The Attorney General of Texas
March 23, 1982
MARK WHITE
Attorney General
Honorable Ray Farabee, Chairman Opinion No. Mw-460
Supreme Court Building State Affairs Committee
P. 0. Box 12548
Texas State Senate lb?: Validity of legislation
Austin, TX. 76711. 2546
512/475.2501
Room 411, Archives Building authorizing a legislative
Telex 9101674-1367 Austin, Texas 78711 committee to veto or repeal
Telecopier 5121475.0266 administrative rules
Dear Senator Farabee:
1607 Main St., Suite 1400
Dallas. TX. 75201-4709
2141742.6944 Your letter to this office reads in part:
As Chairman, Senate State Affairs Committee, I
4624 Alberta Ave.. Suite 160
hereby respectfully request your opinion...
El Paso, TX. 79905.2793
915/533.3464
concerning the application and interpretation of
article II, section 1, and article III, sections
28 through 40, of the Texas Constitution with
1220 Dallas Ave., Suite 202 respect to the authority of the legislature to
Houston, TX. 77002-6966
delegate to legislative committees the power to
713B50.0666
nullify lY”lW proposed by agencies in the
executive branch of government.
606 Broadway, Suite 312
Lubbock, TX. 79401.3479 The Sixtv-seventh Legislature nassed. and the governor signed,
6061747-5236
several acts containing the following language (or words of the same
import):
4309 N. Tenth, Suite 6
McAlle”, TX. 76501-1665 If the appropriate standing committees of
5121662-4547 both houses of the legislature acting under
Section 5(g), Administrative Procedure and Texas
200 Maln Plaza, Suite 400
Register Act, as amended (Article 6252-13a.
San Antonio. TX. 76205.2797 Vernon's Texas Civil Statutes), transmit to the
5121225.4191 board statements opposing adoption of a rule under
that subsection, the rule may not take effect or,
An Equal Opportunityl
if the rule has already taken effect, the rule is
Affirmative Action Employer repealed effective on the date the board receives
the committee's statements.
It is the validity of this language, now included in the enabling acts
of several state agencies, that you question. See V.T.C.S. art.
46c-4(c) (Aeronautics Commission); art. 3271a, §8(d)(State Board of
Registration for Professional Engineers); art. 4413 (29cc). §6(f)
(Polygraph Examiners Board); art. 4512b, §4(c) (Texas Board of
Honorable Ray Farabee - Page 2 (MW-460)
Chiropractic Examiners); art. 4512e. 83e (Texas Board of Physical
Therapy Examiners); art; 4528~. 95(r) (Board of Vocational Nurse
Examiners); art. 4552-2.14,(b) (Texas Optometry Board); art. 4551d,
3(b) (Texas State Board of Dental Examiners); art. 4568(j) (State
Board of Podiatry Examiners); art. 5931-5,(10) (National Guard Armory
Board); art. 6243-101, 84(c) (Texas State Board of Plumbing
Examiners); art. 7465a, §8(c) (Texas State Board of Veterinary Medical
Examiners).
The language under examination purports to lodge in legislative
committees established pursuant to section 5(g) of the Administrative
Procedure and Texas Register Act (APTRA), article 6252-13a, V.T.C.S.,
the power to veto or repeal any rule promulgated by the administrative
agency affected. That APTRA subsection, added in 1977, provides:
Each house of the legislature shall adopt
rules establishing a process under which the
presiding officer of each house shall refer each
proposed agency rule to the appropriate standing
committee for review prior to adoption of the
rule. When an agency files notice of a proposed
rule with the secretary of state pursuant to
Subsection (a) of this section, it shall also
deliver a copy of the notice to the lieutenant
governor and the speaker. On the vote of a
majority of its members, a standing committee may
transmit to the agency a statement supporting or
opposing adoption of a proposed rule.
See V.T.C.S. art. 6252-13a, 85(g). We note that an agency proposing
rules is also required to give notice to the public and invite comment
from "any interested person." V.T.C.S. art. 6252-13a, 95(a)(6).
There is no constitutional provision, state or federal, which
precludes commentary or expressions of approval or disapproval by a
legislative committee addressed to an administrative body
contemplating the adoption of a rule or regulation, and the validity
of section 5(g) of article 6252-13a, the Administrative Procedure and
Texas Register Act, has not been questioned. See Terre11 v. King, 14
S.W.2d 786 (Tex. 1929). Your question reachesbnly the power of such
committees to nullify agency rule proposals or adopted agency rules.
