The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Chet Brooks, Chairman Opinion No. MN-573
Supreme Court Building Committee on Human Resources
P. 0. Box 12546
Texas State Senate Re: Validity of Board of
Austin. TX. 76711. 2540
5121475-2501
Room 412, Archives Building Medical Examiners rule on
Telex 9101674-1367 Austin, Texas 78711 licensure qualifications
Telecopier 512/475-0266
Dear Senator Brooks:
1607 Main St.. Suite 1400
Dallas, TX. 75201-4709
On November 11, 1981, section 163.1, rule 386.19.00.001 of the
2141742-6944 rules and regulations of the Texas State Board of Medical Examiners
became effective. This rule provides in part:
4624 Alberta Ave., Suite 160
(4 The board at its discretion may grant a
El Paso. TX. 79905-2793
9151533.3464 license to any reputable physician who meets the
following criteria:
1220 Dallas Ave., Suite 202
Houston, TX. 77002.6966
(1) is at least 21 years of age;
7131650.0666
(2) is of good professional character;
606 Broadway. Suite 312 (3) has completed 60 semester hours of
lAbbock. TX. 79401.3479 college courses other than medical
6061747.5236
school, such courses to be acceptable to
the University of Texas Health Science
4309 N. Tenth, Suite S Centers for admission to medical school;
McAllen, TX. 76501-1665
5121662.4547 has graduated from an approved medical
(4)
school...;
200 Main Plaza, Suite 400
San Antonio, TX. 76205-2797 (5) has successfully passed a medical
5121225-4191 examination and Texas medical
jurisprudence examination required by the
An Equal Opportunity/
board...; and
Affirmative Action Employer
(6) has successfully completed a one-year
program of graduate medical training
approved by the board....
Tex. State Bd. of Medical Examiners, Rule 386.19.00.001, 6 Tex. Reg.
3971 (1981) (to be codified as 22 T.A.C. §163.1)
p. 2112
Honorable Chet Brooks - Page 2 (Mw-573)
You have,asked whether parts of this rule,conflict with sections
3.04 or 3.05 of the Medical Practice Act, article 4495b. V.T.C.S.
Section 3.04 provides in part:
exa~;~at;~n,applicant, to be eligible for t:E
must present satisfactory proof
the board that the applicant:
(1) is at least 21 years of age;
(2) is of good professional character;
(3) has completed 60 semester hours of college
courses other than in medical school,
which courses would be acceptable, at the
time of completion, to The University of
Texas for credit on a bachelor of arts
degree or a bachelor of science degree;
and
(4) is a graduate of a medical school or
college that was approved by the board at
the time the degree was conferred.
Section 3.05 provides in relevant part:
(a) All examinations for license to practice
medicine shall be conducted in writing in the
English language and in a manner as to be entirely
fair and impartial to all individuals and to every
school or system of medicine. All applicants
shall be known to the examiners only by numbers,
without names or other method of identification on
examination papers by which members of the board
may be able to identify the applicants or
examinees, until after the general averages of the
examinees' numbers in the class have been
determined and license granted or refused.
Examinations shall be conducted on and cover those
subjects generally taught by medical schools, a
knowledge of which is commonly and generally
required of candidates for the degree of doctor of
medicine or doctor of osteopathy conferred by
schools or colleges of medicine approved by the
board, and the examinations shall also be
conducted on and cover the subject of medical
jurisprudence. On satisfactory examination
conducted as required by this Act under rules of
the board, applicants shall be granted licenses to
p. 2113
Honorable Chet Brooks - Page 3 (NW-573)
practice medicine. All questions and answers,
with the grades attached, shall be preserved for
one year in the executive office of the board or
such other repository as the board by rule may
direct. All applicants examined at the same time
shall be given identical questions. All
certificates shall be attested by the seal of the
board. The board in its discretion may give the
examination for license in two parts.
(b) In addition to the requirements prescribed
by this Act, the board may require applicants to
comply with other requirements that the board
considers appropriate and establish reasonable
fees for examination. (Emphasis added).
It is not clear from the terms of the rule whether its
requirements are to be met before or after taking the exam. However,
section 3.04 states requirements that an applicant for licensing must
meet in order to be eligible for examination. Section 3.05(a), quoted
above, mandated the issuance of a license "[oln satisfactory
examination" unless, of course, the applicant is disqualified for one
of the reasons set out in section 3.08. Thus, the rule necessarily is
an attempt to add to the requirements that must be met to be eligible
to take the examination.
