## JRNEX GENERAL OF EXAS

Honorable Don Kennard Chairman Public Health Committee Senate of the State of Texas Capitol Station Austin, Texas 78711 Opinion 

## mw-387 Re: Rule-making power of the Texas State Board of Examiners in Optometry
‘under the provisions of Sec. 2.14 ofArticle IIof Senate Bill 781 ofthe 6lst Legislature. Dear Mr. Kennard:

Your request for an opinion poses the following question: “Does Section 2.14 ofthe proposed bill limit the Board to the making ofprocedural rules only or would the underlined provisions have the effect of clothing the Board with authority to make interpretive rules or rules whioh would have the effect of enlarging upon or expanding the specific provisions ofthe Bill?” Section 2.14 of Article IIofSenate Bill 781 ofthe 61st Legislature reads as followe:

“Section 2.14, RULES AND REGULATIONS. The Board shall promulgate procedural rules and regulations only consistent with the provisions 

### ofthis Act, to govern the conduct oftapbusiness and proceedings. Notwithstanding



## -1911-, .

Hon. Don Kennard, page 2(M-387

any other provision ofthis Act, the board shall not have any power or authority to amend or enlarge upon any provision ofthis Act by rule or regulation or by rule or regulation to change the meaning in any manner whatsoever ofany provision ofthis Act, or to promulgate any rule or regulation which is in any way contrary to the underlying and fun&mental purposes ofthis Act or to make any rules or regulation which is unreasonable, arbitrary, capricious, illegal, or unnecessary. (Emphasis ours) Inconstruing the rule making power ofthe Texas State Board of Examiners in Optometry under existing law, the Court in Kee v. Baber, 157 Tex. 387, 303 S.W. 2d 376 (1957) held:

“It must likewise be conceded that broad regulatory powers, many ofwhich are somewhat discretionary in nature, are delegated to the Texas State Board of Examiners in Optometry, which for convenience we shall hereafter refer to as the Optometry Board. Article 4556, Vernon’s Ann. Tex. Civ. Stats. provides that ‘The Board shall have the power to make such rules and regulations not inconsistent with this law as may be necessary for the performance ofits duties, the regulation ofthe practice of optometry and the enforcement ofthis Act.’ This authority is similar in scope to that vested in the State Board of Medical Examiners under the ‘Medical Practice Act and inthis Court under the State Bar Act, and differs from the narrower delegation contained in the Dental Practice Act and other similar Acts relating to administrative boards that could be mentioned.



### - 1912-,

Hon. Don Kennard, page 3 (M-387

The Optometry Board is empowered not only to adopt regulations necessary for the performance of its duties but also such rules as are necessary for ‘the regulation ofthe practice of optometry.’ ” (Emphasis ours) Likewise in Texas State Board of Examiners in Optometry v. Carp, 412. S.W. 2d 307 (Sup. Ct. 1967) the Court held:

“In Kee v. Baber, 157 Tex. 387, 303 S.W. 2d 376 (1957), this court sustained the validity ofthree rules that the Board of Optometry promulgated. These rules regulated ‘bait’ advertising, basic competence, and corporate practice of optometry. The court held that Article 4556 was abroad delegation of regulatory powers to the Board since it authorized the Board to adopt such rules as are necessary for ‘the regulation ofthe practice of optometry. ’ The court also held that each ofthe rules was consistent with, related to, and an implementation of one or more ofthe prohibited categories set out in Article 4563. The. Professional Responsibility Rule which is under attack prohibits five forms ofpractice by those licensed as optometrists, and as in Kee v. Baber, we shall examine each ofthe prohibited practices with reference to Article 4563 and other optometry regulations. II

. . . “We conclude that the court of civil appeals erred in its holding that the Professional Responsibility Rule added new and inconsistent provisions tothe Optometry Act. 

### To the contrary, our opinion is that the rule’s provisions are inharmony with the general objectives

- 1913 -Hon. Don Kennard, page 4 (M-387
ofthe act and referable to and consistent with one or more ofits specific proscriptions. We believe that the Legislature, by investing the Board with broad rule-making powers ‘/for/ the enforcement ofthis Act’ and ‘/for/ the regulation ofthe practice of optometry, ’ contemplated that the Board would use these powers to correct the evils generally classified in Article 4563, or some other provision ofthe Optometry Act. Ifthese rulemaking powers did not authorize the Board to regulate evils not encompassed inthe specific working ofthe act, they would be nothing more than meaningless excess.” (Emphasis ours) Therefore, under existing law, the Board has the power to adopt rules and regulations for the enforcement ofthe provisions ofthe Optometry Act and for the regulation ofthe practice of optometry. Under Section 2.14 of Article II ofSenate Bill 781, the power to adopt rules and regulations for the enforcement ofthe provisions ofthe Optometry Act and for the regulation ofthe practice of optometry is omitted and Section 2.14 ofArticle IIofSenate Bill 781 specifically limits the Board’s rule making power to “procedural rules and regulations only, consistent with the provisions ofthis act, to govern the conduct ofits business and proceedings. ‘I Inview ofthe wording ofSection 2.14 of Article IIof

- 1914 -Hon. Don Kennard, page 5 (M-387
Senate Bill 781, it is 

### our opinion that the proposed bill would limit the Board’s rule making power to procedural rules and regulations to govern the conduct ofthe Board’s business and proceedings, andthe Board would no longer have the existing power to adopt rules and reguIations for the enforcement ofthe provisions ofthe Optometry Act, nor would the Board possess rule-making power for the regulation ofthe practice of optometry. We note inyour request that a contention has been made that the last phrase contained inthe proposed Section 2.14 might be construed by thejudiciary ofthis State to authorize the Board to adopt additional rules and regulations concerning the practice of optometry. While we do not agree with the above stated contention, any doubt concerning the rule making power ofthe Board may be removed by either granting the Board similar rule-making power as contained in the existing Optometry Act or by completely removing such rule-making power with the following language:

Section 2.14. RULES AND REGULATIONS. The Board shall have no authority to promulgate rules and regulations regarding

” 1915 -.

Hon. Don Kennard, page 6 (M-387

the enforcement ofthe provisions ofthis act or the regulation ofthe practice of optometry: however, the Board shall have authority to make appropriate rules and regulations relating
‘
. tothe organization and operation ofthis Board and relating to the conduct ofhearings before the Board in connection with violations ofthis act.
SUMMARY Under Section 2.14 ofArticle IIofSenate Bill 781, the rulemaking power ofthe Optometry Board would be limited to the promulgation of procedural rules and regulations to govern conduct ofthe Board’s business and proceedings and the Board would not have the power now existing, to adopt rules and regulations for the enforcement ofthe Act and for the regulation ofthe practice of optometry. Youflery truly,

Attorn& General of Texas Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE

- 1916 -Hon. Don Kennard, page 7 (M-387

Kerns Taylor, Chairman George Kelton, Co-Chairman John Banks John Grace Arthur Sandlin Ronald Luna W. V. GEPPERT Staff Legal Assist&t HAWTHORNE PHILLIPS Executive Assistant



### - 1917-