THE 

## ATTO NEP 

## GENEECU. OF TEXAS

September 25, 1987

Mr.William S. Nail Executive Director Opinion No. .I+796

Texas State Board of Dental Examiners Re: Authority of the State 8317Cross ParkDrive, Suite 400 Board of Dental Examiners to Austin. Texas 78754 reinstate alicense that has been cancelled because of failure to comply with statutory requirements

DearMr. Nail:
Chapter 9 of Title 71 of the Revised Civil Statutes of Texas, specifically articles 4543 et seq., V.T.C.S., creates the State Board of Dental Examiners [hereinafter the board] andregulates the practice of dentistry. Article 4550a. V.T.C.S., sets forth, inter alia, registration requirements for dentists. Under aspecific set of facts that you submit, you ask whether the State Board of Dental Examiners has the discretion to reinstate alicensee’s dental license after the licensee has failed to annually apply and register with the board. Assuming the truth of the facts that you submit. we answer your question in the negative.

Article 4550a, V.T.C.S., contains the following relevant provisions:

Sec. 1. It shall be the duty of all persons

holding a dental license or dental hygienist license issued by the State Board of Dental Examiners, to annually apply and to be registered
as such practitioners with the State Board of Dental Examiners on or before March 1st of each calendar year. Each person so registering shall pay in connection with such annual registration for the receipt hereinafter provided for, afee as determined bysaid Board according to the needs of said Board, such payment tobemadebyeach person to such Board, and every person so registering shall file with said Board awritten application setting forth such facts as the Board may require.

. . .

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Sec. 2. If any person required to register as apractitioner under the provisions hereof shall fail or refuse to apply for such registration and pay such fee onor before March 1st of each calendar ye:z, ashereinabove set forth, his license or certificate to practice Issued to him, shall thereafter stand suspended so that thereafter in practicing he shall be subject to the penalties Imposed bylawupon anyperson unlawfully practicing. Aperson mayrenew anunexpired license or certificate by paying to the Board before the expiration of the license or certificate the required renewal fee. If a person’s license or certificate has been expired for not longer than ninety (90) days, the person may renew it by paying to the Board the required renewal fee anda fee that is one-half of the examination fee for the license or certificate. If aperson’s license
or certificate has been expired for longer than ninety (90) days but less than two years, the person may renew it by paying to the Board all unpaid renewal fees andafee that is equal to the examination fee for the license or certificate. If a person’s license or certificate has been exoired for two years or longer, the person may not renew it. Theperson mayobtain anewlicense

tificate by submitting to reexamination and dures for or cer complying with the requirements andproces obtaining anoriginal license or certificate. The Board mustnotify each licensee inwriting of that licensee’s impending license expiration 30 days prior to said expiration and shall attempt to obtain from the licensee signed receipt confirming receipt of notification.

. . . (Emphasis added.)

Youprovide uswith the following factual information:

Thelicense of adental licensee of this Board became delinquent March 1, 1984 andremained in a delinquent status until March 1, 1986, aperiod of two years. Following the license being in a delinquent status for twoyears, the license was cancelled pursuant to the above referenced provision of the Dental Practice Act.

The licensee in question contacted this Agency in September, 1986andrequested that his license be reinstated. The licensee was advised that based on Attorney General Opinion No. MW-368and

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Article 4550a, Section 2, that the Board did not have the discretion to reinstate the license without the licensee taking andpassing the Dental Examination. Throughout 1984. 1985, and 1986 until the cancellation, all required registration forms, late notices, andthe thirty (30) day cancellation letter were sent to the last knownaddress which the licensee had furnished this Agency. Article 4550, Section 1, requires a licensee to provide timely notification to the Board of any address change. Norecord exists of any address change from the last known address of the licensee to which all correspondence wasmailed. Noattempt
wasmadeto secure awritten receipt inasmuch as prior communications hadbeen returned.

Youclaim that your agency sent the required statutory notice of the impending expiration of the licensee’s license. However, there Is correspondence submitted in connection with your request that claims you mayhave failed to provide proper notice of the expiration of the registrant’s license. Because you do not ask whether there was substantial compliance with the notice provisions, wewill not address the issue. Nordoweaddress the issue ofwhether the previous action maybe corrected by someother means. Youask only whether the board has discretion to reinstate the registrant’s license.

In our opinion, the underscored language of section 2of the act is clear andunambiguous. Section 2of the act requires that, if any person fails to renew his license within twoyears after the date by which a registrant should have applied for license renewal, that person’s license maynot be renewed. Aplain andunambiguous statute should be construed according to its literal meaning. Brazes River Authority v. City of Graham, 354 S.W.2d 99, 109 (Tex. 1961). Furthermore, it is well established that exceptions to statutes may not ordinarily be implied. Spears v. City of- SanAntonio, 223 S.W. 166, 169 (Tex. 1920); Stubbs v. Lowrey’s Heirs, 253 S.W.2d 312, 313 (Tex. Civ. App. - Eastland 1952, writ ref ’d n.r.e.); Nail v. McCue, 55 S.W.2d 211, 213 (Tex. Civ. App. - El Paso 1932, nowrit). Where the legislature has intended to except certain classes of persons from the requirements of licensing statutes, or to provide aperiod of grace, it has done so explicitly. See, e.g., Acts 1975, 64th Leg., ch. 709, §3, at 2253 (persons engaged in business of structural pest control for aperiod of twoyears granted two-year grace period before having to comply with examination requirements); Acts 1947, 50th Leg., ch. 115, 510, at 195 (persons holding existing plumbing licenses from a city are exempt from examination reqiurements for state licensing as a plumber if they apply within 120 days from effective date of

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statutes); V.T.C.S. art. 4413 (29aa), 56(a) (persons whowere peace officers prior to effective date of statute need not meet certain requfrements in order to continue employment as peace officers; see - generally Attorney General Opinion MW-368(1981). Accordingly. weconclude that the State Board of,Dental Examiners does not have the discretion to reinstate the license of aregistrant whohas failed torenew his license within twoyears after the date by which aregistrant should have applied for license renewal.

SUMMARY

The State Board of Dental Examiners does not have the authority to reinstate the license of a registrant who has failed to renew his license within twoyears after the date bywhich aregistrant should have applied for license renewal.

.

MATTOX Attorney General of Texas

MARYKELLER Executive Assistant Attorney General

JUDGEZOLLIESTEAKLEY Special Assistant Attorney General

RICKGILPIN Chairman, Opinion Committee
Prepared byJimMoellinger Assistant Attorney General

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