                      THE        ATTO           NEP         GENEECU.
                                       OF      TEXAS


                                    September      25,    1987




Mr. William S. Nail                                              Opinion   No.   .I+796
Executive   Director
Texas State Board of Dental Examiners                            Re:    Authority     of the State
8317 Cross Park Drive,   Suite 400                               Board of Dental Examiners to
Austin.   Texas    78754                                         reinstate    a license    that has
                                                                 been    cancelled     because   of
                                                                 failure    to comply with stat-
                                                                 utory requirements

Dear Mr. Nail:

       Chapter    9 of Title      71 of the Revised         Civil    Statutes     of Texas,
specifically     articles     4543 et seq.,      V.T.C.S.,    creates     the State Board
of Dental Examiners [hereinafter           the board] and regulates            the practice
of   dentistry.       Article     4550a.   V.T.C.S.,       sets    forth,      inter     alia,
registration     requirements      for dentists.       Under a specific        set of facts
that you submit,       you ask whether the State Board of Dental Examiners
has the discretion        to reinstate    a licensee’s       dental    license     after    the
licensee     has failed      to annually    apply and register           with the board.
Assuming      the truth     of   the facts     that you submit.           we answer your
question     in the negative.

       Article         4550a,      V.T.C.S.,       contains         the    following       relevant
provisions:

                     Sec.     1.     It shall     be the duty of all persons
                 holding       a dental       license      or    dental      hygienist
                 license       issued    by     the    State     Board      of   Dental
                 Examiners,        to annually      apply and to be registered
                 as such practitioners               with    the State        Board of
                 Dental Examiners on or before                 March 1st of each
                 calendar       year.    Each person        so registering         shall
                 pay in connection          with such annual registration
                 for the receipt        hereinafter       provided     for,    a fee as
                 determined       by said Board according           to the needs of
                 said Board, such payment to be made by each person
                 to such Board,          and every        person     so registering
                 shall    file      with said Board a written             application
                 setting        forth    such      facts     as    the      Board    may
                 require.       . . .




                                                  p.     3763
Mr. William      S. Wail - Page 2 (.Dd-796)




                   Sec. 2.        If any person required                 to register        as
              a practitioner           under the provisions                hereof       shall
              fail    or refuse        to apply for such registration                      and
              pay such fee on or before                  March 1st of each calen-
              dar ye:z,       as hereinabove           set forth,        his license        or
              certificate           to   practice         Issued       to     him,      shall
              thereafter        stand suspended             so that thereafter              in
              practicing        he shall        be subject          to the penalties
              Imposed by law upon any person unlawfully                            practic-
              ing.     A person may renew an unexpired                         license      or
              certificate          by paying          to the Board before                  the
              expiration         of     the     license        or     certificate          the
              required       renewal       fee.       If a person’s            license      or
              certificate         has been expired             for not longer            than
              ninety      (90)       days,     the person           may renew it            by
              paying to the Board the required                      renewal fee and a
              fee that is one-half                 of the examination               fee for
              the license        or certificate.             If a person’s           license
              or certificate            has been expired              for longer          than
              ninety      (90)      days but less            than two years,               the
              person      may renew it by paying                    to the Board all
              unpaid renewal fees and a fee that is equal to the
              examination          fee    for    the license           or certificate.
              If    a person’s          license        or certificate             has been
              exoired      for      two years        or longer,         the person may
              not renew it.            The person may obtain a new license
              or cer tificate          by submitting           to reexamination            and
              complying with the requirements                     and proces dures for
              obtaining       an original         license      or certificate.             The
              Board must notify             each licensee         in writing         of that
              licensee’s         impending        license        expiration         30 days
              prior     to said         expiration         and shall           attempt       to
              obtain     from the licensee             signed receipt           confirming
              receipt      of notification.             . . .      (Emphasis added.)

     You provide         us with      the following          factual      information:

                  The license     of a dental     licensee      of this Board
              became delinquent        March 1, 1984 and remained in a
              delinquent     status until March 1, 1986, a period of
              two years.         Following    the     license     being  in a
              delinquent     status    for two years,        the license   was
              cancelled     pursuant     to the above referenced          pro-
              vision    of the Dental Practice         Act.

