MARK WHITE 

Attorney General 

Supreme Court SuildinQ 

P. 0. Box 1254S 

Austin. TX. 78711.2548 

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An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

July 30, 1982 

Honorable Bill Clayton 

Speaker of the Rouse of 

Representatives 

Capitol Building 

Austin, Texas 78711 

opinion No. w-499 

Re: Use of topical ocular 

pharmaceutical agents by 

optometrists, and related 

matters 

Dear Speaker Clayton: 

You have posed several questions concerning the authority of the 

Texas State Board of Medical Examiners to promulgate and enforce 

administrative rules ~implementing section 3.06(d)(5) of the new 

Medicalt;;actice Act, article 4495b. V.T.C.S. That subsection deals 

with administration by optometrists of topical ocular 

pharmaceutical agents, which are medicinal drugs applied to surface 

areas of the eye that produce effects which aid in the examination or 

treatment of eye diseases or conditions. Your letter to us states: 

On Sunday, Pebmary 21. 1982, the Medical Board 

met and tentatively adopted rules to implement 

Section 3.06(d)(5).... These proposed rules 

appear to violate both the letter and the intent 

of the law, and appear to exceed the Medical 

Board's rulemaking authority.... 

Section 3.06(d)(5) reads in part: 

(d) This Act shall be so construed that: 

. . . . 

(5) (A) A duly licensed and qualified 

optometrist may administer topical ocular 

pharmaceutical agents in the practice of optometry 

as provided by this subdivision. These 

pharmaceutical agents may not be used for 

therapeutic purposes. 

(B) To be entitled to use topical ocular 

pharmaceutical agents in the practice of 

optometry, an optometrist must possess a valid 

standing delegation order that: 

p. 1788 
. . 

Honorable Bill Clayton - Page 2 (Mw-499) 

(0 is issued to the optometrist by an 

area physician licensed to practice 

medicine in this state; and 

(ii) authorizes the use of the pharmaceutical agents authorized by this 

subdivision. 

(C) On request, an optometrist will be 

Issued a standing delegation order described by 

Paragraph (B) of this subdivision unless the 

physician acting as a reasonable and prudent 

physician determines that denial is within the 

scope of sound medical judgment as it pertains to 

optometry, or that it is not in the public 

interest, and the basis for denial shall be given 

to the requesting optometrist in writing if 

requested. It is necessary that the physician 

have knowledge of the requesting optometrist, and 

if not, then same shall be good cause for denial. 

(G) tr;zician who has issued a standing 

delegation in compliance with this 

subdivision is immune from liability in connection 

with acts performed pursuant to the standing 

delegation order so long as he has used prudent 

judgment in the issuance or the continuance of the 

standing delegation order. 

(8) Nothing herein is intended to limit 

or expand the practice of optometry as defined by 

_ law. (Emphasis added). 

Among other things, the tentatively adopted administrative rules 

that you question purport to specify restrictive terms and conditions 

for standing delegation orders issued by physicians and to prescribe a 

model form for such orders. The portion of section 3.06(d)(5) that 

speaks to the role of the Board of Medical Examiners in this process 

reads: 

(D) A standing delegation order issued under 

this subdivision or a representation of the order 

will be prominently displayed in the office of the 

optometrist. The board will prescribe the form of 

the standing delegation order and the certificate 

or representation of the order. The standing 

delegation order, as a minimum. will: 

p.1789 
Honorable Bill Clayton - Page 3 ww-499) 

(0 be in,writing. dated and signed by the 

physician; 

(ii) specify the available topical ocular 

pharmaceutical agents, including but not 

limited to topical anesthetics and dilating 

agents, to be administered in the office; and 

(iii) specify that said agents shall not be 

used for therapeutic purposes. 

(E) On the complaint of any person or on its 

own initiative, the board of medical examiners may 

cancel a standing delegation order issued under 

this~section if it determines that the optometrist 

possessing the order has violated the standing 

delegation order or this section. 

