                  THE~~WTORNEY                      GENEKAL
                                   OF-TEXAS

GROVERSELLERS                     Auwrxiw   11. TEXAR

*-I-lvmaNKY (3muIcEaAL




      Honorable Nelson Creeman, Secretary
      Texas State Board of Examiners in Optometry
      Majestic  Bullding
      San Antonio,   Texas

      Dear Sir:                       Opinion No. O-6552
                                      Re:   Under the facts    stated,    the
                                            Board is not authorized       to
                                            accept the application      of a
                                            person for examination      for
                                            license  to practice    optometry
                                            in the state of Texas.

      Your recent     letter    requests     this department83       opinion
      as to whether or not the Texas State Board of Examiners
       in Optometry is authorized          to permit an applicant         to take an
      examination     in this State under the following              faot situation.
      The applioant      enrolled     in a school     for optometry      in September
      1922, graduated       from said school       in June 1924; at that time
      he was not a resident         of the state     of Texas and has not been
      in the aotual practice         of optometry      zinoe his graduation         in
      1924 from the school         of optometry.       Applioant     is now a resi-
      dent of Texas and on December 8, 1944, while a resident                     of
      Dallas,    Texas, he obtained        a license     to practice     optometry
      in the State of Nebraska;          but has not been in actual           practlee
      in that or this State.           This, we believe,      briefly     summarizes
      the facts    stated     in your letter,      as well as the exhibits         at-
      tached thereto,       requesting     this departmentps       opinion    on the
      facts   stated.

      The applicant    graduated from the Needles Institute of                     '
      Optometry in June 1924, and at that time under the then
      statutes   of the State of Texas he would have been eligible
      to take the examination.

      The 57th Legislature, 1921, First  Called Session,     Chapter               51,
      page 159, passed an Act defining  and regulating    the
      practice of optdmetrg in Texas and created    a board of
Honorable     Nelson    Creeman,    Secretary,      page 2 O-6552



examiners o The Codifiers    of the Revised Civil  Statutes  of
Texas) 1925, plaoed the 1921 Act in Chapter 1,O of Title     71
of the Revised   Civil Statutes  of 1925, same being Articles
4552-4566,  bnolusive,  of the Revised Statutes   of 1925.
                    That part of the        1921 Aot pertinent  to your          in-
quiry,  being     the gro’ted portion       of Seotlon 11 of said Act,
is as follows     8

               t%.eo. 11.      Every person desiring          to begin the
               praotioe     of optometry     after     the passage of this
              Aot shall make application             for license      by present-
               lng to the secretary         of the Board, on blank forms
              furnished      by the Board, satisfactory            evidence,
              varified      by oath,    that he or she has attained           the
              age of twenty-one         years,    is of good moral oharae-
               ter, has the neoezzary          preliminary      education    and
              has graduated        from a school      of optometry maintain-
              i n a 8 an ar w o mee s wi
              said Board,        or    has studied      op,tometry in Texas
              not less than two years in the office                  of an opEom-
              etrizt    licensed      under This Aot, before          taking the
              examination       which shall be prescribed            by the Board,
               0 0 . the Board shall have authority,                 at its dls-
              aretlon,     to recognize      the license       which has been
              issued,     after   full   examination,       by State Board of
      _.      Examiners In Optometry of other states                  having a
              standard     of education      in optometry       satisfactory
              to the Texas State Board of’ Examiners Ln Optometry
              and may issue to such persons              a license     to practice
              optometry      in Texas, or ln its discretion,              may ad-
              mit for full       examination     any person presenting         an
              unrevoked certificate          of examination        from the Board
              of Examiners        of any other State.
                     I,0 e 0 ”    (EFmphasis ours )
                The above          quoted parts of Section 11 were brought
forward into the Revised           Civil Statutes of 1925 as Articles
4557 and 4560.

                    Article      4557 of   the   original   1925 eodlfieatl,on         fs
as followz:

             “Art.  4557 o Application           for license.---Prhoever
      desires    to begin the practl.oe          of optometry     shall
Honorable       Nelson   Creeman,    Secretary,       page   3 O-6552



       make application      for license    by presenting      to the
       seoretary    of the board,     on forms furnished       by the
       board, satisfactory       sworn evidence      that he or she
       has attained    the age of twenty-one        years,   is of
       good moral character       and has praduotsd      from a
       school    of oDtometrs maintaining       a standard whieh
       meets with the requirements         of said board,      or has
       studied    optometry    in Texas not less than two years
       in the offioe     of an optometrist      licensed    under
       this law :;efore     taking the examination       which shall
       be prescribed     by the board.”       (Emphasis ours)

             ,Article      4560 of   the   origIna      codification    of   1925
is   as follows:

                 "Art. 45600 atR;.o;p~;;~;;;i;-        Tte, ;z;;&;;iTl
          have authority,
          the license   which has been issued:          after     full exam-
          inat ion, by State Board of Examiners in Optometry
          of other states    having a standard         satisfaotory      to
          the Texas State Board of Examiners in Optometry
          and may issue to such persons a license               to prac-
          tioe optometry    in Texas, or in its discretion,              may
          admit for full    examination        any person presenttig
          an unrevoked certificate        of examination        from the
          Board of Examiners of any other state.”

