Can the Texas Board of Health set construction and design rules for abortion facilities?

Texas AG Opinion JM-1076: Could the Board of Health Regulate Abortion Facility Construction?

Plain-English summary

State Senator Hugh Parmer asked the Attorney General a question about the limits of an agency's rulemaking power. The Texas Board of Health had adopted rules setting standards for the "construction and design" of abortion facilities. The senator wanted to know whether those rules went beyond the authority the legislature actually gave the board in the Texas Abortion Facility Reporting and Licensing Act (article 4512.8, V.T.C.S.).

The answer turned entirely on reading section 3 of that Act. Section 3(b) says the board "shall set minimum standards to protect the health and safety of the patient" and then lists seven specific areas where those standards may be "no more stringent than Medicare certification standards": qualifications for professional and nonprofessional personnel, medical treatment and services, supervision of personnel, sanitary and hygienic conditions, essential equipment, and clinical records. Construction and design are not on that list. The Department of Health argued the seven items were just examples, so the opening "health and safety" language gave the board broad power to regulate anything protecting patients, including how a facility is built. The Attorney General read it the other way: the seven listed areas are the exclusive areas the board may regulate.

Two things drove that reading. First, the legislative history. A conference committee report on the bill described section 3 as authorizing standards "which concern" the same seven areas, with no mention of construction and design, which the opinion treated as strong evidence of what the legislature meant. Second, and more telling, the very same bill that created the abortion facility act also created the Texas Ambulatory Surgical Center Licensing Act (article 4437f-2), and that companion act expressly authorized the board to set minimum standards for "the construction and design" of a surgical center, including plumbing, heating, lighting, and ventilation. When the legislature grants a specific power in one part of a bill and leaves it out of a parallel part, that omission is usually deliberate. So the board could not treat construction-and-design authority as implied in the abortion facility act when it had spelled that authority out expressly right next door.

The opinion was careful about what it did not decide. It did not strike down every construction-related rule; some might survive if they genuinely fall within a listed area, such as "sanitary and hygienic conditions" or "equipment essential to the health and welfare of the patients." The AG said reviewing an entire body of agency rules item by item is not something the opinion process can do. And because the senator did not ask about it, the opinion did not address the separate "no more stringent than Medicare certification standards" limit, noting only that there appear to be no Medicare certification standards specific to abortion facilities.

Currency note

This opinion was issued in 1989. 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.

The Texas Abortion Facility Reporting and Licensing Act (then V.T.C.S. article 4512.8) and the related licensing statutes have since been recodified into the Health and Safety Code and amended, and the Board of Health rules at 25 T.A.C. chapter 139 have been revised repeatedly. The law governing abortion facility regulation in Texas changed substantially in later years through both legislation and litigation. The statute numbers and the specific grant of authority described here reflect the law as it stood in 1989. Do not rely on any rule, standard, or statutory citation here as current law.

Who this opinion affected (as of 1989)

The Texas Board of Health and Department of Health: The opinion concluded the board lacked authority under article 4512.8 to impose construction-and-design standards on abortion facilities as such, while leaving open that individual rules might survive if they fit a listed statutory area.

Operators of licensed abortion facilities: The opinion meant construction-and-design rules adopted purely on the board's general "health and safety" authority were vulnerable to challenge as exceeding the statute, though specific rules tied to sanitary conditions or equipment might still stand.

The legislature: The opinion pointed to the contrast with the Ambulatory Surgical Center Licensing Act as showing that if lawmakers wanted the board to set construction-and-design standards for abortion facilities, they would need to say so expressly, as they had done for surgical centers.

Common questions

Did the Board of Health have authority to regulate how abortion facilities are built?
Not under the general grant in article 4512.8, according to this opinion. Section 3 limited the board to seven listed areas of minimum standards, and construction and design was not one of them.

Why did the seven-item list matter so much?
Because the whole dispute was whether that list was exclusive or just illustrative. The Attorney General read it as exclusive, supported by a conference committee report and by the fact that a companion act in the same bill expressly authorized construction-and-design standards for surgical centers but article 4512.8 did not.

Did this invalidate all of the board's construction rules?
No. The opinion said some construction-related rules might be valid if they actually fall within a listed area, such as sanitary and hygienic conditions or essential equipment. It declined to review the entire body of rules item by item.

What was the significance of the Ambulatory Surgical Center Licensing Act?
That companion statute, passed in the same bill, expressly let the board set standards for "the construction and design" of a surgical center. Its explicit language suggested that the legislature knew how to grant that authority and chose not to for abortion facilities.

