MARKWHITE Attorney General

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An Equal Opportunity/ Affirmative Action Employer 

# TheAttorney General ofTexas

December 31, 1982

Honorable ChetBrooks, Chairman Committee onHuman 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 ruleprovides inpart:

(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) isat least 21years ofage; isofgoodprofessional character; has completed 60 semester hours of college courses other than medical school, such courses tobe acceptable to the University of Texas Health Science Centers foradmission tomedical 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 theboard....
Tex. State Bd. of Medical Examiners, Rule 386.19.00.001, 6 Tex. Reg. 3971 (1981) (tobe codified as 22T.A.C. §163.1)

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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 3.04provides inpart:

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

must present satisfactory proof theboard that theapplicant: (1) isat least 21years ofage; (2) isofgoodprofessional 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 thatwas approved by the board at the time thedegree was conferred. Section 3.05provides inrelevant part:

(a) All examinations for license to practice medicine shall be conducted in writing in the English language and inamanner as tobe entirely fairand impartial toall individuals and toevery school or system of medicine. All applicants shall be known to the examiners only by numbers, without names orothermethod of identification on examination papers by which members of the board may be able to identify the applicants or examinees, until after thegeneral averages of the examinees' numbers in the class have been determined and license granted or refused. Examinations shallbe conducted onand cover those subjects generally taught by medical schools, a knowledge of which is commonly and generally required of candidates for thedegree ofdoctor 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 theboard, applicants shallbe granted licenses to

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practice medicine. All questions and answers, with the grades attached, shall be preserved for one year in the executive office of theboard 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 twoparts. (b) Inaddition totherequirements prescribed by this Act, the board may require applicants to comply with other requirements that the board considers appropriate and establish reasonable fees forexamination. (Emphasisadded).
It is not clear from the terms of the rule whether its requirements are tobemet before orafter taking the exam. However, section 3.04 states requirements that an applicant for licensing must meet inorder tobe eligible forexamination. Section 3.05(a), quoted above, mandated the issuance of a license "[oln satisfactory examination" unless, of course, the applicant isdisqualified for one of thereasons set out in section 3.08. Thus, therulenecessarily is an attempt toadd to the requirements thatmust bemet tobe eligible to take theexamination.
Your questions areas 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 topractice medicine' in section 3.05(a) of theact? 2. Is the requirement in theboard 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 orabachelor of science degree'? 3. Is the board requirement for a 'one-year program ofgraduate medical training' inconsistent with the enumerated list of qualifications prescribed by section 3.04(a)?

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4. Ifthe language of section 3.05(b) isread 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 theact?
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 ofMedical 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. FortWorth andD.C. Railway Company, 161S.W.2d 560 (Tex.Civ.App. -Austin 1942,writ ref'dw.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 suchpowers asare expressly conferred on itby statute together with those necessarily implied from powers and duties expressly given or imposed. The rulemaking power ofadministrative agencies doesnot permit theenactment ofregulations 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 toaparticular matter, theadministrative agency may not so act with respect to thematter 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 gobeyond the clear intent of

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the legislature. Itmay not enlarge itspowers by itsown 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:

Theboard 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 thisAct asmaybenecessary 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 thisAct.... (Emphasis added). Section 3.05(b), which is set out above with section 3.05(a), provides:
Inaddition totherequirements 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 couldbe readas authorizing theBoard ofMedical Examiners torequire 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 themedical examination itself, i.e., its scope, themanner inwhich itwill beadministered, etc.
It is significant, inour opinion, that thisprovision 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, itwould have eithermade ita 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

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to themedical examination per seand does not promulgate parts (a)(3)and (a)(6)of theboardauthorize theboard to rule inquestion.
We next consider section 2.09(a). In Examiners inOptometry 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. 'Thecourt 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 [ofa 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 inharmony with the general objectives of theact and referable toand consistent with one ormore 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 themajority's conclusion that therule did the latter. Id. at 314-15 (Smith. J., dissentins). Seealso Keev. Baber, 303 S.W.2d 376 (Tex. 1957).
InKelly 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 filewith theboard, on orbefore 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 inexcess ofor 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 therequirements that the legislature thoughtwere necessary for an applicant to satisfy in order to be eligible to take themedical examination. Other provisions in subchapter Cofarticle 4495b impose requirements upon applicants for the examination and for a license to practice medicine. Section 3.08, for example, lists 21 grounds that

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Honorable Chet Brooks -Page 7 (MW-573)

the board may rely upon to deny an application for either the examination ora license. When one considers subchapter Cofarticle 4495b in itsentirety, one cannot helpbutbe convinced that theeligibility requirements set forth in section 3.04 are theonly ones that the legislature wanted applicants for the examination tohave to satisfy. The board rules at issue here, which require 60 semester hours of non-medical courses that are acceptable to theUniversity 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 theact and referable toand consistent with one ormore of its specific proscriptions," Texas State Board ofExaminers in Optometry v, Carp, w, at 313. Rules (a)(3) and (a)(6) are therefore not authorized under section 2.09(a) ofarticle 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, theboard's use of thephrase "in itsdiscretion" isnot necessarily inconsistent with section 3.05(a) of article 4495b. That section must be read in light of section 3.08,which lists reasons forrefusing anapplication to take the examination or toobtain a license. Inotherwords, even if an applicant passes the examination the board could "in its discretion," denya license toonewho violates section 3.08.
SUMMARY
Parts (a)(3)and (a)(6)of section 163.1of the rules and regulations of the Texas State Board of Medical Examiners are invalid.

MARK WHITE Attorney General ofTexas
JOHNW. FAINTER, JR. FirstAssistant Attorney General
RICHARD E.GRAY III Executive Assistant Attorney General

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Prepared byJon Bible Assistant Attorney General
APPROVED: OPINION COMMITTEE
SusanL.Garrison, Chairman JonBible Bill Campbell Rick Gilpin Patricia Hinojosa JimMoellinger

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