The Honorable M. James Moritz Opini&n No. H-790
Secretary-Treasurer
Texas State Board of Dental Re: Authority of the
Examiners Dental Laboratory Advisory
710 Southwest Tower Board.
7th L Brazos Streets
Austin, Texas 78701
Dear Doctor Moritz:
You have requested our opinion regarding the
authority of the Dental Laboratory Advisory Board. Specifi-
cally, you ask:
1. Whether the Dental Laboratory Advisory
Board may call meetings on its own initia-
tive.
2. Whether the Dental Laboratory Advisory
Board may incur expenses without the prior
approval of the Texas State Board~of Dental
Examiners.
3: Whether the authority of the Dental
Laboratory Advisory Board is "advisory*
in nature.
4. Whether the Texas State Board of
Dental Examiners is obliged to follow the
recommendations of the Dental Laboratory
Advisory Board with regard to matters
within the latter's statutory authority.
The Dental Laboratory Advisory Board was created by the
Legislature in 1973. Its enabling statute provides in part:
p. 3328
The Honorable M. James Merits - page 2 (H-790)
The Dental Laboratory Advisory Board
shall advise the Texas State Board
of Dental Examiners on all matters
concerning dental laboratories and dental
technicians; and the Texas State Board
of Dental Examiners shall refer to the
Dental Laboratory Advisory Board all
matters concerning rules, fees, registration
and all other matters affecting dental
laboratories and dental technicians for
the Advisory Board's‘study and recommendations
thereon and such Advisory Board shall
forward its recommendations, witbin ~a
reasonable time, to the Texas State
Board of Dental Examiners for its action
upon such recommendations; and, if the
majority of the members of the Texas
State~Board of Dental Examiners shall
concur with the recommendations of'the
Dental Laboratory Advisory Board, then
the rules, regulations or changes therein
pertaining to dental laboratories and
dental technicians shall be put into
effect by the Texas State Board of
,Dental Examiners as part of its rules
and regulations- The members of the
Dental Laboratory Advisory Board shall
be en'titledto receive the same per diem
payable~to the members of the Texas
State Board of Dental Examiners plus
such travel and other expenses as are
incurred in the attendance of meetings
of such Board. No practicing dentist
shall be'a member of the Dental Labora-
tory Advisory Board. V.T.C.S. art. 455X(6)(b).
By requiring the Dental Laboratory Advisory Board to
"advise the Texas State Board of Dental Examiners on sll
matters concerning dental laboratories and dental techni-
cians," the ,statuteclearly contemplates that the Dental
Laboratory Advisory Board should hold meetings. In addition,
p. 3329
The Honorable M. James Moritz - page 3 (H-790)
a subsequent portion of the statute provides a per diem
allowance and reimbursement of other expenses to Board
members while "in the attendance of meetings." The Dents1
Laboratory Advisory Board, however, is not granted the power
to adopt any rules or regulations, although such authority is
expressly conferred upon the Board of Dental Examiners by
article 45518, V.T.C.S.
Since the authority to call meetings is a necessary
adjunct of the power to hold such meetings, we believe that
the Dental Laboratory Advisory Board is authorized to call
meetings on its own initiative. As the court stated in
Cornelius " Railroad Commission, 182 S.W.2d 412 (Tex.Civ.
APP. -- Austin, 1944, no writ)a
It is . . .well settled ; . . that when
a statute imposes a mandatory duty upon
a governmental agency ts carry out the
express and specifically defined purposes
and objectives stated.in the law, such
statute~carries with it by necessary
implication the authority to do whatever
is reasonably necessary to effectuate the
legislative mandate and purpose. Id.
-
at 415.
As to your second~question, article 4551f(6) (b).author-~
ises members of the Dental Laboratory Advisory Board "to :;.
receive the same.per diem payable to the members of the
Texa.8State Board of Dental Examiners plus such travel Andy, '.
other expenses~as are incurred in the attendance of meetings
;feF'h Board;.',Funds'for *Advisory Board Members Per
are specifically budgeted in the current appropria-
,tion'for the Board of Dental Examiners. Acts 1975, 64th
Leg.;ch. 743 at 2591. No other funds, however, are speci-'
fically appropriated for the Dental Laboratory Advisory
Board alone, and the statute creating the Board doesnot
empower it to ~incur'anyexpenses other than those for per
diem, travel, and other expenses "incurred in the attendance
oE meetings." In our opinion, the limited authority granted
to the Board by article 4551f and the fact that travel and
expense funds to be utilized by the Advisory Board are com-
mingled with the agency's appropriations supports the inference
that 'theAdvisory Board does not have a general spending
p. 3330
The Honorable M. James Merits - page 4 (H-790)
power. --
Board of Insurance Com'rs v. Guardian Life Ins.
190 S.W.2d 9?J6 908 (Tex Sup.7944) areeult, we
%eve that the Dekal Laborkory Advisory Board is without
authority to incur any other expenses without the prior
approval of the Board of Dental Examiners. The expenses
which can be incurred are, of course, subject to reasonable
budgetary limitations.
Your third and fourth questions involve the nature of.
the authority conferred upon the Dental Laboratory Advisory
Board. We have'received a brief suggesting that under
article 4551f(6)(b), V.T.C.S., the only procedure by which
the Board of Dental Examiners may promulgate rules relating
to dental laboratories or dental technicians is to concur in
the recommendations of the Dental Laboratory Advisory Board.
The brief analogises the relationship of the Board of Dental
Examiners and the Dental Laboratory Advisory Board to the
relationship between the two houses of a bicameral legisla-
ture. Under this interpretation, no rule could be adopted
relating to dental laboratories or to dental technicians
unless both boards approved precisely the same wording.
However, article 455ld(l) provides:
The Texas State Board of Dental
Examiners shall have the same power and
authority to adopt, promulgate and
enforce rules and regulations consistent
with statutory and constitytional authority
pertaining to dental laboratories and
dental technicians, including classes of
technicians, qualifications, standards,
and examination for registration and as
is contained in Article 45516, after the
Texas State Board of Dental Examiners
has received the recommendations of the
Dental Laboratory Advisory Board.
The authority to promulgate rules dlearly is given to
the Board of Dental Examiners. The authority of the Dental
Laboratory Advisory Board is advisory in nature. Although
p. 3331
The Honorable M. James Merits - page 5 (~-790)
the Board of Dental Examiners is required to seek the advice
of the Dental Laboratory Advisory Board in matters relating
to dental laboratories and dental technicians, it is not
obliged to follow those recommendations. It may accept,
reject or amend them.
SU.MMARY
The Dental Laboratory Advisory Board is
empowered in the first instance to call
meetings on its own initiative. The
Dental Laboratory Advisory Board is
without authority to incur expenses
except those for per diem, travel and
other expenses incurred in the atten-
dance-of meetings, unless it has the
prior approval of the Board of Dental
Examiners. The Board of Dental Examiners
is not obliged.to follow the recommendations
of the Dental Laboratory Advisory Board,
but may adopt, amend or reject them.
Very truly yours,
(-APPROVED:
Opinion Committee
jwb
p. 3332