### May 9, 1963

Honorable Byron Tunnel1 Speaker OpinionNo. C- 

### 73

House of Representatives Re: Various questions relAustin, Texas ative to the "RuleMaking Procedure"rule adopted by the Texas State Board Dear Mr. Tunnell: of Examiners in Optometry.

You have,requestedan opinion from this office concerning the "RuleMaking Procedure"rule adoptedby the Texas State Board of Examiners in Optometry. Such rule is set forth as follows:

"Inmaking rules and regulations for the regulationof the practice of optometry pursuant to Article 

### 4556,Revised Civil Statutes of Texas, the Board shall prepare and propose such rules and regulationsand submit by mail
a copy of each such rule and regulation, as well as all other such rules and regulations
as may have been proposed and filed with the Board, supportedby a petition signedby at least twenty-fivepercent (25%) of the Optometrists licensedby and practicing in the State of Texas, in ballot form to each Optometrist licensedby and practicing in the State of Texas for a vote thereon. At the end of thirty 

### (30)days from the time such ballots are mailed, the Board shall count the ballots that have been returned,provided that no election shall be valid unless a minimum of fifty-onepercent 

### (51%)of the Optometrists licensedby and practicing in the State of Texas shallhave voted at the election at which such rule or rules
are voted on; and each and all of such rules and regulations that have received two-thirds of the votes cast shallbe by the said Board

-358-Hon. Byron Tunnell, page 2 (C- 

### 73 )

declared as approved by the profession. The fact that any rule or regulation is approved by the profession itself shallbe considered by the Board as prima facie evidence that such rule or regulation Is reasonable and necessary for the regulationof the practice of Optometry in Texas. No rule or regulation for the regulation of the practice of Optometry shallbe made by said Board that has not received twothirds of the votes cast in the manner above provided."

The questions propounded to us In behalf of the Committee to Study Operation of Examining and LicensingBoards of the House of Representativesare as follows:

"(1) Does said 'RuleMaking Procedure' violateArticle I, Section 

### 28, of the Constitution of Texas, because the same delegates legislativepower to Individualpractitioners of Optometry In Texas, and thereby the power of suspending laws,which power Is conferred solely upon the Legislature of the State of Texas?
"(2) Does said 'RuleMaking Procedure', by delegating legislativepower to private groups and Individuals,vlolateArticle 

### 4556, R.C.S. by making and adopting rules and regulations inconsistentwith the act which created the Board?


### “(3) Is said 'RuleMaking Procedure'an Improper and unconstitutionaldelegation of legislativeauthority, In that it fails to set out and define the limit of the authority of the private groups and indivlduals~ to whom said legislative authority Is being delegated and supplies
no standard or form by which the acts of such private groups and individualsmay,be tested?
"(4) Does said 'RuleMaklng Procedure', by delegating legislativeauthority to private groups and individuals,as aforesaid, deprive other Optometrists,of their property,privileges and immunitieswithout affording due process of law as guaranteedby Article I, Section 

### 18,of the Constitution of the State of Texas?

-359-Hon. Byron Tunnell, page 3 (C- 73 )

"(5) Does said rule constitute an abdicationby said Board of its rule making power to a group of individualswithout due process of law?
"(6) Is the rule an unwarrantedand unauthorizeddelegation of legislativeauthority to private groups, deprivingminority groups of due process of law guaranteed them by the Fourteenth Amendment to the Constitutionof the United States?

"Should the Attorney General hold that the 'RuleMaking Procedure'rule be invalid for any reason, thenwe requesthis opinion as to the validity of the 'ProfessionalResponsibilityRule' which was adopted in accordance therewith."

The Texas State Board of Examiners in Optometry is given the authority to the provisions of Article fi romulgate rules and regulationsby 556 of Vernon's Civil Statutes. Since this power has been upheld in Key v. Baber, 157 Tex. 3875 303 S.W.2d 376 (19571,we need only concern ourselveswith tne validity of the "RuleMaking Procedure" rule. While the matter is not free of doubt, there does exist a serious question about the validity of the last sentence of the "RuleMaking Procedure" rule. However, assuming the invalidityof this provisionwhich confers on the profession the power to prohibit the promulgation of a rule, the other provisions are valid. The Board is not obligated to approve and promulgatea rule merely because it is approved by a two-thirdsmajority of the profession in
a valid referendum. The referendumvote of the profession In is only advisory and the Board retains the discretion to promulgate or not to promulgatea profession-approvedrule. As long as the Board does not give binding effect to the referendum vote, it may in the exercise of its discretionpromulgate any reasonable rule for the regulation of the profession. The fact that a referendummay precedeBoard action does not render its action invalid.

Your opinion request further states:
"Should the Attorney General hold that the 'RuleMaking Procedure'rule be invalid for any reason, then we requesthis opinion as to the validity of the 'ProfessionalResponsibilityRule' which was adopted in accordance therewith."

-360-- .

