### THE~~WTORNEY GENEKAL

OF-TEXAS

GROVER

SELLERS Auwrxiw 11.TEXAR

*-I-lvmaNKY(3muIcEaAL

Honorable Nelson Creeman, Secretary Texas State Board of Examiners in Optometry Majestic Bullding SanAntonio, Texas

Dear Sir: Opinion No. O-6552 Re: Under the facts stated, the Board is not authorized to accept the application of a person for examination for license to practice optometry in the state of Texas.

Your recent letter requests this department83 opinion
as to whether or not the Texas State Board of Examiners in Optometry is authorized to permit anapplicant to take an examination in this State under the following faot situation. Theapplioant enrolled in aschool for optometry in September 1922, graduated from said school in June 1924; at that time he was not aresident of the state of Texas andhas not been in the aotual practice of optometry zinoe his graduation in 1924 from the school of optometry. Applioant is nowaresident of Texas and onDecember 8, 1944, while aresident of Dallas, Texas, he obtained alicense to practice optometry in the State of Nebraska; but has not been in actual practlee in that or this State. This, webelieve, briefly summarizes the facts stated in your letter, as well as the exhibits attached thereto, requesting this departmentps opinion on the facts stated.

Theapplicant graduated from the Needles Institute of ' Optometry in June 1924, andat that time under the then statutes of the State of Texas he would have been eligible to take the examination.

The 57th Legislature, 1921, First Called Session, Chapter 51, page 159, passed anAct defining andregulating the practice of optdmetrg in Texas andcreated aboard ofHonorable Nelson Creeman, Secretary, page 2O-6552

examiners o The Codifiers of the Revised Civil Statutes of Texas) 1925, plaoed the 1921 Act in Chapter 1,Oof Title 71 of the Revised Civil Statutes of 1925, samebeing Articles 4552-4566, bnolusive, of the Revised Statutes of 1925.

That part of the 1921 Aot pertinent toyour inquiry, being the gro ’ted portion of Seotlon 11 of said Act, is as follows 8

t%.eo. 11. praotioe Every person desiring to begin the

of optometry after the passage of this Aot shall makeapplication for license by presentlng to the secretary of the Board, onblank forms furnished by the Board, satisfactory evidence, varified byoath, that he or she has attained the age of twenty-one years, is of good moral oharaeter, has the neoezzary preliminary education and has graduated from aschool of optometry maintainin a 8anar w o meeswi said Board, or has studied op,tometry in Texas not less than twoyears in the office of anopEometrizt licensed under This Aot, before taking the examination which shall be prescribed by the Board, 00

. the Board shall have authority, at its dlsaretlon, to recognize the license which has been issued, after full examination, by State Board of

_. Examiners In Optometry of other states having a standard of education in optometry satisfactory to the Texas State Board of ’ Examiners LnOptometry andmayissue to such persons alicense to practice optometry in Texas, or ln its discretion, mayadmit for full examination any person presenting an unrevoked certificate of examination from the Board of Examiners of any other State.
I,0e0” (EFmphasisours)

The above quoted parts of Section 11were brought forward into the Revised Civil Statutes of 1925 as Articles 4557 and 4560.

as followz: 

### Article 4557 of the original 1925 eodlfieatl,on fs

“Art. 4557o Application for license.---Prhoever desires to begin the practl.oe of optometry shallHonorable Nelson Creeman, Secretary, page 3O-6552

makeapplication for license by presenting to the seoretary of the board, on forms furnished by the board, satisfactory sworn evidence that he or she has attained the age of twenty-one years, is of good moral character andhas praduotsd from a school of oDtometrs maintaining astandard whieh meets with the requirements of said board, or has studied optometry in Texas not less than twoyears in the offioe of anoptometrist licensed under this law :;efore taking the examination which shall be prescribed by the board.” (Emphasis ours)
,Article 4560 of the origIna codification of 1925 is as follows:

"Art. 45600 have authority, atR;.o;p~;;~;;;i;- Tte,;z;;&;;iTl

the license which has been issued: after full examination, byState Board of Examiners in Optometry of other states having astandard satisfaotory to the Texas State Board of Examiners in Optometry andmayissue to such persons alicense to practioe optometry in Texas, or in its discretion, may admit for full examination anyperson presenttig
anunrevoked certificate of examination from the Board of Examiners of any other state.”

