The HonorableM. James Moritz

Secretary-Treasurer Texas State Board of Dental Examiners 710 Southwest Tower 7th L Brazos Streets Austin, Texas 78701 Opini&n No. H-790

Re: Authority of the Dental LaboratoryAdvisory Board.

Dear Doctor Moritz:

You have requested our opinion regarding the authority of the Dental LaboratoryAdvisory Board. Specifically, you ask:

1. Whether the Dental LaboratoryAdvisory Board may call meetings on its own initiative.

2. Whether the Dental LaboratoryAdvisory Boardmay incur expenses without the prior approval of the Texas State Board~of Dental Examiners.

3: Whether the authority of the Dental LaboratoryAdvisory Board is "advisory* in nature.

4. Whether the Texas State Board of Dental Examiners is obliged to follow the recommendationsof the Dental Laboratory Advisory Board with regard to matters within the latter's statutory authority.

The Dental LaboratoryAdvisory Board was created by the Legislature in 1973. Its enabling statuteprovides in part:

p.3328The HonorableM. James Merits - page 2 (H-790)

The Dental LaboratoryAdvisory Board shall advise the Texas State Board of Dental Examiners on all matters concerningdental laboratoriesand dental technicians;and the Texas State Board of Dental Examiners shall **refer** to the Dental LaboratoryAdvisory Board all matters concerning rules, fees, registration and all othermatters affectingdental laboratoriesand dental **technicians for**  the Advisory Board's‘studyand recommendations thereon and suchAdvisory Board shall **forward** its recommendations,witbin~a reasonable time, to the Texas State Board of Dental Examiners for its action upon such recommendations;and, **if** the majority of the members of the Texas State~Boardof Dental Examiners shall
concur with the recommendationsof'the Dental LaboratoryAdvisory Board, then the rules, regulations or changes therein pertaining to dental laboratoriesand dental technicians shall be put **into** effect by the Texas State Board of ,DentalExaminers as part of its rules and regulations- The membersof the Dental LaboratoryAdvisory Board shall be en'titled

to receive the same per diem payable~to themembers of the Texas State Board of Dental Examinersplus such travel and other expenses as are incurred in the attendance of meetings of such Board. **No** practicingdentist shall be'a member of the Dental LaboratoryAdvisory Board. V.T.C.S. art. 455X(6)(b).
By requiring the Dental **Laboratory** Advisory Board to "advise the Texas State Board of Dental Examiners on sll matters concerningdental laboratoriesand dental technicians," the ,statute clearly contemplates that the Dental LaboratoryAdvisory Board should hold meetings. In addition,

p.3329The HonorableM. James Moritz - page 3 (H-790)

a subsequentportion **of** the statuteprovides **a** per diem allowance and reimbursementof **other** expenses to Board members while "in the attendance **of** meetings." The Dents1 LaboratoryAdvisory Board, however, is not granted the power to adopt any rules or regulations, although such authority is expressly conferredupon the **Board** of Dental Examinersby article 45518,V.T.C.S.
Since the authority to call meetings is a necessary adjunct of the power to hold suchmeetings, we believe that the Dental LaboratoryAdvisory Board is authorized to call meetings on its own initiative. **As** the court stated in Cornelius " Railroad Commission, 182 S.W.2d 412 (Tex.Civ. APP. -- Austin, 1944, no writ)a

It is

. . .well settled ;

. . that when
a statute imposesa mandatory duty upon **a** governmentalagency ts carry out the express and specificallydefined purposes and objectives stated.in the law, such statute~carrieswith it by necessary implicationthe authority to do whatever is reasonablynecessary to effectuate the legislativemandate and purpose. Id. - at 415.

**As** to your second~question, article 4551f(6)(b).author-~ ises members of the Dental LaboratoryAdvisory Board "to :;. receive the same.perdiem payable to the members of the Texa.8 State Board of Dental Examinersplus such **travel** Andy,'. other expenses~

as are incurred in the attendance **of** meetings ;feF'h Board;.',

Funds'for *AdvisoryBoard Members **Per**
are specificallybudgeted in the current appropria- ,tion'forthe Board of Dental Examiners. Acts 1975, 64th Leg.;ch. 743 at 2591. No other funds, however, are speci-' fically appropriated for the Dental LaboratoryAdvisory Board alone, and the statute creating the Board doesnot empower it to ~incur'any expenses other than those for per diem, travel, and other expenses "incurred in the attendance oE meetings." In our opinion, the limited authority granted to the Board by article 4551f and the fact that travel and expense funds to be utilized by the Advisory Board are commingled with the agency's appropriations supports the inference that 'the

Advisory Board does not have a general spending

p.3330The HonorableM. James Merits - page 4 (H-790)

power. Board of InsuranceCom'rs v. Guardian Life Ins.

-- 190 S.W.2d 9?J6 908 ( Tex Sup.7944) areeult, we %eve **that** the Dekal Laborkory Advisory Board is without authority to incur any other expenses without the prior approval of the Board of Dental Examiners. The expenses which can be incurred are, of course, subject to reasonable budgetary limitations.

Your third and fourthquestions involve the nature of. the authority conferred upon the Dental Laboratory Advisory Board. We have'receiveda brief suggesting that **under** article 4551f(6)(b),V.T.C.S., the only procedure by which the Board of Dental Examinersmay promulgate rules relating to dental laboratoriesor dental technicians is to concur in the recommendations**of** the Dental LaboratoryAdvisory Board. The brief analogises the relationship of the **Board of**  Dental Examiners **and** the Dental LaboratoryAdvisory Board to the relationshipbetween the two houses of a bicameral legislature. Under this interpretation, no rule could be adopted relating to dental laboratoriesor to dental technicians unless both boards approvedprecisely the same wording. However, article 455ld(l)provides:

The Texas State Board of Dental Examiners shall have the same power **and** authority to adopt, promulgate and enforce rules and regulations consistent with statutoryand constitytional authority pertaining to dental laboratoriesand dental technicians, including classes **of** technicians,qualifications, standards, and examination **for** registration and **as** is contained in Article 45516, after the Texas State Board of Dental Examiners has received the recommendations **of** the Dental LaboratoryAdvisory Board.
The authority to **promulgate** rules dlearly is given to the Board of Dental Examiners. The authority of the Dental LaboratoryAdvisory Board is advisory in nature. Although

**p. 3331** The Honorable M. James Merits - page 5 (~-790)

the Board of Dental Examiners is required to seek the advice of the Dental LaboratoryAdvisory Board in matters relating to dental laboratoriesand dental technicians, it is not obliged to follow those recommendations. It may accept, reject or amend them.

SU.MMARY

The Dental LaboratoryAdvisory Board is empowered in the first instance to call meetings on its own initiative. The Dental LaboratoryAdvisory Board is without authority to incur expenses except those for per diem, travel and other expenses incurred in the attendance-ofmeetings, unless it has the prior approvalof the Board of Dental Examiners. The Board of Dental Examiners is not obliged.to follow the recommendations of the Dental LaboratoryAdvisory Board, but may adopt, amend or reject them.

Very truly yours,

(-APPROVED:

Opinion Committee jwb

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