Hon. Frank C. Erwin Opinion No. C-794 

Chairman 

Board of Regents 

University of Texas 

Austin, Texas 

Dear Mr. Erwin: 

Re : Whether the Board of Resents 

of the University of Texas 

are required to permit 

Doctors of Osteopathy who 

are licensed to practice 

medicine to participate in 

postgraduate courses at 

medical institutions of the 

University of Texas. 

You request an opinion of this office which is 

set out as follows: 

"In view of the provisions of Section 31, 

Article XVI of the Constitution of Texas, and 

the equal protection clause of the Fourteenth 

Amendment of the Constitution of the United 

States, is the Board of Regents of the University 

of Texas required to permit Doctors of Osteopathy 

who are licensed to practice medicine to participate in the continuing education programs of the 

medical institutions of The University of Texas 

System?" 

Your letter of request reflects that the prerequisites now applicable to the postgraduate medical programs 

at those institutions governed by the board of regents 

require that participants hold the degree of Doctor of 

Medicine. This of necessity precludes participation by 

those practitioners holding the degree of Doctor of 

Osteopathy rather than Doctor of Medicine who otherwlse 

meet the prerequisites for these programs. Other aspects 

of the prerequisites are not inquired about and will not 

enter into our consideration. 

The government of the University of Texas is 

vested in a board of regents. Art. 2584, V.C.S. In 

Article 2585 of Vernon's Civil Statutes the legislature 

has prescribed the powers of the board of regents: 

"They shall establish the departments of 

-3815.7 
Hon. Frank C. Erwin, page 2, (C-794) 

a first-class university, determine the offices 

and professorships, appoint a president, who 

shall, if they think it advisable, also discharge the duties of a professor 

the professors and other officer~,a!%~i~~eir 

respective salaries; and they shall enact 

such by-laws, rules and regulations as may 

be necessary for the successful management 

and government of the University; they shall 

have power to regulate the course of instruction 

and prescribe, by and with the advice of the 

professors, the books and authorities used 

in the several departments, and to confer 

such degrees and to grant such diplomas as 

are usually conferred and granted by universities." 

The powers invested in the board of regents necessarily involve the exercise of wide discretion in determing 

what class of persons shall be admitted. In Foley v. Benedict, 

122 Tex. 193, 55 S.W.2d 805 (1932) a rule adopted by the 

board of regents was challenged as being arbitrary and unreasonable. In sustaining the validity of the rule, the 

court recognized the broad powers of the board of regents 

in the government of the University of Texas. 

"Article 7, i 10, of the Constitution of 

Texas, provides that the Legislature shall establish, organize, and provide for the maintenance, support, and direction of the University of the first class for the promotion of 

literature and the arts and sciences. Where 

the Legislature, acting under a constitutional 

mandate, establishes a university, the Legislature may provide certain rules and regulations concerning the admission and exclusion of certain classes entitled tc be admitted to all the privileges of a state university, and instruction therein. The Legislature of this state not having provided who 

shall be admitted to the University, and hav-- 

ing delegated the power to make rules and 

regulations necessary to the government of 

the University, to the board of regents, they 

are invested with the power of determining 

what classes of persons shall be admitted to 

the University, provided that the rules and 

regulations in that regard must be reasonable and not arbitrary. The authorities sus- 

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, 

Hon. Frank C. Erwin, page 3, (C-794) 

tain certain general rules with regard to 

the government of institutions supported and 

maintained b 

y;?76, g 25, 

the state. In 24 R.C.L. pp. 

th e rule is announced as fol- 

'The courts will not interfere with the 

exercise of discretion by school directors in 

matters confided by law to their judgment, 

unless there is a clear abuse of the discretion, or a violation of law. So the courts 

are usually disinclined to interfere with regulations adopted by school boards, and they 

will not consider whether the regulations are 

wise or expedient, but merely whether they 

are a reasonable exercise of the power and 

discretion of the board. Acting reasonably 

within the powers conferred, it is the province of the board of education to determine 

what things are detrimental to the successful management, good order, and discipline 

of the schools and the rules required to produce these conditions. The presumption is 

always in favor of the reasonableness and 

propriety of a rule or regulation duly made. 

The reasonableness of regulations is a question of law for the courts.'" 55 S.W.2d 805, 808. 

Although Hyman v. City of Galveston, 273 U.S. 414, 

47 s.Ct. 363, 71 L.kd '(14 

S.W.2d 89 (Tex.Civ.App. 195 8~g~~~o??e?%!i%$%~t3~~th 

the validity of rules which denied to doctors of osteopathy 

the privileges of staff membership of a county hospital, 

the powers of the hospital boards with respect to the management and control of the hospitals in question are analogous 

to the powers of government invested in the board of regents. 

