Can the Texas Water Commission make rules to regulate groundwater, or is that an unconstitutional delegation?

Texas AG Opinion DM-0054: The Water Commission's Groundwater Rulemaking Power Is a Valid Delegation

Plain-English summary

The chairman of the Texas Water Commission asked whether a 1941 attorney general opinion still controlled. Section 28.011 of the Texas Water Code directs the Water Commission to make and enforce rules for conserving, protecting, preserving, and distributing underground, subterranean, and percolating water in the state. Back in 1941, the attorney general first read the predecessor statute (former Penal Code article 848a, enacted in 1931) to authorize regulation of privately owned wells, then withdrew that answer and issued Opinion O-3205-A, holding the provision lacked sufficient standards to be a constitutionally valid delegation of rulemaking authority. Because of that 1941 opinion, the Commission and its predecessor agencies had never adopted rules under the statute. The chairman asked the office to reexamine the question in light of later court decisions on the delegation doctrine.

The Attorney General concluded the statute is a valid delegation. A statute must be construed as constitutional if possible, with every presumption in its favor. A delegation of rulemaking authority needs standards, but those standards may be broad, especially where the conditions to be considered cannot conveniently be investigated by the Legislature itself. The opinion surveyed Texas decisions upholding broad standards: a permit requirement to "safeguard the health, welfare, and physical property of the people" and "protect the environment," a power to revoke an insurer's certificate where officers are "not worthy of public confidence," a water-appropriation permit standard of "not detrimental to the public welfare," a medical-license revocation standard tied to conduct "likely to deceive or defraud the public," and gas-purchase rules guided by directives to prevent waste, promote conservation, and protect correlative rights. Measured against those, a directive to conserve, protect, preserve, and distribute water is at least as specific. The opinion concluded section 28.011 and its predecessor do not offend the delegation doctrine, and it overruled Opinion O-3205-A to the extent it was inconsistent. The opinion expressly did not address the scope of section 28.011 or its predecessor, only the continued validity of the 1941 opinion.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Texas water-agency authority has been reorganized since 1991 (the Texas Water Commission's functions later passed to the Texas Natural Resource Conservation Commission and then the Texas Commission on Environmental Quality), and groundwater regulation has changed substantially. Verify current statutes and agency authority before relying on anything here.

Common questions

Can the Texas Water Commission make rules regulating groundwater?
Yes. The opinion concluded section 28.011 of the Water Code validly delegates rulemaking authority to the Commission for conserving, protecting, preserving, and distributing the state's underground water.

What about the 1941 opinion that said it couldn't?
The opinion overruled Attorney General Opinion O-3205-A (1941) to the extent it was inconsistent. That earlier opinion had held the predecessor statute lacked sufficient standards, and the agency had relied on it to avoid adopting rules.

Why is a broad directive like "conserve, protect, preserve" enough of a standard?
Because Texas courts allow broad standards where the conditions to be regulated cannot conveniently be investigated by the Legislature. The opinion pointed to many statutes with comparably broad language that courts had upheld as valid delegations.

Background and statutory framework

Section 28.011 of the Texas Water Code provides that the Texas Water Commission "shall make and enforce rules and regulations for conserving, protecting, preserving, and distributing underground, subterranean, and percolating water located in this state and shall do all other things necessary for these purposes." Its predecessor, former Penal Code article 848a, was enacted by Acts 1931, 42d Leg., ch. 261, §§ 1, 6. Opinion O-3205 (March 11, 1941) read the predecessor to authorize regulation of privately owned wells; Opinion O-3205-A (April 18, 1941) withdrew that answer and found an invalid delegation.

