(Dissenting).
{14} I respectfully dissent.
{15} In my opinion, the regulation relied upon by the Department (NMPA Rule 92-2) to deny Appellant’s application for renewal of his polygrapher’s license was never lawfully adopted by the Department and thus was invalid. The Legislature in 1973 adopted the Polygraphy Act. See 1973 N.M. Laws, ch. 28. The Act specifically provided that the department shall “adopt and file rules and regulations necessary to carry out the provisions of the Polygraphy Act.” NMSA 1978, § 61-26-6(D) (1989). The rule in question was never adopted by the Department; instead, the rule indicates on its face that it was adopted by an “Advisory Committee” appointed by the Department.1
{16} In 1993 the Legislature repealed the Polygraphy Act and adopted new legislation combining and investing the responsibility for the licensing of polygraphers and private investigators with the Department pursuant to the new Private Investigators and Polygraphers Act. See NMSA 1978, §§ 61-27A-1 to -20 (1993). Section 61-27A-5(D) adopted language similar to that contained in former Section 61-26-6(D). Section 61-27A-5(D) provides: “The department shall adopt and enforce rules and regulations necessary to carry out the provisions of the ... Act, including requirements for continuing education.” (Emphasis added.)
{17} Under former Section 61-26-5, the Legislature authorized the Department to appoint an advisory committee to assist it in conducting polygraph examinations “or in any other manner to aid it in the administration of the Polygraphy Act [Sections 61-26-1 to -15].” .The statute does not authorize the advisory committee to adopt polygraphy rules. In fact, as noted above, the Legislature expressly stated the responsibility for adopting rules “shall” reside solely in the Department. Although the advisory committee could draft proposed rules for consideration by the Department and submit such rules to the Department for its consideration and issuance, the rule in question here was never expressly adopted by the Department.
{18} Plaintiff argues that when the Legislature adopted the new Private Investigators and Polygraphers Act, Sections 61-27A-1 to -20, it did not specifically carry forward the rules which previously related to the granting and renewal of polygraph licenses. I find this argument persuasive. Nothing in the new Act specifically authorizes the Department to carry forward or enforce a rule which was never lawfully adopted by the Department in the first instance, and where the documents on file in the New Mexico Register indicate that the Department itself never properly adopted such rule.
{19} The State Rules Act provides that “rules filed prior to July 1, 1995 shall continue in effect if such rules were filed with the state records center in accordance with the law applicable at the time of filing ____” NMSA 1978, § 14-4-5.1 (1995) (emphasis added). The latter section only authorizes rules to be carried forward if they were adopted in conformity with applicable law. Given the mandate specified in former Section 61-26-6(D) and new Section 61-27A-5(D), the Department could not lawfully delegate its rule-making authority to an advisory committee. See Harrington v. Tate, 435 Pa. 176, 254 A.2d 622, 624 (1969) (holding that advisory board was advisory in nature and its decisions are merely recommendations). Because both former Section 61-26-6(D) and its current counterpart, Section 61~27A-5(D), state the authority to promulgate rules “shall” reside in the Department, its attempted delegation of this responsibility to an advisory committee was improper. See Chalamidas v. Environmental Improvement Div., 102 N.M. 63, 66, 691 P.2d 64, 67 (Ct.App. 1984) (administrative agencies are creatures of statute and can act only on those matters which are within scope of its authority); New Mexico Bd. of Pharmacy v. New Mexico Bd. of Osteopathic Med. Exam’rs, 95 N.M. 780, 782, 626 P.2d 854, 856 (Ct.App.1981) (administrative agency has no power to adopt rules beyond its statutory authority); see also Fussell v. Department of Commerce, Div. of Occupational & Prof'l Licensing, 815 P.2d 250, 253-55 (Utah Ct.App.1991) (holding administrative rule defining education requirement is contrary to controlling statute and agency erred in relying on rule to deny psychologist’s license application).
{20} I would reverse the trial court’s decision denying Appellant’s application for renewal of his license because the rule in question was never promulgated by the Department and it was beyond the jurisdiction of the advisory committee to adopt or enforce.
. NMPA Rule 92-1, as set forth in the New Mexico Register, Volume III, No. 16 (Aug. 31, 1992), states:
Pursuant to the authority vested in the New Mexico Polygraph Advisory Committee under Section 61-26-1, et. seq. NMSA, 1978 Comp., the following tules are promulgated by the Committee ... [and the] [subsequent rules ■and regulations to be adopted will assist the Advisory Committee to implement, interpret, administer and enforce the provisions of the New Mexico Polygraph Act.