May 9, 1963 

Honorable Byron Tunnel1 

Speaker 

Opinion No. C- 73 

House of Representatives Re: Various questions relAustin, Texas ative to the "Rule Making 

Procedure" rule adopted 

by the Texas State Board 

Dear Mr. Tunnell: of Examiners in Optometry. 

You have,requested an opinion from this office 

concerning the "Rule Making Procedure" rule adopted by the 

Texas State Board of Examiners in Optometry. Such rule is set 

forth as follows: 

"In making rules and regulations for 

the regulation of the practice of optometry 

pursuant to Article 4556, Revised Civil Statutes 

of Texas, the Board shall prepare and propose 

such rules and regulations and 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, supported by a petition signed by at 

least twenty-five percent (25%) of the Optometrists licensed by and practicing in the State 

of Texas, in ballot form to each Optometrist 

licensed by 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-one percent 

(51%) of the Optometrists licensed by and practicing in the State of Texas shall have 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 shall be by the said Board 

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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 shall be considered 

by the Board as prima facie evidence that such 

rule or regulation Is reasonable and necessary 

for the regulation of the practice of Optometry 

in Texas. No rule or regulation for the regulation of the practice of Optometry shall be 

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 Licensing Boards 

of the House of Representatives are as follows: 

"(1) Does said 'Rule Making Procedure' 

violate Article I, Section 28, of the Constitution of Texas, because the same delegates 

legislative power to Individual practitioners 

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 'Rule Making Procedure', 

by delegating legislative power to private 

groups and Individuals, vlolate Article 4556, 

R.C.S. by making and adopting rules and regulations inconsistent with the act which created 

the Board? 

“(3) Is said 'Rule Making Procedure' an 

Improper and unconstitutional delegation of 

legislative authority, 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 individuals may,be tested? 

"(4) Does said 'Rule Maklng Procedure', 

by delegating legislative authority to private 

groups and individuals, as aforesaid, deprive 

other Optometrists, of their property, privileges 

and immunities without affording due process of 

law as guaranteed by Article I, Section 18, of 

the Constitution of the State of Texas? 

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

"(5) Does said rule constitute an abdication by said Board of its rule making power to 

a group of individuals without due process of 

law? 

"(6) Is the rule an unwarranted and 

unauthorized delegation of legislative authority 

to private groups, depriving minority groups 

of due process of law guaranteed them by the 

Fourteenth Amendment to the Constitution of the 

United States? 

"Should the Attorney General hold that the 

'Rule Making Procedure' rule be invalid for any 

reason, then we request his opinion as to the 

validity of the 'Professional Responsibility Rule' 

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 regulations by 

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 ourselves with tne 

validity of the "Rule Making 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 "Rule Making Procedure" 

rule. However, assuming the invalidity of this provision which 

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 promulgate a rule merely because 

it is approved by a two-thirds majority of the profession in 

a valid referendum. The referendum vote of the profession In 

is only advisory and the Board retains the discretion to promulgate or not to promulgate a profession-approved rule. As 

long as the Board does not give binding effect to the referendum 

vote, it may in the exercise of its discretion promulgate any 

reasonable rule for the regulation of the profession. The fact 

that a referendum may precede Board action does not render its 

action invalid. 

Your opinion request further states: 

"Should the Attorney General hold that the 

'Rule Making Procedure' rule be invalid for any 

reason, then we request his opinion as to the 

validity of the 'Professional Responsibility Rule' 

which was adopted in accordance therewith." 

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- . 

Hon. Byron Tunnell, page 4 (C- 73 ) 

The "Professional Responsibility Rule" referred 

to above was adopted on December 21, 1959, following the 

procedure specified In the "Rule Making 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 4556 discloses that: 

"President Woods reported that as directed 

by vote of the board on June 28, 1959, the Professional Responsibility Rule 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 'for or againstadoption' ballot was mailed 

to each of the 839 licensed optometrists practicing 

in Texas, with a request that the ballots be. 

marked and returned to the board office by December 6, 1959. 

"The President appointed Drs. Shlpman~ and 

Gill as a committee to canvass the ballots. 

This committee reported that 570 ballots were 

returned by December 6th, there being 539 for 

adoption of the rule and 31 against. Also after 

December 6th three ballots for adoption and none 

against were received. 

"Mr. Bergman, attorney for Dr. Carp, spoke 

at some length to the board in opposition to the 

adoption of the rule. He was followed by 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. 

"The board continued the discussion for 

some time with Dr. Rogers suggesting that action 

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.- 

Hon. Byron Tunnell, page 5 (C- 73 ) 

on ado&Ion be wostwoned until the next board 

meeting. Flnaliy a-motion was made by Dr.'Harbour 

and seconded by Dr. Gill that the Professional 

Responsibility Rule as approved by the Attorney 

General be officially adopted by th board as of 

December 21, 1959. Thi3 motion carzied by a vote 

of 4“ayes"and 1 'no' with Dr. Baber being absent. . . ." (Emphasis added). 

While the "Rule Making Procedure" rule was apparently followed in the adoption by the Texas State Board 

of Examiners In Optometry of the 

Rule," 

"Professional Responsibility 

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 invalidity of the "Rule Making 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, 

"Professional Responsibility 

NO. ww-722 (1 .?hr-- 5 

and Attorney General's Opinion 

As the records of the Texas State Board of Examiners In Optometry reflect that the "Professional Responsibility 

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 "Rule Making Procedure" rule 

may be invalid, this would not invalidate the adoption of the 

"Professional Responsibility Rule" as the Board had authority 

to enact this rule regardless of the procedure followed prior 

to its adoption. 

While the "Rule Making Procedure" rule seems to 

give those licensed by 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 approved by the profession of 

optometry as a whole. Under the "Rule Making 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 "Professional Responsibility Rule“ adopted by the Texas 

State Board of Examiners In Optometry is not invalid bv reason 

of any provision found in the "Rule Making Procedure" rule. 

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Hon. Byron Tunnell, page,6 (C-73 1 

SUMMARY 

That portion of the "Rule Making Procedure" 

rule adopted by the Texas State Board of Examiners In Optometry, which provides that no rule 

shall be adopted by the Texas State Board of 

Examiners in Optometry which has not received 

the vote required in the "Rule Making Procedure" 

rule, is subject to serious question on the 

ground that It constitutes an unlawful delegation 

of the power of the Board to determine which 

rules and regulations may be adopted and promulgated. 

However, assuming the invalidity of that 

portion of the "Rule Making Procedure" rule 

adopted by the Texas State Board of Examiners 

In Optometry, such would not affect the validity 

of the "Professional Responsibility Rule" 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 

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