                  The licensee   in question    contacted  this Agency
              in September,    1986 and requested     that his license
              be reinstated.       The licensee     was advised     that
              based on Attorney     General  Opinion No. MW-368 and




                                                   p.   3764
Mr. William      S. Nail    - Page 3       (JM-796)




              Article    4550a,   Section     2, that the Board did not
              have    the   discretion       to  reinstate   the   license
              without    the licensee     taking and passing    the Dental
              Examination.

                  Throughout       1984.     1985,    and 1986 until           the
              cancellation,        all   required      registration       forms,
              late notices,       and the thirty      (30) day cancellation
              letter    were sent to the last known address which
              the licensee       had furnished       this Agency.        Article
              4550,    Section     1, requires      a licensee       to provide
              timely    notification       to the Board of any address
              change.       No record     exists    of any address        change
              from the last         known address       of the licensee          to
              which all      correspondence       was mailed.        No attempt
              was made to secure         a written      receipt     inasmuch as
              prior communications         had been returned.

You claim that your agency sent the required                statutory     notice    of the
impending    expiration     of the licensee’s        license.       However,     there    Is
correspondence      submitted    in connection     with your request         that claims
you may have failed       to provide    proper notice      of the expiration        of the
registrant’s     license.      Because    you do not         ask whether       there    was
substantial    compliance     with the notice    provisions,       we will not address
the issue.     Nor do we address the issue of whether the previous                  action
may be corrected      by some other means.         You ask only whether the board
has discretion     to reinstate     the registrant’s      license.

       In our opinion,        the underscored       language       of section       2 of the act
is clear and unambiguous.             Section    2 of the act requires              that,    if any
person fails       to renew his license          within    two years after           the date by
which a registrant           should    have applied         for      license      renewal,      that
person’s    license     may not be renewed.           A plain and unambiguous statute
should be construed          according     to its     literal       meaning.        Brazes River
Authority      v.    City    of   Graham,      354 S.W.2d           99,     109    (Tex.     1961).
Furthermore,       it is well established           that exceptions            to statutes       may
not ordinarily        be implied.        Spears v. City of- San Antonio,                  223 S.W.
166, 169 (Tex.        1920);    Stubbs v. Lowrey’s          Heirs,       253 S.W.2d 312, 313
(Tex. Civ. App. - Eastland            1952, writ ref’d        n.r.e.);       Nail v. McCue, 55
S.W.2d 211, 213 (Tex. Civ. App. - El Paso 1932, no writ).                               Where the
legislature     has intended       to except certain        classes       of persons from the
requirements      of licensing       statutes,     or to provide           a period     of grace,
it has done so explicitly.              See, e.g.,      Acts 1975, 64th Leg.,             ch. 709,
§3, at 2253 (persons           engaged in business          of structural           pest control
for a period      of two years granted two-year               grace period         before    having
to comply with examination             requirements);        Acts 1947, 50th Leg.,               ch.
115, 510, at 195 (persons             holding     existing      plumbing licenses           from a
city are exempt from examination              reqiurements        for state licensing          as a
plumber     if    they    apply     within      120 days        from      effective       date    of




                                              p.   3765
                                                                                           I



Mr. William     S. Nail    - Page 4        (JM-796)




statutes);     V.T.C.S.    art.    4413 (29aa),   56(a) (persons  who were peace
officers   prior      to effective     date of statute    need not meet certain
requfrements      in order     to continue   employment as peace officers;   -see
generally    Attorney    General Opinion MW-368 (1981).

     Accordingly.    we conclude   that the State Board of,Dental      Examiners
does not have the discretion      to reinstate    the license   of a registrant
who has failed    to renew his license    within   two years after   the date by
which a registrant     should have applied    for license   renewal.

                                         SUMMARY

                  The State Board of Dental        Examiners   does not
              have the authority      to reinstate    the license     of a
              registrant    who has failed      to renew his      license
              within    two years after   the date by which a regis-
              trant should have applied      for license   renewal.
                                                       .




                                                                   MATTOX
                                                        Attorney    General   of   Texas

MARY KELLER
Executive Assistant         Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney             General

RICK GILPIN
Chairman, Opinion         Committee

Prepared    by Jim Moellinger
Assistant    Attorney General




                                           p.    3766
