1997 Texas Attorney General Reports and Opinions 2401 (1997)

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DAN    MORALES                              January 17, 1997
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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