DAN MORALES 

.4TTORNEY GENERAL 

QWfice of tiy Bttornep dhneral 

&ate of ?D;exae 

David R Smith, M.D. 

Commissioner of Health 

Texas Department of Health 

1100 West 49th Street 

Austin, Texas 78756-3 199 

h4ay2,1994 

Opinion No. DM-292 

Re: Whether the Texas Board of Health is 

authorized tmder the Medical Ibdiologic 

Technologist Certitication Act, article 

4512m, V.T.C.S., to promulgate rules discontinuing general certitication of medical 

radiologic technologists, and implementing a 

system of specialty certitication in diagnostic 

radiography, nuclear medicine, and radiation 

therapy @Q-61 1) 

Dear Dr. smith: 

You ask whether the Texas Board of Health (the “board”) is authorized under the 

Medical Radiologic Technologist Certification Act, V.T.C.S. article 4512m (the “act”), to 

promulgate rules discontimting general certilication of medical radiologic technologists, 

and implementing a system of specialty certitkation for three disciplines. The act governs 

the certitication of medical radiologic technologists. For example, it provides that a 

person must hold a certiticate to perform a radiologic procedure, with certain exceptions. 

V.T.C.S art. 4512m, $2.07. It also requires the board to adopt rules establishing 

minimum standards for issuing certificates. Id. 8 2.05(a)(l). In addition, it creates the 

Medical Radiologic Technologist Advisory Board (the “advisory board”) “as an advisory 

board to the Texas Board ofHealth.” Id. § 2.04(a).’ 

By way of background, you explain that at the present time the Texas Department 

of Health (the “department”) issues two types of certilicates: (1) a general certiticate 

which allows the certiticate holder to perform any and all radiologic procedures, and (2) a 

limited certificate which allows the certi6cate holder to perform radiologic procedures that 

1% act prwtdes that the advkq board “shall rcccmrncad for the wnsidcratioa of the Texas 

Bead of Health roles ‘o implanent standa& adopted m&r this Act.. .” V.T.C.S. art. 4512111, 

8 2.04(d). The act also requires the advisory board to trammad examinations. Id. g 2.04(e). 

p. 1551 
David R. Smith, M.D. - Page 2 (DM-292) 

are Iimited to specigc parts of the human body. 2 The advisory board, however, has 

recommended that the board issue rules implementing a new licensing scheme. You give 

us to understand that the medical radiologic technology field is comprised of three 

disciplines: diagnostic radiography, nuclear medicine, and radiation therapy. You state 

that the advisory board 

wishes to recommend rules to the board] to establish a separate 

general certificate for each of the three disciplines or a single general 

certificate with three separate specialty designations. . An 

individual would not be able to perform radiologic procedures in any 

discipline unless he or she held a genera) certithxtion that covered 

that Lpcifk discipline. 

It is your position that the board is not authorized to adopt such rules. 

Generally, an administrative agency can adopt only those rules that are authorized 

by and consistent with its statutory authority. Texas Fire & Car. Co. v. Harris County 

Bail BondBd, 684 S.W.Zd 177, 178 (Tex. App.- Houston [14th Dist.] 1984, writ refd 

n.r.e.). An administrative agency may not adopt rules which impose additional burdens, 

conditions, or restrictions in excess of or inconsistent with those statutory provisions. Id.; 

Ho&wood Calling v. Public Util. Comm’n of Texas, 805 S.W.Zd 618, 620 (Tex. 

App.-Austin 1991, no writ). The determinative factor as to whether an administrative 

agency has e-xceeded its authority is whether the rule is in harmony with the general 

objectives of the statute. Ho&wood Calling, 805 S.W.2d at 620 (citing Gersl v. Oak 

Cl~$Sav. & Loan Ash, 432 S.W.2d 702, 706 (Tex. 1968)). In making this determination, one must look not only to the particular provision of the act but to all applicable 

provisions. Id. 

