Untitled Texas Attorney General Opinion

The Attorney General of Texas Iecember 31, 1985 JIM MATTOX Attorney General Supreme Court Building Robert Bernstein, M.D., F.A.C.P. Opinion No. JM-414 P. 0. BOX 12549 Commissioner Justin, TX. 78711.2549 Texas Department o,EHealth Re: Rulemaking authority of the 512/475-2501 1100 West 49th Stmet Texas Board of Health with regard Telex 9101974.1367 Austin, Texas 7 3'156 to massage therapists under House Telecobler 51214754% Bill No. 2012, Acts 1985, Sixty- ninth Legislature 714 Jackson. SUM 700 Dallas, TX. 75202.4508 Dear Dr. Berusteil: 214l7428Q44 You ask for clarification of the rulemaking authority of the 4924 Alberta Ave., Suite 160 Texas Board of Htralthwith regard to massage therapists under House El Paso, TX. 799052793 Bill No. 2012, Acts 1985, 69th Leg., ch. 752, at 5388, to be codified 915/533.34&l ae article 45121:, V.T.C.S. Applying well established rules for statutory coustruction, we conclude that a court would find that the 1001 Texas, Suite 700 legislature intends the Texas Board of Health to adopt rules on Houston, TX. 77002-3111 matters pertaining to the regulation of massage therapy with the 713l223.5886 advice of the Advisory Council on Massage Therapy. House Bill NO. 2012, which relates to the regulation of massage 90s Broadway, Suite 312 Lubbock, TX. 79401.3479 therapy, contains the following pertinent provisions: 9091747~5239 SECTXIN 3. APPLICATION FOR REGISTRATION. Each licani for registration under this Act shall 4309 N. Tenth, Suite S %&-&lication forms provided by the depart- McAllen, TX. 78501-1885 5121682.4547 ment; azcompanied by the application fee set by the dep&nent. 200 h4ah Plaza, suite 400 . . I . San Antonio, TX. 78205-2797 512/2254191 SECTXIN 7. POWERS AND DUTIES OF THE BOARD AND THE DFZZRTMENT. (a) The board shall adopt rules An Equal OpportUnitYI consistmt with this Act as necessary for the Affirmative Action Employer perform&e of its duties under this Act. The board slhl adopt the rules in the mauuer provided by the lhdministrativeProcedure and Texas Register Act (Article 6252-13a. Vernon's Texas Civil ScatuterI) . (b) ZXe departmut shall administer this Act. . . . p. 1891 Dr. Robert Bernstein - Page 2 (JM-414) SECTION 8. ADVISORY COUNCIL. (a) The Advisory Council 011 Masasge Therapy is created as an advisory councilJo the department. . . . . SECTION 9. POWERS AND DUTIES OF THE ADVISORY COUNCIL. (a) T&e advisory council by rule shall prescribe application forms and registration fees. The advisory cou&l shall set the fees in mounts reasonable and xs:cessaryto administer this Act. (Emphasis added). The issw before us is the effect of the language in section 9 on the general rulemaking power of the Texas Board of Health as provided by section 7. The dominant consideration in construing statutes is legislative intent. That intention is derived from a general review of an entire enactment and, when ascert,ained,shall be given effect to attain the object and purpose of the legislation. See City of Houston v. Morgan Guaranty International Bank_,666 S.W.2d 524, 529 (Tex. App. - Houston tlst Dim..] 1983, writ rt,f'd n.r.e.), cert. denied, 105 S.Ct. 1185 (1985). The Texas courts repeatedly have held that the intention of the legislature controls the language used in an act and that in construing an act, a court is not necessarily confined to the literal meaning of the words used in the act. The intent rather than the strict letter of the act xl11 control. See Texas Turnpike Authority v. Sheooerd, 279 S.W.2d 3X!, 306 (Tex. 1955); City of Mason v. West Texas Utxties Co., 237 S.W.2d 273, 278 (Tex. 1951); Nichols v. Aldlne Indeuendent District, 356 S.W.2d 182, 184 (Tex. Civ. APP. - Houston 1962, no w&z); Holcombe v. Levy, 301 S.W.Zd 507, 518 (Tex. Civ. App. - Galvestmo 1957, writ raf'd n.r.e.). In cases of ambiguity, statutas must be given a practical and reasonable construction that will malca them valid, if possible, and that will accowmlish as nearly as roeaible the intention of the lenislature. See B&a & Root v.