THE ATTORNEY GENERAL
OF TEXAS
May 19, 1988
G.V. Brindley, Jr., M.D. Opinion No. JR-986
Executive Director
Texas State Board of Re: Whether rules of the Board
Medical Examiners of Medical Examiners authorizing
P. 0. Box 13562 closed administrative sanction
Austin, Texas 78711 proceedings in disciplinary mat-
ters are valid following amend-
ments to the Medical Practice
Act (RQ-1254)
Dear Dr. Brindley:
You ask several questions about the effect of recent
amendments to the Medical Practice Act, article 4495b,
V.T.C.S., on the powers and duties of the Board of Medical
/-- Examiners in disciplining its licensees. You first inquire
whether the board may continue to hear complaints against
licensees in "administrative sanction" hearings which are
informal, closed hearings as described by board rules. Bd.
of Medical Examiners, 22 T.A.C. 5195 (1980), as amended by
11 Tex. Reg. 4852 (1986). We limit our discussion to the
question asked, and do not address all issues raised by
administrative sanction hearings.
The board has authority to make rules not inconsistent
with the Medical Practice Act asnecessary to govern its own
proceedings, perform its duties, regulate the practice of
medicine and enforce the act. V.T.C.S. art. 4495b, 52.09(a).
The board may cancel, revoke, or suspend the license of a
practitioner of medicine or impose any other authorized
means of discipline if it finds he has practiced fraud or
deception in taking an examination, has used alcohol and
drugs to the extent of endangering the lives of patients,
used a false, misleading, or deceptive statement in
advertising, violated valid rules issued by the board, or
engaged in any other conduct set out in section 3.08 of
article 4495a, V.T.C.S. Id. Fj53.08, 4.01, 4.05, 4.12.
I
Pursuant to its rule-making authority the board adopted
rules authorizing an "administrative sanction" procedure to
deal with violations of the Medical Practice Act or board
rules in cases where the director of the investigation
p. 4474
Dr. G.V. Brindley, Jr. - Page 2 @M-906)
division and the secretary or chief executive officer of the
board concur that the violation is either minor in nature or
subject to proper resolution by voluntary limitation of the ?,
licensee's authority to practice medicine. 22 T.A.C. 5195.1.
The rules provide for an informal hearing before a hearings
officer and one or more representatives of the board or
members of a district review committee. 22 T.A.C. 5195.3(l),
(2) - At the conclusion of the hearing, the hearings officer
and board representatives make findings of fact and con-
clusions of law and recommend measures to resolve or
correct the matter which violates the Medical Practice Act.
Recommendations may include, for example, limitations or
cancellation of the physician's license, limitation or
cancellation of his authority to possess and prescribe
drugs, or the requirement that he have counseling or treat-
ment. 22 T.A.C. §195.3(8). If the licensee rejects the
recommendations, the matter is referred to the Investigation
Division "for appropriate action." 22 T.A.C. §195.3(8), (9).
If the licensee voluntarily accepts the recommendations, he
signs letters, agreements, affidavits, or other documents as
necessary to effectuate his voluntary acceptance of the
recommended disciplinary measures. Id. at 5195.3(10). The
regulations further provide that the secretary or chief
executive officer of the board and ultimately the board
itself is to z;;;zz; or disapprove the recommendations of
the hearings and the restrictions to which the
licensee voluntarily agrees. If the board does not approve
the administrative sanction action, the matter is referred
to the investigation division for filing of a formal
complaint for disciplinary action, or other appropriate
action. 22 T.A.C. §§195.3(10), (11); 195.4. The rules
provide that the results of the hearing and any letter,
agreement, or affidavit are open records. Bd. of Medical
Examiners 11 Tex. Reg.. 4852 (1986) (amending 22 T.A.C.
5§195.3(12), 195.4(3)).