Section 2.03 of the act in part sets forth the following detinitions that are relevant 

to your query: 

(5) “Radiologic procedure” means any procedure or article 

intended for use in the diagnosis of disease or other medical or dental 

conditions in humans (including diagnostic X-rays or nuclear 

medicine procedures) or the cure, mitigation, treatment, or 

ZThe bar& cum111 roles regarding the cutitication of medical radiologic technologists arc set 

for& at title 25 of the Texas Adminimative C&e, chapter 143. The bead currently issues limited 

wrliocates in - cale’Jolics: ‘he skoll, cksl, spine, exue.milies, deml, podiatric, and chiroprsctic. 

See 25 T.A.C. $? 143.2. 

p. 1552 
David R. Smith, M.D. - Page 3 (DM-292) 

prevention of disease in humans that achieves its intended purposes 

through the emission of radiiion. 

(8) “Certikation” means an authorization to administer 

radiation to a person for medical purposes. 

(9) “General certigcation” means an authorization to perform 

radiologic procedures authorized by this Act. 

(10) United certification” means an authorization to perform 

radiologic procedures that are limited to specitk parts of the human 

MY. 

(11) “Temporary certification, general or limited,” means an 

authorization to perform radiologic procedures for a limited period, 

not to exceed one year. 

V.T.C.S. art. 4512m, $2.03(5), (8) - (11). 

Section 2.05 of the act sets forth the board’s rukmaking authority. It generally 

authorizes the board to adopt rules necessary to implement the act, V.T.C.S. art. 4512m, 

4 2.05(e), and specifically provides in pertinent part that 

[t]he Texas Board of Health shall establish different classes of 

certikates to include all radiologic procedures used in the course 

and scope of the practice of practitioners licensed in this state. The 

Texas Board of Health may issue general and limited certificates and 

genera) and limited temporary certificates. 

Id. § 2.05(b). 

You suggest that the board is not authorized to adopt rules to implement specialty 

certiiicates in lieu of general certificates because the legislature has not expressly provided 

that it may do so. You contend that “the legislature has generally expressly stated in a 

licensing statute when the legislature wishes to allow or require specialty designations or 

specialty certiticates,” citing the now-repealed Licensed Professional Counselor Act, 

V.T.C.S. art. 4512g, 8 13 (repealed by Acts 1993. 73d Leg., ch. 581, 5 20 (eff. Sept. 1, 

1993)), and the Texas Medical Physics Practice Act, V.T.C.S., art. 451211, 3 13. “Since 

the legislature did not specify specialties in the [act], one may conclude that the legislature 

did not intend to require specialties under the [act], other than the limited certitlcation.” 

You also suggest that the board is not authorized to establish specialty certificates because 

p. 1553 
David R Smith, M.D. - Page 4 (DM-292) 

this would, in et&t, establish a new category of “limited certification” which is not 

provided for by section 2.03(10), the section in the act detining this term. See supra. 

We disagree with your analysis and conclusion for the following reasons. 

Although the legislature has only defined general and limited certitication, we believe that 

the first sentence of section 2.05(b) must be read broadly to authorize the board to 

establish a variety of classes of certificates, especially when read in conjunction with the 

succeedmg sentence which provides that the board is authorized to issue general and 

limited certiticates and temporary certiticates. If the board were confhted to issuing 

general and limited certiticates, the first sentence of section 2.05(b) would be wholly 

redundant and therefore meaningless. See Chevron Corp. v. Redmon, 745 S.W.2d 314, 

3 16 (Tex. 1987) (m statutory construction, one should give effect to all words of a statute 

and not treat any statutory language as surplusage if pos~ible).~ 

This construction of section 2.05(b) is also supported by an examination of the act 

as a whole. Section 2.05(a)(l) provides that the board shall adopt rules establishing 

“minimum standards for ksuing, renewing, suspending, and revoking certiticates issued 

under [the act].” In addition, section 2.04(d) provides that the “advisory board shall 

recommend for the consideration of the Texas Board of Health rules to implement 

standards adopted under [the act] and shag recognize existing standards that apply to the 

scope of practice for both general and limited certifications.” Furthermore, section 2.02 of 

the act states that its purpose is “to protect the health and safety of the people of this state 

from the harmful effects of excessive radiation used for medical purposes by establishing 

minimm~ standards for the certitication of medical radiologic technologists.” These 

provisions give the board broad power to promulgate standards for certitication, and the 

authority to consider both practice standards and public health and safety in doing so. We 

believe that promulgating rules implementing specialty certitication would be consistent 

with this authority and the general purpose of the act. 

