                                         The Attorney            General of Texas
                                                           December 31, 1982

MARK WHITE
Attorney General

                                        Honorable Chet Brooks, Chairman               Opinion No.       MN-573
Supreme   Court Building                Committee on Human Resources
P. 0. Box 12546
                                        Texas State Senate                            Re:    Validity   of Board          of
Austin. TX. 76711. 2540
5121475-2501
                                        Room 412, Archives Building                   Medical    Examiners  rule          on
Telex    9101674-1367                   Austin, Texas   78711                         licensure qualifications
Telecopier     512/475-0266
                                        Dear Senator Brooks:
1607 Main St.. Suite 1400
Dallas,   TX. 75201-4709
                                             On November 11, 1981, section 163.1, rule 386.19.00.001 of the
2141742-6944                            rules and regulations of the Texas State Board of Medical Examiners
                                        became effective.  This rule provides in part:

4624 Alberta       Ave., Suite    160
                                                     (4    The board at its discretion may grant a
El Paso. TX.       79905-2793
9151533.3464                                      license to any reputable physician who meets the
                                                  following criteria:

1220 Dallas Ave., Suite          202
Houston,   TX. 77002.6966
                                                     (1)     is at least 21 years of age;
7131650.0666
                                                     (2)     is of good professional       character;

606 Broadway.        Suite 312                       (3)     has   completed    60   semester   hours  of
lAbbock.     TX.    79401.3479                               college    courses    other   than   medical
6061747.5236
                                                             school, such courses to be acceptable to
                                                             the University of Texas Health Science
4309 N. Tenth,     Suite S                                   Centers for admission to medical school;
McAllen,     TX. 76501-1665
5121662.4547                                                 has graduated     from   an   approved     medical
                                                     (4)
                                                             school...;
200 Main Plaza, Suite 400
San Antonio,  TX. 76205-2797                         (5)     has   successfully   passed   a   medical
5121225-4191                                                 examination     and     Texas     medical
                                                             jurisprudence examination required by the
An Equal       Opportunity/
                                                             board...; and
Affirmative      Action     Employer
                                                     (6)     has successfully    completed   a        one-year
                                                             program  of   graduate   medical         training
                                                             approved by the board....

                                        Tex. State Bd. of Medical Examiners, Rule 386.19.00.001,                 6 Tex. Reg.
                                        3971 (1981) (to be codified as 22 T.A.C. §163.1)




                                                                 p. 2112
Honorable Chet Brooks - Page 2      (Mw-573)




     You have,asked whether parts of this rule,conflict with sections
3.04 or 3.05 of the Medical Practice Act, article 4495b. V.T.C.S.
Section 3.04 provides in part:

          exa~;~at;~n,applicant,  to be eligible           for t:E
                        must present satisfactory         proof
          the board that the applicant:

             (1)   is at least 21 years of age;

             (2)   is of good professional     character;

             (3)   has completed 60 semester hours of college
                   courses other than in medical      school,
                   which courses would be acceptable, at the
                   time of completion, to The University of
                   Texas for credit on a bachelor of arts
                   degree or a bachelor of science degree;
                   and

             (4)   is a graduate of a medical school or
                   college that was approved by the board at
                   the time the degree was conferred.

     Section 3.05 provides in relevant part:

              (a) All examinations for license to practice
          medicine shall be conducted in writing in the
          English language and in a manner as to be entirely
          fair and impartial to all individuals and to every
          school or system of medicine.            All applicants
          shall be known to the examiners only by numbers,
          without names or other method of identification on
          examination papers by which members of the board
          may   be   able    to    identify   the applicants      or
          examinees, until after the general averages of the
          examinees'     numbers     in   the   class    have   been
          determined     and    license    granted    or    refused.
          Examinations shall be conducted on and cover those
          subjects generally taught by medical schools, a
          knowledge    of which      is commonly and generally
          required of candidates for the degree of doctor of
          medicine   or doctor of osteopathy conferred by
          schools or colleges of medicine approved by the
          board,   and     the   examinations     shall    also   be
          conducted on and cover the subject of medical
          jurisprudence.        On     satisfactory     examination
          conducted as required by this Act under rules of
          the board, applicants shall be granted licenses to




                                   p. 2113
Honorable Chet Brooks - Page 3    (NW-573)




          practice medicine.     All questions and answers,
          with the grades attached, shall be preserved for
          one year in the executive office of the board or
          such other repository as the board by rule may
          direct.   All applicants examined at the same time
          shall   be    given   identical   questions.   All
          certificates shall be attested by the seal of the
          board.   The board in its discretion may give the
          examination for license in two parts.

             (b) In addition to the requirements prescribed
          by this Act, the board may require applicants to
          comply with other requirements     that the board
          considers  appropriate  and establish    reasonable
          fees for examination.  (Emphasis added).

     It is not clear from the terms of the rule whether              its
requirements are to be met before or after taking the exam. However,
section 3.04 states requirements that an applicant for licensing must
meet in order to be eligible for examination.   Section 3.05(a), quoted
above,   mandated  the   issuance of   a  license   "[oln  satisfactory
examination" unless, of course, the applicant is disqualified for one
of the reasons set out in section 3.08. Thus, the rule necessarily is
an attempt to add to the requirements that must be met to be eligible
to take the examination.

     Your questions are as follows:

             1.   Is the language 'at its discretion may
          grant a license' in board rule 163.1 consistent
          with the apparently mandatory language 'shall be
          granted licenses to practice medicine' in section
          3.05(a) of the act?

             2.    Is the requirement in the board rule that
          courses must be 'acceptable to the University of
          Texas Health Science Centers for admission      to
          medical school' inconsistent with the prescribing
          language   of section    3.04(a) that   courses be
          'acceptable, at the time of completion, to The
          University of Texas for credit on a bachelor of
          arts or a bachelor of science degree'?