You state that the administrative sanction rules were
based primarily on the board's authority under former law to
administer a private reprimand. Before it was amended by
the 70th Session of the Legislature, section 4.12 of the
Medical Practice Act provided as follows:
Sec. 4.12 .Except as otherwise provided in
Section 4.01 [pertaining to felony con-
?,
victions under the Controlled Substances
ActI, if the board finds any person to have
committed any of the acts set forth in
Section 3.08 of this Act, it mav enter an
order imoosina one or more of the following:
p..4475
Dr. G.V. Brindley, Jr. - Page 3 (JM-906)
(1) deny the person's application for a
license or other authorization to practice
h
medicine:
(2) administer a DUbliC or vrivate re-
primand:
(3) suspend, limit, or restrict the
person's license or other authorization to
practice medicine, including limiting the
practice of the person to or by the exclusion
of one or more specified activities of
medicine;
(4) revoke the person's license or other
authorization to practice medicine:
(5) require the person to submit to care,
counseling, or treatment of physicians
designated by the board as a condition for
the initial, continued, or renewal of a
license or other authorization to practice
medicine;
(6) require the person to participate in
a program of education or counseling pre-
scribed by the board;
(7) require the person to practice under
the direction of a physician designated by
the board for a specified period of time; or
(8) require the person to perform public
service considered appropriate by the board.
(Emphasis added.)
Acts 1981, 67th Leg., 1st C.S., ch. 1, 54.12, at 25.
House Bill No. 2560 of the 70th Legislature made the
following relevant changes in section 4.12:
Sec. 4.12 (a) Except as otherwise pro-
vided in Section 4.01, if the board finds any
person to have committed any of the acts set
.- forth in Section 3.08 of this Act, it shall
enter an order imposing one or more of the
following:
^ . . . *
p. 4476
Dr. G.V. Brindley, Jr. - Page.4 (JM-906)
(2) administer a oublic reDrimand. . . .
(Emphasis added.)
Acts 1987, 70th Leg., ch. 596, 511, at 4661, codified as
V.T.C.S. art. 4495b, 54.12.
The board no longer has authority to administer a
private reprimand. Moreover, prior to the amendment in
1987, section 4.12 stated that the board,"may enter an
order" imposing one or more of several disciplinary measures
if it found that any person had committed one of the acts
set forth in section 3.08. Thus, the board formerly had
discretion to not issue an order when it made the requisite
finding. See aenerallv District Grand Lodae No. 25 v.
Jones, 160 S.W.2d 915 (Tex. 1942) ('*may@' ordinarily connotes
permission). Section 4.12 now provides that the board
"shall enter an order" if it makes such a finding. Thus,
the board has no discretion to withhold a formal order when
it has found wrongdoing. &q Hess 8 Skinner Enaineerinq
Co. v. Turnev, 203 S.W. 593 (Tex. 1918) (word l'shall'l is
ordinarily a preemptory term): McLaren v. State, 199 S.W.
811 (Tex. Crim. App. 1917) ("shall*' is ordinarily imperative
and not directory). Under section 4.12 as amended, once the
board finds that a person has engaged in conduct set out in
section 3.08, it has a mandatory duty to enter an order
imposing one or more of the section 4.12 disciplinary
measures.
House Bill No. 2560 also added the following language
to section 4.04 of article 4495b, V.T.C.S.:
The board may, unless precluded by the law or
this Act, make a disposition of any complaint
or matter relating to this Act, or of any
contested case by stipulation, agreed settle-
ment, or consent order. The board shall adopt
such rules as are appropriate to carry out
such disposition. Such disnosition shall be
considered a discivlinarv order. (Emphasis
added.)
V.T.C.S. art. 449533, 54.04(b). Thus, these other means of
dealing with a complaint or contested case are now to be
considered disciplinary orders.