%e previsions of Smatc Bill 32 ending ‘he Medical Radiologic Tecbnok@sI Culi6cation Aa 

we~.akkdtoSeaateBill1439byaflooramcadmtnt on third reading in the house. H.J. of Tex., 7Otb 

Le.& at 3949 (1987). Senate Bill 1439 was enaaed as chapter 1096. See Acts 1987,7Oth Lq., ch. lO%, 

at 3717. A Senate commiaee on Health and Hwnan Services bill analysis of Senate Bill 32 desxii 

seaion 2.05(b) as follmvs: 

Senate Cmmn. on Health and Human Sewices, Bill Analysis, S.B. 32,701h Leg. (1987) (emphasis added). 

Uscdtbctam’iacluding”suggeasthatthclegislaNcdidmtintcndtocontincthebosrdtoissuing 

general and limited cauficatca and general and liiled temporaly eerlilicam. 

p. 1554 
David R. Smith, M;D. - Page 5 (DM-292) 

We add two further notes in conclusion. Fii although we conclude above that 

the board is authorized to adopt rules establishing speciaky certification in lieu of general 

or limited certification, we do not believe that the act requires the board to do so. The 

board’s current rules providing for general and limited certification are clearly authorized 

by and consistent with its statutory authority. Furthermore, although your concern that a 

specialty certification scheme “would [wreak] havoc in the profession and among current 

certificate holders and their employers” is not a legal reason for refraining from adopting 

the rules, it is certainly a policy consideration that the board may take into account in 

deciding whether or not to adopt them. 

Second, you state that the advisory board’s recommendation to establish the 

specialty certification scheme sterns from 

its concern over the lack of training or education individuals may 

have. Generally, individuals are trained or educated in one, but not 

eJl, of the disciplines. However, the general certification allows an 

individual educated in one area to practice in all three areas. 

We note that there are several ways in which the board might address this concern. For 

example, it is clear that the act authorizes the board to adopt rules requiring that every 

certificate applicant be trained and examined in all three disciplines of ihe field of 

radiology.4 

‘See V.T.C.S. art. 4512m. 8 2.05(a)(l) (requiring the board to adopt standa& for issuing 

catitiuM)), (a)(2) (reqoiring the bomd to adopt nllcs establishing minimum standards for approving the 

auriada and programs to train individuals to perform mdiologic procedures), (a)(3) (requiring the boatd 

to adcgt roles establishing minimum standa& for approving the instmctors who teach approved cunicula 

and programs), (d) (authorizing the board to cslablii @IeIincs, including continuing education 

repuinmuts for medical radiologic technologists, and to pre.pa~ and conduct an examination for 

cutiiicate applicants). 

p. 1555 
David R Smith, M.D. - Page 6 (DFf-292) 

SUMMARY 

The Texas Board of Health is authorized under the Medical 

Radiologic Technologist Certification Act, article 4512m, V.T.C.S., 

to promulgate rules implementing a system of specialty certification 

in diagnostic radiography, nuclear medicine, and radiation therapy. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fiist Assistant Attorney General 

DREWDURHAM 

Deputy Attorney General for Criminal Justice 

WILL PRYOR 

special c0unse1 

RENEA HJCKS 

State Solicitor 

SARAH J. SHIRLEY 

Chair, Opiion Committee 

Prepared by Mary R. Crouter 

Assistant Attorney General