The Honorable Roy J. German Opinion No. H-870
Chairman
Texas Commission on Alcoholism Re: Authority of Texas
809 Sam Houston Building Commission on Alcoholism
Austin, Texas 78701 to certify "alcoholism
counselors."
Dear Chairman German:
You have requested our opinion regarding the authority
of the Texas Commission on Alcoholism to certify persons as
"alcoholism counselors" and to regulate the use of such
title. The Texas Commission on Alcoholism was created by
article 5561c, V.T.C.S., which provides, in section 5, that
the Commission "shall have only the following duties and
functions:
(1) Carry on a continuing study of the
problems of alcoholism in this State, and
seek to focus public attention on such
problems.
(2) Establish cooperative relationships
with other State and local agencies, hospitals,
clinics, public health, welfare, and law
enforcement authorities, educational and
medical agencies and organizations, and other
related public and private groups.
. . .
(4) Provide for treatment and rehabilitation
of alcoholics . . . . (Emphasis added).
p. 3669
The Honorable Roy J. German - page 2 (H-870)
Article 5561~ confers no express certification authority
upon the Commission. It is well established that a statutory
board may
exercise only such authority as is conferred
upon it by law in clear and unmistakable
terms and the same will not be construed as
being conferred by implication. Board of
Insurance Commissioners of Texas v. Guaaian
Life Insurance Co., 180 KW.2d 9Oc 908 (Tex.
sup. 1944) . See also Corzelius v. Railroad
Commission, 182 S.W.2d 412, 415 vex. Civ.
APP. -- Austin 1944, no writ).
As the Supreme Court declared in State v. Cortez, 333 S.W.2d
839 (Tex. Sup. 1960), the authority of ?!ie State Board of
Morticians to "prescribe rules and regulations pertaining to
the operation of all funeral establishments" does not confer
upon the Board the power to require such funeral establish-
ments to obtain a license to operate. Id. at 841. Thus, it
is our opinion that the Commission has G authority to
certify persons as "alcoholism counselors" or to require
that a private corporation follow standards and procedures
prescribed by the Commission regarding such certification.
The current General Appropriations Act, however, appro-
priates specific sums to the Department of Mental Health and
Mental Retardation, the Department of Health Resources, and
the Department of Corrections, "to supplement the rehabilita-
tion of alcoholics . . . to be expended with the advice of
the Texas Commission on Alcoholism" for the employment of
"alcoholism counselors." General Appropriations Act, Acts
1975, 64th Leg., ch. 743, art. II, § 1 at 2443-44. When
read in conjunction with the Commission's authority under
article 5561~ to "provide for treatment and rehabilitation
of alcoholics," it might be argued that these state agencies
may employ as alcoholism counselors only such persons as are
certified by the Commission.
In Attorney General Opinion H-790 (19761, we dealt with
a situation in which the Dental Laboratory Advisory Board has
been directed, under article 4551f, V.T.C.S., to "advise the
Texas State Board of Dental Examiners." Such authority, we
held, was advisory only, and the Board of Dental Examiners
was not obliged to follow the recommendations of the Dental
p. 3670
The Honorable Roy J. German - page 3 W-870)
Laboratory Advisory Board. Likewise, we believe that the three
state agencies authorized by the General Appropriations Act
to employ alcoholism counselors may do so without the prior
approval of the Commission on Alcoholism. Although the agencies
should seek the "advice" of the Commission as to the standards
to be used in employing alcoholism counselors, they are not
bound by that advice.
SUMMARY
The Texas Commission on Alcoholism has no
authority to certify persons as "alcoholism
counselors" or to require that a private
corporation follow standards and procedures
prescribed by the Commission regarding such
certification. Although the Department of
Mental Health and Mental Retardation, the
Department of Health Resources, and the
Department of Corrections should seek the
advice of the Commission as to the standards
to be used in employing alcoholism counselors,
they are not bound by that advice.
Very truly yours,
Attorney General of Texas
APPROVED:
Opinion Committee
jwb
p. 3671