Untitled Texas Attorney General Opinion

Hon. Frank C. Erwin Opinion No. C-794 Chairman Board of Regents Re : Whether the Board of Resents University of Texas of the University of Texas Austin, Texas are required to permit Doctors of Osteopathy who are licensed to practice medicine to participate in postgraduate courses at medical institutions of the Dear Mr. Erwin: University of Texas. You request an opinion of this office which is set out as follows: "In view of the provisions of Section 31, Article XVI of the Constitution of Texas, and the equal protection clause of the Fourteenth Amendment of the Constitution of the United States, is the Board of Regents of the University of Texas required to permit Doctors of Osteopathy who are licensed to practice medicine to partici- pate in the continuing education programs of the medical institutions of The University of Texas System?" Your letter of request reflects that the prereq- uisites now applicable to the postgraduate medical programs at those institutions governed by the board of regents require that participants hold the degree of Doctor of Medicine. This of necessity precludes participation by those practitioners holding the degree of Doctor of Osteopathy rather than Doctor of Medicine who otherwlse meet the prerequisites for these programs. Other aspects of the prerequisites are not inquired about and will not enter into our consideration. The government of the University of Texas is vested in a board of regents. Art. 2584, V.C.S. In Article 2585 of Vernon's Civil Statutes the legislature has prescribed the powers of the board of regents: "They shall establish the departments of -3815.7 Hon. Frank C. Erwin, page 2, (C-794) a first-class university, determine the offices and professorships, appoint a president, who shall, if they think it advisable, also dis- charge the duties of a professor the professors and other officer~,a!%~i~~eir respective salaries; and they shall enact such by-laws, rules and regulations as may be necessary for the successful management and government of the University; they shall have power to regulate the course of instruction and prescribe, by and with the advice of the professors, the books and authorities used in the several departments, and to confer such degrees and to grant such diplomas as are usually conferred and granted by univer- sities." The powers invested in the board of regents neces- sarily involve the exercise of wide discretion in determing what class of persons shall be admitted. In Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805 (1932) a rule adopted by the board of regents was challenged as being arbitrary and un- reasonable. In sustaining the validity of the rule, the court recognized the broad powers of the board of regents in the government of the University of Texas. "Article 7, i 10, of the Constitution of Texas, provides that the Legislature shall es- tablish, organize, and provide for the main- tenance, support, and direction of the Uni- versity of the first class for the promotion of literature and the arts and sciences. Where the Legislature, acting under a constitutional mandate, establishes a university, the Leg- islature may provide certain rules and reg- ulations concerning the admission and ex- clusion of certain classes entitled tc be ad- mitted to all the privileges of a state univer- sity, and instruction therein. The Legisla- ture of this state not having provided who shall be admitted to the University, and hav-- ing delegated the power to make rules and regulations necessary to the government of the University, to the board of regents, they are invested with the power of determining what classes of persons shall be admitted to the University, provided that the rules and regulations in that regard must be reason- able and not arbitrary. The authorities sus- -3816- , Hon. Frank C. Erwin, page 3, (C-794) tain certain general rules with regard to the government of institutions supported and maintained b the state. In 24 R.C.L. pp. y;?76, g 25, the rule is announced as fol- 'The courts will not interfere with the exercise of discretion by school directors in matters confided by law to their judgment, unless there is a clear abuse of the discre- tion, or a violation of law. So the courts are usually disinclined to interfere with reg- ulations adopted by school boards, and they will not consider whether the regulations are wise or expedient, but merely whether they are a reasonable exercise of the power and discretion of the board. Acting reasonably within the powers conferred, it is the prov- ince of the board of education to determine what things are detrimental to the success- ful management, good order, and discipline of the schools and the rules required to pro- duce these conditions. The presumption is always in favor of the reasonableness and propriety of a rule or regulation duly made. The reasonableness of regulations is a ques- tion of law for the courts.'" 55 S.W.2d 805, 808. Although Hyman v. City of Galveston, 273 U.S. 414, 47 s.Ct. 363, 71 L.kd '(14 S.W.2d 89 (Tex.Civ.App. 1958~g~~~o??e?