Your questions are as follows:
1. Is the language 'at its discretion may
grant a license' in board rule 163.1 consistent
with the apparently mandatory language 'shall be
granted licenses to practice medicine' in section
3.05(a) of the act?
2. Is the requirement in the board rule that
courses must be 'acceptable to the University of
Texas Health Science Centers for admission to
medical school' inconsistent with the prescribing
language of section 3.04(a) that courses be
'acceptable, at the time of completion, to The
University of Texas for credit on a bachelor of
arts or a bachelor of science degree'?
3. Is the board requirement for a 'one-year
program of graduate medical training' inconsistent
with the enumerated list of qualifications
prescribed by section 3.04(a)?
p. 2114
Honorable Chet Brooks - Page 4 (Mw-573)
4. If the language of section 3.05(b) is read
to permit the board to add qualifications other
than matters over which applicants are to be
examined, does this conflict with article XVI,
section 31 of the Texas Constitution, which gives
the legislature the authority to prescribe
qualifications?
If not, is there any limitation on the board
which would prevent it from adding two, three, or
more years of training beyond the medical school
graduation required by the act?
We conclude that parts (a)(3) and (a)(6) of the board rule are
invalid. For the following reasons, we believe the Board of Medical
Examiners lacked statutory authority to promulgate these particular
requirements.
The Texas State Board of Medical Examiners is an administrative
agency. V.T.C.S. art. 4495b, 52.01. A cogent summary of the
principles governing the rulemaking authority of administrative
agencies is contained in section 11, 2 Tex. Jur. III Administrative
Law. which cites State v. Jackson, 376 S.W.2d 341 (Tex. 1964),
Railroad Commission v. Fort Worth and D.C. Railway Company, 161 S.W.2d
560 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.m.), and other cases
for these propositions:
Generally the powers of an administrative
agency are derived entirely from legislative
enactment. The agency has only such powers as are
expressly conferred on it by statute together with
those necessarily implied from powers and duties
expressly given or imposed.
The rulemaking power of administrative agencies
does not permit the enactment of regulations which
are inconsistent with the expression of the
lawmakers' intent in statutes other than those
under which the regulations are issued.
Consequently, when the legislature acts with
respect to a particular matter, the administrative
agency may not so act with respect to the matter
as to nullify the legislature's action, even
though the matter is within the agency's general
regulatory field.
Although a statute conferring administrative
authority will generally be liberally construed,
the agency must not go beyond the clear intent of
p. 2115
Honorable Chet Brooks - Page 5 (m-573)
the legislature. It may not enlarge its powers by
its own orders.... (Footnotes omitted).
We have found only two statutory provisions that could
conceivably authorize these board rules. Section 2.09(a) of article
4495b provides:
The board shall have, in addition to other powers
and duties contained in this Act, the powers and
duties prescribed by this section. The board may
make rules, regulations, and bylaws not
inconsistent with this Act as may be necessary for
the governing of its own proceedings, the
performance of its duties, the regulation of the
practice of medicine in this state, and the
enforcement of this Act.... (Emphasis added).
Section 3.05(b), which is set out above with section 3.05(a),
provides:
In addition to the requirements prescribed by this
Act, the board may require applicants to comply
with other requirements that the board considers
appropriate and establish reasonable fees for
examination. (Emphasis added).
We first consider section 3.05(b). Arguably, this provision
could be read as authorizing the Board of Medical Examiners to require
applicants for the medical examination to comply with any other
requirements that it considers appropriate, including additional
requirements to become eligible to take the examination. In our
opinion, however, it is actually a limited grant of authority that
simply permits the board to promulgate additional rules relating to
the medical examination itself, i.e., its scope, the manner in which
it will be administered, etc.
It is significant, in our opinion, that this provision appears in
the middle of a section that deals solely with the medical
examination. The provision is limited by its context. We believe
that if the legislature had meant for this provision to supply the
broad authority suggested above, it would not have buried it in
section 3.05; on the contrary, it would have either made it a separate
section or located it so as to make it clear that it was indeed
intended as authority for the board to supplement the eligibility
requirements set forth in section 3.04. For example, it could have
included it in section 3.04 itself, or it could have added it to
section 2.09, which enumerates the board's rulemaking powers. Its
location. coupled with its wording -- particularly its reference to
"fees for examination" -- convince us that the provision refers only
p. 2116
Honorable Chet Brooks - Page 6 (MW-573)
to the medical examination per se and does not authorize the board to
promulgate parts (a)(3) and (a)(6) of the board rule in question.
