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 of Article II of 

Senate Bill 781 of the 6lst 

Legislature. 

Dear Mr. Kennard: 

Your request for an opinion poses the following question: 

“Does Section 2.14 of the proposed bill limit the 

Board to the making of procedural 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 of the Bill?” 

Section 2.14 of Article II of Senate Bill 781 of the 61st Legislature reads as followe: 

“Section 2.14, RULES AND REGULATIONS. The Board 

shall promulgate procedural rules and regulations only 

consistent with the provisions of this Act, to govern the 

conduct of tap business and proceedings. Notwithstanding 

- 1911- 
, . 

Hon. Don Kennard, page 2 (M-387 

any other provision of this Act, the board shall not have 

any power or authority to amend or enlarge upon any provision of this Act by rule or regulation or by rule or 

regulation to change the meaning in any manner whatsoever 

of any provision of this Act, or to promulgate any rule 

or regulation which is in any way contrary to the underlying 

and fun&mental purposes of this Act or to make any rules 

or regulation which is unreasonable, arbitrary, capricious, 

illegal, or unnecessary. (Emphasis ours) 

In construing the rule making power of the 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 of which 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 of its duties, the regulation of the practice of optometry 

and the enforcement of this Act.’ This authority is similar 

in scope to that vested in the State Board of Medical Examiners 

under the ‘Medical Practice Act and in this 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 

of the 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 of three 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 a broad 

delegation of regulatory powers to the Board since it 

authorized the Board to adopt such rules as are necessary for ‘the regulation of the practice of optometry. ’ 

The court also held that each of the rules was consistent 

with, related to, and an implementation of one or more 

of the prohibited categories set out in Article 4563. The. 

Professional Responsibility Rule which is under attack 

prohibits five forms of practice by those licensed as 

optometrists, and as in Kee v. Baber, we shall examine each of the 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 to the Optometry 

Act. To the contrary, our opinion is that the rule’s 

provisions are in harmony with the general objectives 

- 1913 - 
Hon. Don Kennard, page 4 (M-387 

of the act and referable to and consistent with one or more 

of its specific proscriptions. We believe that the Legislature, by investing the Board with broad rule-making 

powers ‘/for/ the enforcement of this Act’ and ‘/for/ 

the regulation of the practice of optometry, ’ contemplated that the Board would use these powers to correct 

the evils generally classified in Article 4563, or some 

other provision of the Optometry Act. If these rulemaking powers did not authorize the Board to regulate 

evils not encompassed in the specific working of the 

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 of the provisions of the Optometry Act and for the regulation of the practice of optometry. Under 

Section 2.14 of Article II of Senate Bill 781, the power to adopt rules 

and regulations for the enforcement of the provisions of the Optometry 

Act and for the regulation of the practice of optometry is omitted and 

Section 2.14 of Article II of Senate Bill 781 specifically limits the Board’s 

rule making power to “procedural rules and regulations only, consistent 

with the provisions of this act, to govern the conduct of its business and 

proceedings. ‘I In view of the wording of Section 2.14 of Article II of 

- 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 of the Board’s business and proceedings, and the 

Board would no longer have the existing power to adopt rules and 

reguIations for the enforcement of the provisions of the Optometry 

Act, nor would the Board possess rule-making power for the 

regulation of the practice of optometry. 

We note in your request that a contention has been made that the 

last phrase contained in the proposed Section 2.14 might be construed 

by the judiciary of this 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 of the 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 of the provisions of this act or the regulation 

of the practice of optometry: however, the Board shall have 

authority to make appropriate rules and regulations relating 

‘. 

to the organization and operation of this Board and relating to 

the conduct of hearings before the Board in connection with 

violations of this act. 

SUMMARY 

Under Section 2.14 of Article II of Senate Bill 781, the rulemaking power of the Optometry Board would be limited to the 

promulgation of procedural rules and regulations to govern 

conduct of the Board’s business and proceedings and the Board 

would not have the power now existing, to adopt rules and 

regulations for the enforcement of the Act and for the regulation of the 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 -