In 193g9 Acts of the 46th Legislature, page 360, Article 4557was amended so that it read as follows:

“Every person desiring to practice optometry in the State of Texas shall be required to pass the examination given by the Texas State Board of Rxaminers in Optometry. Theapplicant shall make application by presenting to the Secretary of the Board, onforms furnished bythe Board, satisfactory sworn ev*.dence that hehas attained the age of twenty-one (21) years, is of good moral character, is acitizen of the United States, andhas at least graduated from afirst grade high school or has a preliminary education equivalent thereto permitting matriculation in the University of Texas, and that he has attended andgraduated -fromarep&able university or college of optometry andwhich meets with the requirements of the Board, or has studiedHonorable Nelaon Creeman, Searetary page 4C-6552

optometry not less than four consecutive calendar years in the offioe of anoptometrist licensed ,under this **Aot.** 

### andhas the preliminary high school eduoation provided for in this section, before beginning his studies, and provided that anyperson desiring to qualify ln this manner shall file with the 

### Board onblanks presoribed and furnished by &heBoard satisfaotory proof, upon the beginnin 

### of his studies, 

### as aforesaid, within thirty (30‘f days thereof, and full and complete satisfaotory proof upon the oompletion of his studies within thirty (30) days thereof.

“Auniversity of sohool of optometry is reputable whose entranoe requirements and course of 3?i8%ation are as high 

### as those adopted bythe better class of universities andsohools of optometry andwhose course of inatruotion shall be the equivalent of not less than four (4) 

### teras of eight(Em(E&;~~;s;)aoh and approved by the Board.;

And**the**same 1939 Aot also repealed the 

### reolproaity provision of Artiole 4300 so that nowInTsxaa we donot have any optometry reolprooity with other states.

Article 4569with reference to the conduct of examinations, notioe, registration etc. waaalso amended bythe 1939 Act byadding thereto the following paragraphs

II

. . . i,Prov5ded that **no**provision of this section shall apply to any qualified person whoin good faith began the study of optometry under the PPOvisions of Chapter 61, **Aota** of the Thirty-seventh 

### Legislature, **First** Called Seoclon, prior to the effeotlve date of this Act, andwhoshall, within thirty (30) days after suoh effective date, register with the Seoretary of the Board, under proper rules of the Board, satisfaotory proof of the beginning of auoh study, together with suoh other related faots aa the Board mayrequire.
son failing to renister with the $?sE seoretar Board as herein provided shall be deemed to have waived al1rights under the provisions of ChapterHonorable Nelson Creeman, Secretary, page 5 O-6352

51, Acts Thirty-seventh Legisla,ture, First Called Session. Acts 1st C.S. 1921, p0 159; Acts 1939,

‘46th Leg*, pa360, S. 6.” (Emphasis ours)

The sameLegislature, 46th Legislature, H. C, R. No. 212found onpage 849 of the Acts of the 46th Legislature passed aconcurrent resolution stating that the first sentence of the above quoted paragraph which reads “Provided that no provision of this seotionw should have read “Provided that no provision of this Act.”

It cannot be questioned but that the State has the power to set standards or qualifications and impose reasonable restrictions upon those seeking to practice aprofession and that these standards or qualifications can be changed from time to time. This inherent power of the State exists in order to determine the competency or capacity of persons seeking to engage in professions or callings or t‘nose vocations vitally related to the conserving of the public welfare snd the public safety, It is manifest that the Legislature intended to raise the requirements andqualifications of optometrists and that it amended the statutes by substituting the period of required study from two to four years; and slnee the applicant did not preserve his righ~ts in the matter his attempt to do sonowcomes too late.

It is our opinion that since the person named in your communication has failed to comply with Article 4559 as amended, his application nowcomes too late andhe, therefore, is prohibited from taking the examination.

Trusting that the foregoing fully answers your inquiry, we are

Yours very truly

DW smp/PAM

APPROVED

MAY23, 1945 GROVERSELLERS ATTORNEX

GENERAL

OFTEXAS ATTORNEY GENERALOFTEXAS

BY Dav1.dWuntch AssEstank

APPROVEDOPINIONCOMMITTEE BYGwI[,CHAIRMAN