Can a Texas agency's advisory council be given real power over the agency's rules?

Plain-English summary

When the Texas Legislature creates a state agency, it often sets up advisory committees to give the agency input. Usually those committees only advise: the agency can take their suggestions or ignore them. State Senator David Sibley asked the Attorney General about an unusual statute, Government Code section 417.0041, which set up the relationship between the Commission on Fire Protection and the advisory councils that work with it on rules for fire extinguishers, alarms, sprinkler systems, and fireworks. He wanted to know whether that statute went too far and unconstitutionally handed the Legislature's lawmaking power to the councils.

The Attorney General read the statute as giving the councils real power, not just an advisory voice. The Commission has to send every proposed rule change to the relevant council to develop, and if the Commission does not like what the council produces, it cannot write its own rule instead; it has to send the rule back to the council. The opinion called this "joint rule-making" and said the councils effectively hold a veto over the Commission's rules. The Legislature's use of the phrase "[n]otwithstanding [section] 2001.031" (the Administrative Procedure Act provision that keeps such committees purely advisory) confirmed that it meant to give these councils more than an advisory role.

Even so, the opinion concluded the arrangement was constitutional. Article III, section 1 vests legislative power in the Legislature, but it does not stop the Legislature from creating agencies and dividing rulemaking authority among them however it chooses, as long as it sets sufficient standards. The councils are public bodies created by statute, so handing them rulemaking authority instead of the Commission did not violate the constitution. The opinion overruled an earlier opinion, DM-149, which had read the same statutory language as not delegating any real authority. It also noted that whether this joint setup is workable or wise is a policy question for the Legislature, which remains free to change the statute.

Currency note

This opinion was issued in 1997. 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.

What the opinion meant at the time

For the Commission on Fire Protection and its advisory councils: The opinion treated section 417.0041 as creating shared rulemaking. No rule change to the articles 5.43-1 through 5.43-4 programs could be adopted unless both the Commission and the relevant council agreed, and the council, not the Commission, held the pen on developing rules.

For agencies and the legislature generally: The opinion confirmed that article III, section 1 did not bar the Legislature from allocating rulemaking authority to a statutory advisory body rather than the parent agency, provided sufficient standards were prescribed. It read the "[n]otwithstanding [section] 2001.031" language as the Legislature's deliberate signal that these councils were not the ordinary advisory-only committees the Administrative Procedure Act contemplates.

On the policy question: The opinion did not opine on whether joint rulemaking with an advisory-council veto was workable or in the public interest. It described that as a policy determination for the Legislature, and noted the Legislature could amend section 417.0041 if it wished to narrow the councils' role.

Effect on prior AG opinions: DM-149 (1992), which had read identical statutory language as conferring no substantive rulemaking authority on two related committees, was overruled to the extent it conflicted with this opinion.

Common questions

What does "joint rulemaking" mean here?

Under the opinion's reading of section 417.0041, the Commission could not change a rule on its own. It had to route the proposed change to the relevant advisory council to develop, and if it disagreed with the council's work, it had to return the rule to the council rather than substitute its own. A rule could be adopted only if both bodies agreed, so each side could block the other.

Isn't giving an advisory council that kind of power unconstitutional?

The opinion said no. Article III, section 1 vests legislative power in the Legislature, but the courts have allowed the Legislature to delegate rulemaking to administrative bodies as long as it sets reasonable standards. The opinion concluded the Legislature could likewise choose to place rulemaking authority in a statutory council instead of the agency.

Why did this opinion overrule DM-149?

DM-149 had looked at the same "notwithstanding" language for two related fire committees and concluded it delegated no real authority. This opinion reached the opposite reading, finding the language was meant to give the councils a substantive, more-than-advisory role, and overruled DM-149 to the extent the two conflicted.

Did the Attorney General say the arrangement was a good idea?

