                                      May 15,    1975


The Honorable Chet Brooks                           Opinion No.    H- 607.
Chairman
Committee  on Human Resources                       Re: Constitutionality   of
Texas State Senate                                  art. 4552-2.02,   V. T. C.S.,
Austin, Texas                                       creating the Texas Optometry
                                                    Board.

Dear Senator    Brooks:

          In light of Gibson v. Berryhill,    411 U. S. 564 (1973) you have
requested our opinion concerning the constitutionality        of article 4552-2.   02,
V.T.C.S.,       which establishes  the qualifications   for members     of the Texas
Optometry Board.        Article 4552-2. 02 provides:

                    To be qualified for appointment as a member of
                 the board, a person must be a licensed optometrist
                 who has been a resident of this state actually engaged
                 in the practice of optometry in this state for the period
                 of five years immediately    preceding his appointment.
                 A person is disqualified   from appointment to the board
                 if he is a member of the faculty of any college of optometry,
                 if he is an agent of any wholesale    optical company,   or if he
                 has a financial interest in any such college or company.
                 At all times there shall be a minimum of two-thirds       of
                 the board who are members       of a state optometric  assbci-
                 ation which is recognized    by and affiliated with the
                 American    Optometric   Association.   (Emphasis   added. )

         The Texas Optometry Board is therefore             required by statute to
have at least four members         who are members       of a state optometric     associ-
ation affiliated with the American        Optometric    Association,     an association    of
optometrists    in private practice on their own account.           It is our understanding
that there is only one such state optometric          associatidn    in Texas,   the Texas
Optometric     Association,     and that optometrists    who are employed by other
persons or entities are not eligible for membership.              If the facts are as
we understand the Texas Optometry Board is therefore composed of at least
four self-employed       practitioners   and no more than two who are anployed by
other persons or entities.




                                         p. 2690
The Honorable   Chet Brooks    - Page 2      (H-607)




         In Gibson v. Berryhill,  supra, the United States Supreme Court
dealt with the Alabama Board of Optometry,       which was composed entirely
of self-employed   optometrists.   The case concerned the Board’s attempt
to revoke the licenses  of 13 optometrists   employed by Lee Optical Company.
The Supreme Court held that the composition       of the Board precluded the
defendants from receiving due process      due to “possible  personal interest, ”
stating:

                It is sufficiently  clear from our cases that those
                with substantial pecuniary interest in legal
                proceedings     should not adjudicate these disputes.
                411 U. S. at 579.

         In Wall v.   American    Optometric Association,      Inc.,  379 F. Supp.
175 (N. D. Georgia 1974), affirmed,      95 S. Ct. 166 (1974), a three judge
co&t enjoined tie Georgia State Board of Examiners           in Optometiy    &om
enforcing its rules against optometrists      who were not self-employed.
“Every member of the [Board was] a member of a group which oppose[ d]
the continuation of the plaintiff’s  business.  ” The rules involved prohibited
an optometrist     from associating   himself with a mercantile      or business
establishment    or maintaining an office at which he is not present for a
minimum of four hours per week.         The court held that while the composition
of the Board would deny the plaintiffs due process       in an enfocement pro-
ceeding the rules themselves      were valid.   In our view, these rules could
not have been sustained were the Board’s composition           unconstitutional.

          In Gibson and Wall it was the disciplinary      proceedings  which were
held unconstitutional    because of bias on the part of the Boards.      Neither
case intimated that the composition        of the Boards was unconstitutional,
and we believe a reasonable       inference can be drawn from Wall, that the
Georgia Board was not.       It is therefore    our opinion that the composition
of the Texas Ootometrv Board is not unconstitutional          under these cases.
We are supported in &is view by Texas Optometry Board v. Lee Vision
Center,     515 S. W. 2d 380 (Tex. Civ. App. -- Eastland,       1974, writ ref’d
n. r. e. ), in which the Board was held qualified to suspend “Advertising
Permits.     ”




                                       p.   2691
The Honorable   Chet Brooks   - Page   3     (H-607)




         While the Board’s    composition   in and of itself is not rendered
unconstitutional   by Gibson and Wall, those cases indicate that its authority
to initiate certain disciplinary   proceedings    against some optometrists   is
questionable.    The present composition      of the Board may result in its
inability to afford due process    in a disciplinary   proceeding brought
against an optometrist    who is not self-employed.       Of course,  whether
due process was afforded would depend on the facts of the individual
case.    Withrow v. Larkin,     43 U.S. L. W. 4459 (April 16, 1975).

                               SUMMARY

                The statutory composition      of the Texas Optometry Board
                is not unconstitutional    under the doctrine of Gibson v.
                Berryhill,  411 U.S.    564 (1973).   The Board may be
                unable to afford due process      in some disciplinary
                hearings brought against certain optometrists.
                Whether due process was afforded depends on the
                facts of the individual case.

                                                   Very   truly yours,




                                                   Attorney   General    of Texas

APPROVED:




Opinion   Committee

jwb




                                       p.   2692