We consider first the repeal of agency rules that have been
already adopted and put into effect. In legal theory, the legislative
power vested in the legislature by article III, section 1 of the
constitution must be exercised by it alone. However, many powers have
been properly delegated by the legislature to administrative agencies.
See generally 12 Tex. Jur. 3d Constitutional Law $73 et seq., at 599.
Among them has been the power to make rules having the force and
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Honorable Ray Farabee - Page 3 (MW-460)
effect of law. See generally 2 Tex. Jur. 3d Administrative Law 916 s
=, at 208.
Valid rules promulgated by an administrative agency acting within
its statutory authority have the force and effect of legislation.
Lewis v. Jacksonville Building and Loan Association, 540 S.W.2d 307
(Tex. 1976). And a rule promulgated by an administrative agency
actine within its delegated suthoritv should be considered under the
same principles as if it were the act of the legislature. Texas
Liquor Control Board '1. Attic Club, Inc., 457 S.W.2d 41 (Tex. 1970).
Nevertheless, when such rulemaking power is vested in an agency of the
state, it is regarded as an incident of the executive power to
administer laws enacted by the legislature, and not as a power to
enact laws. It is held that an act of the legislature that is
complete and comprehensive in itself and which confers upon an agency
authority only to establish rules, regulations and minimum standards
to reasonably carry out the expressed purposes of the legislature's
act does not make a constitutionally forbidden delegation of
legislative power. Oxford v. Hill, 558 S.W.2d 557 (Tex. Civ. App. -
Austin 1977, writ ref'd). It confers only the power to efficiently
administer the complete law already established by the legislature.
See Ex parte Granviel, 561 S.W.2d 503 (Tex. Grim. App. 1978). Cf.
Lone Star Gas Company v. State, 153 S.W.2d 681 (Tex. 1941) (deleg=d
power to fix rates is‘legislative power).
Thus, a conclusion that the language under scrutiny is unconsti-
tutional might be rested on the ground that it attempts to confer upon
members of the legislative branch of government an executive power to
efficiently administer laws enacted by the legislature. Section one
of article II of the Texas Constitution provides for the separation of
governmental powers. It reads:
The powers of the Government of the State of
Texas shall be divided into three distinct
departments, each of which shall be confined to a
separate body of magistracy, to wit: Those which
are Legislative to one; those which are Executive
to another, and those which are Judicial to
another; and no person, or collection of parsons,
being of one of these departments, shall exercise
any power properly attached to either of the
others, except in the instances herein expressly
permitted.
It was held in Ex parte Youngblood, 251 S.W. 509 (Tex. Grim. App.
1923), that when a power conferred by the constitution upon the
legislature or either branch thereof is in turn conferred by the
constitutionally designated legislative body upon a committee composed
of members of the house and senate, the committee is a "collection of
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Honorable Ray Farabea - Page 4 (Mw-460)
persons" within the inhibition of the foregoing constitutional
provision -- and one to which non-legislative powers cannot be
delegated. See also Walker V. Baker, 196 S.W.Zd 324 (Tex. 1946);
Attorney General Opinions V-1254 (1951); O-4609 (1942). See also
Anderson v. Lamm, 579 P.2d 620 (Cola. 1978); In re Opinion of the
Justices to the Governor, 341 N.E.2d 254 (Mass. 1976); Bramlette V.
stringer, 195 S.E. 257 (So. Car. 1938); People V. Tremaine. 168 N.E.
817 (N.-i.1929).
But the provisions authorizing legislative committees to repeal
adopted agency rules are unconstitutional even if the power conferred
could be said to be purely legislative in character. It was held in
Parks V. West, 111 S.W. 726 (Tex. 1908), and reiterated in Walker V.
Baker, w, that where the constitution gives a power and prescribes
the means by which or the manner in which it is to be exercised, such
means or manner is exclusive of all others. Article III, section 1 of
the constitution vests the legislative power of the state "in a Senate
and House of Representatives, which together shall be styled 'The
Legislature of the State of Texas."' Sections 29 through 40 of that
article detail at great length the manner in which the legislature
must exercise its right to legislate. The means by which the
legislature is to accomplish the enactment of laws being expressly
provided by the constitution, any authority for the legislature to
exercise that right in a different mode is excluded. See Walker V.
Baker, supra; American Indemnity Company V. City of Aus%, 246 S.W.
