                                   The Attorney                  General of Texas
                                                         .luly    9,   1986
JIM MAl-TOX
Attorney General



Supreme Court Building          Honorable Brad WrigY~t                                   Opinion    No. JM-512
P. 0. BOX 12548
Austin, TX. 78711.2548
                                Chairman
5121475.2501                    Cormnittee on Public Realth                              Re:    Licensing    of     out-of-state
Telex 9101874.1367              Texas House of Repr~asentatlves                          physicians
Telecopier   512/4750266        P. 0. Box 2910
                                Austin,   Texas       787’59
714 Jackson, Suite 700
Dallas, TX. 75202-4508          Dear Representative        Wright:
214/742-8944
                                       You have requested        an Attorney    General’s      Opinion    concerning     the
                                authority   of the Te:cas Board of Medical Examiners.                You state    that the
4824 Alberta Ave.. Suite 160
El Paso, TX. 79905-2793
                                board has refused        to grant a reciprocal       license      to a doctor     licensed
915/533-3484                    in Arkansas      because!    that doctor    took the Federation           Licensing     Exam
                                (FLEX) before       he graduated       from medical         school.      Applicants      for
                                licensing   by examination--      in Texas   are   not   eligible     to   take  the  Texas
 ‘001 Texas, suite 700          Licensing   Examination,       which includes     the FLEX, until       after   graduation
-Mon.      TX. 77002-3111
                                from medical     school.      In Arkansas,   both graduation        from medical     schcol
    .2234886
                                and a passing        sco’re    on the FLEX are prerequisites                to licensing.
                                Arkansas differs      fruxn Texas in that in Texas a person may not take the
808 Broadway, Suite 312         FLEX until    after   grzuluation.     Therefore,    you ask:
Lubbock, TX. 79401-3479
806/747-5238
                                                 Does the fact that the state in which a medical
                                             doctor  attended  school allowed   the doctor      to take
4304 N. Tenth. Suite B                       the FLEX exam prior      to graduation        statutorily
McAllen. TX. 78501-1685                      prevent   Texas from granting    rticiprocity      to that
512/682-4547
                                             doctor?

200 MaIn Plaza, Suite 400              The Medical    P,:actice      Act        grants  the board       authority        to   grant
San Antonio,   TX. 78205.2797   licenses   to physlciims      licensed          in other states:
5121225-4191

                                                 Sec.   2.03    (a)    The board   . . . at its       sole
An Equal Opportunity/
                                             discretion    and upon payment by an applicant          of a
Affirmative Action Employer                  fee prescr,fbed      by the board under this      Act,    may
                                             grant     a l.icense     to practice    medicine    to    any
                                             reputable,    physician       who is   a graduate      of     a
                                             reputable    medical    college  and who:

                                                 (1)    %I# a licensee            . . . of another       state    or
                                             Canadian       province             having     requirements         for
                                             physician    registration            and practice     substantially
                                             equivalenl:     to those           established    by the laws of
P                                            this statc!.     . . .




                                                                       p.     2352
Honorable   Brad Wright      - Page 2       (JM-512)




V.T.C.S.    art. 4495b. $3.03(a).        In other words, section       3.03(a)     allows
the    board    to  license      by reciprocity     a physician      who meets         the
following    requirements:        (1) the applicant    is a “reputable     physician”;
(2)    the applicant      is a grilduate of a “reputable      medical     school”;     and
(3)    the applicant       is licensed    in a state     or Canadian province         that
has requirement,s      for regislzation      and practice   “substantially       equiva-
lent” to those in Texas.

