### ,~-328

Boni T. J. &owe, w. D. SecriAary Oplnlon lo. V-190
Texas State Board of Re.: Medlcai ExamInera Authority of Board of Mediosl Examiners 918-20 Texas Bank Bullding to llmlt number of Dallas 2, Texas examlnatlons after faflures.
Dear Dr. Crowe:

Your reoent request for an opinion of this Department la substantiallyaa follows.:

mether the Board has authority to limit the number of times an applicantmay reappear for exemlnatlon after numerous failures."
Article 4501 of Vernon's Civil Statutes provlde8:
"All applicant8 for license to practice medicine In this State not otherwise licensed under the provisions of law must successfully pass sn examination by the Board of Medlbal Examinera. The Board Is authorized to adopt and enforoe rules OP procedure not Inconsistentwith the statutory requirements. 0

. e "If any applicant, because of failure to pass the required examination, shall be refused a license, be or she, at such time as the Board of Medical Examinersmay fix, shall be permitted to take 

### a subsequent examination, upon such subjects required In the orlglual examination a8 the Board may prescribe, upon the Twenty-five Dollars $25) a8 the Board may r yment of such part of determine and state. In the event satisfactory grade8 shall be made in the subjects prescribed and taken on such re-examlnation, the Board mcry

grant to the applicant a llcease to practicemedlclne.". . _,

Hon. T. J. Crowe - Page 2 v-190

Article 4505 of Vernoa'5 Civil Statute5 vldes 85 followr:

“The State Board gf M~dp8~t&aminers may refuse to admit 8e on 0 8 exa81n&- Mona, and to issue license to praotloemedicine to 8ay person, for atiyof the following reason5: "(1) The presentation to the Board of any llcease, certificate, or diploma, which w8a Illegally or fraudulently obtcrlned, or when fraud or deception ha8 been practiced in paselng the examination. "(2) Convlctioh of a, mime of the grade of a felony, or one which Involvesmoral turpitude, or procuring OP aiding or abetting the procurlng of a criminal abortion. “(3) Habits OS tntemperanee,or drug addiction, calculated, in the oplnloa of the Board, to endanger the lives of patients. "(4) Grossly unprofesslonsl or dlshonorable conduct, or a characterwhich In the opinion of the Board is llkdly to deceive or defraud the publle. “(5) The violation, or attempted vlolation, direct or Indirect, of any of the provisions of this Act, either a8 a prlnclpal, acceesory, or accomplfce. "(6) The use of any advertising atatement of a character tending to mislead or deceive the public. "(7) Advertising profe55lonal superlorlty, or the performance of proie55lon5l 5enloe In a superiormanner. “(8) The purchase, aale,bapter, or use, or any offer to purchase, sell, barter, or u8e, any realoal degree, llcen8e, certlflcate, diploma, or transcript oh license, certificate, or dlplosm, In or laolaeat to an appllaatlon to the Board of Media&l lcxminers for lleease to practicemedicine.Eon. T. J. Crowe - Page 3 v-190

"(9) Altering; with fraudulent latent, any medical license, @ePtlflcate,dlploms, or transcript of medical license, certlflcate, or diploma. "(10) The use of any'medloal llcease, certificate, diploma, or transcript of any such medical license, certificate, OF dlploma, which had been fraudulentlypurchased, Issued, counterfeited, or materially altered. "(11) The l8qmrsonatlon of, or acting as proxy for, another lti any examination required by thisAct for a medical license. "(12) The impersonation of a llceased practitioner, or permitting, or allowing, another to use his license, or certlf'loate to prectlce medicine in thla State, for the purpose of treating, or offering to treat, sick, Injured, or afflloted human beings. "(13) Ruploylng, directly or ladl&otly, any person whose lloense to practice medicine lx35been suspended, or essoclatlon in the practice of medicine with any person or persons whose license to practice medicine has been suspended, or any person who has been ooavloted of the unlawful practice of medicine In Texas or elsewhere. "Aay applicant who may be refused admittance to examination shall have his right to beve such issue tried in the District Court of the oountp In whloh he resides or In which any Board member resides. All orders of the Board rhall be prlma faole val