Rules authorizing administrative sanction hearings
which were based on the board's former authority to issue
orders administering a private reprimand, and those which
were based on its former authority to issue no order at all
after a finding of misconduct, are no longer consistent with
p. 4477
Dr. G.V. Brindley, Jr. - Page 5 (JR-906)
C
the amended statute and are invalid. The board may make
"rules, regulations, and bylaws not inconsistent" with
article 4495b, as necessary for the performance of its
duties. V.T.C.S. art. 449533, 52.09(a). Essential elements
of the administrative sanction procedure are inconsistent
with the amended provisions of sections 4.04(b) and 4.12 of
article 4495, V.T.C.S., and are therefore invalid. An
administrative agency has only those powers expressly or
impliedly delegated to it by the legislature, and the
legislature may withdraw from an administrative agency any
of the powers delegated. State v. Jackson, 376 S.W.2d 341
(Tex. 1964). Section 4.05 of article 4495, V.T.C.S., sets
out the hearing procedures which the board may use in
disciplinary matters:
Sec. 4.05 (a) The president of the board
shall designate one of the following alterna-
tive procedures for the conduct of each
individual contested case in a disciplinary
matter:
(1) a hearing before the board itself
where a quorum of the board shall be present
,-- for the hearing and decision at the con-
clusion of the hearing:
(2) a hearing committee appointed by the
president of the board, provided that the
hearing committee shall be composed of not
less than three members of the board and the
composition of such committee shall be
consistent with the provisions of Sections
2.08 and 2.09 of this Act; or
(3) a hearing before a hearing examiner
appointed by the board to conduct a hearing
and to prepare and submit to the board for
action a proposal for decision as provided in
the Administrative Procedure and Texas
Register Act (Article 6252-13a, Vernon's
Texas Civil Statutes).
V.T.C.S. art. 449533, §4.05.
Your second and third questions are contingent on a
determination that the board has present authority to
conduct administrative sanction hearings. In view of our
answer to your first question, we need not answer them.
p. 4478
Dr. G.V. Brindley, Jr. - Page 6 0-906)
You next ask for an interpretation of section 2.09(P)
of the Medical Practice Act, as amended by the 70th Legisla-
ture. It provides as follows:
(p) The board shall disseminate at least
twice a year and at other times determined
necessary by the board information as is of
significant interest to the physicians in
Texas. The information must include sum-
maries of discivlinarv orders made aaainst
phvsicians licensed in this state, board
activities and functions, pertinent changes
in this Act or board rules and regulations,
and attorney general opinions. The require-
ments of this section are in addition to the
reporting requirements imposed under Section
4.14 of this Act. The board shall dis-
seminate the information:
(1) to all licensed physicians practicing
in this state:
(2) to all health-care entities and other
board-designated health-care institutions
operating in this state:
(3) to all members of health-related
legislative committees;
(4) on written request, to members of the
general public; and
(5) to public libraries throughout the
state. (Emphasis added.)
V.T.C.S. art. 449513, 52.09(p). Before it was amended,
section 2.09(p) only required the distribution of informa-
tion of significant interest to Texas physicians, including
board activities, changes in the Medical Practice Act or
rules and regulations thereunder, and attorney general
opinions. It did not require the dissemination of disci-
plinary orders.
You ask whether section 2.09(p) as amended requires the
board to disseminate summaries of administrative sanctions
which involve disciplinary actions or practice restrictions
voluntarily agreed to by the licensee, but for which no
formal board order has been entered. Section 2.09(p)
requires the board to disseminate summaries of "disciplinary
orders" against licensed physicians.
p. 4479
Dr. G.V. Brindley, Jr. - Page 7 (JW906)
Article 4495b, V.T.C.S., does not define "disciplinary
orders" but the meaning of this term can be determined by
looking at sections of the statute on disciplinary
proceedings. Section 4.01(a) of article 449533, V.T.C.S.,
states as follows:
Sec. 4.01 (a) Except as provided herein,
the board may cancel, revoke, or suspend the
license of any practitioner of medicine or
imvose anv other authorized means of dis-
cinline upon proof of the violation of this
Act in any respect or for any cause for which
the board is authorized to refuse to admit
persons to its examination and to issue a
license and renewal license, including an
initial conviction or the initial finding of
the trier of fact of guilt of a felony or
misdemeanor involving moral turpitude.
(Emphasis added.)
V.T.C.S. art. 449533, 54.01(a). The exceptions set out in
section 4.01(b) and 4.01(c) relate to mandatory license
suspensions and revocations in cases where a licensee is
convicted of a felony or incarcerated in a state or federal
penitentiary. Section 4.04(b) of article 4495b, V.T.C.S.,
provides that the board's disposition of "any complaint or
matter relating to this act, or of any contested case by
stipulation, agreed settlement, or consent order" shall be
considered a disciplinary order. Finally, section 4.12(a)
sets out disciplinary measures, one or more of which the
board shall order when it finds a violation referred to in
section 4.01(a). In our opinion, "disciplinary orders"
means the kind of order referred to in sections 4.01(a),
4.04(b), and 4.12(a) of article 449533, V.T.C.S.
