Texas Attorney General Opinion: JC-12 Page: 2 of 5
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Ms. Doretta Conrad - Page 2
TEX. REV. CIV. STAT. ANN. art. 6243-101, 5B (Vernon Supp. 1999). We understand that the three
codes listed in subsection (a) (collectively, the "codes") all are promulgated by private entities.
Although each of the three codes is subject to revision by the private entities and, in fact, each has
been revised since section 5B's 1993 adoption, see Act of Apr. 29, 1993, 73d Leg., R.S., ch. 100,
1993 Tex. Gen. Laws 189; Letter from Jeff H. Risley, Managing Director Plastic Pipe & Fittings
Ass'n, & Laurie Hansen, Government Affairs Director, American Plastics Council, to Sarah Shirley,
Chair, Opinion Committee (Jan. 14, 1998) (on file with Opinion Committee), subsection (a) does
not specify a particular edition of any of the codes. We further note that subsection (a) facially
requires the Board to adopt all of the codes and does not provide the Board with any discretion to
evaluate, modify, or reject any portion of the codes.
Previous opinions of this office suggest that a statute that adopts the rules of a private entity
without specifically identifying the particular rules, e.g., by date or edition, adopts the rules as they
exist at the time the statute is adopted but not future amendments to the rules. See Tex. Att'y Gen.
Op. Nos. DM-159 (1992) at 2; JM-629 (1987) at 3. Previous opinions also assert that a prospective
delegation of legislative powers to a private entity violates article III, section 1 of the Texas
Constitution, which vests law-making power in the legislature, unless the state or a state agency is
provided discretion to determine whether to approve and adopt future amendments to the rules by
the private entity. See, e.g., Tex. Att'y Gen. Op. Nos. DM-378 (1996) at 2; DM-211 (1993) at 6-7;
JM-629 (1987) at 3; JM-509 (1986) at 3-4.
The previous opinions rely upon dicta in a 1946 decision of the Texas Supreme Court,
Dudding v. Automatic Gas Co., 193 S.W.2d 517 (Tex. 1946). In Dudding the Court weighed the
constitutionality of a statute that required containers for the storage of liquefied petroleum gas to
conform to standards "as recommended by the National Fire Protection Association, effective July
1937, ... known as [the] National Board of Fire Underwriters Pamphlet No. 58 being on file with
the... Railroad Commission ... ." Id. at 519 (quoting TEX. REV. CIV. STAT. ANN. art. 6053, 2a).
The court found that the statute at issue in Dudding did not prospectively adopt the future rules of
an unofficial agency and deemed the statute constitutional. See id. at 520. Notably, however, the
Dudding court distinguished the statute before it from one the Kansas Supreme court held invalid,
see State v. Crawford, 177 P. 360 (Kan. 1919), which adopted "present as well as prospective rules
of an unofficial association as a standard of conduct ... ." Dudding, 193 S.W.2d at 520.
While previous opinions of this office have been unclear on this point, we must begin our
analysis with a "strong presumption" that a statute is constitutional. Salvatierra v. Via Metro.
Transit Auth., 974 S.W.2d 179, 182 (Tex. App.-San Antonio 1998, pet. denied); see Tex. Att'y Gen.
Op. No. JM-629 (1987) at 3. If it is possible reasonably to construe statutory language so as to
render the statute constitutional, this office, like a court, is compelled to do so. See Proctor v.
Andrews, 972 S.W.2d 729, 735 (Tex. 1998); Ex parte Elliott, 973 S.W.2d 737, 742 (Tex.
App.-Austin 1998, pet. ref'd); Kerr v. Texas Dep 't of Public Safety, 973 S.W.2d 732, 734 (Tex.
App.-Texarkana 1998, no pet.); Steinmetz v. State, 968 S.W.2d 427, 429 (Tex. App.-Texarkana
1998, no pet.); Motorola, Inc. v. Tarrant County Appraisal Dist., 980 S.W.2d 899, 920 (Tex.
App.-Fort Worth 1998, no pet.); Exparte Mallares, 953 S.W.2d 759, 764 (Tex. App.-Austin 1997,
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-12, text, 1999; (texashistory.unt.edu/ark:/67531/metapth274321/m1/2/: accessed August 17, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.