Background and statutory framework

Senator Hugh Parmer asked whether Board of Health rules on the "construction and design" of abortion facilities exceeded the rulemaking authority in article 4512.8, V.T.C.S., the Texas Abortion Facility Reporting and Licensing Act. The Act was enacted in 1985. Acts 1985, 69th Leg., ch. 931, at 3121, 3173. It requires abortion facilities to be licensed by the Department of Health, imposes reporting requirements, authorizes injunctions for violations, and provides penalties. Section 3 confers the rulemaking authority. Section 3(a) directs the board to adopt rules necessary to implement the article, including licensing requirements, "based on the minimum standards set out below." Section 3(b) provides that the board "shall set minimum standards to protect the health and safety of the patient," that an abortion may be performed only by a physician as defined by the Medical Practice Act (article 4495b), and that "[t]hese standards shall be no more stringent than Medicare certification standards for" seven listed areas: professional personnel qualifications, nonprofessional personnel qualifications, medical treatment and services and their coordination, supervision of personnel, sanitary and hygienic conditions, essential equipment, and clinical records.

Relying on section 3, the board adopted rules at 25 T.A.C. §§ 139.1 through 139.47, including general construction requirements (§§ 139.21-139.23), requirements for existing facilities (§§ 139.31-139.32), and construction requirements for new facilities (§§ 139.41-139.47), many incorporating technical standards by reference. The Department of Health argued the seven categories in section 3(b) were an inclusive, not exclusive, list, so the opening "health and safety" sentence gave the board general authority to adopt construction-and-design standards. Brief for Texas Department of Health, at 6-7 (Dec. 22, 1988).

The opinion conceded the provision was open to two readings but concluded the seven areas are exclusive. It relied first on legislative history: a conference committee report on House Bill 2091 stated that section 3 authorizes minimum standards "which concern" the same seven areas, with no reference to construction and design. Because the rules were not adopted until 1987, the board's interpretation was not of such long standing that a court would give it great weight. Guarantee Mutual Life Ins. Co. v. Harrison, 358 S.W.2d 404 (Tex. Civ. App. - Austin 1962, writ ref'd n.r.e.). The conference committee report, by contrast, carried considerable significance for legislative intent. National Carloading Corp. v. Phoenix-El Paso Express, 178 S.W.2d 133 (Tex. Civ. App. - El Paso), aff'd 176 S.W.2d 564 (Tex. 1943), cert. denied, 322 U.S. 747 (1944).

The opinion found further support in a companion act. Another article of the same bill, House Bill 2091, created the Texas Ambulatory Surgical Center Licensing Act, V.T.C.S. art. 4437f-2. That act expressly authorized the board to set minimum standards for "the construction and design of an ambulatory surgical center, including plumbing, heating, lighting, ventilation, and other design standards," capped at the minimum standards for certification under Title XVIII of the Social Security Act (Pub. L. No. 89-97). The specific construction-and-design authorization in the surgical center act suggested that had the legislature intended to give the board the same authority for abortion facilities in the same bill, it would have done so expressly.

The opinion added two caveats. First, some construction-and-design rules might still be authorized if they fall within a listed area, such as "sanitary and hygienic conditions within the facility" (subsection (b)(5)) or "the equipment essential to the health and welfare of the patients" (subsection (b)(6)); the opinion said it could not review an extensive body of agency rules for the legal sufficiency of each item. Second, the opinion did not address the separate limitation that standards be "no more stringent than Medicare certification standards," noting there appear to be no Medicare certification standards for abortion facilities and that the Department had deemed the language to refer to Medicare standards for ambulatory surgical centers. See 42 C.F.R. 416.

Citations

Statutory and regulatory authorities:

• V.T.C.S. art. 4512.8 (Texas Abortion Facility Reporting and Licensing Act); § 3 (rulemaking authority; seven listed areas in (b)(1)-(7))
• V.T.C.S. art. 4437f-2 (Texas Ambulatory Surgical Center Licensing Act; express construction-and-design authority)
• V.T.C.S. art. 4495b (Medical Practice Act)
• 25 T.A.C. §§ 139.1 through 139.47 (Board of Health rules for abortion facilities)
• Acts 1985, 69th Leg., ch. 931 (enacting House Bill 2091)
• 42 C.F.R. 416 (Medicare standards for ambulatory surgical centers)

Cases:

• Guarantee Mutual Life Ins. Co. v. Harrison, 358 S.W.2d 404 (Tex. Civ. App. - Austin 1962, writ ref'd n.r.e.) (weight given an agency's recent interpretation)
• National Carloading Corp. v. Phoenix-El Paso Express, 178 S.W.2d 133 (Tex. Civ. App. - El Paso), aff'd 176 S.W.2d 564 (Tex. 1943), cert. denied, 322 U.S. 747 (1944) (significance of legislative history)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1076
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1076.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. Case names and reporter pages were confirmed by citation lookup (National Carloading Corp. v. Phoenix-El Paso Express, aff'd 176 S.W.2d 564 (Tex. 1943)).

