                           July 29, 1963


Dr. M. H. Crabb                        Opinion No. C- 113
Secretarv. Texas State Board
     Medical Examiners                 Re:   Validity of Article II,
     Medical Arts Building                   Section 2ab of House Bill
Fort Worth 2, Texas 76102                    86, Acts of the 58th Leg.,
                                             R.S., 1963.
Dear Doctor Crabb:
          We are in receipt of your opinion request regarding
the constitutionality or validity of a portion of the appro-
priation bill of the 58th Legislature which may affect the
Texas State Board of Medical Examiners. The section cited above
appears as a rider to the appropriation act and is worded as fol-
lows:
         "b. None of the moneys appropriated to the
    Hospital Board or to Institutions under its jur-
    isdiction by this Article may be expended for
    salaries of persons assigned to positions entitled
    'Medical Technician' as shown in this Article, un-
    less such persons are licensed to practice medixne
    by other States or Nations but have not yet been
    licensed as physicians under the law of this State.
    This provision shall   t be construed       to pro-
    hibit salary payments?0 qualified phy%?ks     re-
    crulted from other states who are eligible for
    license In Texas, and,notwlthstanding the require-
    ments of the State Board of Medical Examiners, such
    physicians shall be given a reasonable time to be
    determined by the Hospital Board to secure a Texas
    'licenseto practice medicine." (Emphasis added).
          Section 35 of Article III of the Constitution of Texas
states as follows:




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Dr. M. H. Crabb, page 2 (c-113   )


         “Sec. 35. No bill, (except general appropria-
    tion bills, which may embrace the various subjects
    and accounts for and on account of which moneys are
    appropriated) shall contain more than one subject,
    which shall be expressed in its title. But if any
    subject shall be embraced in an act, which shall not
    be expressed In the title, such act shall be void
    only as to so much thereof, as shall not be so ex-
    pressed."
          If Section 28b of Article II of the appropriation bill
merely limits in some way the distribution of state money for
certain purposes and under certain enumerated conditions which
are incidental to the appropriation, then the rider is valid. If
the rider contains language which amounts to general legislation,
or conflicts with or modifies existing general legislation then
the rider must be declared Invalid. Moore v. Sheppard, 144 Tex.
537, 192 S.W.M 559 (19’+6).
          The rider in question contemplates that a physician will
be employed as a "Medical Technician"; therefore we are not required
to ascertain whether or not he will perform any of those acts enumer-
ated in Article 4510 as the practice of medicine.
          Article 4500 of Vernon's Civil Statutes states In part
as follows:
          "The Texas State Board of Medical Examiners
     may, in its discretion, upon payment b an appli-
     cant of a fee of One Hundred Dollars ($ 100) grant
     a license to practice medicine to any.reputable
     physician who is a citizen of the United States
         .and to llcentlates of other State or Terri-
     to&es having requirements for medical registra-
     tion and practice equal,to those established by
     the laws of this State. . . ." (Emphasis added).
          Article 4500 has long been construed to mean that the
Hoard of Medical Examiners must use Its own "discretion" In de-
ciding whether to grant a license to practice in Texas to licen-
tlates of other states. Attorney General's Opinion No. 0-1556
(1939). ~The rider to the appropriation act does not afford the
Hoard the discretion previously given it by Article 4500. Under
the provisions of the rider the medical technician cannot be paid
unless he does not have a license to practice in Texas. The rider
then proceeds t=hange   the existing requirements of Article 4498
(whereby each practitioner must have a certificate issued by the
Hoard), and allows the Hospital Hoard to, in effect, suspend the


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      Dr. M. H. Crabb, page 3 (C- 113 )


      terms of Article 4498 for. "a reasonable time to be determined by
      the Hospital Board."
                   The said Article 4498 states in part as follows:
                    "It shall be unlawful for any one to practice
              medicine, in any of its branches, upon human beings
              within the limits of this State who has not registered
              in the District Clerk's office of every County in
              which he may reside, and In each and every County in
              which he may maintain an office or may designate a
              place for meeting, advising with, treating in any
              manner, or prescribing for patients, the certificate
              evidencing his right to practice medicine, as issued
              to him by the Texas State Board of Medical Examiners,
              . . .    (Emphasis added).
                We therefore advise you that Section 28b of Article II
      of House Bill 86 of the 58th Legislature is unconstitutional. It
      attempts to abrogate or amend the general law requiring physicians
      who practice medicine In Texas to obtain a certificate from the'
      Texas State Board of Medical Examiners pursuant to Article 4498.
                   The caption to House Bill 86 is as follows:
                   "AN ACT appropriating money for the support
              of the Judicial, Executive, and Legislative branches
              of the State Government, for the construction of
              State buildings, the payment of claims against the
              State, and for State aid to public junior colleges,
              for the two-year period beginning September 1, 1963,
              and ending August 31, 1965; authorizing and pre-
              scribing conditions, limitations, rules and proced-
              ures for allocating and expending the appropriated
              funds; and declaring an emergency."
                Neither the title of Section 28 (Compensation Rules),
      nor the caption of the bill would put anyone on notice that an
      exception was being made to the requirements for the practice
      of medicine in Texas.                             Attorney Gen-
      eral's Opinions Nos.                             : v-1263 (1951);
      WW-253 (1957); WW-1152

                                   SUMMARY
                   Section 28b of Article II of House Bill 86 of
              the 58th Legislature Is Invalid to the extent that
              it attempts to alter or amend the general law regard-
              ing the practice of medicine by way of a rider to the
              appropriation bill.
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Dr. M. H. Crabb, page 4 (C-   113)


                                 Yours very truly,

                                 ~~~~~



                                 Fred D. Ward
                                 Assistant

FDW:wb:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
W. 0. Shultz
Wayne Rodgers
Paul Phy
APPROVEDFOR THE ATTORNEY GENERAL
BY: Stanton Stone




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