Hon. Frank C. Erwin         Opinion No. C-794
Chairman
Board of Regents             Re :   Whether the Board of Resents
University of Texas                 of the University of Texas
Austin, Texas                       are required to permit
                                    Doctors of Osteopathy who
                                    are licensed to practice
                                    medicine to participate in
                                    postgraduate courses at
                                    medical institutions of the
Dear Mr. Erwin:                     University of Texas.

          You request an opinion of this office which is
set out as follows:

          "In view of the provisions of Section 31,
     Article XVI of the Constitution of Texas, and
     the equal protection clause of the Fourteenth
     Amendment of the Constitution of the United
     States, is the Board of Regents of the University
     of Texas required to permit Doctors of Osteopathy
     who are licensed to practice medicine to partici-
     pate in the continuing education programs of the
     medical institutions of The University of Texas
     System?"

          Your letter of request reflects that the prereq-
uisites now applicable to the postgraduate medical programs
at those institutions governed by the board of regents
require that participants hold the degree of Doctor of
Medicine.  This of necessity precludes participation by
those practitioners holding the degree of Doctor of
Osteopathy rather than Doctor of Medicine who otherwlse
meet the prerequisites for these programs.  Other aspects
of the prerequisites are not inquired about and will not
enter into our consideration.

          The government of the University of Texas is
vested in a board of regents. Art. 2584, V.C.S.    In
Article 2585 of Vernon's Civil Statutes the legislature
has prescribed the powers of the board of regents:

          "They shall establish the departments of
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Hon. Frank C. Erwin, page 2, (C-794)



     a first-class university, determine the offices
     and professorships, appoint a president, who
     shall, if they think it advisable, also dis-
     charge the duties of a professor
     the professors and other officer~,a!%~i~~eir
     respective salaries; and they shall enact
     such by-laws, rules and regulations as may
     be necessary for the successful management
     and government of the University; they shall
     have power to regulate the course of instruction
     and prescribe, by and with the advice of the
     professors, the books and authorities used
     in the several departments, and to confer
     such degrees and to grant such diplomas as
     are usually conferred and granted by univer-
     sities."

          The powers invested in the board of regents neces-
sarily involve the exercise of wide discretion in determing
what class of persons shall be admitted.  In Foley v. Benedict,
122 Tex. 193, 55 S.W.2d 805 (1932) a rule adopted by the
board of regents was challenged as being arbitrary and un-
reasonable.  In sustaining the validity of the rule, the
court recognized the broad powers of the board of regents
in the government of the University of Texas.

          "Article 7, i 10, of the Constitution of
     Texas, provides that the Legislature shall es-
     tablish, organize, and provide for the main-
     tenance, support, and direction of the Uni-
     versity of the first class for the promotion of
     literature and the arts and sciences. Where
     the Legislature, acting under a constitutional
     mandate, establishes a university, the Leg-
     islature may provide certain rules and reg-
     ulations concerning the admission and ex-
     clusion of certain classes entitled tc be ad-
     mitted to all the privileges of a state univer-
     sity, and instruction therein. The Legisla-
     ture of this state not having provided who
     shall be admitted to the University, and hav--
     ing delegated the power to make rules and
     regulations necessary to the government of
     the University, to the board of regents, they
     are invested with the power of determining
     what classes of persons shall be admitted to
     the University, provided that the rules and
     regulations in that regard must be reason-
     able and not arbitrary.  The authorities sus-
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          ,
Hon. Frank C. Erwin, page 3,    (C-794)



     tain certain general rules with regard to
     the government of institutions supported and
     maintained b the state. In 24 R.C.L. pp.
     y;?76,    g 25, the rule is announced as fol-
             'The courts will not interfere with the
     exercise of discretion by school directors in
     matters confided by law to their judgment,
     unless there is a clear abuse of the discre-
     tion, or a violation of law. So the courts
     are usually disinclined to interfere with reg-
     ulations adopted by school boards, and they
     will not consider whether the regulations are
     wise or expedient, but merely whether they
     are a reasonable exercise of the power and
     discretion of the board. Acting reasonably
     within the powers conferred, it is the prov-
     ince of the board of education to determine
     what things are detrimental to the success-
     ful management, good order, and discipline
     of the schools and the rules required to pro-
     duce these conditions.   The presumption is
     always in favor of the reasonableness and
     propriety of a rule or regulation duly made.
     The reasonableness of regulations is a ques-
     tion of law for the courts.'" 55 S.W.2d 805, 808.

