Untitled Texas Attorney General Opinion

Honorable Lloyd Criss Opinion No. 34-561 Chairman Committee on Labor and lie: Whether the State Board of Employment Relations Insurance is authorized or required Texas House of Representatives by article 5.76-1. to ascertain P. 0. Box 2910 whether insurance companies are Austin, Texas 78769 providing accident prevention services to insured Texas employers Dear Representative Criss: You ask about the authority and responsibility of the Texas Board of Insurance to enforce the ,provisionsof article 5.76-l of the Texas Insurance Code. Section (II)of article 5.76-l provides that "[alny insurer desiring to write l:workers'lcompensation insurance in Texas shall maintain or provide accident prevention fafilities as a pre- requisite for a license to write such insurance." Sections (c) and (d) set forth the authorii:y and duties of the board. section (c) delegates certain investigc.tiveduties to the Commissioner of Insu- rance , directs the State Board of Insurance to hold a hearing, and states: "[i]f it is determ::nedthat the insurer is not in compliance, its license to write [workeris']compensation insurance in Texas shall be revoked." Additionally, section (d) grants the State Board of Insurance rulemaking authority to enforce article 5.76-l. Your question requires a determi%ltion of whether sections (c) and (d) are mandatory or directory. Section (d) provides in full: The State Board of Insurance wma promulgate reasonable rules azd regulations for the enforce- ment of this Ar1:icle after holding a public hearing on the proposed rules and regulations. (Emphasis added). 1. The nature of the ":Eacilities"or "services" required is set forth in sections (a) and l:b)of article 5.76-1, V.T.C.S. The final order in the initial licensing proceeding should also describe specific licensing requiremc:nts. 'p. 2491 Eonorable Lloyd Criss - Page 2 (JM-561) , Legislative intent controls whether a statutory provision is mandatory or directory. Ch:.sholmv. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956); Attorney GezEil Opinion JM-496 (1986). Consideration should be given to the entire act, its nature and object, and the con- sequences which would flow 1iroma mandatory or directory construction. Chisholm, 287 S.W.2d at 945. Section (d) states that the board "may" promulgate rules and regulations to enforce article 5.76-l. Although it is not alone determinative, the form of the adverb, such as "may," "shall," or "must," used in a statute is the single most important textual consideration in dec:tdingwhether the statute is mandatory or directory. Sutherland Statutory Construction S57.03, at 643 (4th ed. 1984 rev.); cf. Attorney Gf,neralOpinion JM-496 (command that act be performed within certain tl,meperiod may require different construc- tion). The use of "may" ordinarily denotes a grant of discretionary authority. As will be shown in the discussion to follow of section (cl, the legislature intended that the board have discretion in determining whether to procemedby general rulemaking or on a case by case basis. The focus of article 5.76-l as a whole is on the qualifi- cations for licensing of particular insurers. For these reasons, section (d) cannot reasonab:.ybe construed as mandatory. Cf. Attorney General Opinion JM-496 (evlruif a duty imposed is directory rather than mandatory, a public official cannot totally ignore the duty). Your request letter asserts that "[rlarely does the Legislature grant rulemaking authority to an agency with the intent that the agency fail to assume the responsibility so conveyed." As a general rule, when the legislature acts on a particular subject, an adminis- trative agency may not act on the subject in a manner which nullifies the leaislature's action even if the subject is within the agency's generai regulatory field. Sitatev. Jackson, 376 S.W.2d 341,-344145 (Tex. 1964); Martinez v. Tt!,:asEmployment Commission, 570 S.W.2d 28, 31 (Tex. Civ. App. - Corpus Christ1 1978, no writ). Although it is conceivable that an agency's inaction could nullify legislative action. this rule usually applies to the actions of administrative agencies -- not to an agency's inaction. Nevertheless, a type OE remedy for your concerns regarding rule- making under section (d) dc#es exist. The procedure for the adoption of rules by the State Board of Insurance is governed by article 6252-13a. V.T.C.S., the Adn:inistrativeProcedure and Texas Register Act (APTRA). See, e.g., State Board of Insurance v. Deffebach, 631 S.W.2d 794 (Tex. App. - AJ%n 1982. writ ref'd n.r.e.). Section 11 of the APTRA provides: Any interested person may petition an agency requesting the ai.option of a rule. Each agency shall prescribe by rule the form for petitions and the procedure for their submission, consideration, and disposition. Within 60 days after submission of a petition, the agency either shall deny the p. 2492 Honorable Lloyd Criss - Page 3 (JM-561) petition in writing, stating its reasons for the denial, or shall initiate rulemaking proceedings in accordance with Section 5 of this Act. Although this section does not require the agency to adopt a par- ticular rule, it does require the agency to state, in writing, its reasons for denying a petit:.on. Not all problems which may arise under article 5.76-1, however, can be dealt with through rulemaking proceedings. As indicated previously, the focus of ar,ticle5.76-l is on the qualifications for licensing of particular hsurers . Some matters may require an adjudicative hearing. Significant procedural and substantive con- sequences flow from an agency's decision in a particular matter to proceed by rulemaking rather than by adjudication. State Board of Insurance v. Deffebach, 631 S.W.Zd at 799. Generally, unless mandated by statute, the choice by z.nagency to proceed by general rule or by adjudicative hearing is within-the-agency's informed discretion. Id. In cases where a single par'tyor a small, well-defined group willbe affected by the proposed action, however, adjudication may be necessary. The due process clause of the Fourteenth Amendment to the United States Constitution may require adjudication even where no Texas statute does so. See Londoner v. Denver, 210 U.S. 373 (1908); compare Bi-Metallic InvesG&t Co. v. State Board of Equalization, 239 U.S. 441 (1915). The APTEA requires adjudication in "contested cases,' which include but a:renot restricted to licensing cases. Art. 6252-13a, 113; see Big D Btz'boo,Inc. v. State, 567 S.W.Zd 915 (Tex. Cl". App. - Beaumont 1978, no writ). Additionally, section (c) of article 5.76-l expressly requires an individual hearing prior to the revocation of an insurer's license. Accordingly, the procedures provided in section 11 of .the APTEA for a petition for rulemaking cannot apply to a challenge to the license of a particular insurer. Your questions also rtsquire a determination of whether section (c) is mandatory or directory. Unlike the language of section cd), the language of section 1:~:)uses the term "shall." Section (c) provides: If the Commiseioner of Insurance shall deter- mine that reasonable accident prevention services are not being maintained or provided by the insurer or are not being used by the insurer in a reasonable manner to prevent injury to employees of its policyhol&ers, the fact shall be reported to the State Board of Insurance and the Board shall order a hea-& to determine if the insurer is not in comnliaoce with this Article. If it is determined that the insurer is not in compliance, its license to write workmen'8 compensation :?. 2493 Honorable Lloyd Criss - Pago 4 (JM-561) insurance in Texas shall be revoked. (Emphasis added). As indicated, determining whether a provision is mandatory or merely directory requires consideration of the entire act, its nature and object, and the possible consequences of each alternative con- struction. The language of article 5.76-l with regard to licensing is clear. If the board determines that an insurer is not in compliance with article 5.76-1, the board "shall" revoke the insurer's license to write workers' compensation insurance. Further, section (a) of article 5.76-l states that an insurer "shall maintain or provide accident prevention facilities as a prerequisite for a license to write [workers' compensation] in:;urance." The word "shall" is generally construed to be mandatory Green v. County Attorney of Anderson County, 592 S.W.2d 69, 73 (Yex. Civ. App. - Tyler 1979, no writ). Further' a statute is u:suallyinterpreted as mandatory where the duty described is for the. public benefit or protection, for the security of public rights, or for the advancement of public justice. Id. The accident preventicn services required by article 5.76-l are clearly for the benefit of Texas workers. Consequently, a reasonable interpretation of section (c) requires the conclusion that the State Board of Insurance has a mandatory duty to determine whether insurers who are licensed to write workers' compensation insurance in Texas comply with article 5.76-l. If the board determines, after a hearing, that an insurer does not comply with article 5.76-1, the board must revoke its license to write workers' compensation insurance in Texas. SUMMARY The Texas Board of Insurance has a mandatory duty under article 5.76-1(c) to revoke an insurer's license to write workers' compensation insurance in Texas if the board determines, after an adjudica- tive hearing, that the insurer does not comply with article 5.76-l. Section (d) of article 5.76-l does not require the board to enforce article 5.76-l through rulemakinl:. JIM MATTOX Attorney General of Texas JACK HIGHTOWER First Assistant Attorney Geueral p. 2494 Honorable Lloyd Criss - Page:5 (JM-561) MARY KELLER Executive Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Jennifer Riggs Assistant Attorney General p. 2495