### ia. It (Underscoring 

### oum)

An examination of the 8bove Statute5 Feflects the fact that although the Boa& Is authorized to adopt and enforce rules OS procedure, thsy mei$not promulgate any Nle lnconai5tentwith the StatutOP for adml65lon to examination. Article t requirement5 505, supra, does not contain any proviso thatan applicant shall be refused a subsequent examlnatfon because of previousfailures, but on the contrary,we find an express authority In Artlble 4501, supra, allowing an applicant the rightHon. T. J. Crove - Psge 4 v-190

to a subsequeat eiamln8&loa In the event of failure. It IS'belleved that this provision should be llberally coastrued to afford anapplicant the privilege of subsequent examinations upon the payment of the statutory fee.

Ia the case of Maryland Casualty Co. v. 40 S:W. (26) 913, Judge Vaughan, speaking for theSmith, Court, statea:

11

. . .but 50 muah cannot be 58fa psrhaps In reference to the application of the virtues that lie wfthln that beneficent rule in re the Interpretationand appllcatloa of the provisions of said statute. We are of the opinion that the term 'liberal construction9means to give the language of a statutory provision, freely and con5ciou5ly, Its commonly, generally accepted meanitg, to the end that the moat comprehensive application thereof may be accorded, without doing vlolenee to any of Its term5."
In the absence of a llmltation upon the number of times 8n applicantmay take such examinations, and the further fact that the Board la not authorized to adopt rules Inconsistentwith the statutory requlremeats, the Board may not limit the number of examlna- .tions. We have been unable to find any Texas cases relating to the subject. In 8'WaShi vs. Dept. of Licenses, 221 Pac. 61.3 Y ton case (Medcraf the Court stated in'effect that IS the Leglrlature hai intended to allow a person tomake another application after two ftiillures,

it could 8nd doubtless would have said 50. But In that case 8 definite time limit was prescribed. In applying the rule of the Meacraf case to the Texas statutes, It Is believed that Itmay be distinguished oa the ground that the Legislature of 

### Texashas seen Sit to enumerate those reasons t0 exclude 8 perSOn from examlnatlons (Art. 4505). Numerous failures Is aot listed as a reason to limit the number of examlnatlons to an applicant. Therefore, as the law IS now written, It Is the oplnfon of this Department that the Board of Medical Examiners may not limit the number of times an applicantmay resppear for examination after numerous failures.

Slnoe enactment of the provlalons under dlscusslon In 1907, the State Board of Medical Examiners

### Hon. T. J. Crove - Page 

### 5 v-190

has 

### tolloweathepracticeof allowingrubsequentexamiwtiOn5 after f8ih1~58, and it 15 

### the OpiUiOaOf this Departmentthat sucha 

### oonatrmctlon plaoedupoa the statutes15reasonableana sound. Slnoeth8 statute 15 

### Indefinite85 to thenumberof examinations and there Isno Texasauthorityto the contrary,theclepartmental construction

a5 to re~examinatlons shouldbe folloved. This rulevas aniiouncea la the case OSTexas BD loyersInsuranceAssoalatloav.Bolmee (Sup.ct.) 19% 9.W. 26 390,vherelnJtutlceSharp, 

### speaklllg~for theCOwt, stated85 fOllOW5:



### "Ifa 

### statuteIsamblguotuand susceptibleofmore 

### thanone coastructloa, there are 

### certainwell settledrulerwhichgovern Its ooa5tructlon: "First,thepracticallaterpr8~tatlon O? theAct by theagenoychargedwith theduty of admlnlsterlngIt 15 entitledto thehlgheat respectfrom the Courts. Aad 

### thl8 18 e5peclally50

### when that Interpretation ha8 been longcoatlnuedand unlfoI%I."

Pursuanttb theprovision8ofArticles 4501and 

### 4505,Vernon'5CivilStatutes,the StateBoardofHedlcalExaminersaway not lwit thenumberof tlme8an 

### applicantfor Iioenaemay reappear 

### Sor examlnatlonafteraumerous 

### failures.
Yoursvery truly
APPROVED: ATTORRRY 

### GBRBRAL**OF** 

### TBlAS

ATTORM%Y

GBRBRAL


### BW:djm:jt