Before the September 1, 1987 effective date of the
recent amendments to article 4495b, V.T.C.S., the board was
not required to issue a disciplinary order even if it found
misconduct. The section 2.09(p) requirement does not apply
in cases where the board did not issue a disciplinary order.
We reiterate that since September 1, 1987, section 4.12(a)
has required the board to issue a disciplinary order once it
makes fact findings described by the statute, and section
4.04(b) has treated certain other dispositions as disci-
plinary orders. We moreover point out that section 2.09(d)
requires the board to "preserve a record of its proceedings
which shall be a public record." Portions of the board's
minutes recording its approval of voluntarily accepted
disciplinary measures are therefore public under section
2.09(d), even though the board did not issue a disciplinary
p. 4480
Dr. G.V. Brindley, Jr. - Page 8 bJM-906)
order which would be subject to the section 2.09(p) dis-
semination requirement. See 22 T.A.C. §195.4(3) (adminis-
trative sanctions were required to be noted in the board's
minutes). See also Bd. of Medical Examiners, 11 Tex. Reg.
4852 (1986) (amending 22 T.A.C. 195.3(12); 195.4(3)).
Your fifth, sixth, and seventh questions are based on
the assumption that board approval of an administrative
sanction report is a disciplinary order. Because of our
answer to question four, we need not answer this group of
questions.
Your last two questions relate to section 4.05(d) of
article 4495b, V.T.C.S. This provision states in part:
(d) All complaints, adverse reports,
investigation files, other investigation
reports, and other investigative information
in the possession of, received or gathered by
the board or its employees or agents relating
to a licensee, an application for license, or
a criminal investigation or proceedings are
privileged and confidential and are not
subject to discovery, subpoena, or other -\
means of legal compulsion for their release
to anyone other than the board or its
employees or agents involved in licensee
discipline. . . . The board shall vrovide
information uvon recfuest to a~ health-care
entitv concernina whether a comolaint has
been filed aaainst a licensee or the licensee
is under investiaation bv the board and the
basis of and current status of that comnlaint
or investiaation. (Emphasis added.)
The underlined sentence of section 4.05(d) was added by the
70th session of the legislature. YOU ask whether this
language requires the board to inform health-care entities
upon request about any and all complaints filed against a
physician since his license was originally issued and the
status of those complaints, including complaints in closed
investigative files.
A similar issue of statutory construction was addressed
by the Texas Supreme Court in Industrial Foundation of the
South v. Texas Industrial Accident Board, 540 S.W.2d 668 ?
(Tex. 1976), cert. denied, 430 U.S. 931. In this case, the
Supreme Court considered whether the Texas Open Records Act,
article 6252-17a, V.T.C.S., required disclosure of claims
for workman's compensation benefits filed by injured
p. 4481
Dr. G.V. Brindley, Jr. - Page 9 (m-906)
workers. The court rejected the argument that all claim
information filed with the Industrial Accident Board prior
to the act's effective date should remain confidential,
stating as follows:
First, it is clear that the Act is intended
to apply to all records kept by governmental
bodies, whether acquired before or after the
Act's effective date. No exception is made
for records which were considered confidential
prior to June 14, 1973.
540 S.W.2d at 677. Section 4.05(d) applies to complaints
generally and is not limited to, for example, complaints
pending as of the effective date of the 1987 amendments to
article 4495b, V.T.C.S., or to complaints filed after the
effective date.
An examination of the purpose of this portion of
section 4.05(d) supports our opinion that it requires the
board to inform health-care entities upon request about all
complaints about a physician filed since his license was
originally issued. A "health-care entity" is defined to
include the following:
(A) a hospital that is licensed pursuant
to the Texas Hospital Licensing Law (Article
4437f, Vernon's Texas Civil Statutes) or the
Texas Mental Health Code (Articles 5547-88
through 5547-100, Vernon's Texas Civil
Statutes):
(B) an entity, including a health main-
tenance organization, group medical practice,
nursing home, health science center, uni-
versity medical school, or other health-care
facility, that provides medical or health-
care services and that follows a formal peer
review process for the purposes of furthering
quality medical or health care: and
(C) a professional society or associa-
tion, or committee thereof, of physicians
that follows a formal peer review process for
the purpose of furthering quality medical or
health care.
