Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 20,2004

Donald W. Patrick, M.D., J.D. Opinion No. GA-0285
Executive Director
Texas State Board of Medical Examiners Re: Proper construction of Occupations Code
Post Office Box 2018 section 155.051, whichestablishes atimeperiod
Austin, Texas 787682018 for applicants to take the medical license
examination, and section 155.056, which limits
the number of times an applicant may take the
examination (RQ-0248-GA)

Dear Dr. Patick:

The Texas State Board of Medical Examiners (the “Board”) asks about the proper
construction of Occupations Code section 155.051, which establishes the time period for applicants
to take the three-part medical license examination, and section 155.056, which limits the number of
times an applicant may take the examination.’

Your request involves an applicant for licensure who entered a combined Doctor of
Medicine/Doctor of Philosophy degree program in 1991 and was awarded the combined degree on
May 22,1999.* See Request Letter, supra note 1, at 1. A brief submitted on behalf of the applicant
states that the applicant passed Step 1 of the United States Medical Licensing Examination
(“USMLE”) in 1993, Step 2 in 1998, and Step 3 in September 2001. See Exhibit 3 attached to
Brown McCarroll Brief, supra note 2, at 3. You explain that the Board’s licensure committee has
determined the applicant “ineligible for licensure based on failure to demonstrate compliance
with Section 155.05 1 of the Medical Practice Act” and that the applicant is appealing the Board’s
decision. Request Letter, supra note 1, at 1.

To be eligible for a license to practice medicine, an applicant must, among other things, pass
an examination administered by the Board and pass a Texas medical jurisprudence examination. See
TEX. Oct. CODE ANN. § 155.003(a)(6)-(7) (Vernon 2004). Section 155.051 requires license
applicants to pass required examinations within specific time frames:

‘See Letter from Jennifer S. Kaufman, Assistant General Counsel, Texas State Board of Medical Examiners,
to Nancy Fuller, Chair, Opinion Committee, Office of the Attorney General (July 13, 2004) (on file with Opinion
Committee, also available al http://~.oag.statee.tx.us) (hereinafter Request Letter].

25’eeBrieft?omSamV. Stone Jr., BrownMcCarmll, L.L.P., toNancy Fuller, Chair, OpinionCommittee, Office
of the Attorney General (Aug. 31,2004) (on tile with Opinion Committee) [hereinafter Brown McCanoll Brief].
Donald W. Patrick, M.D., J.D. - Page 2 (GA-0285)

(a) Except as provided by Subsection (b), an applicant for a
license to practice medicine in this state must pass each part of an
examination described by Section 155.05 1 l(2), (3) (4) (6), or (7)
within seven years.

(b) An applicant who is a graduate of a program designed to
lead to both a doctor of philosophy degree and a doctor of medicine
degree or doctor of osteopathy degree must pass each part of an
examinationdescribed bysection 155.051 l(2), (3), (4), (6), or (7) not
later than the second anniversary of the date the applicant was
awarded a doctor of medicine degree or doctor of osteopathy degree.

Id. § 155.051.

Because the applicant in this case received his combined degree on May 22, 1999, under a
strict reading of subsection (b), he had until May 22,200l to pass the third part of the examination,
but he did not do so until September 2001. See Brown McCarroll Brief, supra note 2, at 3. The
applicant argues that he has substantially complied with section 155.05 1(b), missing the deadline by
only a few months, and should therefore be eligible for licensure. See id.

The legislature has given the Board exclusive authority to adopt rules and bylaws to govern
its proceedings, perform its duties, and regulate the practice of medicine in Texas. See TEX.OCC.
CODE ANN.4 153.001 (Vernon 2004). In addition, the statute provides that “the practice ofmedicine
is a privilege and not a natural right” and establishes the Board as “the primary means of licensing,
regulating, and disciplining physicians.” Id. 5 15 1.003. Moreover, the decision to issue a license
to a particular person is solely within the Board’s discretion:

The board, at its sole discretion, may issue a license to
practice medicine to a person who:

(1) submits to the board a license application as required by
this chapter;

(2) presents satisfactory proof that the person meets the
eligibility requirements established by this chapter; and

(3) satisfies the examination requirements of Section 155.05 1.

