MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 76711. 2540 

5121475-2501 

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Telecopier 512/475-0266 

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Dallas, TX. 75201-4709 

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El Paso. TX. 79905-2793 

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1220 Dallas Ave., Suite 202 

Houston, TX. 77002.6966 

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lAbbock. TX. 79401.3479 

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McAllen, TX. 76501-1665 

5121662.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 76205-2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

December 31, 1982 

Honorable Chet Brooks, Chairman 

Committee on Human Resources 

Texas State Senate 

Room 412, Archives Building 

Austin, Texas 78711 

Dear Senator Brooks: 

Opinion No. MN-573 

Re: Validity of Board of 

Medical Examiners rule on 

licensure qualifications 

On November 11, 1981, section 163.1, rule 386.19.00.001 of the 

rules and regulations of the Texas State Board of Medical Examiners 

became effective. This rule provides in part: 

(4 The board at its discretion may grant a 

license to any reputable physician who meets the 

following criteria: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

is at least 21 years of age; 

is of good professional character; 

has completed 60 semester hours of 

college courses other than medical 

school, such courses to be acceptable to 

the University of Texas Health Science 

Centers for admission to medical school; 

has graduated from an approved medical 

school...; 

has successfully passed a medical 

examination and Texas medical 

jurisprudence examination required by the 

board...; and 

has successfully completed a one-year 

program of graduate medical training 

approved by the board.... 

Tex. State Bd. of Medical Examiners, Rule 386.19.00.001, 6 Tex. Reg. 

3971 (1981) (to be codified as 22 T.A.C. §163.1) 

p. 2112 
Honorable Chet Brooks - Page 2 (Mw-573) 

You have,asked whether parts of this rule,conflict with sections 

3.04 or 3.05 of the Medical Practice Act, article 4495b. V.T.C.S. 

Section 3.04 provides in part: 

exa~;~at;~n,applicant, to be eligible for t:E 

must present satisfactory proof 

the board that the applicant: 

(1) is at least 21 years of age; 

(2) is of good professional character; 

(3) has completed 60 semester hours of college 

courses other than in medical school, 

which courses would be acceptable, at the 

time of completion, to The University of 

Texas for credit on a bachelor of arts 

degree or a bachelor of science degree; 

and 

(4) is a graduate of a medical school or 

college that was approved by the board at 

the time the degree was conferred. 

Section 3.05 provides in relevant part: 

(a) All examinations for license to practice 

medicine shall be conducted in writing in the 

English language and in a manner as to be entirely 

fair and impartial to all individuals and to every 

school or system of medicine. All applicants 

shall be known to the examiners only by numbers, 

without names or other method of identification on 

examination papers by which members of the board 

may be able to identify the applicants or 

examinees, until after the general averages of the 

examinees' numbers in the class have been 

determined and license granted or refused. 

Examinations shall be conducted on and cover those 

subjects generally taught by medical schools, a 

knowledge of which is commonly and generally 

required of candidates for the degree of doctor of 

medicine or doctor of osteopathy conferred by 

schools or colleges of medicine approved by the 

board, and the examinations shall also be 

conducted on and cover the subject of medical 

jurisprudence. On satisfactory examination 

conducted as required by this Act under rules of 

the board, applicants shall be granted licenses to 

p. 2113 
Honorable Chet Brooks - Page 3 (NW-573) 

practice medicine. All questions and answers, 

with the grades attached, shall be preserved for 

one year in the executive office of the board or 

such other repository as the board by rule may 

direct. All applicants examined at the same time 

shall be given identical questions. All 

certificates shall be attested by the seal of the 

board. The board in its discretion may give the 

examination for license in two parts. 

(b) In addition to the requirements prescribed 

by this Act, the board may require applicants to 

comply with other requirements that the board 

considers appropriate and establish reasonable 

fees for examination. (Emphasis added). 

It is not clear from the terms of the rule whether its 

requirements are to be met before or after taking the exam. However, 

section 3.04 states requirements that an applicant for licensing must 

meet in order to be eligible for examination. Section 3.05(a), quoted 

above, mandated the issuance of a license "[oln satisfactory 

examination" unless, of course, the applicant is disqualified for one 

of the reasons set out in section 3.08. Thus, the rule necessarily is 

an attempt to add to the requirements that must be met to be eligible 

to take the examination. 

Your questions are as follows: 

1. Is the language 'at its discretion may 

grant a license' in board rule 163.1 consistent 

with the apparently mandatory language 'shall be 

granted licenses to practice medicine' in section 

3.05(a) of the act? 