No. The opinion was limited to whether the delegation was constitutional. It expressly left the question of whether joint rulemaking is workable or in the public interest to the Legislature.

Background and statutory framework

Article III, section 1 of the Texas Constitution vests "the Legislative power of this State" in the Legislature; article II, section 1 is the separation-of-powers provision. Texas courts read these together to allow the Legislature to delegate rulemaking to an agency if it "establishes reasonable standards to guide the entity to which the powers are delegated" (citing Edgewood Indep. Sch. Dist. v. Meno, quoting Railroad Comm'n v. Lone Star Gas Co.), and even to delegate to private entities where the legislative purpose is discernible and there is protection against arbitrary exercise of power.

In 1991 the Legislature moved fire-safety duties (fire extinguishers, detection and alarm devices, sprinkler systems, and fireworks) from the State Board of Insurance to the new Commission on Fire Protection, under Insurance Code articles 5.43-1 through 5.43-4. Government Code section 417.0041 described how the advisory councils for those programs participate in the Commission's rulemaking, and pointedly applied "[n]otwithstanding" Government Code section 2001.031, the Administrative Procedure Act provision that otherwise keeps agency advisory committees purely advisory. Reading those features together, the opinion found the statute conferred substantive, joint rulemaking authority on the councils and held that delegation constitutional under article III, section 1, while overruling the contrary reading in Attorney General Opinion DM-149.

Citations

Constitution and statutes

• Tex. Const. art. III, § 1; art. II, § 1
• Gov't Code §§ 417.0041, 2001.031
• Insurance Code arts. 5.43-1 through 5.43-4
• Act of May 27, 1991, 72d Leg., ch. 628, §§ 11, 13, 15, 18, 1991 Tex. Gen. Laws 2286

Cases

• Edgewood Indep. Sch. Dist. v. Meno, 893 S.W.2d 450 (Tex. 1995)
• Railroad Comm'n v. Lone Star Gas Co., 844 S.W.2d 679 (Tex. 1992)
• Texas Antiquities Comm. v. Dallas County Community College, 554 S.W.2d 924 (Tex. 1977)
• Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex. Civ. App.-Amarillo 1971, writ ref'd n.r.e.)
• Office of Pub. Ins. Counsel v. Texas Auto. Ins. Plan, 860 S.W.2d 231 (Tex. App.-Austin 1993, writ denied)
• Central Power & Light v. Sharp, 919 S.W.2d 485 (Tex. App.-Austin 1996, writ requested)
• Minton v. City of Fort Worth Planning Comm'n, 786 S.W.2d 563 (Tex. App.-Fort Worth 1990, no writ)
• Texas Turnpike Auth. v. Shepperd, 279 S.W.2d 302 (Tex. 1955)
• Thomas v. Howard County Hosp. Auth., 489 S.W.2d 403 (Tex. App.-Eastland 1972), writ ref'd n.r.e. per curiam, 498 S.W.2d 146 (Tex. 1973)

Attorney General opinions referenced

• DM-135 (1992); DM-149 (1992) (overruled in part)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0430
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0430.pdf

Original opinion text

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

DAN MORALES
ATTORNEY GENERAL

Office of the Attorney General
State of Texas

January 17, 1997

The Honorable David Sibley
Chair, Senate Economic Development Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-430

Re: Whether Government Code section 417.0041 delegates rule-making authority to fire protection advisory councils in contravention of the Texas Constitution, article III, section 1 (RQ-909)

Dear Senator Sibley:

You ask whether Government Code section 417.0041 delegates rule-making authority to certain fire protection advisory councils in contravention of the Texas Constitution. The constitutional provision at issue, article III, section 1, states as follows: "The Legislative power of this State shall be vested in a Senate and House of Representatives." Legislative delegations of authority are also often challenged under article II, section 1, the separation of powers provision. Courts have construed article II, section 1 and article III, section 1 to permit the legislature to delegate rule-making authority to an administrative agency if the legislature "establishes 'reasonable standards to guide the entity to which the powers are delegated.'"[1] Legislative authority may even be delegated to private entities if the legislative purpose is discernible and there is protection against the arbitrary exercise of power.[2]

