                                                    ,~-328




Boni T. J. &owe, w. D.         Oplnlon lo. V-190
SecriAary
Texas State Board of           Re.: Authority of Board
  Medlcai ExamInera                 of Mediosl Examiners
918-20 Texas Bank Bullding          to llmlt number of
Dallas 2, Texas                     examlnatlons after
                                    faflures.
Dear Dr. Crowe:
          Your reoent request for an opinion of this De-
partment la substantially aa follows.:
          mether   the Board has authority to
     limit the number of times an applicant may
     reappear for exemlnatlon after numerous
     failures."
          Article   4501 of Vernon's Civil Statutes pro-
vlde8:
          "All applicant8 for license to prac-
     tice medicine In this State not otherwise
     licensed under the provisions of law must
     successfully pass sn examination by the
     Board of Medlbal Examinera. The Board Is
     authorized to adopt and enforoe rules OP
     procedure not Inconsistent with the statu-
     tory requirements. 0 . e
          "If any applicant, because of failure
     to pass the required examination, shall be
     refused a license, be or she, at such time
     as the Board of Medical Examiners may fix,
     shall be permitted to take a subsequent ex-
     amination, upon such subjects required In
     the orlglual examination a8 the Board may
     prescribe, upon the    yment of such part of
     Twenty-five Dollars r $25) a8 the Board may
     determine and state. In the event satis-
     factory grade8 shall be made in the subjects
     prescribed and taken on such re-examlnation,
     the Board mcrygrant to the applicant a ll-
     cease to practice medlclne."
                                                           . . _,



Hon. T. J. Crowe   -   Page 2                      v-190


          Article 4505 of Vernoa'5 Civil Statute5
vldes 85 followr:
          “The State Board gf M~dp8~t&aminers
    may refuse to admit 8e   on    0   8 exa81n&-
     Mona, and to issue license to praotloe med-
     icine to 8ay person, for atiy of the follow-
     ing reason5:
         "(1) The presentation to the Board of
    any llcease, certificate, or diploma, which
    w8a Illegally or fraudulently obtcrlned,or
    when fraud or deception ha8 been practiced
    in paselng the examination.

          "(2) Convlctioh of a,mime of the grade
     of a felony, or one which Involves moral tur-
     pitude, or procuring OP aiding or abetting
     the procurlng of a criminal abortion.
         “(3) Habits OS tntemperanee, or drug
    addiction, calculated, in the oplnloa of the
    Board, to endanger the lives of patients.
          "(4) Grossly unprofesslonsl or dlshon-
     orable conduct, or a character which In the
     opinion of the Board is llkdly to deceive or
     defraud the publle.
          “(5) The violation, or attempted vlo-
     lation, direct or Indirect, of any of the
     provisions of this Act, either a8 a prlncl-
     pal, acceesory, or accomplfce.
          "(6) The use of any advertising atate-
     ment of a character tending to mislead or
     deceive the public.
          "(7) Advertising profe55lonal superl-
     orlty, or the performance of proie55lon5l
     5enloe In a superior manner.
          “(8) The purchase, aale, bapter, or
     use, or any offer to purchase, sell, barter,
     or u8e, any realoal degree, llcen8e, certlf-
     lcate, diploma, or transcript oh license,
     certificate, or dlplosm, In or laolaeat to
     an appllaatlon to the Board of Media&l lcx-
     miners for lleease to practice medicine.
Eon. T. J. Crowe   -   Page 3                      v-190


         "(9) Altering; with fraudulent latent,
    any medical license, @ePtlflcate, dlploms,
    or transcript of medical license, certlfl-
    cate, or diploma.
         "(10) The use of any'medloal llcease,
    certificate, diploma, or transcript of any
    such medical license, certificate, OF dlplo-
    ma, which had been fraudulently purchased,
    Issued, counterfeited, or materially al-
    tered.
         "(11) The l8qmrsonatlon of, or acting
    as proxy for, another ltiany examination re-
    quired by this Act for a medical license.
         "(12) The impersonation of a llceased
    practitioner, or permitting, or allowing,
    another to use his license, or certlf'loate
    to prectlce medicine in thla State, for the
    purpose of treating, or offering to treat,
    sick, Injured, or afflloted human beings.
         "(13)   Ruploylng, directly or ladl&ot-
    ly, any person whose lloense to practice med-
    icine lx35 been suspended, or essoclatlon in
    the practice of medicine with any person or
    persons whose license to practice  medicine
    has been suspended,  or any person who has
    been ooavloted of the unlawful practice of
    medicine In Texas or elsewhere.
          "Aay applicant who may be refused ad-
    mittance to examination shall have his right
    to beve such issue tried in the District
    Court of the oountp In whloh he resides or
    In which any Board member resides. All or-
    ders of the Board rhall be prlma faole val-
    ia. It (Underscoring oum)
           An examination of the 8bove Statute5 Feflects
the fact that although the Boa& Is authorized to adopt
and enforce rules OS procedure, thsy mei$ not promulgate
any Nle   lnconai5tent with the StatutOP requirement5
for adml65lon to examination. Article t505, supra, does
not contain any proviso that an applicant shall be re-
fused a subsequent examlnatfon because of previous fail-
ures, but on the contrary, we find an express authority
In Artlble 4501, supra, allowing an applicant the right
Hon. T. J. Crove   -   Psge 4                   v-190


