Untitled Texas Attorney General Opinion

c -, The Attorney General of Texas Au];ust14, 1985 JIM MATTOX Attorney General Supreme Court Building Robert Bernstein, M.D., F.A.C.P. opinion NO. ~~-336 P. 0. BOX 12546 Commissioner of Realth Austin. TX. 76711-2548 Texas Department of Eealth Re: Authority of e joint city- 512,47&2501 county public health district 1100 West 49th Street Tetex 910/674-1367 Telecopier 512/4750266 Auetin, Texas 78756 to issue licenses, exact fees and impose fines for non- compliance with its rules 714 Jackson, Suite 700 Dallas, TX. 75202.4506 Dear Dr. Bernstein: 214/742-6944 You have requmted our opinion regarding the authority of a 4624 Alberta Ave., Suite 160 public health distr:lctorganized pursuant to the Local Public Health El Paso, TX. 799052793 Reorganization Act [hereinafter the “Act”] to issue licenses, exact 915/533-3464 fees, and impose fires for noncompliance with the rules throughout the jurisdiction of the public health district. Article 4436b of the Act 1001 Texas, Suite 700 was amended by the Mxty-ninth Legislature with the enactment of Rouse Houston, TX. 77W2~3111 Bill No. 1114. See Acts 1985, 69th Leg., ch. i I at (not 7131223-5666 yet published). ?% amended provisions of the Act willgo intoeffect on August 26, 1985. Although it appears that your question did not contemplate the enactment of Eouse Bill No. 1114, this opinion will 608 Broadway, Suite 312 Lubbock, TX. 79401-3479 consider the effect of that recent enactment. 806(747-5236 Section 4.02 of article 4436b. V.T.C.S., provides that: 4309 N. Tenth, Suite S A public 'wealthdistrict is authorized to perform McAllen. TX. 76601-1666 5121662.4547 the publ:k: health functions that any of its members i3 authorized to perform unless otherwise restricted by law. 200 Main Plaza. Suite 400 San Antonio, TX. 76205-2797 A public health dilit:rictma9 be composed of a combination of cities SlZ2254191 and/or counties. --- See V.T.C.S. art. 4436b. 94.01. Section 2.01 of article 443613.V.T.l:..S., authorizes the governing bodies of cities and An Equal Opportunity/ counties "to enforce any law which is reasonably necessary to protect Alfirmative Actlon Employer the public health." Once s public health district has established an administrative boar& the board is authorized: to adopt substantive and procedural rules which *re necei313aryand appropriate to promote and preserve the health and safety of the public within it.8 jurisdiction; provided that no rule adopted tin;311 be in conflict with the laws of the p. 1530 .- .I Dr. Robert Bernstein - Page 2 (JM-336) state or the ordinanfzesof any member municipality or county. (EmphasEs added). V.T.C.S. art. 443613,54.03(b). In addition to the underlined portions above, the legislature has further limited the board's authority to adopt rules and regulations in.the most recent amendment by providing that: nothing in this' Act shall be construed to grant the board of any d:tstrict created hereunder the power to adopt rules or regulations for any part of the district which are not otherwise specifically authol+ed by state law. (Emphasis added). Acts 1985, 69th Leg., ch. 17, at (not yet published) (V.T.C.S. art. 4436b, §4.0!)1m: Accordingly, we must determine whether there is specific statutory authority for the public health district's administrative board to issue licenses, exact fees, and impose fines for noncompliance with its rules. A public health district has been granted the limited authority to exact fees. The Act specjfically provides: Sec. 4.08(a). The governing body of an incorporated municjpality, the commissioners court of a county, or i.he administrative board of a public health dis,:rict me9 adopt ordinances or rules to charge fues for public health services subject to the follc%ng: (1) no individual shell be denied public health services because of inability to pa9 for services, end the . . . district shall make provisions for a reduced fee or no fee for individuals unable to pa9 for services in whole or in part; end (2) if a . . . Flublichealth district receives state support for the provision of public health services, then the Uniform Grant and Contract Management Act Of 1981 (Article 4413(32g), Vernon's Texas C:.vil Statutes), and standards adopted pursuant to thst Act shall control where applicable. V.T.C.S. ert. 4436b, §4.08(a:'?as amended by Acts 1985, 69th Leg., ch. -9 06. et (not yet published). See also section 4.08(b) (definftion of"public health services"). We conclude that it is only :?.1531 Dr. Robert Bernstein - Page 3 (JM-336) under these limited circumstances that an administrative board of a public health district may axact fees for the provision of health services. Cf. Nueces County- v. Currington, 162 S.W.2d 687 (Tex. 1942). Next we consider wheth'ar the authority granted to governing bodies of cities and counties under section 2.01 to "enforce" any law to protect the public health is specific statutory authority for the imposition of fines by a public:health district for noncompliance with its rules. We think not. Section 2.01 is a general provision which authorizes cities and counties to enforce laws enacted to protect the public health. The provision does not prescribe any particular method for the enforcement of theof! laws. When read together with the specific limitation on the authority of the board imposed in section 4.09(f), the provision is insufficient to authorize the public health district's administrative board to impose fines for noncompliance with its rules. See City of Baytown v. Angel, 469 S.W.2d 923 (Tex. Civ. APP. - Houston [14th Dist.:r 1971, writ ref'd n.r.e.) (a general provision in a statute is limited or controlled by a specific provision). We have not discrrered any specific state law authorizing this manner of enforcement by a3 public health district. With regard to the authority of the administrative board of a public health district to issue licenses, we have not found any specific statutory provision authorizing this conduct by the board. We believe that the limitation imposed in section 4.09(f) prohibits the issuance of licenses unless the legislature determines to specifically authorize it. SUMMARY A public health district's administrative board organized pursuant to the Local Public Realth Reorganization Act, article 4436b, V.T.C.S., is authorized to exact fees for health services within the limitations imposed in section 4.08. However, the district is without specific statutory authority to issue licenses, or impose fines for noncompliance with its rules. JIM MATTOX Attorney General of Texas p. 1532 Dr. Robert Bernstein - Page 4 (JM-336) TOM GREEN First Assistant Attorney General DAVID R. RICRARDS Executive Assistant Attorney Genersl ROBERT GRAY Special Assistant Attorney Gevaral RICK GILPIN Chairman, Opinion Committee Prepared by Ton9 Guillory Assistant Attorney General APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Guillory Jim Moellinger Jennifer Riggs Nancy Sutton Sarah Woelk