July 29, 1963

Dr. M. H. Crabb Secretarv. Texas State Board Medical Examiners MedicalArts Building Worth 2, Texas 76102 Opinion No. C- 113

Fort Re: Validity of Section **2ab** 86, Acts of R.S., 1963. Article II,

of House Bill the 58th Leg.,

Dear Doctor Crabb:

We are in receipt of your opinion request regarding the constitutionalityor validity of a portion of the appropriationbill of the 58th Legislaturewhich may affect the Texas State Board of Medical Examiners. The section cited above appears as a rider to the appropriation act and is worded as follows: "b
. None of the moneys appropriated to the Hospital Board or to Institutionsunder its jurisdictionby thisArticle may be expended for salaries of persons assigned to positions entitled 'MedicalTechnician' as shown in thisArticle, unless such persons are licensed to practice medixne by other States or Nationsbut have not yet been licensedas physicians under the law of this State. This provision shall t be construed to prohibit salary payments?0 qualifiedphy%?ks recrulted from other stateswho are eligible for license In Texas, and,notwlthstandingthe requirements of the State Board of Medical Examiners, such physicians shall be given a reasonable time to be determinedby the Hospital Board to secure a Texas 'licenseto practice medicine." (Emphasisadded). Section 35 of Article III of the Constitution of Texas states as follows:

**-559-**Dr. M. H. Crabb, page 2 (c-113 )

“Sec. 35. No bill, (exceptgeneral appropriationbills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated) shall containmore than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed In the title, such act shallbe void only as to so much thereof,as shallnot be so expressed." If Section 28b of Article II of the appropriationbill merely limits in someway the distributionof statemoney for certainpurposes and under certain enumerated conditionswhich are incidental to the appropriation, then the rider is valid. If the rider contains languagewhich amounts to general legislation, or conflictswith or modifies existinggeneral legislation then the rider must be declared Invalid. Moore v. 537, 192 S.W.M 559 (19’+6). Sheppard, 144 Tex.

The rider in question contemplates that a physicianwill be employedas a "MedicalTechnician"; thereforewe are not required to ascertainwhether or not he will performany of those acts enumerated inArticle 4510 as the practice of medicine.

Article 4500 of Vernon's Civil Statutes states In part as follows:

"TheTexas State Board of Medical Examiners may, in its discretion, upon paymentb cant of a fee of One Hundred Dollars ( $ an appli100) grant a license to practice medicine to any.reputable physicianwho is a citizen of the United States .and to llcentlatesof other State or Territo&es having requirementsfor medical registration and practice equal,to those establishedby the laws of this State.
. . ." (Emphasisadded). Article 4500 has longbeen construed to mean that the Hoard of Medical Examiners must use Its own "discretion"In decidingwhether to grant a license to practice in Texas to licentlates of other states. (1939). Attorney General's Opinion No. 0-1556

~Therider to the appropriationact does not afford the Hoard the discretionpreviouslygiven it by Article 4500. Under theprovisionsof the rider the medical technician cannot be paid unlesshe does not have a license to practice in Texas. The rider thenproceeds t=hange the existing requirementsof Article 4498 (wherebyeachpractitionermust have a certificate issuedby the Hoard), and allows the Hospital Hoard to, in effect, suspend the

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. .

Dr. M. H. Crabb, page 3 (C- 113 )

terms of Article 4498 for."a reasonable time to be determinedby the HospitalBoard."

The saidArticle 4498 states in part as follows: "It shallbe unlawful for any one to practice medicine, in any of its branches, upon human beings within the limits of this State who has not registered in the District Clerk's office of every County in which he may reside,and In each and every County in which he may maintainan office or may designate a place for meeting,advising with, treating in any manner, or prescribing for patients, the certificate evidencinghis right to practice medicine, as i to him by ssued

the Texas State Board of Medical Examiners,

. . . (Emphasisadded). We therefore adviseyou that Section 28b of Article II of House Bill 86 of the 58th Legislature is unconstitutional. It attempts to abrogate or amend the general law requiring physicians who practice medicine In Texas to obtain a certificate from the' Texas State Board of Medical Examiners pursuant to Article 4498.

The caption to House Bill 86 is as follows: "ANACT appropriatingmoney for the support of the Judicial, Executive, and Legislativebranches of the State Government, for the constructionof State buildings, the payment of claims against the State, and for State aid to public junior colleges, for the two-yearperiod beginning September 1, 1963, and endingAugust 31, 1965;authorizing and prescribing conditions, limitations,rules and procedures for allocating and expending the appropriated funds; and declaring an emergency." Neither the title of Section 28 (CompensationRules), nor the caption of the bill would put anyone on notice that an exceptionwas being made to the requirements for the practice of medicine in Texas. eral's Opinions Nos. Attorney GenWW-253 (1957);WW-1152 :v-1263 (1951);

SUMMARY Section 28b of Article II of House Bill 86 of the 58th Legislature Is Invalid to the extent that it attempts to alter or amend the general law regarding the practice of medicineby way of a rider to the appropriationbill. **-561-**1 .-

Dr. M. H. Crabb, page 4 (C- 113)

Yours very truly,

~~~~~

Fred D. Ward Assistant FDW:wb:mkh APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman JohnReeves W. 0. Shultz Wayne Rodgers Paul Phy APPROVEDFOR THE ATTORNEY GENERAL BY: Stanton Stone

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