Untitled Texas Attorney General Opinion

Robert Bernstein, M.D. Opinion No. m-629
Comissioaer
Texas Department of Health Re: Applicability of the 1985 Life
1100 West 49th Street Safety Code to nursing hoses under
Austin, Texas 78756 subsection 4A(d) of article 4442~.
V.T.C.S.

Dear Dr. Bernstein:

You ask whether article 4442~. V.T.C.S., authorizes the Depart-
ment of Bealth to substitute the 1985 edition of the Code for Safety
to Life from Fire in Buildings and Structures (hereinafter the Life
Safety Code or code) for the 1976 edition of the code to ensure that
nursing homes and custodial care homes are fire safe. We conclude
that article 4442~ does not authorize the department to substitute one
edition of the code for another.

Article 4442~ was enacted to promote and provide for the safe and
adequate care of persons in convalescent and nursing homes, custodial
care homes, and related institutions. V.T.C.S. art. 4442~. 51. The
Department of Health is charged with the responsibility of licensing
and regulating such institutions. Id. 52(d). Part of the
department's duties include the enforcemz of fire safety require-
ments in nursing homes and custodial care hoses:

(a) The Licensing Agency [the Department of
Health] shall require all nursing homes and cus-
todial care homes and major additions over One
Hundred Thousand Dollars ($100,000) to existing
nursing hoses and custodial care hoses which are
approved for construction or conversion after
September 1, 1979. to comply with the 1976 edition
of the Code for Safety to Life from Fire in
Buildings and Structures, known as the Life Safety
Code (Pamphlet No. 101) of the National Fire
Protection Association.

(b) After September 1, 1979, those building
sections of a licensed nursing home or custodial
care hose, regardless of ownership, which have
complied with or without waiver, with either the

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Dr. Robert Bernstein - Page 2 (m-629)

1967 or 1973 edition of the Life Safety Code of
the National Fire Protection Association will 6e
recognized as meeting licensing requirements for
fire safety as long as they continue to be in
substantial compliance with either the 1967 or
1973 code edition.

(c) The requirements of this section do not
preclude an institution from conforming to a
higher or additional fire safety standard or
provision where required by federal law or regula-
tion. Where provisions of this section conflict
with federal laws or regulations adopted after
September 1, 1979, then the federal requirements
prevail, if required for participation in federal
programs.

(d) As provided in the 1976 edition of the Life
Safety Code, the Licensing Agency shall have dis-
cretionary powers to grant exceptions to the code
under certain conditions or in the interest of
common and uniform applicability.

(e) Fire safety requirements for institutions
other than nursing homes or custodial care homes
shall be as determined by the Licensing Agency.

Id. 54A. Your question is whether section 4A(d) permits the
department to substitute the entire 1976 Life Safety Code with the
1985 edition of the code.

Section 4A was added to article 4442~ in 1979. See Acts 1979,
66th Lee.. ch. 771. Il. at 1903. That section adoptsby reference
fire safety star&r&~ drafted by the National -Fire Protection
Association. See, e.g., Dudding v. Automatic Gas Co., 193 S.W.2d 517
(Tex. 1946) (the legislature may. for the guidance of the Railroad
commission, adopt by reference certain regulations of the National
Board of Fire Underwriters). Ihe Life Safety Code is a comprehensive
document, the purpose of which is to establish minimum standards
consistent with the oublic interest that provide a reasonable degree
of safety from fir; in buildings and structures. National Fire
Protection Assn., Pamphlet No. 101, Code for Safety to Life from Fire
in Buildings and Structures 541-2.1, l-2.2 (1985). The code addresses
life safety considerations arising from fire and similar emergencies,
construction and occupancy features necessary to minimize danger to
life from fire, smoke, fumes or panic, and identifies minimum design
criteria to permit prompt escape of occupants from buildings. Id.
551-3.1, l-3.2, l-3.3, l-3.4. It does not address fire prevention
matters that are normally a function of fire safety and building

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codes. Id. 51-3.6. The code is intended to apply to both new
construction and existing structures and is revised every three years.
Id. at 101-viii; 91-4.1. Section 4A(d) grants the agency authority to
enforce the 1976 code and the authority to grant exceptions thereto
when it is clearly evident that reasonable safety will be secured.

Reviewing the bill analysis prepared for the bill which contained
what is now section 4A, it is apparent that the legislature considered
the efficacy of three separate editions of the Life Safety Code to
ensure fire safety and concluded that compliance with any of the three
editions would adequately protect the residents of the regulated
institutions from the hazards of fire. See Bill Analysis to H.B. No.
1628, 66th Leg., prepared for Bouse CEittee on Health Services,
filed in bill file to H.B. No. 1628, Legislative Reference Library
(summary of testimony of Howard Allen, Executive Assistant, Bureau of
Long Term Care, Texas Department of. Health). Although no single
member of the legislature can be heard to say vhat the meaning of a
statute is, Commissioners' Court of El Paso County v. El Paso County
Sheriff's Deputies Assn., 620 S.W.2d 900 (Tex. Civ. App. - El Paso
1981. writ ref'd n.r.e.1. we note that the bill's sponsor testified
that- section 4A was intended to ensure that once-a nursing home
complied with the fire safety standards adopted by the section, the
regulations would not be changed and modifications to the,facility to
meet new standards would not be required. Bill Analysis to 8. B. No.
1628. 66th Leg., supra (survnaryof testimony of Representative Emmett
Whitehead). Thus, to read section 4A(d) in the manner urged by the
Department of Eealth would require us on the one hand to ignore those
factors which provided the impetus for the enactment of section 4A and
on the other to lend approval to fire safety standards which the
legislature never considered. This we are not authorized to do. See
State v. Millsap, 605 S.W.2d 366 (Tex. Civ. App. - Beaumont 198O.G
vrit) (it is improper to add or to subtract from an unambiguous
statute).

Further, established rules of statutory construction compel this
result. A statute must be construed in a manner which preserves its
validity. State ex rel. Grimes County Taxpayers Assn. v. Texas
Municipal Power Agency, 565 S.W.2d 258. 270 (Tex. Civ. App. - Rouston
'tlst Dist.] 1978. no writ). A statute which prospectively adopts
future rules or standards drafted by an unofficial association without
prior review by the legislature is invalid. Dudding v. Automatic Gas
Co., 193 S.W.2d at 520. Moreover, administrative agencies may not
Goso additional burdens. conditions or restrictions in excess of or
inconsistent with statutory provisions. Bexar County Bail Bond Board
v. Deckard, 604 S.W.2d 214 (Tex. Civ. App. - San Antonio 1980, no
writ). Accordingly, the Department of Eealth may not substitute the
1985 edition of the Life Safety Code for the 1976 edition of the code
pursuant to its authority to grant exceptions under article 4442~.

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section 4A(d), V.T.C.S. Such authority must come from the legisla-
ture, not this office. -
See State v. Millsap. m.

SUMMARY

The Department of Health may not substitute
the 1985 edition of the Life Safety Code for the
1976 edition of the code pursuant to its authority
to grant exceptions under article 4442~. section
4A(d). V.T.C.S.

Veryjtruly y0urd.J

JIM MATTOX
Attorney General of Texas

JACX EIGRTOWER
First Assistant Attorney General

MARY FELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opiuiou Committee

Prepared by Rick Gilpiu
Assistant Attorney General

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