May 15, 1975
The Honorable Chet Brooks Opinion No. H- 607.
Chairman
Committee on Human Resources Re: Constitutionality of
Texas State Senate art. 4552-2.02, V. T. C.S.,
Austin, Texas creating the Texas Optometry
Board.
Dear Senator Brooks:
In light of Gibson v. Berryhill, 411 U. S. 564 (1973) you have
requested our opinion concerning the constitutionality of article 4552-2. 02,
V.T.C.S., which establishes the qualifications for members of the Texas
Optometry Board. Article 4552-2. 02 provides:
To be qualified for appointment as a member of
the board, a person must be a licensed optometrist
who has been a resident of this state actually engaged
in the practice of optometry in this state for the period
of five years immediately preceding his appointment.
A person is disqualified from appointment to the board
if he is a member of the faculty of any college of optometry,
if he is an agent of any wholesale optical company, or if he
has a financial interest in any such college or company.
At all times there shall be a minimum of two-thirds of
the board who are members of a state optometric assbci-
ation which is recognized by and affiliated with the
American Optometric Association. (Emphasis added. )
The Texas Optometry Board is therefore required by statute to
have at least four members who are members of a state optometric associ-
ation affiliated with the American Optometric Association, an association of
optometrists in private practice on their own account. It is our understanding
that there is only one such state optometric associatidn in Texas, the Texas
Optometric Association, and that optometrists who are employed by other
persons or entities are not eligible for membership. If the facts are as
we understand the Texas Optometry Board is therefore composed of at least
four self-employed practitioners and no more than two who are anployed by
other persons or entities.
p. 2690
The Honorable Chet Brooks - Page 2 (H-607)
In Gibson v. Berryhill, supra, the United States Supreme Court
dealt with the Alabama Board of Optometry, which was composed entirely
of self-employed optometrists. The case concerned the Board’s attempt
to revoke the licenses of 13 optometrists employed by Lee Optical Company.
The Supreme Court held that the composition of the Board precluded the
defendants from receiving due process due to “possible personal interest, ”
stating:
It is sufficiently clear from our cases that those
with substantial pecuniary interest in legal
proceedings should not adjudicate these disputes.
411 U. S. at 579.
In Wall v. American Optometric Association, Inc., 379 F. Supp.
175 (N. D. Georgia 1974), affirmed, 95 S. Ct. 166 (1974), a three judge
co&t enjoined tie Georgia State Board of Examiners in Optometiy &om
enforcing its rules against optometrists who were not self-employed.
“Every member of the [Board was] a member of a group which oppose[ d]
the continuation of the plaintiff’s business. ” The rules involved prohibited
an optometrist from associating himself with a mercantile or business
establishment or maintaining an office at which he is not present for a
minimum of four hours per week. The court held that while the composition
of the Board would deny the plaintiffs due process in an enfocement pro-
ceeding the rules themselves were valid. In our view, these rules could
not have been sustained were the Board’s composition unconstitutional.
In Gibson and Wall it was the disciplinary proceedings which were
held unconstitutional because of bias on the part of the Boards. Neither
case intimated that the composition of the Boards was unconstitutional,
and we believe a reasonable inference can be drawn from Wall, that the
Georgia Board was not. It is therefore our opinion that the composition
of the Texas Ootometrv Board is not unconstitutional under these cases.
We are supported in &is view by Texas Optometry Board v. Lee Vision
Center, 515 S. W. 2d 380 (Tex. Civ. App. -- Eastland, 1974, writ ref’d
n. r. e. ), in which the Board was held qualified to suspend “Advertising
Permits. ”
p. 2691
The Honorable Chet Brooks - Page 3 (H-607)
While the Board’s composition in and of itself is not rendered
unconstitutional by Gibson and Wall, those cases indicate that its authority
to initiate certain disciplinary proceedings against some optometrists is
questionable. The present composition of the Board may result in its
inability to afford due process in a disciplinary proceeding brought
against an optometrist who is not self-employed. Of course, whether
due process was afforded would depend on the facts of the individual
case. Withrow v. Larkin, 43 U.S. L. W. 4459 (April 16, 1975).
SUMMARY
The statutory composition of the Texas Optometry Board
is not unconstitutional under the doctrine of Gibson v.
Berryhill, 411 U.S. 564 (1973). The Board may be
unable to afford due process in some disciplinary
hearings brought against certain optometrists.
Whether due process was afforded depends on the
facts of the individual case.
Very truly yours,
Attorney General of Texas
APPROVED:
Opinion Committee
jwb
p. 2692