V.T.C.S. art. 449513, 51.03(a)(5). Health-care entities, as
defined in the statute, include entities which employ
c physicians, give physicians staff privileges, or evaluate
p. 4482
Dr. G.V. Brindley, Jr. - Page 10 @M-906)
the qualifications and professional competence
physicians. See aenerallv V.T.C.S. art. 4495b, §l.O3(a)($
(definitions of "medical peer review committee" and "medical
peer review"). These entities will be better able to
evaluate a physician for employment or association with the
entity if they have access to all complaints pertaining to
the physician since he was first licensed.
Legislative history moreover indicates that the legis-
lature was concerned about the ease with which a physician
who lost his staff privileges for misconduct at one Texas
hospital could simply move to another without being subject
to any disciplinary action by the Board of Medical Exa-
miners. House Bill No. 2560 was a response to legislative
and public concerns about the effectiveness of state
regulation of physicians and the board's ability to protect
the public from incompetent practitioners. See House
Insurance Committee, Bill Analysis S.B. No. 87, 70th Leg.,
2d C.S. (1987) (analysis of bill which adopted technical
amendments to H.B. No. 2560); see also House Public Health
Committee, Bill Analysis C.S.S.B. 171, 70th Leg. (1987)
(analysis of bill which was source of many provisions of
H.B. No. 2560). These concerns were prompted in part by
media reports about Texas physicians who were not disci-
plined by the board despite complaints, malpracti.ce judg-
ments, or other information which raised significant doubts
about their competence to practice medicine. See House
Research Organization, Disciolinina the Doctors: Medical
Reaulation in Texas at ,2 (March 10, 1987). In one widely
publicized case, a physician lost his staff privileges at
one hospital after a very large malpractice judgment was
taken against him. He moved to another part of Texas,
joined the staff of another hospital, and subsequently was
responsible for a similar incident of malpractice. Id.
The contemporary circumstances out of which legislation
arose and the leqislative historv may be consulted in inter-
preting a statute. San Antonio General Drivers, Helvers
Local No. 657 v. Thornton, 299 S.W.2d 911 (Tex. 1957);
Martin v. Shenvard, 102 S.W.Zd 1036 (Tex. 1937). In con-
struing a statute, a court shall consider the old law and
the evil to be remedied. Gov't Code 5312.005; Dolan v.
Walker, 49 S.W.2d 695 (Tex. 1932). An interpretation of the
quoted language of section 4.05(d) will give health entities
access to information needed to evaluate physicians with
whom they deal and will thus implement the legislative
purpose of protecting the public from incompetent practi-
tioners.
p. 4483
Dr. G.V. Brindley, Jr. - Page 11 (JM-906)
Our construction of section 4.05(d) gives health-care
entities access to complaints about physicians which this
statute declared to be "privileged" before the 1987 amend-
ments. See Acts 1981, 67th Leg., 1st C.S., ch. 1, at 1, 24.
Article I, section 16, of the Texas Constitution prohibits
the adoption of any "retroactive law, or any law impairing
the obligation of contracts. . . .I1 The constitutional
prohibition against retroactive laws applies only to those
laws destroying or impairing vested rights. Deacon v. Citv
of Euless, 405 S.W.2d 59 (Tex. 1966); State Board of Reois-
tration for Professional Enaineers v. Wichita Enaineerinq
co., 504 S.W.2d 606 (Tex. Civ. App. - Fort Worth 1973, writ
ref'd n.r.e.): McGinlev v. McGinlev , 295 S.W.2d 913 (Tex.
Civ. App. - Galveston 1956, no writ). In our opinion, the
legislature has not destroyed or impaired vested rights by
providing health-care entities with access to complaints
about physicians filed with the Board of Medical Examiners
prior to the effective date of the 1987 amendments.