                In 193g9 Acts of the 46th            Legislature,   page 360,
Article       4557 was amended so that it            read as follows:

                  “Every person desiring       to practice     optometry
          in the State of Texas shall          be required     to pass
          the examination       given by the Texas State Board of
          Rxaminers in Optometry.          The applicant      shall make
          application      by presenting     to the Secretary       of the
          Board, on forms furnished          by the Board, satisfac-
          tory sworn ev*.dence that he has attained              the age of
          twenty-one      (21) years,    is of good moral character,
          is a citizen      of the United States,        and has at least
          graduated     from a first     grade high school      or has a
          preliminary      education   equivalent     thereto   permitting
          matriculation       in the University      of Texas, and that
          he has attended       and graduated     -from a rep&able      uni-
          versity    or college     of optometry     and which meets
          with the requirements        of the Board, or has studied
 Honorable    Nelaon    Creeman,   Searetary     page   4 C-6552



       optometry not less than four consecutive                calendar
       years in the offioe         of an optometrist      licensed
       ,under this Aot. and has the preliminary              high school
       eduoation      provided   for in this section,        before     be-
       ginning his studies,         and provided    that any person
        desiring    to qualify     ln this manner shall        file   with
       the Board on blanks presoribed            and furnished       by
        &he Board satisfaotory        proof,   upon the beginnin
       of his studies,        as aforesaid,    within   thirty      (30 ‘f
        days thereof,      and full   and complete     satisfaotory
       proof     upon the oompletion       of his studies     within
        thirty    (30) days thereof.

              “A university    of sohool  of optometry   is repu-
       table whose entranoe      requirements  and course of
       3?i8%ation      are as high as those adopted by the
       better   class   of universities   and sohools   of optom-
       etry and whose course of inatruotion        shall be the
       equivalent     of not less than four (4) teras      of eight
       (E&;~~;s;)aoh        and approved by the Board.;       (Em-


                  And the same 1939 Aot also repealed   the reolproaity
provision  of Artiole    4300 so that now In Tsxaa we do not have
any optometry  reolprooity    with other states.

                  Article    4569 with reference   to the conduct of exam-
inations, notioe,   registration     etc. waa also amended by the 1939
Act by adding thereto     the following   paragraphs
              II. . .

               i,Prov5ded that no provision          of this section
      shall    apply to any qualified         person who in good
      faith    began the study of optometry            under the PPO-
      visions     of Chapter 61, Aota of the Thirty-seventh
      Legislature,       First  Called Seoclon,       prior   to the
      effeotlve      date of this Act, and who shall,           within
      thirty     (30) days after     suoh effective       date, regis-
      ter with the Seoretary         of the Board, under proper
      rules of the Board, satisfaotory             proof    of the be-
      ginning     of auoh study,     together     with suoh other
      related     faots aa the Board may require.
      son failing      to renister    with the seoretar $?sE
      Board as herein provided          shall    be deemed to have
      waived al 1 rights       under the provisions         of Chapter
Honorable     Nelson   Creeman,    Secretary,       page    5     O-6352



         51, Acts Thirty-seventh   Legisla,ture, First                  Called
         Session.    Acts 1st C.S. 1921, p0 159; Acts                   1939,
         ‘46th Leg*, pa 360, S. 6.”    (Emphasis ours)

            The same Legislature,       46th Legislature,   H. C, R.
No. 212 found on page 849 of the Acts of the 46th Legislature
passed a concurrent   resolution     stating  that the first   sentence
of the above quoted paragraph which reads “Provided          that no
provision  of this seotionw     should have read “Provided      that no
provision  of this Act.”

               It cannot be questioned          but that the State has the
power to set standards          or qualifications        and impose reasonable
restrictions      upon those seeking         to practice     a profession     and
that these standards          or qualifications      can be changed from
time to time.       This inherent       power of the State exists          in or-
der to determine        the competency       or capacity     of persons    seek-
ing to engage in professions            or callings      or t‘nose vocations
vitally    related     to the conserving       of the public     welfare    snd
the public     safety,      It is manifest      that the Legislature         in-
tended to raise        the requirements       andqualifications         of optom-
etrists    and that it amended the statutes              by substituting      the
period    of required      study from two to four years;           and slnee
the applicant      did not preserve        his righ~ts in the matter his
attempt to do so now comes too late.

              It is our opinion  that since   the person named in
your communication    has failed  to comply with Article   4559 as
amended, his application     now comes too late and he, therefore,
is prohibited    from taking the examination.

               Trusting   that    the   foregoing     fully       answers        your   in-
quiry,     we are

                                           Yours     very       truly

                                    ATTORNEYGENERALOF TEXAS

                                    BY                 Dav1.d Wuntch
                                                          AssEstank
DWsmp/PAM

APPROVEDMAY 23, 1945
GROVERSELLERS
ATTORNEXGENERALOF TEXAS

APPROVEDOPINION COMMITTEE
BY GwI[, CHAIRMAN