In 1991, the legislature transferred certain duties relating to fire safety from the State Board of Insurance (the "board") to the Commission on Fire Protection (the "commission"). See Act of May 27, 1991, 72d Leg., ch. 628, §§ 11, 13, 15 & 18, 1991 Tex. Gen. Laws 2286, 2309-11. This legislation shifted authority regarding fire extinguishers, fire detection and alarm devices, fire protection sprinkler systems, and fireworks from the board to the commission. See id. (enacting Ins. Code, arts. 5.43-1, § 2A, 5.43-2, § 4A, 5.43-3, § 3A, 5.43-4, § 5A). Section 417.0041 of the Government Code, which describes the role of advisory councils established under these articles of the Insurance Code in the commission's rule-making process, provides as follows:

(a) This section applies to rules adopted under Articles 5.43-1 through 5.43-4, Insurance Code, and to the advisory councils established under these articles.

(b) Each council periodically shall review commission rules implementing the article under which the council was established and recommend changes in the rules to the commission. Notwithstanding Chapter [sic] 2001.031, the commission shall submit all changes and additions to rules that implement the article under which an advisory council was established to that council for development. If the commission does not approve a rule developed by the council, the commission shall indicate to the council the reasons that the commission did not approve the rule and return the rule to the council for further development.

Section 2001.031 of the Government Code, a provision of the Administrative Procedure Act (the "APA") to which subsection (b) seems intended to refer, states as follows:

(a) A state agency may use an informal conference or consultation to obtain the opinions and advice of interested persons about contemplated rulemaking.

(b) A state agency may appoint committees of experts or interested persons or representatives of the public to advise the agency about contemplated rulemaking.

(c) The power of a committee appointed under this section is advisory only.

This APA provision generally authorizes state agencies to use advisory committees in rule-making on the condition that the power of any committee appointed under the provision is purely advisory.

Your letter assumes that section 417.0041 establishes a rule-making role for the fire protection advisory councils that is not merely advisory or ministerial in nature and therefore delegates to the advisory councils at least some degree of substantive rule-making authority. We agree. Section 417.0041 requires the commission to submit all changes and additions to rules to the relevant advisory council for development. The advisory council must develop the rule. If the commission does not approve a rule developed by the advisory council, the commission is not free to draft its own rule but rather must return the rule to the advisory council for further development.

In essence, section 417.0041 establishes joint rule-making authority. No amendment or new rule may be adopted unless both the commission and the relevant advisory council agree. Furthermore, section 417.0041 gives the fire protection advisory councils an effective veto over any rules the commission may propose to adopt that would change rules previously adopted to implement articles 5.43-1 through 5.43-4. Thus, the legislature has delegated at least some authority to amend rules implementing these articles to the advisory councils. As this office has recognized in the past, the power to amend rules is in itself rule-making authority. See Attorney General Opinion DM-135 (1992) at 5.

Second, we conclude that the legislature intended to delegate at least some substantive rule-making authority to the fire protection advisory councils based on its use of the words "[n]otwithstanding [Government Code section] 2001.031" in section 417.0041. We believe that this language demonstrates that the legislature sought to distinguish the fire protection advisory councils' rule-making role from that of other advisory committees and that it indicates that the legislature intended the fire protection advisory councils' role in the rule-making process to be more than merely advisory.

With the exception of three other advisory committees - the fire protection personnel advisory committee, the funds allocation advisory committee, and the volunteer fire fighter advisory committee, each of which is associated with the commission - we have been unable to locate any other statute using this language to describe the role of another advisory committee or council in an agency's rule-making process. The uniqueness of this language further suggests it is intended to confer special authority on these advisory councils.