The Supreme Court opinion in the Industrial Foundation
of the South v. Texas Industrial Accident Board case, m,
provides helpful authority on the constitutional issue as
well as the issue of statutory construction. There are
differences in the factual settings of the Supreme Court
case and the question we are addressing, but these
differences tend to support our opinion that the amendment
to section 4.05(d) of article 44951, did not impair vested
rights. The Industrial Foundation case dealt with benefit
claims filed by workers on their own behalf, and the court
determined that such claims were available to any member of
the public, except for information within a "zone of
privacy" protected by the Constitution. 540 S.W.2d at 681.
Section 4.05(d) of article 449513, V.T.C.S., makes complaints
and their disposition available only to health care
entities, not to the general public. Moreover, the com-
plaints at issue in section 4.05(d) are complaints about
licensed physicians filed by persons other than physicians
who are the subject of the complaint. See Acts 1981, 67th
Leg., 1st C.S., ch. 1, 51, at 1; 54 at 22, 23, 24 (former
§§4.02 and 4.05(d) of article 4495b, V.T.C.S., which
pertained to complaints). Although the complainants in
Industrial Foundation might be able to say that they
furnished the information in the expectation of confiden-
tiality, the physicians cannot make such an assertion.
- Moreover, the court in Industrial Foundation stated as
follows:
,-
[W]e do not believe that information should
be excepted from disclosure merely because
p. 4484
Dr. G.V. Brindley, Jr. - Page 12 (J&$-986)
the individual furnishing such information
did so with the expectation that access to
the information would be restricted. The
Legislature has not, by determining that
government information formerly kept confi-
dential should be disclosed, impaired any
vested right of 'a claimant to the confiden-
tiality of the information. Unless there is
such an impingement upon a vested right,
the Legislature may require disclosure of
information even though it was deemed confi-
dential by an agency rule prior to the effec-
tive date of the Act. (Footnotes omitted.)
540 S.W.2d at 677-78. See aenerallv Industrial Foundation '
of the South v. Industrial Accident Board, at 677 ri. 15;
Open Records Decision No. 55A (1975) (discussing possibility
that information provided a governmental body prior to
effective date of Open, Records Act pursuant to express
promise of confidentiality might be protected by article I,
section 16 from disclosure under the act). See also Open
Records Decision No. 64 (1975).
The physician who was subject to the complaint had no
authority to determine whether it would be submitted to the
board, whether the board would decide to investigate it, or
whether the investigation would be closed without action or
would lead to some kind of administrative action. Pro-
ceedings held under the former "administrative sanction"
rules were subject to a rule which attempted to withhold
the nature of the hearing or the results
thereof except as required by Texas Civil
Statutes article 4495b, these sections, or
order of a court unless such disclosure is
authorized .by the licensee or his or her
attorney: provided, however, that disclosure
shall be made in accordance with the volun-
tary agreements or affidavits executed by
licensee and shall be made to other state or
federal agencies requesting such information
which have jurisdiction or authorization over
aspects of medical practice covered by such
limitations or restrictions' voluntarily
accepted by licensee.
22 T.A..C. §195.3(12). This rule was amended in 1986 to
provide that the "results as well as the letters, agree-
ments, and affidavits shall be open records." 11 Tex. Reg.
4852 (Nov. 28, 1986). This language does not attempt to
p. 4485
Dr. G.V. Brindley, Jr. - Page 13 04-906)
make confidential the complaint or fact that it was dealt
with by "administrative sanction" proceedings. The "adminis-
trative sanction" rules provide no legal basis for a
licensee to expect that complaints against him would forever
remain confidential. See Open Records Decision No. 468
(1987) (Open Records Act applies to complaints against peace
officer filed before its effective date): see also Henderson
Co. v. Thomvson, 300 U.S. 258 (1937); Texas State Teachers
Association v. State, 711 S.W.Zd 421 (Tex. APP. - Austin
1986, writ ref'd n.r.e.); State Board of Resistration for
Professional Enaineers v. Wichita Enaineerinc co., suvra
(constitutional rules against impairing contracts and
retroactive laws are not absolute and must yield to the
state's right to safeguard the public safety and welfare).