          Although Hyman v. City of Galveston, 273 U.S. 414,
47 s.Ct. 363, 71 L.kd '(14
S.W.2d 89 (Tex.Civ.App. 1958~g~~~o??e?%!i%$%~t3~~th
the validity of rules which denied to doctors of osteopathy
the privileges of staff membership of a county hospital,
the powers of the hospital boards with respect to the manage-
ment and control of the hospitals in question are analogous
to the powers of government invested in the board of regents.
In both cited cases, the rules were challenged as being
contrary to Section 31 of Article XVI of the Constitution
of the State of Texas and the Fourteenth Amendment to the
Constitution of the United States. Section 31 of Article
XVI of the Constitution of the State of Texas reads as
follows:

          "The Legislature may pass laws prescribing
     the qualifications of practitioners of medicine
     in this State, and to punish persons for mal-
     practice, but no preference shall ever be




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Hon. Frank C. Erwin, page 4,     (c-794)



     given by law to any school of medicine." 1

           The following statements by the court in Hyman v. City
of Galveston, 273 U.S. 414, 416-418,   47 s.ct. 363, 364, 71
   kd '(14> 7 17, 718 (1927) are particularly apropos:
‘L**

           'However extensive that protection
     Fourteenth   Amendment7 may be In other
     Zituations, it cannoT we think, be said
     that all licensed physicians have a con-
     stitutional right to practice their profes-
     sion in s hospital maintained by a state
     or political subdivision, the use of which
     is reserved for purposes of medical instruc-
     tion. . . .

           "But it is argued that if some physicians
     are admitted to practice in the hospital all
     must be or there is a denial of the equal pro-
     tection of the laws. Even assuming that the
     arbitrary exclusion of some physicians would
     have that legal consequence, in the circumstances
     of this case, the selection complained of was
     based upon a classification not arbitrary or
     unreasonable on its face. . . . We cannot say
     that a regulation excluding from the conduct
     of a hospital the devotees of some of the
     numerous systems or methods of treating diseases
     authorized to practice in Texas, is unreason-
     able or arbitrary.   In the management of a
     hospital, quite apart from its use for education-
     al purposes, some choice in methods of treatment
     would seem inevitable, and a selection based upon
     a classification having some basis in the exercise


     1       The express limitation that 'no preference shall
ever be given by law to any schools of medicine" applies
only to the power of the legislature to enact "laws pre-
scribing the qualifications of practitioners of medicine"
and statutes     to punish persons for malpractice."   It does
not extend to legislation dealing with other subjects.
Dowdell v. McBride, 92 Tex. 240, 47 S.W. 524 (1895).      The
term "schools of medicine" has reference to the system or
method which the medical practitioner employs in the treat-
ment of disease. Ex parte Halsted, 147 Tex.Crim. 453, 182
S.W.2d 479 (1944).
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I   .




    Hon. Frank C. Erwin, page 5,     (C-794)



            of the judgment of the state board whose action
            is challenged is not a denial of the equal pro-
            tection of the laws. . . .

                 “The validity of the action of the board
            under the Texas Constitution @ec.  31, Art. XV27
            is also before us. . . .

                 “The limitation of the provision is
            obviously directed to the qualifications of
            those to be admitted to the practice of their
            profession in the state and has nothing to do
            with the qualifications of those who are to be
            allowed to practice in a state hospital or to
            participate in an educational enterprise con-
            ducted by the state. . . .”

              In Buson v. Poage, 318 S.W.2d 89 (Tex.Clv.App.
    1958, error ref. n.r.e.) a rule of a county hospital was
    attacked upon the same basis as the rule in the Hyman case.
    In upholding the authority of the hospital board to enact
    a rule which would exclude doctors of osteopathy from the
    hospital staff, the court quoted at length from the Hyman
    case and stated at page 94-95:

                 “While the holding of that Court is not
            binding on us insofar as it interprets the
            meaning of the state constitution, the
            decision is highly persuasive, and we happen
            to be in accord with its interpretation.

                 “The holding is supported by the following
            authorities from other states: Newton v. Board
            of County Com’rs of Weld County, 86 Colo. 446,
            282 P. 1068; Richardson v. City of Miami, 144
            Fla. 294, 198 So. 51; and Green v. City of St.




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                                                             .




Hon. Frank C. Erwin, page 63 (C-794)



     Petersburg, 154 Fla. 339, 17 ~0.2~3 517." 2
The court further observed at pages 96-97:

          "Dhe legislature7 wisely left to the
     Board of Managers very broad powers to be
     employed in the operation of the hospital. . . .

          "This en-joined upon the Board the duty
     of adopting such rules as are reasonably
     necessary to carry out the purpose of the
     Act.  The purpose of the Act was to enable
     a county to establish a hospital and operate
     it in a manner that would best serve the
     greatest number In the community. . . . One
     of the age-old problems Is the conflict between
     osteopaths and allopaths.   If in a given com-
     munity the hospital can best be operated by
     the exclusion of osteopaths, we find no Inhibi-
     tion in law to such exclusion.

          "While the Board cannot act arbitrarily,
     the mere fact that we, had we been in their
     position, might not have taken the same action
     as did they, does not make their action arbitrary
     and unreasonable."

