Hon. Frank C. Erwin Opinion No. C-794 Chairman Board of Regents University of Texas Austin, Texas

Dear Mr. Erwin: Re: Whether theBoard of Resents of theUniversity of Texas
are required topermit Doctors ofOsteopathy who
are licensed topractice medicine toparticipate in postgraduate courses at medical institutions of the University of Texas.

You request an opinion of this office which is set out as follows:

"Inview of theprovisions of Section 31, Article XVI of the Constitution of Texas, and the equal protection clause of the Fourteenth Amendment of the Constitution of theUnited States, is theBoard of Regents of theUniversity of Texas required topermit Doctors of Osteopathy who are licensed topractice medicine toparticipate in the continuing education programs of the medical institutions of The University of Texas System?"

Your letter of request reflects that theprerequisites now applicable to the postgraduate medical programs at those institutions governed by theboard of regents require thatparticipants 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 theprerequisites for these programs. Other aspects of theprerequisites are not inquired about and will not enter into our consideration.

The government of theUniversity of Texas is vested inaboard of regents. Art. 2584, V.C.S. In Article 2585 ofVernon's Civil Statutes the legislature has prescribed thepowers of theboard of regents:

"They shall establish the departments of

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

a first-class university, determine the offices and professorships, appoint apresident, who shall, if they think itadvisable, also discharge the duties of aprofessor theprofessors and other officer~,a!%~i~~eir respective salaries; and they shall enact suchby-laws, rules and regulations asmay be necessary for the successful management and government of theUniversity; they shall have power to regulate the course of instruction and prescribe, by and with the advice of the professors, thebooks and authorities used in the several departments, and to confer such degrees and togrant such diplomas as are usually conferred and granted by universities."

The powers invested in theboard of regents necessarily involve the exercise ofwide discretion in determing what class ofpersons shallbe admitted. In Foley v.Benedict, 122Tex. 193, 55 S.W.2d 805 (1932)a rule adopted by the board of regents was challenged asbeing arbitrary and unreasonable. In sustaining the validity of the rule, the court recognized thebroad powers of theboard of regents in the government of theUniversity of Texas.

"Article 7, i 10, of the Constitution of Texas, provides that the Legislature shall establish, organize, and provide for themaintenance, support, and direction of theUniversity of the first class for thepromotion 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 tcbe admitted to all theprivileges of a state university, and instruction therein. The Legislature of this statenot having provided who shall be admitted to theUniversity, and hav-- ing delegated thepower tomake rules and regulations necessary to the government of theUniversity, to theboard of regents, they
are invested with thepower of determining what classes of persons shall be admitted to theUniversity, provided that the rules and regulations in that regard must be reasonable andnot arbitrary. The authorities sus- -3816-, 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, g25,the state. In 24R.C.L. pp.

the rule isannounced as fol- 'Thecourts will not interfere with the exercise of discretion by school directors in matters confided by law to their judgment, unless there isa clear abuse of the discretion, or a violation of law. So the courts
are usually disinclined to interfere with regulations adopted by schoolboards, and they will not consider whether the regulations are wise or expedient, but merely whether they
are a reasonable exercise of thepower and discretion of theboard. Acting reasonably within thepowers conferred, it is theprovince of theboard of education to determine what things are detrimental to the successfulmanagement, good order, and discipline of the schools and the rules required toproduce these conditions. Thepresumption is always in favor of the reasonableness and propriety of a rule or regulation duly made. The reasonableness of regulations isa question of law for the courts.'" 55 S.W.2d 805, 808.
Although Hyman v. City of Galveston, 273U.S. 414, 47 s.Ct. 363, 71 L.kd '(14 S.W.2d 89 (Tex.Civ.App. 1958~g~~~o??e?%!i%$%~t3~~th the validity of rules which denied to doctors of osteopathy theprivileges of staffmembership of a county hospital, thepowers of the hospital boards with respect to themanagement and control of thehospitals in question are analogous to thepowers of government invested in theboard of regents. Inboth cited cases, the rules were challenged asbeing contrary to Section 31 ofArticle XVI of the Constitution of the State of Texas and the Fourteenth Amendment to the Constitution of theUnited States. Section 31 ofArticle XVI of the Constitution of the State of Texas reads as follows:

"TheLegislature may pass lawsprescribing the qualifications of practitioners of medicine in this State, and topunish persons formalpractice, but no preference shall ever be

-3817-Hon. Frank C. Erwin, page 4, (c-794)

given by law to any school ofmedicine." 1

The following statements by the court inHyman v. City of Galveston, 273 U.S. 414, 416-418, 47 s.ct. 363, 364, 71 ‘Lkd '(14 ** >717, 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 topractice their profession in shospital maintained by a state
or political subdivision, the use of which is reserved forpurposes of medical instruction.

. . .
"But it isargued that if somephysicians
are admitted topractice in thehospital all must be or there isa denial of the equal protection of the laws. Even assuming that the arbitrary exclusion of somephysicians would have that legal consequence, in the circumstances of this case, the selection complained ofwas based upon a classification not arbitrary or unreasonable on its face.