Id. § 155.002 (emphasis added). This “grant[] of authority by [its] very nature require[s] the Board
to exercise considerable discretion.” Callejo-Tolosa v. Tex. State Bd. ofMed. Exam ‘rs, 875 S.W.2d
762,764 (Tex. App.-Austin 1994, no writ). In interpreting the Medical Practice Act, a Texas court
has stated that any individual “seeking a license to practice medicine in Texas must comply with the
Medical Practice Act and all applicable [Board] rules.” Id.
Donald W. Patrick, M.D., J.D. - Page 3 (GA-0285)

The primary rule of statutory construction is to determine the legislature’s intent, which
begins with a plain reading of the statute and may include analysis of the legislative history and the
circumstances surrounding its enactment. See McZntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.
2003). If the statute’s language is unambiguous, it will be given its plain meaning. See id.; accord
In re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004). In addition, an administrative agency’s
construction of a statute within that agency’s jurisdiction is entitled to “great weight” so long as the
construction is reasonable and does not go beyond the power and authority conferred by the
legislature. Osterberg IL Peca, 12 S.W.3d 31,51 (Tex. 2000).

The Board interprets section 155.051(b) as an exception to the requirement in section
155.051(a) that “applicants must pass all parts of an acceptable licensure examination sequence
within a seven-year period.” Request Letter, supra note 1, at 2. The Board explains:

Due to the nature of the [combined] programs, in that they take
longer than the normal four years required by medical schools and
sometimes delay the readiness of applicants to take the exams, the
Legislature created an exception. The exception provides that
applicants who have completed such programs need not pass all
examination parts within a seven year period, but merely that they
pass all parts within two years of graduating from the program.

Id. Thus, an applicant who has been awarded a combined degree need not pass all parts of the
examination within seven years but must complete all parts of the examination within two years of
receiving the combined degree. Because the applicant in this case has not complied with either
subsection (a) or subsection (b) of section 155.051, the Board has “determined that [the applicant
is] ineligibIe for a license.” See Exhibits 3 & 4 attached to Brown McCarroll Brief, supra note 2.

In our view, the Board has reasonably construed section 155.05 1 to allow graduates ofjoint
degree programs to become licensed under either subsection (a) or subsection (b). Subsection (b)
could be read entirely separate from subsection (a), so that a graduate of a joint degree program
must pass the examination within two years of graduation and, failing that, is not entitled to pass the
three parts within seven years under subsection (a). Under this reading, subsection (a) would apply
only to graduates of a single degree program. The Board has opted to construe the statute’s plain
language more leniently, however. “Construction of a statute by the administrative agency charged
with” enforcing the statute “is entitled to serious consideration, so long as the construction is
reasonable and does not contradict” the statute’s plain language. Dodd v. Meno, 870 S.W.2d 4,7
(Tex. 1994) (quoting Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)).

The brief submitted on behalfofthe applicant suggests that section 155.056 extends the time
periodsset out in section 155.051. SeeBrownMcCarroll Brief, supra note2, at 3. Section 155.056
limits the number of times an applicant may try to pass each part of an examination:

(a) An applicant must pass each part of an examination within
three attempts, except that an applicant who has passed all but one
part ofan examination within three attempts may take the remaining
part of the examination one additional time.
Donald W. Patrick, M.D., J.D. - Page 4 (GA-0285)

(b) Notwithstanding Subsection (a), an applicant is considered
to have satisfied the requirements of this section if the applicant:

(1) passed all but one part of an examination
approved by the board within three attempts and
passed the remaining part of the examination within
five attempts;

(2) is specialty board certified by a specialty
board that:

(A) is a member of the American
Board of Medical Specialties; or

(B) is approved by the American
Osteopathic Association; and

(3) completed in fhis state an additional two
years of postgraduate medical training approved by
the board.’

The Board believes that sections 155.051 and 155.056 operate independently. See Request
Letter, supra note 1, at 2. “Section 155.051 relates to fhe length of time allowed to pass all parts of
a licensure examination sequence, and Section 155.056 relates to the number of attempts permitted
on each part of licensure examination.” Id. Neither section 155.051 nor 155.056 makes reference
to the other. In particular, section 155.056 does not expressly or impliedly suggest that it operates
to modify the time periods set in section 155.051. Moreover, the Board’s construction gives
effect to the entire statute and provides a just and reasonable result. See TEX.GOV'T CODE ANN.
§ 311.021(2)-(3) (Vernon 1998) (stating that the legislature intends an entire statute to be effective
and intends a statute to achieve a just and reasonable result). We conclude that the Board’s
construction is reasonable and comports with the statutes’ plain language.