2. Is the requirement in the board rule that 

courses must be 'acceptable to the University of 

Texas Health Science Centers for admission to 

medical school' inconsistent with the prescribing 

language of section 3.04(a) that courses be 

'acceptable, at the time of completion, to The 

University of Texas for credit on a bachelor of 

arts or a bachelor of science degree'? 

3. Is the board requirement for a 'one-year 

program of graduate medical training' inconsistent 

with the enumerated list of qualifications 

prescribed by section 3.04(a)? 

p. 2114 
Honorable Chet Brooks - Page 4 (Mw-573) 

4. If the language of section 3.05(b) is read 

to permit the board to add qualifications other 

than matters over which applicants are to be 

examined, does this conflict with article XVI, 

section 31 of the Texas Constitution, which gives 

the legislature the authority to prescribe 

qualifications? 

If not, is there any limitation on the board 

which would prevent it from adding two, three, or 

more years of training beyond the medical school 

graduation required by the act? 

We conclude that parts (a)(3) and (a)(6) of the board rule are 

invalid. For the following reasons, we believe the Board of Medical 

Examiners lacked statutory authority to promulgate these particular 

requirements. 

The Texas State Board of Medical Examiners is an administrative 

agency. V.T.C.S. art. 4495b, 52.01. A cogent summary of the 

principles governing the rulemaking authority of administrative 

agencies is contained in section 11, 2 Tex. Jur. III Administrative 

Law. which cites State v. Jackson, 376 S.W.2d 341 (Tex. 1964), 

Railroad Commission v. Fort Worth and D.C. Railway Company, 161 S.W.2d 

560 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.m.), and other cases 

for these propositions: 

Generally the powers of an administrative 

agency are derived entirely from legislative 

enactment. The agency has only such powers as are 

expressly conferred on it by statute together with 

those necessarily implied from powers and duties 

expressly given or imposed. 

The rulemaking power of administrative agencies 

does not permit the enactment of regulations which 

are inconsistent with the expression of the 

lawmakers' intent in statutes other than those 

under which the regulations are issued. 

Consequently, when the legislature acts with 

respect to a particular matter, the administrative 

agency may not so act with respect to the matter 

as to nullify the legislature's action, even 

though the matter is within the agency's general 

regulatory field. 

Although a statute conferring administrative 

authority will generally be liberally construed, 

the agency must not go beyond the clear intent of 

p. 2115 
Honorable Chet Brooks - Page 5 (m-573) 

the legislature. It may not enlarge its powers by 

its own orders.... (Footnotes omitted). 

We have found only two statutory provisions that could 

conceivably authorize these board rules. Section 2.09(a) of article 

4495b provides: 

The board shall have, in addition to other powers 

and duties contained in this Act, the powers and 

duties prescribed by this section. The board may 

make rules, regulations, and bylaws not 

inconsistent with this Act as may be necessary for 

the governing of its own proceedings, the 

performance of its duties, the regulation of the 

practice of medicine in this state, and the 

enforcement of this Act.... (Emphasis added). 

Section 3.05(b), which is set out above with section 3.05(a), 

provides: 

In addition to the requirements prescribed by this 

Act, the board may require applicants to comply 

with other requirements that the board considers 

appropriate and establish reasonable fees for 

examination. (Emphasis added). 

We first consider section 3.05(b). Arguably, this provision 

could be read as authorizing the Board of Medical Examiners to require 

applicants for the medical examination to comply with any other 

requirements that it considers appropriate, including additional 

requirements to become eligible to take the examination. In our 

opinion, however, it is actually a limited grant of authority that 

simply permits the board to promulgate additional rules relating to 

the medical examination itself, i.e., its scope, the manner in which 

it will be administered, etc. 

It is significant, in our opinion, that this provision appears in 

the middle of a section that deals solely with the medical 

examination. The provision is limited by its context. We believe 

that if the legislature had meant for this provision to supply the 

broad authority suggested above, it would not have buried it in 

section 3.05; on the contrary, it would have either made it a separate 

section or located it so as to make it clear that it was indeed 

intended as authority for the board to supplement the eligibility 

requirements set forth in section 3.04. For example, it could have 

included it in section 3.04 itself, or it could have added it to 

section 2.09, which enumerates the board's rulemaking powers. Its 

location. coupled with its wording -- particularly its reference to 

"fees for examination" -- convince us that the provision refers only 

p. 2116 
Honorable Chet Brooks - Page 6 (MW-573) 

to the medical examination per se and does not 

promulgate parts (a)(3) and (a)(6) of the board 

authorize the board to 

rule in question. 