But see Travelers' Insurance Co. v. Marshall, 76 S.W.2d 1007
(Tex. 1934) (police power of state does not extend to
enactment of legislation, effect of which impairs obligation
of contracts).
In conclusion, the legislature has created an exception
to the confidentiality provision found in the first sentence
of section 4.05(d). The board is required to provide a
health-care entity with the described information about all
complaints filed against a physician since he was first
licensed, as well as information about the status of such
complaints, even if the matter has been resolved and the
investigation closed.
You finally ask:
Are closed investigation files privileged
and confidential under the provisions of
section 4.05(d) of the act (i.e., subject to
disclosure under the Open Records Act) if the
person requesting information is not acting
on behalf of a health care entity?
Section 4.05(d) provides that Il[a]ll complaints,
adverse reports, investigation files, other investigation
reports, and other investigative information" in the
possession of the board relating to a licensee, license
application, or a criminal investigation or proceedings
are privileged and confidential and are
not subject to discovery, subpoena, or
other means of legal compulsion for their
release. . . .
V.T.C.S. art. 4495b, 54.05(d). Section 3(a)(l) of the Open
Records Act provides as follows:
p. 4486
Dr. G.V. Brindley, Jr. - Page 14 (m-906)
Sec. 3. (a) All information collected,
assembled, or maintained by governmental
bodies pursuant to law or ordinance or in
connection with the transaction of official
business is public information and available
to the public during normal business hours of
any governmental body, with the following
exceptions only:
(1) information deemed confidential by
law, either Constitutional. statutorv. or bv
judicial decision. (Emphasis added.)
V.T.C.S. art. 6252-17a, 53(a)(l). Information within the
scope of the confidentiality provision of section 4.05(d),
article 4495b, V.T.C.S., is excepted from public disclosure
by section 3(a)(l) as "information deemed confidential by
statutory law.@' See oenerally Open Records Decision NO. 458
(1987) (discussing scope of predecessor to section 4.05(d)
confidentiality provision).
Whether the section 4.05(d) confidentiality provision
applies to particular information requested under the Open
Records Act must be decided on a case-by-case basis, and
cannot be answered as a hypothetical matter. If you receive
an Open Records request for information which you believe is
exempted from public disclosure by section 4.05(d), as
incorporated into the Open Records Act by section 3(a)(l),
you must submit the matter to this office for a determina-
tion of whether the information falls within this exception.
See V.T.C.S. art. 6252-17a, 57.
SUMMARY
Rules of the Board of Medical Examiners
authorizing '@administrative sanction" hearings
are inconsistent with article 449513, V.T.C.S.,
the Medical Practice Act, as amended by House
Bill No. 2560 of the 70th Legislature, and are
therefore invalid. Section 2.09(p) of article
4495b, V.T.C.S., requires the board to dis-
seminate summaries of the disciplinary orders
it issues. This provision does not require
the board to disseminate summaries of "admini-
strative sanctions" which involved disci-
plinary measures voluntarily agreed to by the
licensee without a formal board order. Since
the September 1, 1987 effective date of amend-
ments to the Medical Practice Act, section
4.12 of that act has required the board to
p. 4487
Dr. G.V. Brindley, Jr. - Page 15 (JM-906)
issue a formal disciplinary order if it finds
that an applicant or licensee has engaged in
misconduct identified by that provision, and
section 4.04(b) has provided that disposition
of complaints by stipulation, agreed settle-
ment, or consent order' shall be considered a
disciplinary order. Section 4.05(d) of article
4495b, V.T.C.S., requires the Board of Medical
Examiners to inform health-care entities upon
request about all complaints filed against a
physician since his license was originally
issued and about the status of those com-
plaints, including those in closed investi-
gative files. Information within the scope
of the confidentiality provision of section
4.05(d) of article 4495b, V.T.C.S., is
excepted from public disclosure under the Open
Records Act by section 3(a)(l) of that act.
Whether particular information is excepted
from public disclosure by section 4.05(d) must
be decided by this office on a case-by-case
basis pursuant to section 7 of article
6252-17a, V.T.C.S.
Jzyh
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 4488