In both cited cases, the rules were challenged as being 

contrary to Section 31 of Article XVI of the Constitution 

of the State of Texas and the Fourteenth Amendment to the 

Constitution of the United States. Section 31 of Article 

XVI of the Constitution of the State of Texas reads as 

follows: 

"The Legislature may pass laws prescribing 

the qualifications of practitioners of medicine 

in this State, and to punish persons for malpractice, but no preference shall ever be 

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Hon. Frank C. Erwin, page 4, (c-794) 

given by law to any school of medicine." 1 

The following statements by the court in Hyman v. City 

of Galveston, 273 U.S. 414, 416-418, 47 s.ct. 363, 364, 71 

‘L ** kd '(14 > 7 17, 718 (1927) are particularly apropos: 

'However extensive that protection 

Fourteenth Amendment7 may be In other 

Zituations, it cannoT we think, be said 

that all licensed physicians have a constitutional right to practice their profession in s hospital maintained by a state 

or political subdivision, the use of which 

is reserved for purposes of medical instruction. . . . 

"But it is argued that if some physicians 

are admitted to practice in the hospital all 

must be or there is a denial of the equal protection of the laws. Even assuming that the 

arbitrary exclusion of some physicians would 

have that legal consequence, in the circumstances 

of this case, the selection complained of was 

based upon a classification not arbitrary or 

unreasonable on its face. . . . We cannot say 

that a regulation excluding from the conduct 

of a hospital the devotees of some of the 

numerous systems or methods of treating diseases 

authorized to practice in Texas, is unreasonable or arbitrary. In the management of a 

hospital, quite apart from its use for educational purposes, some choice in methods of treatment 

would seem inevitable, and a selection based upon 

a classification having some basis in the exercise 

1 The express limitation that 'no preference shall 

ever be given by law to any schools of medicine" applies 

only to the power of the legislature to enact "laws prescribing the qualifications of practitioners of medicine" 

and statutes to punish persons for malpractice." It does 

not extend to legislation dealing with other subjects. 

Dowdell v. McBride, 92 Tex. 240, 47 S.W. 524 (1895). The 

term "schools of medicine" has reference to the system or 

method which the medical practitioner employs in the treatment of disease. 

S.W.2d 479 (1944). 

Ex parte Halsted, 147 Tex.Crim. 453, 182 

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I . 

Hon. Frank C. Erwin, page 5, (C-794) 

of the judgment of the state board whose action 

is challenged is not a denial of the equal protection of the laws. . . . 

“The validity of the action of the board 

under the Texas Constitution @ec. 31, Art. XV27 

is also before us. . . . 

“The limitation of the provision is 

obviously directed to the qualifications of 

those to be admitted to the practice of their 

profession in the state and has nothing to do 

with the qualifications of those who are to be 

allowed to practice in a state hospital or to 

participate in an educational enterprise conducted by the state. . . .” 

In Buson v. Poage, 318 S.W.2d 89 (Tex.Clv.App. 

1958, error ref. n.r.e.) a rule of a county hospital was 

attacked upon the same basis as the rule in the Hyman case. 

In upholding the authority of the hospital board to enact 

a rule which would exclude doctors of osteopathy from the 

hospital staff, the court quoted at length from the Hyman 

case and stated at page 94-95: 

“While the holding of that Court is not 

binding on us insofar as it interprets the 

meaning of the state constitution, the 

decision is highly persuasive, and we happen 

to be in accord with its interpretation. 

“The holding is supported by the following 

authorities from other states: Newton v. Board 

of County Com’rs of Weld County, 86 Colo. 446, 

282 P. 1068; Richardson v. City of Miami, 144 

Fla. 294, 198 So. 51; and Green v. City of St. 

-3819- 
. 

Hon. Frank C. Erwin, page 63 (C-794) 

Petersburg, 154 Fla. 339, 17 ~0.2~3 517." 2 

The court further observed at pages 96-97: 

"Dhe legislature7 wisely left to the 

Board of Managers very broad powers to be 

employed in the operation of the hospital. . . . 

"This en-joined upon the Board the duty 

of adopting such rules as are reasonably 

necessary to carry out the purpose of the 

Act. The purpose of the Act was to enable 

a county to establish a hospital and operate 

it in a manner that would best serve the 

greatest number In the community. . . . One 

of the age-old problems Is the conflict between 

osteopaths and allopaths. If in a given community the hospital can best be operated by 

the exclusion of osteopaths, we find no Inhibition in law to such exclusion. 

"While the Board cannot act arbitrarily, 

the mere fact that we, had we been in their 

position, might not have taken the same action 

as did they, does not make their action arbitrary 

and unreasonable." 

A rule which requires that participants in postgraduate medical programs of the University of Texas hold 

the degree of Doctor of Medicine does not relate to the 

qualifications for the practice of medicine within this 

2 The most recent cases reaching this result: Taylor 

v. Horn, 189 So.2d 198 (Fla. A p. 1966); Foote v. Communit 

Hospital of Beloit, 195 Kan. 3 i 5, 405 P.2d 

147, 118 S.E.2d 526 

423 (1965); Walfington v. Zinn, 146 W.Va. (1961). Contra 

Schnei 

A.2d 559~ (~1966) an 

192 A.2d 817 t 

r -Englewobd v. Hosp. Assoc., 91 N.J. Super; 527, 221 

d Greisman v. Newc~omb Hospital, 40 N.J. 389, 

1963)wherethe courts held that denial of admission to-hospital slaif' must be based upon qualification 

of applicant, not solely on fact that applicant was an 

osteopath. Compare Blende v. Maricopa County Medical Sot., 

96 Ariz. 240, 393 P.2d 926 ( 64) and Falcone v. Middlesex 

County Medical Sot., 34 ~.~.lz82, 170 A.2d 791 (1961) where 

courts held that county medical society could not exclude 

practitioner from membership solely because of being an 

osteopath where membership in society was necessary prerequisite to admission to hospital staff. 

-3820- 
Hon. Frank C. Erwin, page 7, (C-794) 

state. Therefore the rule is not within the prohibition of 

Section 31 of Article XVI of the Constitution of the State 

of Texas. 

In considering whether those holding the degree 

of Doctor of Osteopathy are denied the equal protectlon of 

the law, we cannot concern ourselves with the wisdom of the 

policy which prompted the adoption of the rule, but merely 

with whether the rule is a reasonable exercise of the power 

and discretion of the board of regents. 

The legislature created the board of regents and 

confided to its management the University of Texas. It is 

within the province of their powers to determine those 

things which are inimical to a well ordered and disciplined 

operation of the University of Texas and Its schools. This 

determination necessarily requires the exercise of discretion, as does the promulgation of rules for the achievement of the desired conditions. 

The Fourteenth Amendment to the Constitution of 

the United States does not guarantee to all the right to 

attend an educational facility maintained by the state. 

The right of attendance is a privilege extended by the 

state to those who meet the conditions imposed. 

of ~lssissippi V. Waugh, 105 Miss. 623, 62 so. 827 1913 

affirmed 237 U.S. 589, 35 S.Ct. 720, 59 L.Ed. 1131 7 1915 . 

The rule in question operates to exclude members of a defined 

classification; i.e., those who do not hold the degree of 

Doctor of Medicine. We are unable to say that this classification is unreasonable or arbitrary as a matter of law. In 

the absence of facts to the contrarv, we must wresume that 

the board of regents acted with due"regard to the high trust 

reposed in them by law. Foley v. Benedict, 122 Tex. 193, 55 

S.W.2d 805 (1932). 

The principles of law pronounced In Hyman v. City 

of Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927) 

and Duson v. Poage, 318 S.W.2d 89 (Tex.Civ.App. 1958, error 

ref. n.r.e.), apply with equal force to the rule here inquired 

about. In concluding that-the present rule of the board-of 

regents does not transcend the constitutional rights of those 

whom it excludes we have been guided solely by those principles. 

It being within the sole discretion of the board of regents to 

determine what rules are necessary to the successful management and government of the University of Texas and its schools, 

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- . 

Hon. Frank C. Erwin, page 8, (C-794) 

the rule must 

present rule, 

stand. In sustaining the validity of the 

we do not hold that the board of regents may 

not allow persons holding the degree of Doctor of Osteopathy 

rather than Doctor of Medicine to participate in postgraduate 

medical programs of the University of Texas, but that the 

participation of such persons lies within the sole discretion of the board of regents. 

__----- SUMMARY 

Under the provisions of Article 2585, 

V.C.S., the Board of Regents of the University 

of Texas is authorized to enact such rules and 

regulations as may be necessary to the government of the University of Texas. In the exercise 

of this authority, it is within the sole discretion of the Board to establish by rule the prerequisites necessary for participation in postgraduate medical programs offered at Its medical 

institutions so as to either include or exclude 

participation by persons holding the degree of 

Doctor of Osteopathy. The present rule of the 

Board which requires that participants in such 

programs hold a degree of Doctor of Medicine 

and thereby excludes persons holding the degree 

of Doctor of, Osteopathy is not prohibited by 

Section 31, Article XVI, Texas Constitution 

or XIV Amendment, U.S. Constitution. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

W. 0. Shultz 

Assistant Attorney 

WOS:sck 

APPROVED: 

OPINION COMMITTEE 

Ralph Rash, Chairman 

James C. McCoy, Harold Kennedy 

Robert Flowers 

APPROVED FOR THE ATTORNEY GENERAL 

BY: T. B. Wright 

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