Untitled Texas Attorney General Opinion

Mrs. Bobbye Ferris Opinion No. JM-650
Executive Director
Texas Board of Chiropractic Re: Whether an applicant who is blind
Examiners may be prohibited from taking the
1300 E. Anderson Lane state licensing examination to be a
Building C, Suite 245 chiropractor
Austin, Texas 70752

Dear Mrs. Ferris:

You ask whether au applicant who is blind cau be prohibited from
taking the examination to obtain a license to practice chiropractic in
the State of Texas. We answer your question in the negative.

Article 4512b. V.T.C.S., creates the Texas Board of Chiropractic
Examiners and governs the licensure and regulation of chiropractors.
Section 10(a) of the licensing act specifically provides, in pertinent
part, that

[a]11 applicants. for license to practice chiro-
practic in this state, not otherwise licensed
under the provisions of this law, xust success-
fully pass an examination by the Texas Board of
Chiropractic Examiners established by this law.
The Board is authorized to adopt and enforce rules
of procedure not inconsistent with the statutory
requirements.

V.T.C.S. art. 4512b. 510(a). It is suggested that the board's refusal
to permit a blind applicant to take the licensing examination is a
violation of federal law, specifically 29 U.S.C. section 794 [section
504 of the Rehabilitation Act of 19731. which provides that

[n]o otherwise qualified handicapped individual in
the United States, as defined in section 706(7)
of this title, shall. solely by reason of his
handicap, be excluded from the participation in,
be denied the benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance. . . .

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Mrs. Bobbye Ferris - Page 2 (JM-650)

On the other hand, it is argued, that under the authority of South-
eastern Community College v. Davis, 442 U.S. 397 (19791, the board’s
refusal does not constitute a violation of either 29 U.S.C. section
794 or the equal protection and due process clauses of the Fourteenth
Amendment‘to the United States Constitution. In e, the United
States Supreme Court held, inter alia. that there was no violation of
29 U.S.C. section 794 or of the equal protection and due process
clauses of the Fourteenth Amendment in an instance in which an educa-
tional institution refused to admit an individual with a severe
hearing disability to a nursing program. We need not address whether
federal law or the Davis case is apposite to the instant request,
because we conclude thathe board’s refusal to permit a blind person
to take the licensing examination is a violation of state law.

Section 10(a) of article 4512b further provides that

all applicants shall be eligible for examination
who present satisfactory evidence to the Board
that they are more than eighteen (18) years of
age, of good moral character, have completed sixty
(60) sexaster hours of college courses, other than
a chiropractic school, and are graduates of bona
fide reputable chiropractic schools (whose
entrance requirements and course of Instruction
are as high as those of the better class of
chiropractic schools in the United States); a
reputable chiropractic school shall maintain a
resident course of instruction equivalent to not
less than four (4) terms of eight (8) months each,
‘or a resident course of not less than the number
of semester hours required by The University of
Texas for the granting of a Bachelor of Arts
degree: shall give a course of instruction in the
fundamental subjects named in Section 12 of this
Act; and shall have the necessary teaching force
and facilities for proper instruction in all of
said subjects. Applications for examination must
be made in writing, verified by affidavit, and
filed with the secretary of the Board, on forms
prescribed by the Board, accompanied by a fee.
All applicants shall be given due notice of the
date and place of such examination.

Section 14a of article 4512b, V.T.C.S.. details the grounds for
refusing, revoking, or suspending a license granted by the board and
provides the following:

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Mrs. Bobbye Ferris - Page 3 (JM-650)

Sec. 14a. The Texas Board of Chiropractic
Examiners may refuse to admit persons to its
examinations and may cancel, revoke or suspend
licenses or place licensees upon probation for such
length of tims as may be deemed proper by the Board
for any one or more of the following causes:

1. For failure to comply with, or the violation
of. any of the provisions of this Act or of a rule
adopted under this Act;

2. If it is found that said person or persons
are in any way guilty of deception or fraud in the
practice of chiropractic:

3. The presentation to the Board or use of
any license, certificate or diploma, which was
illegally or fraudulently obtained, or the
presentation to the Board of any untrue statement
or any document or testimony which was illegally
practiced in passing the examination;

4. Coqviction of a crime of the grade of a
felony, or one which involves moral turpitude, or
the procuring or assisting in the procuring of an
abortion;

