May 15, 1975 

The Honorable Chet Brooks 

Chairman 

Committee on Human Resources 

Texas State Senate 

Austin, Texas 

Opinion No. H- 607. 

Re: Constitutionality of 

art. 4552-2.02, V. T. C.S., 

creating the Texas Optometry 

Board. 

Dear Senator Brooks: 

In light of Gibson v. Berryhill, 411 U. S. 564 (1973) you have 

requested our opinion concerning the constitutionality of article 4552-2. 02, 

V.T.C.S., which establishes the qualifications for members of the Texas 

Optometry Board. Article 4552-2. 02 provides: 

To be qualified for appointment as a member of 

the board, a person must be a licensed optometrist 

who has been a resident of this state actually engaged 

in the practice of optometry in this state for the period 

of five years immediately preceding his appointment. 

A person is disqualified from appointment to the board 

if he is a member of the faculty of any college of optometry, 

if he is an agent of any wholesale optical company, or if he 

has a financial interest in any such college or company. 

At all times there shall be a minimum of two-thirds of 

the board who are members of a state optometric assbciation which is recognized by and affiliated with the 

American Optometric Association. (Emphasis added. ) 

The Texas Optometry Board is therefore required by statute to 

have at least four members who are members of a state optometric association affiliated with the American Optometric Association, an association of 

optometrists in private practice on their own account. It is our understanding 

that there is only one such state optometric associatidn in Texas, the Texas 

Optometric Association, and that optometrists who are employed by other 

persons or entities are not eligible for membership. If the facts are as 

we understand the Texas Optometry Board is therefore composed of at least 

four self-employed practitioners and no more than two who are anployed by 

other persons or entities. 

p. 2690 
The Honorable Chet Brooks - Page 2 (H-607) 

In Gibson v. Berryhill, supra, the United States Supreme Court 

dealt with the Alabama Board of Optometry, which was composed entirely 

of self-employed optometrists. The case concerned the Board’s attempt 

to revoke the licenses of 13 optometrists employed by Lee Optical Company. 

The Supreme Court held that the composition of the Board precluded the 

defendants from receiving due process due to “possible personal interest, ” 

stating: 

It is sufficiently clear from our cases that those 

with substantial pecuniary interest in legal 

proceedings should not adjudicate these disputes. 

411 U. S. at 579. 

In Wall v. American Optometric Association, Inc., 379 F. Supp. 

175 (N. D. Georgia 1974), affirmed, 95 S. Ct. 166 (1974), a three judge 

co&t enjoined tie Georgia State Board of Examiners in Optometiy &om 

enforcing its rules against optometrists who were not self-employed. 

“Every member of the [Board was] a member of a group which oppose[ d] 

the continuation of the plaintiff’s business. ” The rules involved prohibited 

an optometrist from associating himself with a mercantile or business 

establishment or maintaining an office at which he is not present for a 

minimum of four hours per week. The court held that while the composition 

of the Board would deny the plaintiffs due process in an enfocement proceeding the rules themselves were valid. In our view, these rules could 

not have been sustained were the Board’s composition unconstitutional. 

In Gibson and Wall it was the disciplinary proceedings which were 

held unconstitutional because of bias on the part of the Boards. Neither 

case intimated that the composition of the Boards was unconstitutional, 

and we believe a reasonable inference can be drawn from Wall, that the 

Georgia Board was not. It is therefore our opinion that the composition 

of the Texas Ootometrv Board is not unconstitutional under these cases. 

We are supported in &is view by Texas Optometry Board v. Lee Vision 

Center, 515 S. W. 2d 380 (Tex. Civ. App. -- Eastland, 1974, writ ref’d 

n. r. e. ), in which the Board was held qualified to suspend “Advertising 

Permits. ” 

p. 2691 
The Honorable Chet Brooks - Page 3 (H-607) 

While the Board’s composition in and of itself is not rendered 

unconstitutional by Gibson and Wall, those cases indicate that its authority 

to initiate certain disciplinary proceedings against some optometrists is 

questionable. The present composition of the Board may result in its 

inability to afford due process in a disciplinary proceeding brought 

against an optometrist who is not self-employed. Of course, whether 

due process was afforded would depend on the facts of the individual 

case. Withrow v. Larkin, 43 U.S. L. W. 4459 (April 16, 1975). 

SUMMARY 

The statutory composition of the Texas Optometry Board 

is not unconstitutional under the doctrine of Gibson v. 

Berryhill, 411 U.S. 564 (1973). The Board may be 

unable to afford due process in some disciplinary 

hearings brought against certain optometrists. 

Whether due process was afforded depends on the 

facts of the individual case. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

Opinion Committee 

jwb 

p. 2692