July 31, 1989

Honorable Hugh Parmer
Chairman
Committee on Intergovernmental Relations
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-1076

Re: Validity of rules issued by the Texas Board of Health to implement the Texas Abortion Facility Reporting and Licensing Act, article 4512.8, V.T.C.S. (RQ-1511)

Dear Senator Parmer:

You ask whether rules adopted by the Texas Board of Health with regard to the "construction and design" of abortion facilities exceed the rule-making authority granted to the board in article 4512.8, V.T.C.S., the Texas Abortion Facility Reporting and Licensing Act.

The Texas Abortion Facility Reporting and Licensing Act was enacted in 1985. Acts 1985, 69th Leg., ch. 931, at 3121, 3173. The Act requires that abortion facilities be licensed by the Department of Health, imposes certain reporting requirements on such facilities, authorizes the department to seek injunctions for violations of standards or licensing requirements under the Act, and provides for penalties. The rulemaking authority about which you inquire is conferred on the Board of Health in section 3 of the Act, which provides in part:

(a) The board shall adopt rules necessary to implement this article, including requirements for the issuance, renewal, denial, suspension, and revocation of a license, to operate a facility based on the minimum standards set out below.

(b) The board shall set minimum standards to protect the health and safety of the patient. An abortion shall be performed only by a physician as defined by the provisions of the Medical Practice Act (Article 4495b, Vernon's Texas Civil Statutes). These standards shall be no more stringent than Medicare certification standards for:

(1) qualifications for professional personnel;

(2) qualifications for nonprofessional personnel;

(3) medical treatment and medical services provided by a facility and the coordination of treatment and services;

(4) supervision of professional and nonprofessional personnel;

(5) sanitary and hygienic conditions within the facility;

(6) the equipment essential to the health and welfare of the patients; and

(7) clinical records kept by the facility.

Relying on the provisions of section 3 of article 4512.8 as authority, the Board of Health has adopted rules regulating abortion facilities. 25 T.A.C. §§ 139.1 through 139.47. Sections 139.21 through 139.23 ("General Construction Requirements for Abortion Facilities"), sections 139.31 and 139.32 ("Requirements for Existing Abortion Facilities") and sections 139.41 through 139.47 ("Construction Requirements for New Abortion Facilities") impose various standards for the construction and design of abortion facilities, the area of regulation about which you are concerned. Also, other provisions touch on the matter of the construction and design of abortion facilities. See, e.g., id. § 139.16. Many of the rules incorporate by reference technical rules or standards, such as those of the National Fire Protection Association, the American Society for Testing and Materials, etc.

It appears from our research, and from the brief submitted by the Department of Health in connection with this request, that the resolution of the question you present turns on the interpretation of section 3 of article 4512.8. The department argues:

All of these construction and design standards for abortion facilities insure the health and safety of patients, and, therefore, fall within the standards allowed by the first sentence of Section 3(b) of the Act.

. . . .

It is reasonable to say that the list of categories in Section 3(b) of the Act is not meant to limit the types of minimum standards the board may establish to protect the health and safety of the patient, but only to itemize certain areas which the board must cover in its standards and which must be no more stringent than certain Medicare standards. The seven categories should be read as an inclusive, rather than exclusive, list of standards.

Brief for Texas Department of Health, at 6 and 7 (Dec. 22, 1988).

From the scant legislative history on the provisions of the Texas Abortion Facility Reporting and Licensing Act1 we find only one clear indication of the intended scope of the Board of Health's rule-making authority under section 3. The document "Conference Committee Report, H.B. 2091 Engrossed and the Senate Version of H.B. 2091" (May 27, 1985) states in part that section 3

[a]uthorizes the board to establish minimum standards for facility licensure which concern: personal qualifications; medical treatment and services provided and the coordination of those services; personnel supervision; sanitary conditions of the facility; equipment essential for the health and welfare of patients; and clinical records.