%!i%$%~t3~~th the validity of rules which denied to doctors of osteopathy the privileges of staff membership of a county hospital, the powers of the hospital boards with respect to the manage- ment and control of the hospitals in question are analogous to the powers of government invested in the board of regents. In both cited cases, the rules were challenged as being contrary to Section 31 of Article XVI of the Constitution of the State of Texas and the Fourteenth Amendment to the Constitution of the United States. Section 31 of Article XVI of the Constitution of the State of Texas reads as follows: "The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for mal- practice, but no preference shall ever be -3817- Hon. Frank C. Erwin, page 4, (c-794) given by law to any school of medicine." 1 The following statements by the court in Hyman v. City of Galveston, 273 U.S. 414, 416-418, 47 s.ct. 363, 364, 71 kd '(14> 7 17, 718 (1927) are particularly apropos: ‘L** 'However extensive that protection Fourteenth Amendment7 may be In other Zituations, it cannoT we think, be said that all licensed physicians have a con- stitutional right to practice their profes- sion in s hospital maintained by a state or political subdivision, the use of which is reserved for purposes of medical instruc- tion. . . . "But it is argued that if some physicians are admitted to practice in the hospital all must be or there is a denial of the equal pro- tection of the laws. Even assuming that the arbitrary exclusion of some physicians would have that legal consequence, in the circumstances of this case, the selection complained of was based upon a classification not arbitrary or unreasonable on its face. . . . We cannot say that a regulation excluding from the conduct of a hospital the devotees of some of the numerous systems or methods of treating diseases authorized to practice in Texas, is unreason- able or arbitrary. In the management of a hospital, quite apart from its use for education- al purposes, some choice in methods of treatment would seem inevitable, and a selection based upon a classification having some basis in the exercise 1 The express limitation that 'no preference shall ever be given by law to any schools of medicine" applies only to the power of the legislature to enact "laws pre- scribing the qualifications of practitioners of medicine" and statutes to punish persons for malpractice." It does not extend to legislation dealing with other subjects. Dowdell v. McBride, 92 Tex. 240, 47 S.W. 524 (1895). The term "schools of medicine" has reference to the system or method which the medical practitioner employs in the treat- ment of disease. Ex parte Halsted, 147 Tex.Crim. 453, 182 S.W.2d 479 (1944). -3818- I . Hon. Frank C. Erwin, page 5, (C-794) of the judgment of the state board whose action is challenged is not a denial of the equal pro- tection of the laws. . . . “The validity of the action of the board under the Texas Constitution @ec. 31, Art. XV27 is also before us. . . . “The limitation of the provision is obviously directed to the qualifications of those to be admitted to the practice of their profession in the state and has nothing to do with the qualifications of those who are to be allowed to practice in a state hospital or to participate in an educational enterprise con- ducted by the state. . . .” In Buson v. Poage, 318 S.W.2d 89 (Tex.Clv.App. 1958, error ref. n.r.e.) a rule of a county hospital was attacked upon the same basis as the rule in the Hyman case. In upholding the authority of the hospital board to enact a rule which would exclude doctors of osteopathy from the hospital staff, the court quoted at length from the Hyman case and stated at page 94-95: “While the holding of that Court is not binding on us insofar as it interprets the meaning of the state constitution, the decision is highly persuasive, and we happen to be in accord with its interpretation. “The holding is supported by the following authorities from other states: Newton v. Board of County Com’rs of Weld County, 86 Colo. 446, 282 P. 1068; Richardson v. City of Miami, 144 Fla. 294, 198 So. 51; and Green v. City of St. -3819- . Hon. Frank C. Erwin, page 63 (C-794) Petersburg, 154 Fla. 339, 17 ~0.2~3 517." 2 The court further observed at pages 96-97: "Dhe legislature7 wisely left to the Board of Managers very broad powers to be employed in the operation of the hospital. . . . "This en-joined upon the Board the duty of adopting such rules as are reasonably necessary to carry out the purpose of the Act. The purpose of the Act was to enable a county to establish a hospital and operate it in a manner that would best serve the greatest number In the community. . . . One of the age-old problems Is the conflict between osteopaths and allopaths. If in a given com- munity the hospital can best be operated by the exclusion of osteopaths, we find no Inhibi- tion in law to such exclusion. "While the Board cannot act arbitrarily, the mere fact that we, had we been in their position, might not have taken the same action as did they, does