to a subsequeat eiamln8&loa In the event of failure.
It IS'belleved that this provision should be llber-
ally coastrued to afford anapplicant the privilege
of subsequent examinations upon the payment of the
statutory fee.
          Ia the case of Maryland Casualty Co. v. Smith,
40 S:W. (26) 913, Judge Vaughan, speaking for the
Court, statea:
          11
           . . . but 50 muah cannot be 58fa psr-
     haps In reference to the application of the
     virtues that lie wfthln that beneficent
     rule in re the Interpretation and appllca-
     tloa of the provisions of said statute. We
     are of the opinion that the term 'liberal
     construction9 means to give the language
     of a statutory provision, freely and con-
     5ciou5ly, Its commonly, generally accepted
     meanitg, to the end that the moat compre-
     hensive application thereof may be accord-
     ed, without doing vlolenee to any of Its
     term5."
          In the absence of a llmltation upon the num-
ber of times 8n applicant may take such examinations,
and the further fact that the Board la not authorized
to adopt rules Inconsistent with the statutory requlre-
meats, the Board may not limit the number of examlna-
.tions. We have been unable to find any Texas cases re-
lating to the subject. In 8'WaShi ton case (Medcraf
vs. Dept. of Licenses, 221 Pac. 61.3
                                  Y   the Court stated
in'effect that IS the Leglrlature hai intended to al-
low a person to make another application after two
ftiillures,
          it could 8nd doubtless would have said 50.
But In that case 8 definite time limit was prescribed.
In applying the rule of the Meacraf case to the Texas
statutes, It Is believed that It may be distinguished
oa the ground that the Legislature of Texas has seen
Sit to enumerate those reasons t0 exclude 8 perSOn
from examlnatlons (Art. 4505). Numerous failures Is
aot listed as a reason to limit the number of examlna-
tlons to an applicant. Therefore, as the law IS now
written, It Is the oplnfon of this Department that the
Board of Medical Examiners may not limit the number of
times an applicant may resppear for examination after
numerous failures.
          Slnoe enactment of the provlalons under dls-
cusslon In 1907, the State Board of Medical Examiners
Hon. T. J. Crove - Page 5                          v-190


has tollowea the practice of allowing rubsequentexam-
iwtiOn5 after f8ih1~58, and it 15 the OpiUiOa Of this
Department that such a oonatrmctlonplaoed upoa the
statutes 15 reasonableana sound. Slnoe th8 statute
15 Indefinite85 to the number of examinationsand there
Is no Texas authority to the contrary, the clepartment-
al constructiona5 to re~examinatlonsshould be fol-
loved.
          This rule vas aniiounceala the case OS Texas
BD loyers Insurance Assoalatloa v. Bolmee (Sup. ct.)
19% 9. W. 26 390, vhereln Jtutlce Sharp, speaklllg~for
the COwt, stated 85 fOllOW5:
          "If a statute Is amblguotu and suscep-
     tible of more than one coastructloa,there
     are certain well settled ruler which govern
     Its ooa5tructlon:
          "First, the practical laterpr8~tatlonO?
     the Act by the agenoy charged with the duty
     of admlnlsterlngIt 15 entitled to the hlgh-
     eat respect from the Courts. Aad thl8 18
     e5peclally 50 when that Interpretationha8
     been long coatlnued and unlfoI%I."


           Pursuant tb the provision8 of Articles
     4501 and 4505, Vernon'5 Civil Statutes, the
     State Board of Hedlcal Examiners awaynot lw-
     it the number of tlme8 an applicant for Ii-
     oenae may reappear Sor examlnatlonafter au-
     merous failures.
                             Yours very truly
APPROVED:               ATTORRRY
                               GBRBRAL OF TBlAS



ATTORM%YGBRBRAL


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