We next consider section 2.09(a). In 

Examiners in Optometry v. Carp, 412 S.W.2d 307 

Supreme court dealt with a professional 

promulgated by the board of examiners under 

-. . _. ~. 

Texas State Board of 

(Tex. 1967). the Texas 

responsibility rule 

a virtually identical 

statutory provision. 'The court upheld tne rule, but it did so only 

after it examined each provision separately to "determine whether it 

is related to and consistent with the grounds for cancellation or 

refusal [of a license] that the Legislature listed" in article 4563, 

V.T.C.S. Id. at 310. After undertaking this examination, the court 

concludedthat "the rule's provisions are in harmony with the general 

objectives of the act and referable to and consistent with one or more 

of its specific proscriptions." Id. at 313. The dissent agreed that - 

the test was whether the rule created new and independent grounds or 

merely "fill[ed] in the details" of or implemented an existing 

statutory provision, but it disagreed with the majority's conclusion 

that the rule did the latter. Id. at 314-15 (Smith. J., dissentins). 

See also Kee v. Baber, 303 S.W.2d 376 (Tex. 1957). 

In Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex. Civ. 

ADD. - Austin 1962, writ ref'd), the court held that the Industrial 

Accident Board had no authority to promulgate a rule requiring 

workmen's compensation claimants to file with the board, on or before 

the date of the hearing, a written report by their examining 

physician. The court stated: 

the Legislature may delegate to State officers, 

agencies, or administrative bodies the power to 

enact or promulgate rules and regulations in aid 

of the statutory authority conferred upon such 

administrative body.... But the rules and 

regulations so enacted by the administrative body 

may not impose additional burdens, conditions or 

restrictions in excess of or inconsistent with the 

statutory provisions. 

358 S.W.2d at 876-77 (citation omitted) (emphasis added). The court 

concluded that the board rule imposed an additional burden or 

restriction upon claimants, and that in enacting it the board had 

exceeded its statutory authority. 

We think the same is true here. Section 3.04 of article 4495b 

lists the requirements that the legislature thought were necessary for 

an applicant to satisfy in order to be eligible to take the medical 

examination. Other provisions in subchapter C of article 4495b impose 

requirements upon applicants for the examination and for a license to 

practice medicine. Section 3.08, for example, lists 21 grounds that 

p. 2117 
, 

Honorable Chet Brooks - Page 7 (MW-573) 

the board may rely upon to deny an application for either the 

examination or a license. 

When one considers subchapter C of article 4495b in its entirety, 

one cannot help but be convinced that the eligibility requirements set 

forth in section 3.04 are the only ones that the legislature wanted 

applicants for the examination to have to satisfy. The board rules at 

issue here, which require 60 semester hours of non-medical courses 

that are acceptable to the University of Texas Health Science Centers 

for admission to medical school and a one-year program of graduate 

medical training, are quite onerous. In our opinion, they go far 

beyond what the legislature intended, and can only be viewed as 

"additional burdens, conditions or restrictions in excess of or 

inconsistent with the statutory provisions," Kelly v. Industrial 

Accident Board, supra, at 876-77, which are not "in harmony with the 

general objectives of the act and referable to and consistent with one 

or more of its specific proscriptions," Texas State Board of Examiners 

in Optometry v, Carp, w, at 313. Rules (a)(3) and (a)(6) are 

therefore not authorized under section 2.09(a) of article 4495b. 

Accordingly, in answer to your second and third questions, we 

conclude that parts (a)(3) and (a)(6) of the board rule in question 

are invalid because they lack a statutory basis. We need not address 

your fourth question. In answer to your first question, the board's 

use of the phrase "in its discretion" is not necessarily inconsistent 

with section 3.05(a) of article 4495b. That section must be read in 

light of section 3.08, which lists reasons for refusing an application 

to take the examination or to obtain a license. In other words, even 

if an applicant passes the examination the board could "in its 

discretion," deny a license to one who violates section 3.08. 

SUMMARY 

Parts (a)(3) and (a)(6) of section 163.1 of the 

rules and regulations of the Texas State Board of 

Medical Examiners are invalid. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

p. 2118 
Honorable Chet Brooks - Page 8 (Mw-573) 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Bill Campbell 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

p. 2119