The Honorable Fratis L. Duff Opinion No. H949
Director
Texas Department of Health Re: Rule-making power
Resources of Director of Health
1100 West 49th Street Resources.
Austin, Texas 78756
Dear Dr. Duff:
You have requested our opinion concerning the effect
of House Bill 2164 of the 64th Legislature upon the general
rule-making powers of the Department of Health Resources.
You have not presented any specific rule or regulation for
our review.
Prior to 1975, article 4418d, V.T.C.S., provided that
the State Health Officer would be the "executive head" of
the State Department of Health and that he could promulgate
"administrative rules and regulations" for the effective
performance of his duties. House Bill 2164 amended article
4418d to provide for a Director of Health Resources in the
place of the State Health Officer. In so doing, the language
regarding rules and regulations was deleted. Acts 1975,
64th Leg., ch. 323, 832 at 847.
House Bill 2164 also amended article 4418a. V.T.C.S.,
to provide:
The Texas Board of Health Resources shall:
. . . .
(3) adopt rules, not inconsistent
with law, for its own procedure . . . .
Id.
P. 3967
The Honorable Fratis L. Duff - page 2 (H-949)
The Board of Health Resources is a creation of the
Leaislature: as such it has "onlv such powers as are delesated
to>it, expressly and impliedly, by the Legislature." State
v. Jackson, 376 S.W.2d 341, 344 (Tex. 1964); Stauffer v.
m of San Antonio, 344 S.W.2d 158 (Tex. 1961). Attorney
Genera Opinion M-610 (1970). - See Attorney General Opinion
H-475 (1974).
Since the general rule-making power contained in article
4418d was deleted and since this general power is not
elsewhere provided, in our opinion the Director of Health
Resources has no general rule-making power. Of course,
the Board of Health Resources has the power to issue pro-
cedural rules under article 4418a, but this power does not
extend to substantive rules. See Kee v. Baber, 303 S.W.2d
376 (Tex. 1957). However, thislack of general rule-making
power does not affect the specific grants of rule-making
power contained in other statutes, e.g. articles 4476-7, -8,
-11, -13, -15, 4477-6, 4477-7, V.T.C.S. See V.T.C.S. art.
44189. In addition, some rules may be valid as impliedly
authorized to effectuate a power expressly granted by statute.
See Terre11 v.
- - Sparks, 135 S.W. 519 (Tex. 1911).
SUMMARY
The Department of Health Resources has
no general rule-making power. Whether a
rule is valid under some specific statutory
authorization or is impliedly authorized to
effectuate an expressly granted power would
depend upon the particular rule involved.
ery truly yours,
/
Al. J ,&T&>
/'Attorney General of Texas
,"
/,.~~,--+E?PROVED
:
c. ROBERT HEATH, Chairman
Opinion Committee
jwb
P. 3968