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1997 Texas Attorney General Reports and Opinions 2401 (1997)

handle is hein.sag/sagtx0068 and id is 1 raw text is: Office of the ttornep 8eneral btate of Texag DAN MORALES January 17, 1997 ATTORNEY GENERAL The Honorable David Sibley Opinion No. DM-430 Chair, Senate Economic Development Committee Texas State Senate Re: Whether Government Code section P.O. Box 12068 417.0041 delegates rule-making authority to Austin, Texas 78711 fire protection advisory councils in contravention of the Texas Constitution, article m, 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 Ill, 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 I and article m, 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. 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.' 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. 'EdgewoodIndep. Sch. Dist v. Meno, 893 S.W.2d 450,474 (Tex. 1995) (quoting Railroad Comm 'n v. Lone Star Gas Co., 844 S.W.2d 679,689 (Tex. 1992)); see also Teras Antiquities Comm. v. Dallas County Community College, 554 S.W.2d 924,928 (Tex. 1977) (statutoy delegations of power may not be accomplished by overly broad or vague language); Commissioners Court ofLubbock County v. Martin, 471 S.W.2d 100, 105 (Tex. Civ. App.-Amarillo 1971, writ refd n.r.e.) (legislative delegation must prescribe sufficient standards to guide agency in exercising discretion conferred). 'See Office ofPub. 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).

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