. . . We cannot say that a regulation excluding from the conduct of ahospital the devotees of some of the
numerous systems or methods of treating diseases authorized topractice inTexas, isunreasonable or arbitrary. In themanagement of a hospital, quite apart from its use for educationalpurposes, some choice inmethods of treatment would seem inevitable, and a selection based upon a classification having somebasis in the exercise

1 The express limitation that 'nopreference shall
everbe given by law to any schools ofmedicine" applies only to thepower of the legislature to enact "lawsprescribing the qualifications of practitioners ofmedicine" and statutes topunish persons formalpractice." It does not extend to legislation dealing with other subjects. Dowdell v. McBride, 92 Tex. 240, 47 S.W. 524 (1895). The term "schools ofmedicine" has reference to the system or method which themedical practitioner employs in the treatment of disease. S.W.2d 479 (1944).Ex parte Halsted, 147 Tex.Crim. 453, 182

-3818-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.

. . . “Thevalidity of the action of the board under the Texas Constitution @ec. 31, Art. XV27 isalso before us.
. . .
“The limitation of the provision is obviously directed to the qualifications of those tobe admitted to the practice of their profession in the state and has nothing todo with the qualifications of those who are tobe allowed topractice 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 samebasis as the rule in the Hyman case. Inupholding 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 theholding of that Court isnot binding onus insofar as it interprets the meaning of the state constitution, the decision ishighly persuasive, and we happen tobe in accord with its interpretation.

“Theholding is supported by the following authorities from other states: Newton v. Board of County Com’rs ofWeld County, 86 Colo. 446, 282 P. 1068; Richardson v. City ofMiami, 144 Fla. 294, 198 So. 51; and Green v. City of St.

-3819-.

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

Petersburg, 

### 154Fla. 339, 

### 17 ~0.2~3 

### 517."2
The court further observed at pages 

### 96-97:

"Dhe legislature7 wisely left to the Board ofManagers very broad powers tobe employed in the operation of the hospital.

. . . "This en-joinedupon the Board the duty of adopting such rules as are reasonably necessary to carry out the purpose of the Act. The purpose of theAct was to enable
a county to establish ahospital and operate it in amanner thatwould 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, themere fact thatwe, hadwe been in their position, might not have taken the same action
as did they, does notmake their action arbitrary and unreasonable."

A rule which requires that participants inpostgraduate medical programs of the University of Texas hold the degree of Doctor ofMedicine does not relate to the qualifications for the practice ofmedicine within this

2 Themost recent cases reaching this result: Taylor
v. Horn, 

### 189So.2d 

### 198 (Fla.Ap. 

### 1966);Foote v. Communit Hospital of Beloit, 195 Kan. 

### 35,405 i P.2d 

### 147,118S.E.2d 

### 526 423 (1965); Walfington v. Zinn, 146W.Va. 

### (1961). Contra Schnei A.2d 559~(~1966)an 192A.2d 

### 817 t rv. -Englewobd Hosp. Assoc., 91 N.J. Super; 527, 221

d Greisman v. Newc~ombHospital, 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., 

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

### 34~.~.lz82,170A.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 tohospital 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 thewisdom of the policy which prompted the adoption of the rule, butmerely with whether the rule isa reasonable exercise of the power and discretion of theboard of regents.

The legislature created theboard of regents and confided to itsmanagement the University of Texas. It is within the province of their powers to determine those things which are inimical to awell ordered and disciplined operation of theUniversity 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 theUnited States does not guarantee toall the right to attend an educational facility maintained by the state. The right of attendance isaprivilege extended by the state to those who meet the conditions imposed. of ~lssissippi V. Waugh, 105 Miss. 623, 62 so. 827 1913 7 affirmed 237U.S. 589, 35 S.Ct. 720, 59 L.Ed. 1131 1915

. The rule in question operates to exclude members of a defined classification; i.e., those who do not hold the degree of Doctor ofMedicine. We are unable to say that this classification isunreasonable or arbitrary as amatter of law. In the absence of facts to the contrarv, wemust 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 lawpronounced 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 theboard-of regents does not transcend the constitutional rights of those whom it excludes we have been guided solely by those principles. Itbeing 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,

-3821-- .

Hon. Frank C. Erwin, 

### page8, (C-794)

the rulemust present rule, stand. In sustaining thevalidity of the

we do not hold that theboard of regents may not allow persons holding the degree of Doctor of Osteopathy rather than Doctor ofMedicine toparticipate inpostgraduate medical programs of the University of Texas, but that the participation of suchpersons lieswithin the sole discretion of the board of regents.

SUMMARY __----- Under the provisions of Article 

### 2585, V.C.S., the Board of Regents of theUniversity of Texas is authorized to enact such rules and regulations asmay be necessary to thegovernment of the University of Texas. In the exercise of this authority, it iswithin the sole discretion of the Board to establish by rule theprerequisites necessary for participation inpostgraduate medical programs offered at Itsmedical 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 ofMedicine and thereby excludes persons holding the degree of Doctor of,Osteopathy isnot 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 

### -3822-