The provisions of section 3(b), again, provide that "[t]he board shall set minimum standards to protect the health and safety of the patient. . . . These standards shall be no more stringent than Medicare certification standards for [seven listed areas which do not include the 'construction and design' of a facility]." We concede that these provisions are susceptible of two different interpretations. The Department of Health's view is that the first sentence confers general authority to set standards to protect patient health and safety and that the seven listed categories, for which "standards shall be no more stringent than Medicare certification standards," restrict the board's authority in rule-making only regarding those seven categories. The view expressed in the Conference Committee Report quoted above is that the seven listed categories constitute the exclusive areas regarding which the board may promulgate standards.

The rules in question were not adopted until 1987. The Board of Health's interpretation of the rules is thus not one of such long standing that we believe it would be accorded great weight by a court. See Guarantee Mutual Life Ins. Co. v. Harrison, 358 S.W.2d 404 (Tex. Civ. App. - Austin 1962, writ ref'd n.r.e.).

On the other hand, we believe that the interpretation of the section 3 provisions found in the Conference Committee Report quoted above is of considerable significance in determining the legislative intent in enacting these provisions. See, e.g., National Carloading Corp. v. Phoenix-El Paso Express, 178 S.W.2d 133 (Tex. Civ. App. - El Paso), aff'd 176 S.W.2d 564 (Tex. 1943), cert. denied, 322 U.S. 747 (1944).

Accordingly, we conclude that the authority in section 3 of article 4512.8 for the Board of Health to set standards for abortion facilities is limited to those areas listed in subsections (b)(1) through (b)(7), and does not include the authority to impose construction and design standards.

In support of this conclusion we note that another article of H.B. 2091 makes provisions for the licensing by the Department of Health of Ambulatory Surgical Centers. See V.T.C.S. art. 4437f-2, the Texas Ambulatory Surgical Center Licensing Act. That act also confers rule-making authority on the Board of Health vis a vis the setting of minimum standards. In this instance, however, the provisions for rule-making authority read in part:

(b) The board shall set minimum standards for:

(1) the construction and design of an ambulatory surgical center, including plumbing, heating, lighting, ventilation, and other design standards that are necessary to ensure the health and safety of patients;

(2) the qualifications of the professional staff and other personnel at an ambulatory surgical center;

(3) the equipment essential to the health and welfare of the patients;

(4) sanitary and hygienic conditions within the ambulatory surgical center and its surroundings; and

(5) a quality assurance program for patient care.

(c) Standards set under this section may not exceed the minimum standards for certification under Title XVIII of the Social Security Act, as added July 30, 1965 (Pub. L. No. 89-97). (Emphasis added.)

The specific authorization in the Ambulatory Surgical Center Licensing Act for the board to set minimum standards for the "construction and design" of a facility suggests that had the legislature in the same bill intended to authorize the board to adopt construction and design standards for abortion facilities, it would have done so expressly.

We note, however, that though we find the board has no authority to impose construction and design standards on abortion facilities, some of the standards adopted under the above referenced rules relating to construction and design may be authorized as falling within one of the areas listed in subsections (b)(1) through (b)(7) of section 3, e.g., "sanitary and hygienic conditions within the facility" (subsection (b)(5)), or "the equipment essential to the health and welfare of the patients" (subsection (b)(6)). We are unable, however, in the opinion process to review an extensive body of agency rules for the legal sufficiency of each item.

We also note that we do not understand you to ask about, and therefore we do not address, the effect of the provisions of section 3 of article 4512.8, which limit standards adopted by the board to being "no more stringent than Medicare certification standards." It appears that there are no "Medicare certification standards" for abortion facilities. The Department of Health has informed us in its brief that it has deemed this language to refer to Medicare Standards for ambulatory surgical centers "which appear to be the type of Medicare facility closest in nature to abortion facilities." See 42 C.F.R. 416.

SUMMARY

Rules adopted by the Board of Health setting minimum standards for the construction and design of abortion facilities exceed the board's statutory authority under the Texas Abortion Facility Reporting and Licensing Act to the extent such rules are not authorized by provisions of the act authorizing the board to set minimum standards for the qualifications for professional and non-professional personnel, medical treatment and medical services, supervision of personnel, sanitary and hygienic conditions, the equipment essential to the health and welfare of the patients, and the clinical records kept by the facility.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General

Footnotes

[1] House Bill 2091 as originally filed did not include the provisions of the Abortion Facility Reporting and Licensing Act, nor did the committee substitute version of the bill which passed the House on May 22, 1985. The provisions of the Abortion Facility Reporting and Licensing Act were added in the Senate by floor amendment, where the bill passed, with other amendments as well, on May 26. The House refused to accept the Senate amendments and the bill was referred to conference committee where it was adopted with the Abortion Facility Reporting and Licensing provisions added by the Senate. The conference committee version was adopted by both the House and Senate on May 27, 1985.