The opinion applied the rule that statutes are construed as constitutional where possible (Smith v. Decker; Med-Safe, Inc. v. State; Trapp v. Shell Oil Co.) and that delegation standards may be broad (Med-Safe). It relied on Jordan v. State Bd. of Insurance ("not worthy of public confidence" upheld), Clark v. Briscoe Irrigation Co. ("not detrimental to the public welfare" upheld for water appropriation), Martinez v. Texas State Bd. of Medical Examiners (conduct "likely to deceive or defraud the public" upheld), and Lone Star Gas Co. v. Railroad Commission of Texas (standards to prevent waste, promote conservation, and protect correlative rights). It concluded these furnished ample authority that section 28.011 supplies sufficient standards.

Citations

Statutory provisions:

• Texas Water Code § 28.011 (Water Commission rulemaking for conserving, protecting, preserving, and distributing underground water)
• Former Penal Code article 848a (predecessor; Acts 1931, 42d Leg., ch. 261, §§ 1, 6)
• Attorney General Opinion O-3205-A (1941) (overruled to the extent inconsistent)

Cases:

• Smith v. Decker, 312 S.W.2d 632, 635 (Tex. 1958)
• Med-Safe, Inc. v. State, 752 S.W.2d 638, 640 (Tex. App.-Houston [1st Dist.] 1988, no writ)
• Trapp v. Shell Oil Co., 198 S.W.2d 424 (Tex. 1946)
• Jordan v. State Bd. of Ins., 334 S.W.2d 278, 279 (Tex. 1960)
• Clark v. Briscoe Irrigation Co., 200 S.W.2d 674 (Tex. Civ. App.-Austin 1947, no writ)
• Martinez v. Texas State Bd. of Medical Examiners, 476 S.W.2d 400, 404 (Tex. Civ. App.-San Antonio 1972, writ ref'd n.r.e.)
• Lone Star Gas Co. v. Railroad Comm'n of Texas, 798 S.W.2d 888 (Tex. App.-Austin 1990, writ granted)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0054
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0054.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

November 4, 1991

Honorable John Hall
Chairman
Texas Water Commission
P.O. Box 13087, Capitol Station
Austin, Texas 78711-3087

Opinion No. DM-54

Re: Whether Attorney General Opinion O-3205-A (1941), which held that the predecessor to section 28.011 of the Texas Water Code was an unconstitutional delegation of authority, continues to be valid (RQ-177)

Dear Commissioner Hall:

You have requested our opinion regarding the continuing efficacy of Attorney General Opinion O-3205-A (1941). On March 11, 1941, the attorney general issued Attorney General Opinion O-3205, which held that the predecessor statute to section 28.011 of the Texas Water Code,[1] former Penal Code article 848a, authorized the Board of Water Engineers to regulate privately-owned wells. See Acts 1931, 42d Leg., ch. 261, §§ 1, 6, at 432-33 (enactment of predecessor statute). On April 18, 1941, the attorney general withdrew this answer and held, in Attorney General Opinion O-3205-A, that the provision failed to contain sufficient standards so as to be a constitutionally valid delegation of rule-making authority. You indicate that as a result of this decision, "the Board and its successor agencies have never adopted rules pursuant to this statute." Accordingly, you ask that we "re-examine [our] position in light of subsequent court decisions relating to the delegation doctrine." In this opinion, we consider only the continued validity of Attorney General Opinion O-3205-A. We do not address the scope of section 28.011 of the Texas Water Code or its predecessor.

It is well settled that a statute must be construed as constitutional, if at all possible. Smith v. Decker, 312 S.W.2d 632, 635 (Tex. 1958). The court will indulge every possible presumption in favor of constitutionality. Med-Safe, Inc. v. State, 752 S.W.2d 638, 640 (Tex. App.-Houston [1st Dist.] 1988, no writ); see also Trapp v. Shell Oil Co., 198 S.W.2d 424 (Tex. 1946). Although a legislative delegation of rule-making authority to an administrative body must establish standards in order to be valid,

[t]he standards set up by the legislature may be broad where conditions that must be considered cannot conveniently be investigated by the legislative branch. The legislature may properly delegate to an administrative agency the authority to establish rules and regulations, or minimum standards, that reasonably carry out the expressed purpose of the statutory act in question.