We finally address the argument made on the applicant’s behalf fhat the applicant
substantially complied with section 15 1.05 l(b) and is therefore eligible to be licensed. See Brown
McCarroll Brief, supra note 2, at l-3. The Board did not address the issue of substantial compliance
in its brief, see Request Letter, supra note 1, and we received no other briefing on this issue. We
have not~found a Texas case directly addressing whether medical licensing and regulatory statutes
require strict compliance, or whether substantial compliance is sufficient. If a “statute is mandatory,
whether there was substantial compliance is not relevant” because the substantial compliance rule
may not be applied. Reese V. Duncan, 80 S.W.3d 650,657 (Tex. App.-Dallas 2002, pet. denied)

‘We have not received information concerning whether the applicant at issue is specialty board certified and
tits within the special category defmed by section 155.056(b).
Donald W. Patrick, M.D., J.D. - Page 5 (GA-0285)

(quoting Kelly Y. Scott, 733 S.W.2d 312, 313-14 (Tex. App.-El Paso 1987, writ dism’d)). No
absolute test exists for determining whether a statute is mandatory or directory; the primary indicator
is legislative intent:

In determining whether the Legislature intended [a] particular
provision to be mandatory or merely directory, consideration should
be given to the entire act, its nature and object, and the consequences
that would follow from each construction. Provisions which are not
of the essence of the thing to be done, but which are included for the
purpose of promoting the proper, orderly and prompt conduct of
business, are not generally regarded as mandatory. If the statute
directs, authorizes or commands an act to be done within a certain
time, the absence ofwords restraining the doing thereof afterwards or
stating the consequences of failure to act within the time specified,
may be considered as a circumstance tending to support a directory
construction.

Chisholm Y. Bewley Mills, 287 S.W.2d 943,945 (Tex. 1956); accord Klinger Y. City ofSan Angelo,
902 S.W.2d 669, 676 (Tex. App.-Austin 1995, writ denied). Additionally, the use of the word
“must” in a statute “is the single most important textual consideration in deciding whether [a] statute
is mandatory or directory.” Tex. Att’y Gen. Op. No. JM-561 (1986) at 2.

As a whole, the Texas Medical Practice Act, of which section 155.051 is a part, is “an
exercise of the police power of the State to protect the public health.” Ashby Y. Bd. ofhled. Exam ‘rs,
142 S.W.2d 371, 372 (Tex. Civ. App.-Austin 1940, writ refd). Statutes “intended as an exercise
of the public powers of the State to protect the health [and] welfare of its people are to be
liberally construed” to accomplish that purpose. Munoz v. City of Sun Antonio, 318 S.W.2d 741,
742-43 (Tex. Civ. App.-San Antonio 1958, writ dism’d); seealso Deep E. Tex. Reg’lMentalHealth
&Mental Retardation Servs. v. Kinnear, 877 S.W.2d 550,563 (Tex. App.-Beaumont 1994, no writ)
(stating that a liberal construction of rehabilitation statutes promotes public health). In addition,
section 155.051(a) and (b) both indicate that an applicant “must” complete the examinations
within the required time. TEX.Oct. CODE ANN. § 155.051 (Vernon 2004). Moreover, chapter 155
provides that, “[t]o be eligible for a license . . , an applicant must present proof satisfactory” to the
Board that the applicant has passed an examination accepted or administered by the Board. Id.
5 155.003(6) (providing general eligibility requirements for licensure). Given the Medical Practice
Act’s interest in protecting public health and section 155.051’s plain language, we believe section
155.051 is mandatory. Accordingly, the doctrine of substantial compliance is irrelevant to
determining whether an applicant has complied with section 155.05 1.
Donald W. Patrick, M.D., J.D. - Page 6 (GA-0285)

SUMMARY

The Texas State Board of Medical Examiners’ interpretation
of Occupations Code section 155.05 1, which establishes a time period
for applicants to complete the medical license examination, and
section 155.056, which limits the number of attempts to pass the
examination, is reasonable and does not exceed the Board’s statutory
authority. Given the interest in protecting public health, section
155.051 is mandatory. Accordingly, the doctrine of substantial
compliance is irrelevant to determining whether an applicant has
complied with section 155.051.

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Ohrogge
Assistant AttorneFGeneral, Opinion Committee