       The act   defines   “reputable    physician”  as “one    who would     be
eligible   for examination   by the board.” V.T.C.S.   art.  449:b, §3.03(d).
To be eligible     for examination    in Texas an applicant    must show that
he:

                 (1)    is   at lez.st    21 years      of   age;

                 (2)    is   of   gocd   professional        character;

                 (3) has compkted      60 semester    hours of college
             courses  other thr.n in medical school,      which courses
             would be acceptab1.e.    at the time of completion,       to
             The University   of’ Texas for credit    on a bachelor    of
             arts degree or a bachelor     of science    degree;

                 (4) is a gradua.te of a medical                school OS college
             that was approvqzl by the board                    at the time the
             degree was confe&ed*
                               --*   and

                  (5)  has      s”cl:essf”lly        completed       a one       year
             program of graduate             medical     training     approved      by
             the board.        In cld.dition to other license              require-
             merits, the board may require              by rule and regulation
             that graduates         cf medical        schools    located     outside
             the United        States      and Canada comply           with    other
             requirements       that the board considers              appropriate,
             ikluding      but not limited             to additional       graduate
             medical    training      in the United States,           except    those
             who qualify       for Hcensure          in Section      5.04 of this
             Act.     However,      thse applicant       shall be eligible         for
             examination      prio:: to complying with Subdivision                 (5)
             of Subsection        (a) of this section           but shall     not be
             eligible      for      the     issuance      of    an unrestricted
             license    until      the requirements          of this subsection
             have been satisf,Led.             (Emphasis added).

Art.   4495b.    53.04(a). Ycu           tell  us       that the applicant         in question
meets all these requiremenrs             and that       he is a graduate   of     a “reputable
medical   school.”

       The board has submitt,zd a brief        explaining    that its determination
 in the case you describe,     j.s based. (at least       in part)   on the statutory
 requirement   that an applkant      for licensing      by reciprocity    be licensed
                                                                                                 -.
 in a state or Canadian prov:lnce that has requirements              for registration
 and practice   “substantially     equivalent”     to those in Texas. Art. 4495b.



                                            p.   2353
    Honorable    Brad Wright      - Page 3      (JM-512)




    83.03(a).       The board has submitted            a brief    arguing    that the timing of
    the FLEX is          important      for   quality     control.       Logic    and experience
    however,      tell     us that a test         score    would not be deceptively              h&&
    because      the person        taking   the test       had less      training      than others
    taking     the test.       Therefore,      we.think     it would be unreasonable            as a
    matter of law for the boar,d to conclude,                    based on the timing of the
    FLEX alone,        that the test sc:ore requirements            of a state that accepted
    FLEX scores achieved           before   graduation     were,not     "substantially       equiva-
    lent"     to Texas'       test    score    requirements.'         See Allstate        Insurance
    Company v. State Board of Insurance,                   401 S.W.2d131,         132 (Tex. Civ.
    APP. - Austin         1966, writ r;f'd        n.r.e.)     (administrative      rules must be
    reasonable).

          The board's        brief    dor:s, however,     point    to a potential        problem
    with reciprocal         licensing      of physicians     licensed      in Arkansas.      . The
    board    tells    us that Arkacsas          does not require        a year of graduate
    medical     training      as a prerequisite       to licensing        of physicians.        If
    that is in fact so, an Arkansas physician                 may be licensed       in a state
    that    does     not   have     "requllrements    for    registration       and practices
    substantially       equivalent"      to those in Texas.        Apart from the question
    of the sequence        of the FLEX and graduation,           however,     the question      of.
    whether or not the Arkansas requirements               for registration       and practice
    are "substantially         equivalent"     to those in Texas is not before           us.

                                           SUMMARY
P

                     The Medical   P:ractice   Act does not prevent       the
                 licensing    by reciprocity      of a physician      solely
                 because   the physician     took the Federal     Licensing
                 Examination before     graduation   from medical    school.




                                                       J /NJ&
                                                            Very   truly   yours


                                                                  A;,
                                                            JIM       MATTOX
                                                            Attorney   General     of Texas

    JACK HIGHTOWER
    First Assistant Attorney          General

    MARY KELLER
    Executive Assistant        Attorney     General

    RICK GILPIN
    Chairman, Opinion        Committee

    Prepared    by Sarah Woelk
    Assistant    Attorney General



           1.  We assume that the version    of             the FLEX is     one that   is   accept-
    able   to Texas.  -See 22 T.A.C. 0163.3.


                                                p.   2354