5. Grossly unprofessional conduct or dis-
honorable conduct of a character likely to deceive
or defraud the public, habits of intemperance or
drug addiction. or other habits calculated in the
opinion of the Board to endanger the lives of
patients;

6. The use of any advertising statement of a
character to mislead or deceive the public;

7. Employing or associating with, directly or
indirectly, any person who, during the period of
such employment, commits any act constituting the
practice of chiropractic when such person is not
licensed to do so;

a. The advertising of professional superiority,
or the advertisLng of the performance of pro-
fessional services in a superior manner;

9. The purchase, sale, barter, use, or any
offer to purchase, sell, barter or use, any

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Mrs. Bobbye Ferris - Page 4 (JM-650)

chiropractic degree, license, certificate. or
diploma, or transcript of license, certificate, or
diploma in or incident to an application to the
Board of Chiropractic Examiners for license to
practice chiropractic;

10. Altering with fraudulent intent any chiro-
practic license, certificate or diploma, or
transcript of chiropractic license, certificate or
diploma;

11. The impersonation of, or acting as proxy
for, another in any examination required by this
Act for a chirporactic license;

12. The impersonation of a licensed practi-
tioner, or the permitting or allowing another to
use his license or certificate to practice chiro-
practic as defined by statute by a licensed prac-
titioner;

13. Proof of insanity of the holder of a certi-
ficate. as adjudged by the regularly constituted
'authorities;

14. Failure to use proper diligence in the
practice of chiropractic by the holder of a certi-
ficate, or grossly inefficient practice of chiro-
practic;

15. Failing to clearly differentiate a chiro-
practic office or clinic from any other business or
enterprise; or

16. Personally soliciting patients, or causing
patients to be solicited, by the use of case
histories of patients of other chiropractors.

A general principle of administrative law is that' an administra-
tive agency has no inherent powers; au agency's jurisdiction and the
nature and extent of its powers must be found within the constitu-
tional and statutory provisions applicable to the agency. Board of
Insurance Commissioners v. Guardian Life Insurance Co., 180 S.W.2d 906
(Tex. 1944); Blount v. Metropolitan Life Insurance Co., 677 S.W.Zd 565
(Tex. App. - 2 .ustin 1984). r~ev'd on other grounds sub nom., Employees
Retirement System of Texas s Uount. 709 S.W.Zd 646 (Tex. 1986). An
aaencv may not exercise authority I chat exceeds the clear intent of the
l;gisiature, Gulf Coast Water Cd. v. Cartwright, 160 S.W.2d 269 (Tex.
Civ. App. - Galveston 1942, writ ref'd w.o.m.), nor may it enlarge its

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Mrs. Bobbye Ferris - Page 5 (JM-650)

powers by its own orders. Railroad Commission of Texas v. Fort Worth
6 Denver City Railway Co., 161 S.W.2d 560 (Tex. Civ. App. - Austin
1942; writ ref'd w.o.m.). Where a power is granted to an adminis-
trative agency and the method of-its power is prescribed, the
prescribed method excludes all others and must be followed. Cobra Oil
6 Gas Corporation v. Sadler, 447 S.W.2d 887 (Tex. 1968); Foster v.
City of Waco, 255 S.W. 1104 (Tex. 1923). Specifically, a licensing
agency for a business or profession is not empowered to enforce
standards which are different from or inconsistent with those of the
controlling statute, even though they may be reasonable and may be
administered reasonably. Bloomv. Texas State Board of Examiners of
Psychologists, 492 S.W.2d 460 (Tex. 1973); Murphy v. Mittelstadt. 199
S.W.2d 478 (Tex. 1947). See
- Attorney General Opinion H-801 (1976).

We conclude, therefore, that the board may refuse to permit an
applicant, who is eligible under section IOa, to take the licensing
examination only for those reasons set forth in section 14a of article
4512b. V.T.C.S. The fact that an applicant is blind is not one of the
reasons set forth therein. Accordingly. we conclude that the Texas
Board of Chiropractic Examiners may not refuse to permit an applicant
to take the licensing examination because the applicant is blind.

SUMMARY

The Texas Board of Chiropractic Examiners may
not refuse to permit an applicant to take the
licensing examination because the applicant is
blind.

Attorney General of Texas

JACK HIGBTOWBR
First Assistant Attorney General

MARYK!zLLER
Executive Assistant Attorney General

RICE GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General

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