Untitled Texas Attorney General Opinion

The Attorney General of Texas JIM MAlTOX October 22. 1985 Attorney General S~ppme Own Bullding Mr. Charles D. Trmia Opinion No. JM-366 P. 0. Box 12548 Executive Director Austin. TX. ?8711- 2540 Texas Parks and W!.l.dlife Re: Whether the Parks and Wildlife 5121475-2501 Department Columisslon may delegate certain Telex 9101874.1367 Telecopier 51214754266 4200 Smith School Road permitting authority to the execu- Austin. Texas 711?44 tive director of the department 714 .hckson. Suite 7M) Dear Mr. Travis: Dallas, TX. 75202-r506 2lU742.8944 You ask us tixther the Parks and Wildlife Conmisslon [hereinafter the "Comission"] is authorized, through its rulemaking powers, to 4824 Alberta Ave.. Suite 160 delegate to the Ih:ecutiveDirector the authority to issue permits in El Paso. TX. 799052793 compliance with chapter 86 of the Parks and Wildlife Code. See Parks 915/- & Wild. Code 586.001 et seq. You qlso Inform us that the C~ission has already delegated this permitting authority to the Executive lo0I TBXPS. Suite 7W Director through rules promulgated more than ten years ago. See 31 Houston, TX. 77002~3111 T.A.C. 157.45. 713l223ea6 Section 86.002(a) of the Parks and Wildlife Cod2 provides: 808 Broadway. Suite 312 Lubbock, TX. 7B401-3419 (a) No person may disturb or take marl, sand, 8081747-5238 gravel, shell, or mudshell under the management and protection of the eomission or operate in or disturt any oyster bed or fishing water for any 4309 N. Tenth, Suite B McAllen. TX. 78501~1685 purpoac:other than that necessary or incidental to 51218824547 navlgat:ion or dredging under state or federal authorj.tywithout first having acquired from the commisc~Joa a permit authorizing the activity. 200 Mdn Plaza. Suite 409 (Empha~~isadded). San Antonio. TX. 792052797 51212254191 Section 86.004 provides: A” Equal DOpo~unWl The mmmisslon may grant a permit to an appli- Alllrmtive Action Employer cant &I has complied with all requiramancs of the zsoion if the commission finds that the dis- turbinlc,, taking, and carrying away of marl, sand. gravel, shell, or mudshell will not: (I) damage or injurlously affect any isl.md, reef, bar, channel, river. creek, or bays used for navigation, or any oysters, p, 1677 Mr. Charles D. Travis - Page 2 (JM-366) oyster beds, or fish in or near the water used in the oper#.tion;and (2) cbar.g,a or injuriously affect any current t'aat would affect navigation. (Emphasis atided). Moreover, any person desj.ringa permit must make a written application to the Conmission. See I'arks& Wild. Code 186.003. If the Commission refuses to grant a=Lt to an applicant. the body is required to make written findings of facts explaining the reason for the refusal. See Parks h Wild. Code IE6.008; see also V.T.C.S. art. 6252-13a, 5515, ma) . Therefore, the legislature has explicitly designated to the Comrtssion the pemittinl; authority under chapter 86 of the Parks and Wildlife Code. Through its rulemak~iag authority, the Commission has delegated its authority to issue permlts to the executive director. -See 31 T.A.C. 557.45. The agemy roles provide in part: (a) The f&.owiag procedures will be followed for the issuance of general permits: (1) All requests for shell dredging permits will be made,in writing to the director. . . .. (6) The +irector may consider the following criteria in determining vhether to grant or deny a permit. . . . (Emphasis added). See 31 T.A.C. s57.45. The rules also provide for the director or any Gloyee authorized by 1:be director to hold a hearing to determine vbether a permit will bl! granted. See 31 T.A.C. 1557.45(a)(4)-(8). These rules make no provisions for the Conmission to make a final datermination of wbetber a permit will be granted. Accordingly, they are in conflict with sec,tion 15 of article 6252-13a. V.T.C.S. See Citizens Bank of Bryan 7'. First State Bank, Eearne. 580 S.W.2d 344. 347 (Tex. 1979); ---see t?iso V.T.C.S. art. 6252-13a. 422 (lam in conflict vith the Adminl~~trativeProcedure and Texas Register Act are repealed). We also conclude that the rules In question are in direct conflict with the legis:.ativemandate that the Commission grant or deny permit applications. Despite the fact that these rules bave been In effect and have been followed by the agency for ten years, they are contrary to the plain meaning of the applicable statutes; and therefore, afford no basis for the continuation of this agency practice. -- See Brown Express, Inc. v, Railroad~Comission, 415 S.U.2d 394 (Tex. 1967). p. 1678 Mr. Charles D. Travis - Page 3 (JM-366) We do not imply that the Commiaaion is totally precluded from promulgating rules delegatir,g, its authority to hold hearings on permit applications. The legislatwe has not prohibited the Coamissio~ from See Attorney delegating this function. me- General Opinion JM-244 (1984). But the Administrative Procedure and Texas Register Act requires that the granting of an agency 'permitmust comply with the provision6 of the act concerning contested cases. See V.T.C.S. art. 6252-13a. 113(3), 18(a). Although section 15 ofrhe act clearly allovs the appointment of a hearing examiner in such cases, see Grace v. Structural Pest Control Boa::dof Texas, 620 S.W.2d 157 (K Civ. App. - Waco 1981, vrit ref'd n.r~~ommission mst sake the ultimate decision and include findluns of fact and conclusions of law in compliance with sections 15 and 16. See Citizens Bank of Bryan v. First State Bank, Hearne, supra. at 347; Texas Health Facilities colmission v. Charter Medical-Dallas, Inc.. 665 S.W.2d 446 (Tex. 1984); Consusars Water, In-. v. Public Utility Commission of Texas, 651 S.W.2d 335 (Tex. App. -Austin 1983. no writ). SUMMARP Section 57.45 of chapter 31 of the Texas Administrative Code is invalid because it is inconsistent with chapter 86 of the Parks and Wildlife Code an'3 article 6252-13a. the Adminis- trative Procedure and Texas Register Act. The Parks and Wildl:.fe Commission is not precluded from delegating :;tsauthority to hold hearings on permit applications so long as the practice is in compliance with article 6252-13a. - JIM HATTOX Attorney General of Texas TOM GREN First Assistant Attorney G'sueral DAVID R. RICRARDS Executive Assistant AttoNqg General ROBERT GRAY Special Assistant Attorney #General RICR GILPIN Chairman, Opinion Committee p. 1679 Mr. Cherlee D. Travie - Pwgc 4 (JM-366) Prepared by Tony Cuillory AssistautAttonley General APPRovm: OPINION CCRQlITTRg Rick Gilpin. Chelrmm Colin Carl Sussn Garrison Tony Guillory Jim Mocllinger Jennifer Riggs Nancy Sutton Sarah Woelk p. 1680