          THE     ATOWNEY     GENBXEAI,
                     OF-TEXAS
                   Arrsm~.TsxAn        78711


                             Apri14, 1973

Honorable Michael D. McKinnon       Opinion No. H- 25
Chairman Senate Sub-Committee
on Nominations                      Re:            Validity of ap-
Senate of the State of Texas               pointments to the Hospital
Austin, Texas 78711                        Licensing Advisory Council
Dear Senator McKinnon:
      Article 4437f, Vernon's Texas Civil Statutes, the Texas Iios-
pita1 Licensing Law, calls for the creation of a Hospital Licensing
Advisory Council, to consist of nine members: (1) Three are
to be physicians licensed by the Texas State Board of Medical
Examiners, "who are engaged in the active practice of medicine;
one of whom shall be a member of the staff of a hospital of
less than fifty (50) beds" [Sec. 13(a)]. (2) Three are to be
hospital administrators "actively engaged in the field of hospital
administration for a period of not less than two (2) years;
one of whom shall be an administrator of a hospital with less
than fifty (50) beds and one of whom shall be an administrator
of a hospital with not more than one hundred (100) beds" [Sec.
13(b) I.  (3) The remaining three are to represent the general
public [Sec. 13(c)]. The term "hospital administrator" is not
defined, but see the definition of "nursing home administrator"
in Article 4442d, 52.
     Your letter points out that five of the nominees are doctors,
two are administrators and two private individuals. Two of
those who are doctors are also hospital administrators.
     We call your attention to Attorney General Opinion H-4,
issued February 6, 1973, in which we concluded that the requirement
of another statute that an appointee be "an active practicing
physician or surgeon" means one who is active and practicing8
one who actually diagnoses, treats or offers to treat mental
or physical diseases or disorders: and who devotes sufficient
time to the practice of medicine as to be identified in his com-




                                  p. 108
Honorable Michael D. McKinnon, page 2 (H-25)


munity as an active practitioner, We noted that it was not
uncommon for a person to be an active practicing physician and
at the same time devote a large portion of his energies to admini-
stering a clinic or small hospital, and that the two professions
were not necessarily mutually exclusive,
     Whether or not an individual meets the qualifications for
appointment is a question of fact to be determined, in the first
instance by the appointing authority, and in the second, by
the Senate in confirming the appointments. The requirements
are affirmative and we see no reason, for instance, why a person
qualified as a physician member should be disqualified because
he is, at the same time, a hospital administrator, or vice versa,
so long as he could represent the group for which he was appointed.
     Similarly, whether or not physicians or hospital administra-
tors would qualify as members of the public, would depend upon
their ability to represent the public viewpoint and not that
of their profession.
                        SUMMARY

         Article 4437f, Section 13, Vernon's Texas Civil
    Statutes, requires that the Hospital Licensing Advisory
    Council be composed of three physicians, three hos-
    pital administrators, and three persons to represent
    the general public. The requirements are affirmative
    and an individual may qualify for one of the positions
    even though he may also qualify for one of the others.
    Whether or not an individual meets the requirements
    for appointment is a question of fact upon which we
    can express no opinion.
                              Very truly yours,




                             p. 109
Honorable Michael D. McKinnon, page 3 (H-25)




Tif&-&7&
   I.  ,            a rman
Opinion Committee




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