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:

Inlight of Gibson v. Berryhill, 411U.S. 564 (1973) you have requested our opinion concerning the constitutionality ofarticle 4552-2. 02, V.T.C.S., which establishes the qualifications for members ofthe Texas Optometry Board. Article 4552-2. 02 provides:
To be qualified for appointment as amember of the board, aperson must be a licensed optometrist who has been a resident ofthis state actually engaged inthe practice of optometry inthis state for the period of five years immediately preceding his appointment. A person is disqualified from appointment to the board ifhe is amember ofthe faculty ofany college of optometry, ifhe is an agent ofany wholesale optical company, or ifhe has afinancial interest in any such college or company. At all times there shall be aminimum oftwo-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 atleast four members who are members of a state optometric association affiliated with the American Optometric Association, an association of optometrists inprivate practice on their own account. Itis 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. Ifthe facts are as we understand the Texas Optometry Board is therefore composed of atleast four self-employed practitioners and no more than two who are anployed by other persons or entities.

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

InGibson 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 13optometrists employed by Lee Optical Company. The Supreme Court held that the composition ofthe 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 inlegal proceedings should not adjudicate these disputes. 411U.S. at 579.
InWall v. American Optometric Association, Inc., 379 F. Supp. 175 (N. D. Georgia 1974), affirmed, 95 S.Ct. 166 (1974), athree 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 ofthe [Board was] amember of a group which oppose[ d] the continuation ofthe plaintiff’s business. ” The rules involved prohibited an optometrist from associating himself with amercantile or business establishment or maintaining an office atwhich he is not present for a minimum offour hours per week. The court held that while the composition ofthe Board would deny the plaintiffs dueprocess in an enfocement proceeding the rules themselves were valid. Inour view, these rules could not have been sustained were the Board’s composition unconstitutional.

InGibson and Wall itwas the disciplinary proceedings which were held unconstitutional because ofbias on the part ofthe Boards. Neither case intimated that the composition ofthe Boards was unconstitutional, andwe believe a reasonable inference can be drawn from Wall, that the Georgia Board was not. Itis therefore our opinion that the composition ofthe Texas Ootometrv Board is not unconstitutional under these cases. We are supported in &is view by Texas Optometry Board v. Lee Vision Center, 515S.W. 2d 380 (Tex. Civ. App. -- Eastland, 1974, writ ref’d n.r. e.), inwhich the Board was held qualified to suspend “Advertising Permits. ”

p. 2691The 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 ofthe 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 onthe facts ofthe individual case. Withrow v. Larkin, 43 U.S. L. W. 4459 (April 16, 1975).
SUMMARY
The statutory composition ofthe Texas Optometry Board is not unconstitutional under the doctrine of Gibson v. Berryhill, 411U.S. 564 (1973). The Board may be unable to afford dueprocess in some disciplinary hearings brought against certain optometrists. Whether due process was afforded depends on the facts ofthe individual case. Very truly yours,

Attorney General of Texas
APPROVED:

Opinion Committee jwb

p. 2692