Could a Texas city-county public health district issue licenses, charge fees, and fine people for violating district rules?

Texas AG Opinion JM-336: Public Health District Fees and Fines

Plain-English summary

The Texas health commissioner asked whether a public health district organized under the Local Public Health Reorganization Act could issue licenses, charge fees, and fine people who did not comply with district rules. The request concerned authority "throughout the jurisdiction of the public health district." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

JM-336 considered House Bill No. 1114, a recent amendment scheduled to take effect on August 26, 1985. The amendment stated that a district board did not receive power to adopt rules "which are not otherwise specifically authorized by state law." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

The opinion found limited fee authority. Section 4.08 allowed a district board to charge for public health services, but required reduced or no fees for people unable to pay and made state-supported services subject to the Uniform Grant and Contract Management Act where applicable. JM-336 concluded that "only under these limited circumstances" could the board charge fees. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

The district lacked specific authority to impose fines for rule violations. JM-336 said section 2.01's general power to enforce public-health laws did not prescribe that enforcement method and was insufficient when read with section 4.09(f)'s specific limitation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

The district also lacked authority to issue licenses. The opinion found no specific statutory provision authorizing district-board licensing and said section 4.09(f) prohibited it unless the Legislature "specifically authorize[d] it." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

Currency note

This opinion was issued in 1985. 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

Could the public health district charge any fee it chose?

No. JM-336 limited the authority to fees "for public health services" under section 4.08 and its inability-to-pay and state-support conditions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

Could a person be denied public health services for inability to pay?

No. The quoted statute said "no individual shall be denied public health services because of inability to pay" and required a reduced fee or no fee for people unable to pay in whole or in part. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

Did a city's or county's general enforcement power let the district impose fines?

No. The opinion treated section 2.01 as a general provision that did not specify a particular enforcement method. It found no state law specifically authorizing district-imposed fines. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

Could the district board create a licensing program through its rulemaking power?

No. JM-336 found no specific licensing authority and concluded that the statutory limitation barred licensing unless the Legislature specifically authorized it. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

Why did the opinion distinguish general and specific provisions?

It cited City of Baytown v. Angel for the rule that "a general provision in a statute is limited or controlled by a specific provision." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

Background and statutory framework

Section 4.02 authorized a public health district to perform public-health functions that any member city or county could perform unless law restricted the power. Section 4.03(b) permitted necessary and appropriate health-and-safety rules, but barred conflict with state law or a member city's or county's ordinances. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

House Bill No. 1114 added the section 4.09(f) limitation that no part of the Act granted district boards rulemaking powers not otherwise specifically authorized by state law. JM-336 used that language to test each asserted power separately. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

Section 4.08 expressly authorized fees for public health services, so the opinion recognized that power within the section's limits. No comparable provision authorized licenses or administrative fines, and the general enforcement language did not supply the missing authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

Citations and references

• V.T.C.S. article 4436b, sections 2.01, 4.01, 4.02, 4.03(b), 4.08, and 4.09(f)
• V.T.C.S. article 4413(32g), Uniform Grant and Contract Management Act of 1981
• House Bill No. 1114, 69th Legislature
• Nueces County v. Currington, 162 S.W.2d 687 (Tex. 1942)
• City of Baytown v. Angel, 469 S.W.2d 923 (Tex. Civ. App. - Houston [14th Dist.] 1971, writ ref'd n.r.e.)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0336
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0336.pdf

Original opinion text

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

The Attorney General of Texas

August 14, 1985

Robert Bernstein, M.D., F.A.C.P.
Commissioner of Health
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756

Opinion No. JM-336

Re: Authority of a joint city-county public health district to issue licenses, exact fees and impose fines for noncompliance with its rules

Dear Dr. Bernstein:

You have requested our opinion regarding the authority of a public health district organized pursuant to the Local Public Health Reorganization Act (hereinafter the "Act") to issue licenses, exact fees, and impose fines for noncompliance with the rules throughout the jurisdiction of the public health district. Article 4436b of the Act was amended by the Sixty-ninth Legislature with the enactment of House Bill No. 1114. See Acts 1985, 69th Leg., ch. ___, at ___ (not yet published). The amended provisions of the Act will go into effect on August 26, 1985. Although it appears that your question did not contemplate the enactment of House Bill No. 1114, this opinion will consider the effect of that recent enactment.

Section 4.02 of article 4436b, V.T.C.S., provides that:

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.

A public health district may be composed of a combination of cities and/or counties. See V.T.C.S. art. 4436b, §4.01. Section 2.01 of article 4436b, V.T.C.S., authorizes the governing bodies of cities and counties "to enforce any law which is reasonably necessary to protect the public health." Once a public health district has established an administrative board, the board is authorized:

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).

V.T.C.S. art. 4436b, §4.03(b). In addition to the underlined portions above, the legislature has further limited the board's authority to adopt rules and regulations in the most recent amendment by providing 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).

Acts 1985, 69th Leg., ch. ___, §7, at ___ (not yet published) (V.T.C.S. art. 4436b, §4.09(f)). Accordingly, we must determine whether there is specific statutory authority for the public health district's administrative board to issue licenses, exact fees, and impose fines for noncompliance with its rules.

A public health district has been granted the limited authority to exact fees. The Act specifically provides:

Sec. 4.08(a). The governing body of an incorporated municipality, the commissioners court of a county, or the administrative board of a public health district may adopt ordinances or rules to charge fees for public health services subject to the following:

(1) no individual shall be denied public health services because of inability to pay for services, and the . . . district shall make provisions for a reduced fee or no fee for individuals unable to pay for services in whole or in part; and

(2) if a . . . public health district receives state support for the provision of public health services, then the Uniform Grant and Contract Management Act of 1981 (Article 4413(32g), Vernon's Texas Civil Statutes), and standards adopted pursuant to that Act shall control where applicable.

V.T.C.S. art. 4436b, §4.08(a), as amended by Acts 1985, 69th Leg., ch. ___, §6, at ___ (not yet published). See also section 4.08(b) (definition of "public health services"). We conclude that it is only under these limited circumstances that an administrative board of a public health district may exact fees for the provision of health services. Cf. Nueces County v. Currington, 162 S.W.2d 687 (Tex. 1942).

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 those 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.

With regard to the authority of the administrative board of a public health district to issue licenses, we have not found any specific statutory provision authorizing this conduct by the board. We believe that the limitation imposed in section 4.09(f) prohibits the issuance of licenses unless the legislature determines to specifically authorize it.

SUMMARY

A public health district's administrative board organized pursuant to the Local Public Health Reorganization Act, article 4436b, V.T.C.S., is authorized to exact fees for health services within the limitations imposed in section 4.08. However, the district is without specific statutory authority to issue licenses, or impose fines for noncompliance with its rules.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk