                                The Attorney General of Texas
                                                  Dec:e:mber 13.    1984
JIM MAlTOX
Attorney General


Suprrms Court Building         Carlo8 D. Codlnez, M.D.                          Opinion No. m-244
P. 0. BOX 12545                President
Austin. TX. 7571% 2545         Texas State Board ofi                            Re:    Whether the Texas State
512i475.2501                      Medical Examine::r#                           Board of Medical Examiners may
Telex 9!0/874-1357
Telecopier 5121475.0265
                               P, 0. Box 13562, Capitol       Station           use hearing examiners to conduct
                               Austin, Texas    78”:. 1                         hearing of contested    csses   and
                                                                                to draft proposals  for decisions
714 Jackson. Suite 700                                                          therein
Dallrr. TX. 75202.4506
2141742.5944
                               Dear Dr. Godinez:

4524 Albe‘la Ave.. Suite 160          You inform UII that the Texas State Board of Medical Examiners
El Paw TX. 799052792           wishes to utilize      hearing examiners to conduct hearings of contested
91515353484                    cases presented before the board.           You also inform us that the board
                               is presently      con’iucting    disciplinary    hearings    before the entire
      1 Texas). Suib 7OQ       fifteen   member bo;u:d.      You vish to utilize      hearing examiners as an
, ,.,us,on. TX. 77002-3111     alternative    to your present method as a more cost effective       procedure.
713/22-3-5888                  In that regard you .ask:

                                              Do     t‘he    Medical     Practice  Act    and  the
806 Broadway. Suile 312
 Lubbock. TX. 79401379
                                           Administrative       Procedure and Texas Register   Act
 S(w747.5225                               empower the Texas State Board of Medical Examiners
                                           to utiUze       hearing examiners to conduct hearings
                                           in contjzsted      cases and to draft    proposals  for
 4309 N. Tenth. Suite B
 McAllen. TX. 78501.1885
                                           decisions      therein    as more fully   described   in
 5121682.4547                              section    ‘15 of the Administrative     Procedure and
                                           Texas Register Act?
 200 Main Plaza. Suite 400           The state of Texas has adopted the general rule that where            a
 San Antonio. TX. 78205-2797
                               statute permits ar. administrative   authority   to delegate the taking of
 51212254191
                               evidence to less l:han the whole number, to a single member, or to an
                               examiner for this purpose,     a hearing before such delegate      is not a
 A” Equal OpportunityI         denial of due pro#:ess.    See Colorado County Federal Savings and Loan
 Affirmative Action Employer   Assn. v. Lewis. 49.3 S.W.x723.      (Tex. Civ. -App. - Austin 1973, writ
                               ref’d   n.r.e.1:  AlXorney General Opinion M-687       (1970)  (Texas Water
                               Rights Comission    has implied power-to utilize    examiners under article
                               7542a. V.T.C.S.);   see also 2 Am. Jur. 2d Administrative     Law. 5407. p.
                               217-218 (1974); Aanot. 18 A.L.R.2d 606 (1951).

                                      Article   44951,,   section    4.05(a),    V.T.C.S..   the Medical   Practice
                               Act,   provides:




                                                                    p. 1095
Dr. Carlos    D. Codinez - Page 2        (JM-244)




                 (a)   All hearin;g:r conducted        under this    sub-
             chapter     by the kard        shall     comply with      the
             provisions    of the Administrative      Procedure Act and
             the board’s      rules.   The board may delegate          the
             authority     to conduct     hearings     under this    sub-
             chapter to a hearjig        committee comprised of not
             less than three mehbers appointed by the board.
             The composi ,tlon of such COI      mnittee shall be con-
             sistent    with the p,covisions     of Sections    2.08 and
             2.09 of this Act. -Any individual            or individuals
             conducting     a hearjig    under this      subchapter    are
             empowered to administer oaths and receive evidence
             at the hearing       and shall    report    the hearing as
             prescribed    by board-rules.      (Emphasis added).

       Thus, the legislature     t.as authorized     the Texas State Board of
Medical Examiners to delegate their duty to conduct contested          cases in
disciplinary   matters to a hewing committee composed of not less than
three members. See Cobra Oil & Gas Corp. v. Sadler,             447 S.W.2d 887.
(Tex. 1969).     Thelegislatu&        specified    that the hearing committee
must be composed of board ms:mbers. We are of the opinion              that the
legislature   did not authoriie      the board to delegate     the function   of
conducting disciplinary      hear::ngs In contested     cases to persons other
than members of the board.       Of course, the hearing coPlmittee must also
comply with the provisions      of sections     13 and 15 of article  6252-13a,
V.T.C.S.

                                    gUMMARY

                Article  4495b, wction     4.05(a),    V.T.C.S..    does
             not authorize     the ‘Texas State Board of Medical
             Examiners   to dekgate       their     duty   to    conduct
             contested   casee    in disciplinary       matters    to a
             single hearing examiner.




                                                JIM     MATTOX
                                                Attorney General of Texas

TOMGREEN
First Assistant     Attorney   General

DAVID R. RICHARDS
Executive Assistant Attorney        General




                                          p. 1096
Dr. Carlos   D. Godiner - Pags 3   (JX-244)




RICK GILPIN
Chairman, Opinion Connittec

Prepared by Tony Guillory
Assistant Attorney General

.APPROVRD:
 OPINIONCOMMITTEE

Rick Gilpin. Chairman
Colin Carl
Susan Garrisori
Tony Gulllory
Jim Moellinger
Jennifer Riggs
Nancy Sutton




                                   p. 1097
