OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
floaorable George F’. Cor
State Xeelth Offloor
mlrtln, T8X88
D8ar Sir:
of ma108aad.
cmulgatod by the
Hsalth under thm
eotioo 5 of the
$ubdlvislon (9) of +otlon 6 of tha hot then ProVl688:
-any permit lmmml ln~ aoaordanoe wlth tho pro-
vlelans mrry bs revoked by the State Health Offloer
upon proof or vlolatlon 0r any of the proviaionr 0r
Ronorable Oeor&s --. COX, pago 2
this hot. . . ."
Your latter of October 24, 1940, requests 6 leg*1
opinion frooP tbla DoperWent a6 to whether the state Xealth
Officer would be authorized to revoke the permit of an operator
who has vloiated the rul46 and regulations promulgated by the
State Board of Health under the rula-mekl~ power of the Boer4
net out above in Section 5. You alao ask what procedure ehould
ba followed by the state Health Cffloer in doing so.
The purpose of empowsrlng the State Board of Haalth
to promulgate rule6 and regul6tlona was ‘to enable the more ef-
fective enforcamant of the Rot which ~64 enactad under the
State*8 police power for the protaotlon of health and for the
~avaation of tha spread of dlaeaaa.
A vital requfrensnt of the $ot 1s that any psraon en-
g6sged in tha business of manutaaturlng, repairing or ranovat-
lng bedding ahall obtain a permit from the Depsrtmsnt of Realth
and shell register eny &srmloldal prooeaa used in such bualneaa
and aeoure the approv61 of the Depertment of auoh prooaaa.
The permit provlelons of the Aot era emong those
touching which the State Board of Bealth waa ampowerad to pro-
muleate rules and regulatlona. That oompllenoe thar6wlth la
required of the permittoe la lndloated by tha languaga of sub-
aeoticn (b) of Seotlon 6 whloh luthorlzea a ranawel permit
-upon aubmiaalon or moor 0r oontlnued oomvllanoa with the pro-
vlilona of this AOt in4 tha regulation6 of-the Degertmant.*-
(Bnpharle oura) -~
Tha validity of leglolatlon whloh Oont6re rul6-meking
powera upon admlnl6tr6tlv6 aganaiaa ha* bean conaiatently upheld
by our oourta.
In San Antonlo v. Joaea, 28 Tar. 33 (quoted wfth ap-
proval in O’Brien v. ~Unemmn, 112 Tex. 264, 247 8. X’. 270). it
wan daolarsd by the 9uprme Court of Teraat
“The La~lalature say grant authority aa well aa
give oomands, and a&a done under it6 authority are
aa valid as if dons in obedlenoe to its commanan.
Nor 1s a statute, whore complete lxeoution an4 appll-
oetlon to the aubjectslattsar la, by its provlalona,
meda to depend on the aaaant of 6ome other boQy, a
Aalegatlon of laglolatlve power. The dlaoretlon &or6
Honorable Oaorge 1%. cox, fgge 3
to the eraroloe of the power conferred by the law,
but not to maks ths lew itsslf. The law, in such
c4668, may depend ror its praotloal efflolenoy on
the sat of some other body or lndlvlAua1; still
it in not &erlved from auoh sot, but from the lagla-
latlve authority.*
It wae llkewlaa etated by the San Antonio Court of
Civil AppeSlS in Tuttle v. Wood, 35 5. X. (2d) 1001, (writ
or error refussd)r
*It is true. of Course thst the Legislature
cannot dalegate to an aAmln~atratlvs board the power
to make a law praaorlblllg a penalty, but It la
equally true that it 1s oompdxmt for the Leglalatura
to author126 a ooauaiaaim or board oraatad for that;
purpose to preaorlba dutlea or aaaertain oondltiona
upon whioh an axlstlng law say operata ln imposing a
penalty and in affeQtuatlng ths ;lurpoae daalgned in
enaotlng the law. It la 1~ pursuance of this au-
thority thet railroad oomlaalonm, publla utility
a~leaeione, liveGtock sanitary oomutiasioaa, health
boards and like ag;enoiee exerolae their iunotlona
and admlnleter and enforce laws ralatlng to their
aev*ral aepertmentm. In their varg natQr6 such lara
muat be flaxlble in order to glte thraP pr~otloable
&ppllaetfon to tha Elvarae oondltlona whloh adat
wlthln the savers1 states."
In Re Rahrar, 140 0. S. 554, it war said by Xr. Chief
Justiae Puller:
'The power of the mtata to impose raatrafaj;m
anA burden:: upn parsons and property in 0onaerve-
tlon and promotion of ths public health, good order
and prosperity la a pomr cri&~~lly end almya bo-
longing to the states, not a~rranderad by them to
the general government, nor direotly reetralnad by
the Constitution of the United States, ain4 eeaentlally
*xclu*lv4."
Sam also the oaaaa of Rash &ardware Company v. tcorria,
105 Tar. 817, 146 Y. :f. 874~ Henry v. Wate, 260 8. 3. 19Or
Ex Part6 xhlte, 1QR ti. 3. 5331 FJebbla v. Hew York, 291 U, S.
502.
335
Honorable George w. Cox, Faga 4
It is the opinion of this Department that a vlola-
tion of the rules and regulations promulgated by tha State
Board of Health in accordance with Seotion 5 of the Aot, by
a person engaged in the bualnesa of manufacturing, repairing
or renovating bedding would constitute a Violation of any
of the provlslone of this AOt" within the purview of Subdivi-
slon (e) of Ssctlon 6 of the Aot, and upon proof of such, the
gtate Health Officer would be authorized to revoke a permit
theretofore laeued to such operator.
The Aot does not provide any particular procedure
for the State Health Offloer to follow in the revooatlon of
a permit. The State Board of Health is, however, authorized
by Qeotion 5 of th& hot to "make . . . general rules and
regulations of prooedure ror carrying into efreot all the
provlalone of this Act". It la our opinion that the Board
should promulgate reaaoueble rules whereunder the permittea
would be given notlos and a hearing before the State Health
Offloar prior to the revocation of a permit. This would in-
volve the giving of notice to the permittee of the exlatenoe
of evldanoe before the State Health Officer of violations by
the permittee of the rules and regulations promulgated'by the
Board, togather with the right of the permittee to a hearing
berora the Offloer at the time designated. If at such hear-
ing it is establlahed that the permittea has violated the
rules and regulation6 of the Board, the State Health Orflcer
would be authorized to revoke the permit.
Yours very truly
ATTORNEYGENERAL
OF TEXAS