          A rule which requires that participants in post-
graduate medical programs of the University of Texas hold
the degree of Doctor of Medicine does not relate to the
qualifications for the practice of medicine within this

       2 The most recent cases reaching this result: Taylor
v. Horn, 189 So.2d 198 (Fla. A p. 1966); Foote v. Communit
Hospital of Beloit, 195 Kan. 3i5, 405 P.2d 423 (1965); Walfing-
ton v. Zinn, 146 W.Va. 147, 118 S.E.2d 526 (1961). Contra
Schnei -Englewobd
       r v.             Hosp. Assoc., 91 N.J. Super; 527, 221
A.2d 559~ (~1966) an d Greisman v. Newc~omb Hospital, 40 N.J. 389,
192 A.2d 817 t1963)wherethe     courts held that denial of ad-
mission to-hospital slaif'   must be based upon qualification
of applicant, not solely on fact that applicant was an
osteopath.   Compare Blende v. Maricopa County Medical Sot.,
96 Ariz. 240, 393 P.2d 926 ( 64) and Falcone v. Middlesex
County Medical Sot., 34 ~.~.lz82, 170 A.2d 791 (1961) where
courts held that county medical society could not exclude
practitioner from membership solely because of being an
osteopath where membership in society was necessary pre-
requisite to admission to hospital staff.
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Hon. Frank C. Erwin, page 7,      (C-794)



state. Therefore the rule is not within the prohibition of
Section 31 of Article XVI of the Constitution of the State
of Texas.

          In considering whether those holding the degree
of Doctor of Osteopathy are denied the equal protectlon of
the law, we cannot concern ourselves with the wisdom of the
policy which prompted the adoption of the rule, but merely
with whether the rule is a reasonable exercise of the power
and discretion of the board of regents.

          The legislature created the board of regents and
confided to its management the University of Texas. It is
within the province of their powers to determine those
things which are inimical to a well ordered and disciplined
operation of the University of Texas and Its schools. This
determination necessarily requires the exercise of dis-
cretion, as does the promulgation of rules for the achieve-
ment of the desired conditions.

          The Fourteenth Amendment to the Constitution of
the United States does not guarantee to all the right to
attend an educational facility maintained by the state.
The right of attendance is a privilege extended by the
state to those who meet the conditions imposed.
of ~lssissippi V. Waugh, 105 Miss. 623, 62 so. 827  1913
affirmed 237 U.S. 589, 35 S.Ct. 720, 59 L.Ed. 1131
                                                 7 1915 .
The rule in question operates to exclude members of a defined
classification; i.e., those who do not hold the degree of
Doctor of Medicine.  We are unable to say that this classifica-
tion is unreasonable or arbitrary as a matter of law. In
the absence of facts to the contrarv, we must wresume that
the board of regents acted with due"regard to the high trust
reposed in them by law. Foley v. Benedict, 122 Tex. 193, 55
S.W.2d 805 (1932).

          The principles of law pronounced In Hyman v. City
of Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714 (1927)
and Duson v. Poage, 318 S.W.2d 89 (Tex.Civ.App. 1958, error
ref. n.r.e.), apply with equal force to the rule here inquired
about. In concluding that-the present rule of the board-of
regents does not transcend the constitutional rights of those
whom it excludes we have been guided solely by those principles.
It being within the sole discretion of the board of regents to
determine what rules are necessary to the successful manage-
ment and government of the University of Texas and its schools,


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                                                           -    .




Hon. Frank C. Erwin, page 8, (C-794)



the rule must stand. In sustaining the validity of the
present rule, we do not hold that the board of regents may
not allow persons holding the degree of Doctor of Osteopathy
rather than Doctor of Medicine to participate in postgraduate
medical programs of the University of Texas, but that the
participation of such persons lies within the sole discre-
tion of the board of regents.

                     SUMMARY
                     __-----
          Under the provisions of Article 2585,
     V.C.S., the Board of Regents of the University
     of Texas is authorized to enact such rules and
     regulations as may be necessary to the govern-
     ment of the University of Texas. In the exercise
     of this authority, it is within the sole discre-
     tion of the Board to establish by rule the pre-
     requisites necessary for participation in post-
     graduate medical programs offered at Its medical
     institutions so as to either include or exclude
     participation by persons holding the degree of
     Doctor of Osteopathy.   The present rule of the
     Board which requires that participants in such
     programs hold a degree of Doctor of Medicine
     and thereby excludes persons holding the degree
     of Doctor of, Osteopathy is not prohibited by
     Section 31, Article  XVI, Texas Constitution
     or XIV Amendment, U.S. Constitution.

                               Yours very truly,

                               WAGGONER CARR
                               Attorney General of Texas




                                    W. 0. Shultz
                                    Assistant Attorney
WOS:sck

APPROVED:
OPINION COMMITTEE

Ralph Rash, Chairman
James C. McCoy, Harold Kennedy
Robert Flowers
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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