Attorney General Opinion JM-0366

JIM MAlTOX Attorney General S~ppme Own Bullding P. 0. Box 12548 Austin. TX. ?8711- 2540 5121475-2501 Telex 9101874.1367 Telecopier 51214754266 714 .hckson. Suite 7M) Dallas, TX. 75202-r506 2lU742.8944 4824 Alberta Ave.. Suite 160 El Paso. TX. 799052793 915/- lo0I TBXPS. Suite 7W Houston, TX. 77002~3111 713l223ea6 808 Broadway. Suite 312 Lubbock, TX. 7B401-3419 8081747-5238 4309 N. Tenth, Suite B McAllen. TX. 78501~1685 51218824547 200 Mdn Plaza. Suite 409 San Antonio. TX. 792052797 51212254191 A” Equal DOpo~unWl Alllrmtive Action Employer The Attorney General of Texas October 22. 1985 Mr. Charles D. Trmia Executive Director Texas Parks and W!.l.dlife Department 4200 Smith School Road Austin. Texas 711?44 Opinion No. JM-366 Re: Whether the Parks and Wildlife Columisslon may delegate certain permitting authority to the execu- tive director of the department Dear Mr. Travis: You ask us tixther the Parks and Wildlife Conmisslon [hereinafter the "Comission"] is authorized, through its rulemaking powers, to delegate to the Ih:ecutive Director the authority to issue permits in compliance with chapter 86 of the Parks and Wildlife Code. See Parks & Wild. Code 586.001 et seq. You qlso Inform us that the C~ission has already delegated this permitting authority to the Executive Director through rules promulgated more than ten years ago. See 31 T.A.C. 157.45. Section 86.002(a) of the Parks and Wildlife Cod2 provides: (a) No person may disturb or take marl, sand, gravel, shell, or mudshell under the management and protection of the eomission or operate in or disturt any oyster bed or fishing water for any purpoac: other than that necessary or incidental to navlgat:ion or dredging under state or federal authorj.ty without first having acquired from the commisc~Joa a permit authorizing the activity. (Empha~~is added). Section 86.004 provides: The mmmisslon may grant a permit to an appli- cant &I has complied with all requiramancs of the zsoion if the commission finds that the dis- turbinlc,, taking, and carrying away of marl, sand. gravel, shell, or mudshell will not: (I) damage or injurlously affect any isl.md, reef, bar, channel, river. creek, or bays used for navigation, or any oysters, p, 1677 Mr. Charles D. Travis - Page 2 (JM-366) oyster beds, or fish in or near the water used in the oper#.tion; and (2) cbar.g,a or injuriously affect any current t'aat would affect navigation. (Emphasis atided). Moreover, any person desj.ring a permit must make a written application to the Conmission. See I'arks & Wild. Code 186.003. If the Commission refuses to grant a=Lt to an applicant. the body is required to make written findings of facts explaining the reason for the refusal. See Parks h Wild. Code IE6.008; see also V.T.C.S. art. 6252-13a, 5515, ma) . Therefore, the legislature has explicitly designated to the Comrtssion the pemittinl; authority under chapter 86 of the Parks and Wildlife Code. Through its rulemak~iag authority, the Commission has delegated its authority to issue permlts to the executive director. See 31 - T.A.C. 557.45. The agemy roles provide in part: (a) The f&.owiag procedures will be followed for the issuance of general permits: (1) All requests for shell dredging permits will be made, in writing to the director. . . . . (6) The +irector may consider the following criteria in determining vhether to grant or deny a permit. . . . (Emphasis added). See 31 T.A.C. s57.45. The rules also provide for the director or any Gloyee authorized by 1:be director to hold a hearing to determine vbether a permit will bl! granted. See 31 T.A.C. 1557.45(a)(4)-(8). These rules make no provisions for the Conmission to make a final datermination of wbetber a permit will be granted. Accordingly, they are in conflict with sec,tion 15 of article 6252-13a. V.T.C.S. See Citizens Bank of Bryan 7'. First State Bank, Eearne. 580 S.W.2d 344. 347 (Tex. 1979); see t?iso V.T.C.S. art. 6252-13a. 422 (lam in --- conflict vith the Adminl~~trative Procedure and Texas Register Act are repealed). We also conclude that the rules In question are in direct conflict with the legis:.ative mandate that the Commission grant or deny permit applications. Despite the fact that these rules bave been In effect and have been followed by the agency for ten years, they are contrary to the plain meaning of the applicable statutes; and therefore, afford no basis for the continuation of this agency practice. See Brown -- Express, Inc. v, Railroad~Comission, 415 S.U.2d 394 (Tex. 1967). p. 1678 Mr. Charles D. Travis - Page 3 (JM-366) We do not imply that the Commiaaion is totally precluded from promulgating rules delegatir,g, its authority to hold hearings on permit applications. The legislatwe has not prohibited the Coamissio~ from delegating this function. See Attorney General Opinion JM-244 (1984). me- But the Administrative Procedure and Texas Register Act requires that the granting of an agency 'permit must comply with the provision6 of the act concerning contested cases. See V.T.C.S. art. 6252-13a. 113(3), 18(a). Although section 15 ofrhe act clearly allovs the appointment of a hearing examiner in such cases, see Grace v. Structural Pest Control Boa::d of Texas, 620 S.W.2d 157 (K Civ. App. - Waco 1981, vrit ref'd n.r~~ommission mst sake the ultimate decision and include findluns of fact and conclusions of law in compliance with sections 15 and 16. See Citizens Bank of Bryan v. First State Bank, Hearne, supra. at 347; Texas Health Facilities colmission v. Charter Medical-Dallas, Inc.. 665 S.W.2d 446 (Tex. 1984); Consusars Water, In-. v. Public Utility Commission of Texas, 651 S.W.2d 335 (Tex. App. -Austin 1983. no writ). SUMMARP Section 57.45 of chapter 31 of the Texas Administrative Code is invalid because it is inconsistent with chapter 86 of the Parks and Wildlife Code an'3 article 6252-13a. the Adminis- trative Procedure and Texas Register Act. The Parks and Wildl:.fe Commission is not precluded from delegating :;ts authority to hold hearings on permit applications so long as the practice is in compliance with article 6252-13a. - JIM HATTOX Attorney General of Texas TOM GREN First Assistant Attorney G'sueral DAVID R. RICRARDS Executive Assistant AttoNqg General ROBERT GRAY Special Assistant Attorney #General RICR GILPIN Chairman, Opinion Committee p. 1679 Mr. Cherlee D. Travie - Pwgc 4 (JM-366) Prepared by Tony Cuillory Assistaut Attonley General APPRovm: OPINION CCRQlITTRg Rick Gilpin. Chelrmm Colin Carl Sussn Garrison Tony Guillory Jim Mocllinger Jennifer Riggs Nancy Sutton Sarah Woelk p. 1680