We next consider section 2.09(a). In Texas State Board of
Examiners in Optometry v. Carp, 412 S.W.2d 307 (Tex. 1967). the Texas
Supreme court dealt with a professional responsibility rule
promulgated by the board of examiners under a virtually identical
-. . _. ~.
statutory provision. 'The court upheld tne rule, but it did so only
after it examined each provision separately to "determine whether it
is related to and consistent with the grounds for cancellation or
refusal [of a license] that the Legislature listed" in article 4563,
V.T.C.S. Id. at 310. After undertaking this examination, the court
concludedthat "the rule's provisions are in harmony with the general
objectives of the act and referable to and consistent with one or more
of its specific proscriptions." -Id. at 313. The dissent agreed that
the test was whether the rule created new and independent grounds or
merely "fill[ed] in the details" of or implemented an existing
statutory provision, but it disagreed with the majority's conclusion
that the rule did the latter. Id. at 314-15 (Smith. J., dissentins).
See also Kee v. Baber, 303 S.W.2d 376 (Tex. 1957).
In Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex. Civ.
ADD. - Austin 1962, writ ref'd), the court held that the Industrial
Accident Board had no authority to promulgate a rule requiring
workmen's compensation claimants to file with the board, on or before
the date of the hearing, a written report by their examining
physician. The court stated:
the Legislature may delegate to State officers,
agencies, or administrative bodies the power to
enact or promulgate rules and regulations in aid
of the statutory authority conferred upon such
administrative body.... But the rules and
regulations so enacted by the administrative body
may not impose additional burdens, conditions or
restrictions in excess of or inconsistent with the
statutory provisions.
358 S.W.2d at 876-77 (citation omitted) (emphasis added). The court
concluded that the board rule imposed an additional burden or
restriction upon claimants, and that in enacting it the board had
exceeded its statutory authority.
We think the same is true here. Section 3.04 of article 4495b
lists the requirements that the legislature thought were necessary for
an applicant to satisfy in order to be eligible to take the medical
examination. Other provisions in subchapter C of article 4495b impose
requirements upon applicants for the examination and for a license to
practice medicine. Section 3.08, for example, lists 21 grounds that
p. 2117
,
Honorable Chet Brooks - Page 7 (MW-573)
the board may rely upon to deny an application for either the
examination or a license.
When one considers subchapter C of article 4495b in its entirety,
one cannot help but be convinced that the eligibility requirements set
forth in section 3.04 are the only ones that the legislature wanted
applicants for the examination to have to satisfy. The board rules at
issue here, which require 60 semester hours of non-medical courses
that are acceptable to the University of Texas Health Science Centers
for admission to medical school and a one-year program of graduate
medical training, are quite onerous. In our opinion, they go far
beyond what the legislature intended, and can only be viewed as
"additional burdens, conditions or restrictions in excess of or
inconsistent with the statutory provisions," Kelly v. Industrial
Accident Board, supra, at 876-77, which are not "in harmony with the
general objectives of the act and referable to and consistent with one
or more of its specific proscriptions," Texas State Board of Examiners
in Optometry v, Carp, w, at 313. Rules (a)(3) and (a)(6) are
therefore not authorized under section 2.09(a) of article 4495b.
Accordingly, in answer to your second and third questions, we
conclude that parts (a)(3) and (a)(6) of the board rule in question
are invalid because they lack a statutory basis. We need not address
your fourth question. In answer to your first question, the board's
use of the phrase "in its discretion" is not necessarily inconsistent
with section 3.05(a) of article 4495b. That section must be read in
light of section 3.08, which lists reasons for refusing an application
to take the examination or to obtain a license. In other words, even
if an applicant passes the examination the board could "in its
discretion," deny a license to one who violates section 3.08.
SUMMARY
Parts (a)(3) and (a)(6) of section 163.1 of the
rules and regulations of the Texas State Board of
Medical Examiners are invalid.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
p. 2118
Honorable Chet Brooks - Page 8 (Mw-573)
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Bill Campbell
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
p. 2119