-Durl~xl, 84 S.W.2d 1073, 1075 (Tex. 1935). See also Huntsville Independm~~ School District v. McAdams, 221 S.Wx z67 548 (Tex. 1949). It &o is well settled that statutes that deal with the same general subject constituting parts of the same general plan are considered as being in pari materia and are considered together, even thouah ther, are passed at different times and do not refer to one another. Se;: Cal&t v. Fort Worth National Bank, 356 S.W.2d 918, 921 (Tex. lmj; Robp V. Hawthorne, 84 S.w.2d 1108, 1109 (Tex. Civ. App. - Dallas 1535. writ dima'd). Chapter 109 of the Sicey-eighth Legislature, codified as article 4419b. V.T.C.S., was enac,ted in 1983 to clarify the structure and duties of the Texas Board cf Health, the Department of Health, and the Commissioner of Health. As:ts 1985, 69th Leg., ch. 109, at 521. -See p. 1892 Dr. Robert Bernstein - Page 3 (JM-414) Bill Analyses to S.B. No. '38,69th Leg., prepared for Senate Committee ou Bealth and Eumaa Resources and House Comittee ou Public Health, Bill File to S.B. No. 98, Legislative Reference Library. See also Attorney General Opinion B-949 (1977) (relating to general rulemaking power of Department of Health Resources in 1977). Chapter 109 provided, in pertiuent par:, that (a) The boarlishall: . . . . (b) The boar'i is responsible for the adoption of policies and rules and for the government of the department. The board shall supervise the commissioner's administration and enforcement of health laws of the state. The board may delegate in writing any power or duty imposed on it by law, except the power' or duty to adopt rules, to the commissioner of Ilealthor, in his absence, to the person acting as commissioner of health, including the authority to make final orders or decisions. . . . . (d) The board may appoint advisory committees to assist the board in performing its duties. . . . (Lmphasis added). V.T.C.S. art. 4414b, 81.05. Section 1.06 of that act further provided that the commissiouer of health shall administer and enforce the health laws of this state lmnder the board's supervision and perform the duties assigned to him by the board and state law, subject to the provisions of that act. We believe that the legislature granted to the Texas Board of Health general authority to adopt rules and policies for the department and authorized the appointment of advisory committees to assist the board with its duties. The rules established by that act, whereby the board adopts rules and sets policy based on advfce of advisory committees and the commissioner and staff of the department administer the adopted rules and policies, were reaffirmed and p. 1893 Dr. Robert Bernstein - Page!4 (JM-414) reenacted during the Texas Sunset Act review of the Texas Department of Bealth by the same session of the legislature that enacted the statute regulating massage ,therapy. See V.T.C.S. art. 4414b. Sg1.05, 1.08 (as enacted by Acts l!lE;5, 69th LeK ch. 931, at 6746, 6749). We believe articles 4414b and 4512k, V.T.C.S., are in pari materia and should be considered together. Article 4512k, as enacted by House Bill No. 2012, expressly grants rulemaking authorit;' to the Texas Board of Health and expressly creates the Advisory Coum:il on Massage Therapy "as an advisory council to the department." We believe that the intent of the Sixty-ninth Legislature mm to adopt the same rules and basic structure for the Texas Department of Health in chapter.752 that It adopted for the department in chapter 931. As such, the Texas Board of Health adopts rules basc!CIon the advice of the Advisory Council for the regulation of massage therapy under article 4512k, including rules that prescribe application forms and registration fees. SUMMARY The Texas Bcsrd of Health adopts rules on matters pertaining to the regulation of massage therapy with the advice of the Advisory Council on Message Therapy. JIM MATTOX Attorney General of Texas JACK HIGHTOWER First Assistant Attorney Gmeral MARY KELLER Executive Assistant Attommy General ROBERT GRAY Special Assistant Attorney General RICK GILPIN Chairman. Opinion Committea! Prepared by Nancy Sutton Assistant Attorney General p. 1894