,~-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 substantially aa follows.: 

mether the Board has authority to 

limit the number of times an applicant may 

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 Inconsistent with 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 Examiners may 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 r $25) a8 the Board may 

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 practice medlclne." 
. . _, 

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 praotloe medicine to 8ay person, for atiy of 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 Involves moral 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 character which 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 superior manner. 

“(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 practice medicine. 
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 fraudulently purchased, 

Issued, counterfeited, or materially altered. 

"(11) The l8qmrsonatlon of, or acting 

as proxy for, another lti any examination required by this Act 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 lx35 been 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 valia. 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 lnconai5tent with the StatutOP 

for adml65lon to examination. Article t 

requirement5 

505, supra, does 

not contain any proviso that an applicant shall be refused a subsequent examlnatfon because of previous failures, but on the contrary, we find an express authority 

In Artlble 4501, supra, allowing an applicant the right 
Hon. 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 the 

Smith, 

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 Interpretation and appllcatloa of the provisions of said statute. We 

are of the opinion that the term 'liberal 

construction9 means 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 applicant may take such examinations, 

and the further fact that the Board la not authorized 

to adopt rules Inconsistent with 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 to make 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 It may be distinguished 

oa the ground that the Legislature of Texas has 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 applicant may 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 tollowea the practice of allowing rubsequent examiwtiOn5 after f8ih1~58, and it 15 the OpiUiOa Of this 

Department that such a oonatrmctlon plaoed upoa the 

statutes 15 reasonable ana sound. Slnoe th8 statute 

15 Indefinite 85 to the number of examinations and there 

Is no Texas authority to the contrary, the clepartmental construction a5 to re~examinatlons should be folloved. 

This rule vas aniiouncea la the case OS Texas 

BD loyers Insurance Assoalatloa v. Bolmee (Sup. ct.) 

19% 9. W. 26 390, vhereln Jtutlce Sharp, speaklllg~for 

the COwt, stated 85 fOllOW5: 

"If a statute Is amblguotu and susceptible of more than one coastructloa, there 

are certain well settled ruler which govern 

Its ooa5tructlon: 

"First, the practical laterpr8~tatlon O? 

the Act by the agenoy charged with the duty 

of admlnlsterlng It 15 entitled to the hlgheat respect from the Courts. Aad thl8 18 

e5peclally 50 when that Interpretation ha8 

been long coatlnued and unlfoI%I." 

Pursuant tb the provision8 of Articles 

4501 and 4505, Vernon'5 Civil Statutes, the 

State Board of Hedlcal Examiners away not lwit the number of tlme8 an applicant for Iioenae may reappear Sor examlnatlon after aumerous failures. 

Yours very truly 

APPROVED: ATTORRRY GBRBRAL OF TBlAS 

ATTORM%Y GBRBRAL 

BW:djm:jt