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            The Attorney             General of Texas
                             December     29,     1978




        Honorable E. Richard Friedman, O.D.              Opinion No. H- 1319
        Chairman of the Board
        Texas Optometry Board                          Re: Whether certain financial
        5555 N. Lamar                                  interest causes a member of the
        Austin, Texas 78751                            Texas Optometry Board to have
                                                       a personal private interest   in
                                                       proceedings before the board.

        Dear Dr. Friedman:

               You have requested our opinion regarding the circumstances      under
        which a member of the Texas Optometry              Board is prohibited  from
        participating  in board proceedings under section 6 of article 6252-9b,
        V.T.C.S. That statute provides, in pertinent part:

                      (a)   This section applies only to an elected or
                   appointed officer who is a member of a board or
                  commission having policy direction          over a state
                  agency, excluding officers subject to impeachment
                  under Article XIV, Section 2, of the Texas Constitu-
                   tion. If such an officer has a personal or private
                   interest in any measure, proposal, or decision pending
                  before the board or commission, he shall publicly
                  disclose the fact to the board or commission in a
                   meeting called and held in compliance with the Open
                   Meetings Law (Article 6252-1’7, Vernon’s Texas Civil
                   Statutes) and shall not vote or otherwise participate in
                  the decision.    The disclosure shall be entered in the
                   minutes of the meeting.
                      (b) For the purposes of this section, the term
                  ‘personal or private interest’ has the same meaning as
                  is given to it under Article III, Section 22, of the Texas
                   Constitution, governing the conduct of members of the
                  legislature.   For the purposes of this section, a person
                  does not have a ‘personal or private interest’ in any
                  measure, proposal, or decision if he is engaged in a
                  profession, trade, or occupation and his interest is the
                  same as all others similarly engaged in the profession,
                  trade, or occupation.




                                         P.     5186
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Honorable E. Richard Friedman, O.D.     -   Page 2   (H-13181




                (cl A person who violates this section is subject to removal
             from office on the petititon of the attorney general on his own
             initiative or on the relation of any other member of the board
             or commission or on the relation of any citizen. The suit shall
             be brought in a district court of Travis County or of the county
             where the violation is alleged to have been committed.     If the
             court or jury finds from a preponderance of the evidence that
             the defendant violated this section and that an ordinary
             prudent person would have known his conduct to be a violation
             of this section, the court shall enter judgment removing the
             defendant from office.

        You state that one member of the optometry board has, over a period of many
years, contracted with a large number of practicing optometrists for the right to use the
trade name and goodwill associated with the member’s company.              Typically, such a
contract encompasses three distinct phases:         (1) actual employment of the individual
optometrist by the member’s company; (21 joint ownership of the franchise; and (3) the
sale of 100 percent of the franchise to the individual optometrist.    It has been suggested
that, during one or more of these phases, the member may be said to have a “personal or
private interest” in any disciplinary hearing involving an individual optometrist with whom
he has contracted.

        Any of the three phases could constitute the kind of “personal or private interest”
discussed in the statute.    Where the individual has a personal or private interest he may
not vote or take part In the hearing. We have not, however, been presented with the
terms of any contractual       arrangement,   and therefore cannot say that disclosure ls
required in a particular Instance. We believe that it ls for the member himself to make
the initial determination.    See Tex. Const. art. 3, § 22, Interpretive Commentary. If the
board disagrees with that determination, it is not empowered to prohibit his participation
ln a pending decision by its own action. If the board believes that the member has failed
to comply with the requirements of the statute, its remedy ls to bring an action under
section 6(c) of article 6252-9b.

                                      SUMMARY

              Contractual   relationships  between i member of the Texas
              Optometry Board and an optometrist who is the subject of a
              disciplinary proceeding before the board can constitute     a
              personal or private interest which would require the board
              member to excuse himself.          The decision on whether to
              participate must be made by the board member himself, and
              the remainder of the board may not unilaterally prohibit his
              participation  if it disagrees with his determination that no
              personal or private interest exists.




                                              P.   5187
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Honorable E. Richard Friedman, O.D.       -     Page 3 (H-1319)




                                      /        Attorney General of Texas

APPROVED:




DAVID IvllKENDALL, First Assistant




C. ROBERT HEATH, Chaiiman
Opinion Committee




                                     P.       5188
