 

old process, shall state on then label just 

what it contains and the percentage of 

each." 
Hon. Howard Granberry, N.D., Page 2 (V-646 ) 

Your question is: 

"Was the action of the~State Boardof Health a valid procedure, and if not, 

are the regulations issued by the State 

Health Officer as of June 1st 1948 the 

present official regulations?" 

The respective duties of the State Board of 

Health (called the Board) and the State Health Officer 

are created and defined by Acts of the Legislature. By 

Article 4414a, the State Department of Health consists 

of the State Board of Health and the State Health Officer. 

The Health Officer is employed by the Board. 

It has the power to remove him for cause after notice 

and hearing. The Board is authorized to investigate 

the work of the State Department of Health, and is empowered to adopt rules for its own procedure. Art. 

4418a. The Board is given general supervision and control "of all matters pertaining to the health of the 

citizens of this State." It is empowered to make studies, inspections, and investigations. It is given control over sanitary and quarantine measures, and has many 

similar powers. Arts. 4419-4421. But it is nowhere authorized to promulgate rules such as are here involved, 

nor to repeal any regulation duly issued by the Health 

Officer. 

The Health Officer, on the other hand, is expressly empowered by the Legislature with rule making 

power. Thus Article 4466 provides that he shall: 

Vmke , publish and enforce rules consistent with this law, and adopt standards 

for foods, food products, beverages, drugs, 

etc. . . ." 

By way of contrast, with reference to the internal management of the Department, Article 4418d provides that: 

"He (the Health Officer) shall have 

the power,'with.the accroval of the State 

Board of Health? to prescribe and promulsate such administrative rules and regurations . . . as may be deemed necessary 

for the effective performance of the duties 
. 

Hon. Howard Granberry, M.D., Page 3 (v-646) 

imposed by this or any other law upon the 

State Department of Health and its several.officers and divisions." 

You are therefore respectfully advised that 

under the respective powers given by the Legislature, 

the Health Officer is authorized to promulgate rulEi 

and adopt standards for food and food products. 

State Board is not authorized to repeal such regulations or to promulgate it& erder of June 14, 1948. Assuming-that the regulations of the Health,Officer l f 

June 1, 1948, are in other respects valid, they constitute the present official regulations on the subject. 

The State Board of Health is not empowered to repeal a health regulation of 

the State Health Officer duly issued under Article L&66. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

5?JLdu 

Joe R. Greenhill 

Executive Assistant 

JRG:erc 

ATTORNEY GENERAL