1019 (Tax. 1922).
The legislature is compelled to follow those procedures in the
enactment of all laws, including repeals, unless the constitution
itself provides exceptions thereto. It takes a law to repeal a law,
and the act which destroys should be of equal dignity with that which
establishes. City of Hutchins V. Prasifka, 450 S.W.2d 829 (Tex.
1970); City of San Antonio V. Micklejohn, 33 S.W. 735 (Tex. 1895); J-
D. Abrams, Inc. v. Sebastian, 570 S.W.2d 81 (Tex. Civ. App. - El Paso,
1978, writ ref'd n.r.e.). Inasmuch as the legislature is empowered to
establish a law only by following the aforesaid constitutional
procedures, and cannot do so by delegating that task to a legislative
committee, it cannot effect the repeal of a subsisting law -- as
augmented by a properly adopted administrative rule -- except in the
same manner. -See State V. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska
1980).
Turning to the authorization for such committees to veto proposed
rules, we reach the same result for essentially the same reasons. The
power to control or correct decisions committed to administrators by
law is an executive function. Walker V. Baker, supra. The
legislature, of course, may in the first instance severely restrict
the discretion of executive officers or administrators to make rules
by so thoroughly detailing legislation before it leaves its hands that
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Honorable Ray Farabee - Page 5 (MW-460)
little or no room is left for administrative interpretation. --
See Fire
Department of City of Fort Worth v. City of Fort Worth, 217 S.W.2d 664
(Tex. 1949); Letter Advisory No. 2 (1973). And by the proper exercise
of its law-making powers the legislature may supercede or repeal any
agency rule or decision that has acquired the force and effect of law.
But when a statute commits to an administrative agency's hands the
power to promulgate rules in order to better administer the
legislative policy embodied therein, neither the legislature nor one
of its committees may exercise a continuing ad hoc veto over the
executive discretion thus reposed. Tex. Const. art. II. §l.
In Railroad Commission v. Shell Oil Company, 161 S.W.2d 1022
(Tex. 1942), at 1029, the Texas Supreme Court observed that where the
legislature has seen fit to vest in an administrative agency the
authority to exercise sound judgment and discretion in a particular
matter, the courts could not usurp the powers committed to the agency
or undertake to exercise the agency's judgment and discretion for it.
See also Denison v. State, 61 S.W.2d 1017 (Tex. Civ. App. - Austin),
writ ref'd per curiam, 61 S.W.2d 1022 (Tex. 1933). No less than the
courts, the legislature is bound by the constitution. If a
discretionary rule-making function delegated to an administrative
agency is an executive function -- as we think it is -- it is equally
impermissible for the legislature (or one of its committees) to usurp
the function. Tex. Const. art. II. §l; Walker v. Baker, supra; Ex
parte Youngblood, supra; Attorney General Opinit,ns V-1254 (1951E
O-4609 (1942). e State v. Legislative Finance Committee, et al, 54j
P.2d 1317 (Mont. 1975). See also Anderson v. Lamm, supra; In re
Opinion of the Justices to the Governor, B.
The foregoing conclusion is not inconsistent with the case of
Jessen Associates, Inc. V. Bullock, 531 S.W.2d 593 (Tex. 1975), in
which the Texas Supreme Court concluded that a rider to the General
Appropriations Act supplied "legislative approval" to certain projects
without the consent of the College Coordinating Board. In the Jessen
Associates case the supreme court held that the legislature had fully
complied with the procedural requirements of the constitution and
properly exercised its law-making powers while doing so. There was no
attempt there to usurp an executive function. A proper and complete
legislative act legitimately restricted the discretion allowed
administrative officers. Moreover, the court in Jesse* Associates did
not have before it the question of separation of powers.
We conclude that it is constitutionally impermissible for the
legislature to delegate to legislative committees the power to nullify
rules proposed or adopted by agencies in the executive branch of
government. As a matter of interest we note that a constitutional
amendment which would have expressly allowed a delegation of such
power to legislative committees was proposed in 1979 but defeated by
the people. See H.J.R. No. 133, Acts 1979, 66th Leg., at 3232.
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Honorable Ray Farabee - Page 6 (MW-460)
SUMMARY
It is constitutionally impermissible for the
legislature to delegate to legislative committees
the power to nullify rules proposed or adopted by
agencies in the executive branch of government.
Az&
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Patricia Hinojosa
Margaret McGloin
Jim Moellinger
Bruce Youngblood
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