not make their action arbitrary and unreasonable." A rule which requires that participants in post- graduate medical programs of the University of Texas hold the degree of Doctor of Medicine does not relate to the qualifications for the practice of medicine within this 2 The most recent cases reaching this result: Taylor v. Horn, 189 So.2d 198 (Fla. A p. 1966); Foote v. Communit Hospital of Beloit, 195 Kan. 3i5, 405 P.2d 423 (1965); Walfing- ton v. Zinn, 146 W.Va. 147, 118 S.E.2d 526 (1961). Contra Schnei -Englewobd r v. Hosp. Assoc., 91 N.J. Super; 527, 221 A.2d 559~ (~1966) an d Greisman v. Newc~omb Hospital, 40 N.J. 389, 192 A.2d 817 t1963)wherethe courts held that denial of ad- mission to-hospital slaif' must be based upon qualification of applicant, not solely on fact that applicant was an osteopath. Compare Blende v. Maricopa County Medical Sot., 96 Ariz. 240, 393 P.2d 926 ( 64) and Falcone v. Middlesex County Medical Sot., 34 ~.~.lz82, 170 A.2d 791 (1961) where courts held that county medical society could not exclude practitioner from membership solely because of being an osteopath where membership in society was necessary pre- requisite to admission to hospital staff. -3820- Hon. Frank C. Erwin, page 7, (C-794) state. Therefore the rule is not within the prohibition of Section 31 of Article XVI of the Constitution of the State of Texas. In considering whether those holding the degree of Doctor of Osteopathy are denied the equal protectlon of the law, we cannot concern ourselves with the wisdom of the policy which prompted the adoption of the rule, but merely with whether the rule is a reasonable exercise of the power and discretion of the board of regents. The legislature created the board of regents and confided to its management the University of Texas. It is within the province of their powers to determine those things which are inimical to a well ordered and disciplined operation of the University of Texas and Its schools. This determination necessarily requires the exercise of dis- cretion, as does the promulgation of rules for the achieve- ment of the desired conditions. The Fourteenth Amendment to the Constitution of the United States does not guarantee to all the right to attend an educational facility maintained by the state. The right of attendance is a privilege extended by the state to those who meet the conditions imposed. of ~lssissippi V. Waugh, 105 Miss. 623, 62 so. 827 1913 affirmed 237 U.S. 589, 35 S.Ct. 720, 59 L.Ed. 1131 7 1915 . The rule in question operates to exclude members of a defined classification; i.e., those who do not hold the degree of Doctor of Medicine. We are unable to say that this classifica- tion is unreasonable or arbitrary as a matter of law. In the absence of facts to the contrarv, we must wresume that the board of regents acted with due"regard to the high trust reposed in them by law. Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805 (1932). The principles of law pronounced In Hyman v. City of Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927) and Duson v. Poage, 318 S.W.2d 89 (Tex.Civ.App. 1958, error ref. n.r.e.), apply with equal force to the rule here inquired about. In concluding that-the present rule of the board-of regents does not transcend the constitutional rights of those whom it excludes we have been guided solely by those principles. It being within the sole discretion of the board of regents to determine what rules are necessary to the successful manage- ment and government of the University of Texas and its schools, -3821- - . Hon. Frank C. Erwin, page 8, (C-794) the rule must stand. In sustaining the validity of the present rule, we do not hold that the board of regents may not allow persons holding the degree of Doctor of Osteopathy rather than Doctor of Medicine to participate in postgraduate medical programs of the University of Texas, but that the participation of such persons lies within the sole discre- tion of the board of regents. SUMMARY __----- Under the provisions of Article 2585, V.C.S., the Board of Regents of the University of Texas is authorized to enact such rules and regulations as may be necessary to the govern- ment of the University of Texas. In the exercise of this authority, it is within the sole discre- tion of the Board to establish by rule the pre- requisites necessary for participation in post- graduate medical programs offered at Its medical institutions so as to either include or exclude participation by persons holding the degree of Doctor of Osteopathy. The present rule of the Board which requires that participants in such programs hold a degree of Doctor of Medicine and thereby excludes persons holding the degree of Doctor of, Osteopathy is not prohibited by Section 31, Article XVI, Texas Constitution or XIV Amendment, U.S. Constitution. Yours very truly, WAGGONER CARR Attorney General of Texas W. 0. Shultz Assistant Attorney WOS:sck APPROVED: OPINION COMMITTEE Ralph Rash, Chairman James C. McCoy, Harold Kennedy Robert Flowers APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright -3822-