(PI Except as provided by Paragraph (E) of 

this subdivision, a. standing delegation order 

issued under this subdivision remains valid as 

long as: 

(i) the physician who issued the order is a 

resident of this state and is licensed to 

practice medicine in this state; 

(ii) no irregularities are found on annual 

review; and 

(iii) the order is not canceled for good cause 

by either party. 

Several of your questions concern the application of specific 

rules to specific situations, but all of them deal with the power of 

the Board of Pledical Examiners to limit or control the discretionary 

authority of physicians to invest optometrists with privileges 

respecting the use of such pharmaceutical agents. Before addressing 

your specific questions, it is necessary to notice the relationship 

the drugs have to the practice of optometry. 

Au optometrist who administers topical ocular pharmaceutical 

agents does not practice optometry when he does SO, whether or not he 

acts under a standing delegation order issued by a physician. The 

"practice of optometry" is legally defined by the Texas Optometry Act. 

article 4552-1.02. V.T.C.S.. aa: 

the employment of objective or subjective means, 

without the use of drugs, for the purpose of 

ascertaining and measuring the powers of vision of 

the human eye, and fitting lenses or prisms to 

p. 1790 
/ . 

Honorable Bill Clayton - Page 4 (Mw-499) 

correct or remedy any defect or abnormal condition 

of vision. Nothing herein shall be construed to 

permit optometrists to treat the eyes for any 

defect whatsoever in any manner nor to administer 

nor to prescribe any drug or physical treatment 

whatsoever, unless such optometrist is a regularly 

licensed physician or surgeon under the laws of 

this state. (Emphasis added). 

Although subsections (A) and (B) of section 3.06(d)(5) of the 

Medical Practice Act speak of the use of topical ocular pharmaceutical 

agents "in the practice of optometry," section 3.06(d)(S)(R) specifies 

that nothing in the act is intended to "limit or expand the practice 

of optometry as defined by law." (Emphasis added). Words may be 

supplied to a statute in order to give effect to the clear legislative 

intent. Sweeny Hospital District v. Carr, 378 S.W.Zd 40 (Tex. 1964). 

We believe the words, "in the practice of optometry." as used in 

subsections (A) and (B) must mean "in connection with-the practice of 

optometry." (Emphasis added). Otherwise, the section would be 

internally inconsistent. One subsection would nullify others. The 

legislative intent is made clear, in our opinion, by section 

3.06(b)(2). which states that the act does not apply to "duly licensed 

optometrists who confine their practice strictly to optometry as 

defined by law." (Emphasis added). The disputed provisions of the 

act do not allow optometrists to use drugs as an integral part of the 

practice of optometry. 

The legislature has clearly indicated its intent that the use of 

such pharmaceutical agents be regulated when administered by 

optometrists in connection with the practice of optometry. Under its 

police power, the legislature may place such regulatory power where it 

chooses so long as no provision of the constitution is contravened. 

See Francisco v. Board of Dental Examiners. 149 S.W.2d 619 (Tex. Civ. 

G. - Austin 1941, writ ref'd). See also Trimble v. Texas State 

Board of Registration for Professional Engineers, 483 S.W.2d 275 (Tex. 

Civ. App. - El Paso 1972, writ ref'd n.r.e.). 

Your first two questions are as follows: 

1. With regard to the implementation of 

section 3.06(d)(S) of the Piedical Practice Act, is 

the authority of the Medical Board limited to the 

roles 

z6(d)(5) 

specifically stated in section 

, &, I e (1) to prescribe the form of the 

standing delegation order and the certificate or 

representation of the order, and (2) on complaint 

of any person or on its own initiative to cancel a 

standing delegation order if it determines that 

the optometrist possessing the order has violated 

the standing delegation order? 

p. 1791 
Bonorable Bill Clayton - Page 5 (Mw-499) 

2. (a) In performing its function of 

prescribing the form of the 3.06(d)(5) standing 

delegation order and its representation, is the 

authority of the Medical Board limited to 

prescribing matters of form rather than 

substantive content? 