We note that in Attorney General Opinion DM-149 this office examined identical language describing the role of the fire protection personnel advisory committee and the volunteer fire fighter advisory committee in rule-making and concluded that it does not delegate any substantive, non-ministerial rule-making authority to those committees. See Attorney General Opinion DM-149 (1992) at 4-5.[7] For the reasons stated above, we believe this conclusion was incorrect. Attorney General Opinion DM-149 is overruled to the extent it conflicts with this opinion.

You suggest that the delegation of rule-making authority to the fire protection advisory councils in section 417.0041 violates article III, section 1, asking, "With these parameters, does an agency then become subject to governance by its advisory council? Is this a proper delegation of legislative authority?" Provided that the legislature prescribes sufficient standards, article III, section 1 does not limit the legislature's ability to create and structure governmental agencies[8] and to allocate its delegated legislative authority between (and within) governmental agencies as it sees fit. The advisory councils, created by statute and with members who are appointed by the commission, are public entities.[9] Nothing in article III, section 1 prevents the legislature from delegating rule-making authority to the advisory councils as opposed to the commission. Whether this joint rule-making arrangement has proven workable or is in the public interest is another matter and is ultimately a public policy determination that is within the province of the legislature rather than this office. The legislature is always free to amend section 417.0041 to limit the fire protection advisory councils' rule-making role should it choose to do so.

SUMMARY

The delegation of rule-making authority to advisory councils in Government Code section 417.0041 does not contravene article III, section 1 of the Texas Constitution.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnotes

[1] Edgewood Indep. Sch. Dist. v. Meno, 893 S.W.2d 450 (Tex. 1995) (quoting Railroad Comm'n v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex. 1992)); see also Texas Antiquities Comm. v. Dallas County Community College, 554 S.W.2d 924, 928 (Tex. 1977) (statutory delegation of power may not be accomplished by overly broad or vague language); Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100, 105 (Tex. Civ. App.-Amarillo 1971, writ ref'd n.r.e.) (legislative delegation must prescribe sufficient standards to guide agency in exercising discretion conferred).

[2] See Office of Pub. Ins. Counsel v. Texas Auto. Ins. Plan, 860 S.W.2d 231, 237 (Tex. App.-Austin 1993, writ denied); see also Central Power & Light v. Sharp, 919 S.W.2d 485, 492 (Tex. App.-Austin 1996, writ requested). But see Minton v. City of Fort Worth Planning Comm'n, 786 S.W.2d 563, 565 (Tex. App.-Fort Worth 1990, no writ) (legislative power may not be delegated to narrow segment of community); Attorney General Opinion DM-135 (1992).

[7] Attorney General Opinion DM-149 (1992) at 4-5.

[8] Texas Turnpike Auth. v. Shepperd, 279 S.W.2d 302, 304 (Tex. 1955) (no constitutional provision prohibits . . . [a] governmental agency or body politic); Thomas v. Howard County Hosp. Auth., 489 S.W.2d 403, 405 (Tex. App.-Eastland 1972), writ ref'd n.r.e. per curiam, 498 S.W.2d 146 (Tex. 1973) (same).

[9] See Ins. Code arts. 5.43-1, § 9 (creating Fire Extinguisher Advisory Council appointed by State Board of Insurance, now commission), 5.43-2, § 2(3) (providing for fire detection and alarm devices advisory council consisting of seven members appointed by State Board of Insurance, now commission), 5.43-3, §§ 1(4), 6(a) (creating Fire Protection Advisory Council consisting of [number not legible] members appointed by State Board of Insurance, now commission, who serve at the pleasure of the board), 5.43-4, § 5E1 (providing for fireworks advisory council consisting of five members who serve at will of commission).

[Footnotes 3-6 and 10, which cite the Insurance Code provisions establishing the three related advisory committees and an internal cross-reference, were not fully legible in the scanned source. See the linked PDF for their text.]