How much rulemaking authority did a Texas public-health district's administrative board have?

Texas AG Opinion JM-793: Rulemaking by a Public-Health District Board

Plain-English summary

El Paso County asked whether a public-health district's administrative board still had authority to adopt substantive and procedural rules after a 1985 amendment to former article 4436b.

The Attorney General concluded that the board retained rulemaking power only when state law specifically authorized the particular rule. The amendment was not a complete repeal of rulemaking authority, but it prevented the board from relying on broad general language as an independent source of power.

JM-793 also repeated the statute's restriction that no board rule could conflict with state law or an ordinance of a member city or county. Earlier opinion JM-336 illustrated the limit by concluding that a general power to enforce public-health laws did not specifically authorize the board to impose fines.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the 1985 amendment eliminate every board rulemaking power?

No. It limited the board to rules and regulations specifically authorized by state law.

Was the general public-health mandate enough by itself?

No. JM-793 treated the broad authority to promote health and safety as limited by section 4.09(f)'s demand for specific statutory authorization.

Could the board impose fines for violating its rules?

JM-793 quoted JM-336, which found no specific state law authorizing that enforcement method and therefore rejected an implied fine power.

Could a health-district rule conflict with a member city's ordinance?

No. Section 4.03(b) prohibited rules conflicting with state law or an ordinance of a member municipality or county.

What legal principle did the cited case supply?

The opinion cited City of Baytown v. Angel for the rule that a specific statutory provision limits or controls a general one.

Background and statutory framework

El Paso County and the City of El Paso had established a public-health district under former article 4436b. Section 4.02 authorized the district to perform public-health functions available to its members.

Section 4.03(b) gave the administrative board general rulemaking language. Section 4.09(f), added in 1985, said the Act did not grant rulemaking power not otherwise specifically authorized by state law.

JM-793 harmonized those provisions by allowing specifically authorized rules while denying a free-standing power to create substantive authority from the general grant alone.

Citations

Statute, case, and prior opinion:

• Former V.T.C.S. article 4436b, sections 2.01, 4.02, 4.03(b), and 4.09(f)
• City of Baytown v. Angel, 469 S.W.2d 923 (Tex. Civ. App. - Houston [14th Dist.] 1971, writ ref'd n.r.e.)
• Texas Attorney General Opinion JM-336 (1985)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-793
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0793.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected, but minor errors may remain; the linked PDF is authoritative.

September 23, 1987

Honorable Joe Lucas
El Paso County Attorney
Room 201, City-County Building
El Paso, Texas 79901

Opinion No. JM-793

Re: Authority of a local administrative public health board to adopt rules

Dear Mr. Lucas:

You ask:

May an administrative public health board adopt substantive and procedural rules or have those rulemaking powers been effectively repealed by the 1985 amendment to Rev. Civ. Stat. Ann. Art. 4436b?

Factual information furnished by you reflects that the city of El Paso and El Paso County established a public health district pursuant to article 4436b, V.T.C.S.

Section 4.02, of article 4436b provides as follows:

A public health district is authorized to perform the public health functions that any of its members is authorized to perform unless otherwise restricted by law.

Section 4.03(b) states in pertinent part:

An "administrative public health board" shall have the authority to adopt substantive and procedural rules which are necessary and appropriate to promote and preserve the health and safety of the public within its jurisdiction; provided that no rule adopted shall be in conflict with the laws of the state or the ordinances of any member municipality or county. (Emphasis added.)

The 1985 amendment about which you inquire, section 4.09(f), of article 4436b states that

nothing in this Act shall be construed to grant the board of any district created hereunder the power to adopt rules or regulations for any part of the district which are not otherwise specifically authorized by state law. (Emphasis added.)

In Attorney General Opinion JM-336 (1985), it was concluded that the 1985 amendment was a further limitation upon the board's authority to adopt rules and regulations. In responding to questions about the authority of a public health district's administrative board to issue licenses, exact fees, and impose fines for non-compliance with its rules, Attorney General Opinion JM-336 stated that there must be specific statutory support for a board to take such action.

We believe the analysis made in Attorney General Opinion JM-336 on the matter of whether a public health district has authority to impose fines for noncompliance with its rules provides a good example of the limitation imposed upon the board's authority by section 4.09(f). There it was stated:

Next we consider whether the authority granted to governing bodies of cities and counties under section 2.01 to "enforce" any law to protect the public health is specific statutory authority for the imposition of fines by a public health district for noncompliance with its rules. We think not. Section 2.01 is a general provision which authorizes cities and counties to enforce laws enacted to protect the public health. The provision does not prescribe any particular method for the enforcement of these laws. When read together with the specific limitation on the authority of the board imposed in section 4.09(f), the provision is insufficient to authorize the public health district's administrative board to impose fines for noncompliance with its rules. See City of Baytown v. Angel, 469 S.W.2d 923 (Tex. Civ. App. - Houston [14th Dist.] 1971, writ ref'd n.r.e.) (a general provision in a statute is limited or controlled by a specific provision). We have not discovered any specific state law authorizing this manner of enforcement by a public health district.

We conclude that a public health board may enact only such rules as may be specifically authorized by state law. No rule adopted may be in conflict with the laws of the state or the ordinances of any member municipality or county.

SUMMARY

A public health district's administrative board organized pursuant to article 4436b, V.T.C.S., may adopt such rules and regulations as may be specifically authorized by state law.

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

1. Additional authority was given to cities, towns and villages by amendment to article 4436, V.T.C.S., by the recent regular session of the legislature. Senate Bill 1395, Acts 1987, 70th Leg., ch. 329, at 3452, effective August 31, 1987, authorizes ordinances requiring owners of property to eliminate certain unsanitary conditions.