(b) Beyond the substantive requirements 

expressly stated in the statute, is the 

substantive content of a 3.06(d)(5) standing 

delegation order to be determined solely by the 

delegating physician and the optometrist? 

(c) If the Medical Board may impose 

requirements on the substantive content of a 

3.06(d)(5) delegation, to what extent may they do 

so? Particularly, may the Medical Board make 

medical or optometric judgments and impose them 

upon the delegating physician and the optometrist? 

Section 3.06(d)(S) assigns no role in the issuance or' 

cancellation of a standing delegation order to anyone other than the 

board and individual physicians. To ascertain the authority of the 

board, we must first consider the extent of authority conferred upon 

physicians. 

Subsection (d)(5)(B)(i) requires that a standing delegation order 

be issued to an optometrist "by an area physician licensed to practice 

medicine in this state." Subsection (d)(S)(C) seemingly requires an 

area physician to issue such an order unless the physician, "acting as 

a reasonable and prudent physician" determines (1) that denial is 

within the scope of sound medical judgment as it pertains to 

optometry, or (2) that it is not in the public interest. Lack of 

"knowledge" by the physician of the optometrist is also specified as 

good cause for denial. 

Subsection (d)(S)(F) provides that a standing delegation order 

may be invalidated by the issuing physician only if he moves his 

residence from the state, surrenders his license, discovers 

irregularities on annual review, or cancels the order "for good 

cause." The order can be cancelled by the board only if it determines 

that the optometrist "has violated the standing delegation order" or 

section 3.06 of the act. V.T.C.S. art. 4495b. 13.06(d)(S)(E). Also, 

subsection (d)(S)(G) specifies that an issuing physician is immune 

from liability for acts performed pursuant to the standinn - delenation - 

order so long as he has used prudent judgment in its issuance or 

continuance. 

- 

Given its widest scope, the language of section 3.06(d)(5) would 

empower a physician to authorize an optometrist to administer (for 

nontherapeutic purposes) any topical ocular pharmeceutical agent to 

p. 1792 
. 

Honorable Bill Clayton - Page 6 (Mw-499) 

any person in his office at any time. Moreover, only the issuing 

physician could effect a cancellation of the order unless a violation 

of the order as issued by the physician (or a violation of the 

statutory section) were proved. 

We agree with your contention that it was the manifest intent of 

the legislature to invest individual physicians with broad power of 

the sort described above. But, in our opinion, such a reading of 

section 3.06(d)(5) renders it unconstitutional. 

By act of an issuing physician, an optometrist may, under the 

provisions of subsection (d)(S), obtain official permission and a 

personal right to perform acts on his own account, f.e.. without any 

form of supervision by the physician. The issuing physician is, 

moreover, statutorily authorized to base his decision to issue or to 

decline to issue the permitting order on his perception of "the public 

interest." Thus, the statute in effect authorizes the myriad private 

physicians in this state to act as licensing agents for the state, 

granting or withholding such licenses as each deems best for "the 

public interest." 

The scheme of the statute raises serious questions about the 

constitutionality of delegating such public powers to private 

individuals who are neither members of the executive branch of 

government. nor answerable to the public. See Tex. Const. qt. I, $2, 

art. II, il. art. III, $1; Gerst v. Nixon.%i S.W.Zd 350 (Tex. 1966) 

(granting of permits is administrative function); Attorney General 

Opinion H-41 (1973) (control of dentistry by private organization). 

See also Tex. Const. art. I. 117 (legislative control of privileges). 

We need not address those questions here, however; because in our 

opinion the virtually unlimited nature of the discretion placed in the 

physicians is sufficient to invalidate the statute. 

In Bloom v. Texas State Board of Examiners of Psychologists, 492 

S.W.2d 460. 462 (Tex. 1973). the Supreme Court of Texas characterized 

the question before it as: 

whether the Legislature could constitutionally 

empower an administrative agency to do whatever it 

'may' consider in the best interest of the public 

without regard to statutory standards or published 

agency rules. 