Hon. Byron Tunnell,

### page4 (C- 73 )

The "ProfessionalResponsibilityRule" referred to above was adopted on December 21, 1959, following the procedure specified In the "RuleMaking Procedure"rule.

that: Article 

### 4556,Vernon's Civil Statutes,provides

"The Board shall preserve a record of its pro:eedlngs in a book kept for that purpose

. . . . The record so provided for in Article 

### 4556discloses that:

"PresidentWoods reported that as directed by vote of the board on June 

### 28, 1959, the ProfessionalResponsibilityRule has been submitted to the Attorney General and that the Attorney General's official opinion Is that the rule will be valid~if adopted. He reported furtkier that,
as set forth In the board's rules of procedure,
a 'foror againstadoption' ballot was mailed to each of the 

### 839 licensed optometristspracticing in Texas, with a request that the ballots be. marked and returned to the board office by December 

### 6, 1959.

"The Presidentappointed Drs. Shlpman~ and Gill as a committee to canvass the ballots. This committee reported that 

### 570ballotswere returned by December 

### 6th, therebeing 539 for adoption of the rule and 

### 31 against. Also after December 

### 6th threeballots for adoption and none againstwere received.

"Mr.Bergman, attorney for Dr. Carp, spoke at some length to the board in opposition to the adoption of the rule. He was followedby Mr. Keith, attorney for Dr. Rogers, who also spoke at some length against adoption of the rule. After this Dr. Carp, Mr. Bergman and Mr. Keith retired from the meeting. Mr. Reeves and Mr. Gee remained for a short time and answered some questions asked by board members and then they too retired from the meeting.

"Theboard continued the discussion for
some time with Dr. Rogers suggesting that action

-361-.-

Hon. Byron Tunnell, page 

### 5 (C- 

### 73 )

on ado&Ion be wostwoned until the next board meeting. Flnaliy a-motionwas made by Dr.'Harbour and secondedby Dr. Gill that the Professional ResponsibilityRule as approvedby the Attorney General be officially adoptedby th board as of December 21, 1959. Thi3 motion carziedby a vote of 4“ayes"and 1 'no'with Dr. Baber being absent.

. . ." (Emphasisadded).
While the "RuleMaking Procedure"rule was apparently followed in the adoption by the Texas State Board of Examiners In Optometry of the Rule," "ProfessionalResponsibility

the records of the Texas State Board of Examiners in Optometry, as required to be kept by Article 

### 4556,reflect that It was only adopted after a vote by the members of the Texas State Board of Examiners in Optometry. Regardless of the validity or invalidityof the "RuleMaking Proceduren rule, or any part thereof, the Texas State Board of Examiners in Optometry had the authority to promulgate the Rule." See Ke v. Baber, supra, "ProfessionalResponsibility

NO. 

### ww-722 (1 

### 5

.?hr-- and Attorney General's Opinion

As the records of the Texas State Board of Examiners In Optometry reflect that the "ProfessionalResponsibility Rule" was adopted only after a vote of the membership of the Texas State Board of Examiners in Optometry,we are of the opinion that even though some portion of the "RuleMaking Procedure" rule may be invalid, this would not invalidate the adoption of the "ProfessionalResponsibilityRule" as the Board had authority to enact this rule regardless of the procedure followedprior to its adoption.

While the "RuleMaking Procedure"rule seems to give those licensedby the Board the power of vetoing a proposed rule, it does not require the Board to adopt any particular proposed rule which may have been approvedby the profession of optometry as a whole. Under the "RuleMaking Procedure*rule, only the Board can actually adopt a given rule or regulation. Such being the case, any defect in that portion of the "Rule Making Procedure"rule, which requires that no rule be adopted by the Board without first receiving the required vote as set out therein,would not affect the validity of a rule actually adopted by the Board. Consequently,we are of the opinion that the "ProfessionalResponsibilityRule“ adoptedby the Texas State Board of Examiners In Optometry is not invalidbv reason of any provision found in the "RuleMaking Procedure"rule.

-362-Hon. Byron Tunnell,page,6 (C-73 

### 1

SUMMARY

That portion of the "RuleMaking Procedure" rule adoptedby the Texas State Board of Examiners In Optometry,which provides that no rule shallbe adopted by the Texas State Board of Examiners in Optometrywhich has not received the vote required in the "RuleMaking Procedure" rule, is subject to serious question on the ground that It constitutes an unlawful delegation of the power of the Board to determinewhich rules and regulations may be adopted and promulgated.

However, assuming the invalidity of that portion of the "RuleMaking Procedure"rule adoptedby the Texas State Board of Examiners In Optometry, suchwould not affect the validity of the "ProfessionalResponsibilityRule" adopted by the Texas State Board of Examiners in Optometry.

Yours very truly,

WAGGONER CARR Attorney General

FDW:wb:mkh

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman J. C. Davis Albert P. Jones Grady Chandler Albert Pruitt

APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone Assistant

-363-