Med-Safe, supra, at 640 (citations omitted).

In Med-Safe, for example, the appellant challenged a requirement that the Department of Health issue a permit for operation of a nonhazardous solid waste site. The court observed that

the "purpose of the Act" is to "safeguard the health, welfare, and physical property of the people" and to "protect the environment."

Id. In upholding the delegation, the court noted that under past cases,

similarly broad standards have been found to provide sufficient guidance for administrative agencies to properly exercise delegated functions.

Id. Likewise, in Jordan v. State Bd. of Ins., 334 S.W.2d 278, 279 (Tex. 1960), the appellant complained of the lack of standards in a statute that permitted the State Board of Insurance to revoke an insurer's certificate if it determined that the officers or directors of the company were "not worthy of public confidence." The Texas Supreme Court upheld the "not worthy of public confidence" standard, stating that the term "is no more extensive than the public interest demands," and that "the idea embodied within the phrase is reasonably clear and hence acceptable as a standard of measurement." Id. at 280.

In Clark v. Briscoe Irrigation Co., 200 S.W.2d 674 (Tex. Civ. App.-Austin 1947, no writ), the court upheld a challenge to a statute that allowed the Board of Water Engineers to grant a permit if it found that appropriation of water in a particular instance "would not be detrimental to the public welfare." The court noted that

[t]he criteria are as definite as the subject in its varied applications will reasonably admit.

Id. at 684.

In Martinez v. Texas State Bd. of Medical Examiners, 476 S.W.2d 400, 404 (Tex. Civ. App.-San Antonio 1972, writ ref'd n.r.e.), the court upheld a challenge to a statute that authorized the Board of Medical Examiners to revoke a physician's license for "grossly unprofessional or dishonorable conduct, or a character which in the opinion of the Board is likely to deceive or defraud the public." The court held that requiring a definition of all the acts that would constitute a violation would be unduly burdensome, that the statutory language was "reasonably clear," and that the members of the board "best know the professional and moral standards required of practitioners." Id.

Finally, in Lone Star Gas Co. v. Railroad Comm'n of Texas, 798 S.W.2d 888 (Tex. App.-Austin 1990, writ granted),[2] the Railroad Commission had promulgated rules for the regulation of the purchase of gas by special marketing programs. In rejecting the argument that the statute lacked appropriate standards, the court noted that

[t]he standards here are found in the statutes directing the Commission to prevent waste, promote conservation, and protect correlative rights.

Id. at 894.

In our opinion, these cases furnish ample authority to conclude that section 28.011 and its predecessor provide sufficient standards to constitute a proper delegation of legislative authority. A directive to "conserve, protect, preserve, and distribute" water is, in our view, as specific as most of the other statutes considered and upheld in the cases discussed above. We conclude that neither section 28.011 nor its predecessor offend the delegation doctrine. Accordingly, Attorney General Opinion O-3205-A (1941) is overruled to the extent it is inconsistent with this opinion.

SUMMARY

Section 28.011 of the Texas Water Code, which authorizes the Texas Water Commission to "make and enforce rules and regulations for conserving, protecting, preserving, and distributing underground, subterranean, and percolating water located in this state," is not an unconstitutional delegation of legislative authority. Attorney General Opinion O-3205-A (1941) is overruled to the extent it is inconsistent with this opinion.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

[1] Almost identical to its predecessor, section 28.011 of the Texas Water Code provides: "[The Texas Water Commission] shall make and enforce rules and regulations for conserving, protecting, preserving, and distributing underground, subterranean, and percolating water located in this state and shall do all other things necessary for these purposes."

[2] Railroad Comm'n of Texas v. Lone Star Gas Co., 34 Tex. Sup. Ct. J. 393 (March 9, 1991) (writ granted on points of error involving federal preemption).