In concluding that the legislature could not do SO, the court relied 

on this quotation from Railroad Commission v. Shell Oil Company. 161 

S.W.Zd 1022, 1025 (Tex. 1942): 

It is a well-established principle of 

constitutional law that any statute or ordinance 

regulating the conduct of a lawful business or 

industry and authorizing the granting or 

p. 1793 
. . 

Honorable Bill Clayton - Page 7 (Mw-499) 

withholding of licenses or permits as the 

designated officials arbitrarily choose, without 

setting forth any guide or standard to govern such 

officials in distinguishing between individuals 

entitled to such permits or licenses and thoee not 

so entitled, is unconstitutional and void. 

Subsection 3.06(d)(5)(C) requires an area physician to issue a 

standing delegation order unless he determines. "as a reasonable and 

prudent physician," that denial is either "within the scope of sound 

medical judgment as it pertains to optometry." or "in the public 

interest." A requirement that a licensure decision% based on "sound 

medical judgment" might establish a sufficient statutory standard to 

avoid invalidity. And the phrase "in the public interest" might 

furnish an adequate statutory standard in some situations, i.e., as 8 

guide for some adminietrative agencies. But in our *ion a 

statutory declaration -- without more -- that licensure decisions are 

to be made by individual physicians on the basis of their varied 

personal concepts of "the public interest" clearly doee not don so. 

See Tex. Const. art. III, Sl; Bloom v. Texas State Board of Examiners 

ofPsychologists. s; Railroad Coteniesion v. Shell Oil Company, 

supra. 

In Sx parte Leslie, 223 S.W. 227, 229 (Tex. Grim. App. 1920). the 

court considered a Live Stock Sanitary Commission rule, proclaimed 

pursuant to a penal statute, requiring cattle owners to have their 

cattle dipped unless an agent of the commission deemed it "safe or 

expedient" to excuse them from doing so. In finding the measure 

unconstitutional, the court observed that the power of the agents to 

discriminate between individuals under such a proclamation: 

is required to rest upon no distinction, but 

permits those executing it to select, without 

giving reason therefor. those who shall obey it 

and those who shall be exempted from its penalty. 

No condition is named to which a citizen 

complaining of discrimination can point as 

condemning the action of those executing the law. 

No fact is named in the law or in the proclamation 

which he may establish and urge as a matter of 

right as exempting him from the penalty. 

In the eituation before us, the legislature has made the 

administration of topical ocular pharmaceutical agents by optometrists 

unlawful and fixed a penalty therefor, but provided that individual 

physicians may use their own discretion in selecting optometrists to 

be exempted from the penalty. As with the selections made by live 

stock sanitary commission agents, the power of physicians to 

discriminate among individuals rests on no distinction. No condition 

is named to which an optometrist complaining of discrimination can 

point as condemning the action of those executing the law, nor is any 

p. 1794 
I . 

. . 

Honorable Bill Clayton - Page 8 (MN-499) 

fact named which an optometrist may establish and urge as exempting 

him from the penalty as a matter of right. 

It would be difficult enough for an administrative agency to 

apply the "in the public interest" standard with any degree of 

precision. The thousands of physicians in this state can hardly be 

expected to do so, however, inasmuch as each will inevitably have a 

separate and probably different concept of what is "in the public 

interest." Uniformity in the application of the "public interest" 

standard is, therefore, an impossibility here. 

In Railroad Commission v. Shell Oil Company. s. the Texas 

Supreme Court observed that an ostensible "prevention of waste" 

standard was really no standard at all if the same facts could serve 

in one instance to exempt a person from the general prohibition of the 

law and to deny exemption to a different person in another instance. 

Under the statute here, the application of one optometrist for a 

standing delegation order could be denied by a physician on facts 

deemed sufficient by that same physician, or another, to support the 

application of a different optometrist. Statutory delegations of 

power may not be constitutionally accomplished by language so broad 

and vague that persons of common intelligence must necessarily guess 

at its meaning and differ as to its application. *e Texas 

1921). See also United 7 

578 P.2d38 

368 P.2d 101. (Cal. 1962) 'm 

Antiquities Committee v. Dallas County Community College Dissct, 554 

S.W.Zd 924 (Tex. 1977); Spann v. City of Dallas, 235 S.W. 513 (Tex. 

:hiropractors of Washington, Inc. v. State, 

(Wash. 1978): Blumenthal V. Board of Medical Examiners. 

Iated power must be accompanied by' 

suitable safeguards to guide its use and to protect against its 

misuse). 

Inasmuch as we believe subsection 3.06(d)(S) of the Medical 

Practice Act is unconstitutional, we conclude that it neither confers 

authority on the Board of Medical Braminers or individual physicians, 

nor deprives them of any authority. Your questions are referable to 

this subsection, and to the extent that they are, they are answered by 

the foregoing conclusion. But in the interest of clarity we will 

briefly discuss the remainder of the Medical Practice Act insofar as 

it relates to the topic at hand. 

The invalidity of subsection 3.06(d)(S) in no way diminishes the 

authority of the Board of Medical Examiners to promulgate rules 

respecting the practice of medicine and the enforcement of valid 

provisions of the act. V.T.C.S. art. 4495b. 111.02(8), 2.09(a). 

3.06(d)(l). (2). (3). 5.02(a). See Acts 1981. 67th Leg., 1st C.S., 

ch. 1. 15 at 1, 36 (severability clause). Cf. Texas State Board of 

Examiners in Optometry v. Carp, 412 S.W.Zd 30mTex. 1967). The board 

has express authority to regulate the use of dangerous drugs by 

physicians and those acting under the supervision of a physician. 

V.T.C.S. art. 4495b, 13.08(4)(E). (F), (I); Dotson v. Texas State 

Board of Medical Examiners. 612 S.W.2d 921 (Tex. 1981); Scott v. Texas 

p. 1795 
Honorable Bill Clayton - Page 9 (Mu-499) 

State Board of Medical Rxaxiners. 384 S.W.Zd 686 (Tex. 1964). See 

also V.T.C.S. art. 4495b. 13.06(d)(2). (31, 3.07(i). It is tobe 

xd that under the delegations validly authorired by the Medical 

Practice Act (unlike those contemplated by eubsectiox 3.06(d)(S)) the 

delegating physician is not permitted to escape respoxsibility for the 

acts of his delegates. Thue. he does not act as a licensing agent for 

the state in such circuxstances inasmuch as he cannot empower his 

delegates to act on their own account. They are his agents. See 

Attorney General Opinion FM-275 (1980). Cf. 8parger v. WarHos ital Inc., 547 S.W.2d 582 (Tex. 1977); Attorney General Opinion 

.iGihfmr 

It should also be noted that the Texas Optometry Act gives 

optoxetrists no license to use drugs for any purpose, therapeutic or 

not, and that optometrists are aot among those permitted by the 

dangerous drug laws to deliver dangerous drugs in their practice. See 

V.T.C.S. arts. 4476-14, 4476-15, 4552-1.01 et seq. SubsectiK 

3.06(d)(l), (2) and (3) of the Medical Practice Act. however, would 

permit physicians, “through physicians orders, standing wdical 

orders, standing delegation orders. or other orders where applicable, 

as the orders are defined by the board [of Medical Exaxinersl,” to 

authorize optometrists, as agents of the physician, to perform medical 

acts and to administer dangerous drugs under certain conditions. 

(Bxphasis added). 

SUMMARY 

Subsection 3.06(d)(5) of article 4495b, the 

Medical Practice Act of 1981. Is unconstitutional. 

Very truly yours, 

, 

JOHLP W. FAINTER. JR. 

First Assistant Attorney General 

RIClURD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Bruce Youngblood 

Assistant Attornsy Genaral 

Attorney General of Texas 

p. 1796 
. . 

. 

Honorable Bill Clayton - Page 10 (Mw-499) - 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Robert Gauss 

Rick Gilpin 

Jim Moellinger 

Bruce Youngblood 

p. 1797