             3.   Is the board requirement for a 'one-year
          program of graduate medical training' inconsistent
          with   the  enumerated   list   of  qualifications
          prescribed by section 3.04(a)?




                                 p. 2114
Honorable Chet Brooks - Page 4     (Mw-573)




              4.    If the language of section 3.05(b) is read
          to permit the board to add qualifications other
          than matters over which applicants are to be
          examined, does this conflict with article XVI,
          section 31 of the Texas Constitution, which gives
          the    legislature   the   authority   to  prescribe
          qualifications?

             If not, is there any limitation on the board
          which would prevent it from adding two, three, or
          more years of training beyond the medical school
          graduation required by the act?

     We conclude that parts (a)(3) and (a)(6) of the board rule are
invalid.   For the following reasons, we believe the Board of Medical
Examiners lacked statutory authority to promulgate these particular
requirements.

     The Texas State Board of Medical Examiners is an administrative
agency.    V.T.C.S.  art. 4495b,   52.01.   A cogent summary of the
principles   governing   the rulemaking   authority of administrative
agencies is contained in section 11, 2 Tex. Jur. III Administrative
Law. which cites State v. Jackson, 376 S.W.2d 341 (Tex. 1964),
Railroad Commission v. Fort Worth and D.C. Railway Company, 161 S.W.2d
560 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.m.), and other cases
for these propositions:

             Generally   the   powers  of an administrative
          agency   are derived    entirely  from  legislative
          enactment.   The agency has only such powers as are
          expressly conferred on it by statute together with
          those necessarily implied from powers and duties
          expressly given or imposed.

              The rulemaking power of administrative agencies
          does not permit the enactment of regulations which
          are   inconsistent   with   the expression    of  the
          lawmakers' intent in statutes other than those
          under    which    the    regulations   are    issued.
          Consequently,   when   the legislature     acts with
          respect to a particular matter, the administrative
          agency may not so act with respect to the matter
          as to nullify      the legislature's   action, even
          though the matter is within the agency's general
          regulatory field.

             Although a statute conferring administrative
          authority will generally be liberally construed,
          the agency must not go beyond the clear intent of




                                 p. 2115
Honorable Chet Brooks - Page 5       (m-573)




          the legislature.   It may not enlarge its powers by
          its own orders....   (Footnotes omitted).

     We   have  found      only  two  statutory   provisions  that  could
conceivably authorize     these board rules.   Section 2.09(a) of article
4495b provides:

          The board shall have, in addition to other powers
          and duties contained in this Act, the powers and
          duties prescribed by this section.     The board may
          make    rules,   regulations,    and    bylaws   not
          inconsistent with this Act as may be necessary for
          the   governing   of   its  own   proceedings,   the
          performance of its duties, the regulation of the
          practice   of medicine    in this state, and the
          enforcement of this Act....   (Emphasis added).

     Section   3.05(b),   which   is set out   above with   section   3.05(a),
provides:

          In addition to the requirements prescribed by this
          Act, the board may require applicants to comply
          with other requirements that the board considers
          appropriate  and establish   reasonable   fees for
          examination.  (Emphasis added).

     We first consider section 3.05(b).      Arguably, this provision
could be read as authorizing the Board of Medical Examiners to require
applicants for the medical examination     to comply with any other
requirements  that it considers appropriate,      including additional
requirements to become eligible to take the examination.        In our
opinion, however, it is actually a limited grant of authority that
simply permits the board to promulgate additional rules relating to
the medical examination itself, i.e., its scope, the manner in which
it will be administered, etc.

     It is significant, in our opinion, that this provision appears in
the middle    of a section    that deals    solely with   the medical
examination.   The provision is limited by its context.     We believe
that if the legislature had meant for this provision to supply the
broad authority suggested above, it would not have buried it in
section 3.05; on the contrary, it would have either made it a separate
section or located it so as to make it clear that it was indeed
intended as authority for the board to supplement the eligibility
requirements set forth in section 3.04.    For example, it could have
included it in section 3.04 itself, or it could have added it to
section 2.09, which enumerates the board's rulemaking powers.      Its
location. coupled with its wording -- particularly its reference to
"fees for examination" -- convince us that the provision refers only




                                    p. 2116
Honorable Chet Brooks - Page 6   (MW-573)




to the medical examination per se and does not authorize the board to
promulgate parts (a)(3) and (a)(6) of the board rule in question.

     We next consider section 2.09(a).          In Texas State Board of
Examiners in Optometry v. Carp, 412 S.W.2d 307 (Tex. 1967). the Texas
Supreme   court   dealt    with   a   professional   responsibility rule
promulgated by the board of examiners under a virtually identical
                        -.             . _. ~.
statutory provision.    'The court upheld tne rule, but it did so only
after it examined each provision separately to "determine whether it
is related to and consistent with the grounds for cancellation or
refusal [of a license] that the Legislature listed" in article 4563,
V.T.C.S. Id. at 310.     After undertaking this examination, the court
concludedthat   "the rule's provisions are in harmony with the general
objectives of the act and referable to and consistent with one or more
of its specific proscriptions."     -Id. at 313. The dissent agreed that
the test was whether the rule created new and independent grounds or
merely "fill[ed] in the details" of or implemented an existing
statutory provision, but it disagreed with the majority's conclusion
that the rule did the latter.     Id. at 314-15 (Smith. J., dissentins).
See also Kee v. Baber, 303 S.W.2d 376 (Tex. 1957).

     In Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex. Civ.
ADD. - Austin 1962, writ ref'd), the court held that the Industrial
Accident Board had no authority to promulgate       a rule requiring
workmen's compensation claimants to file with the board, on or before
the date of the hearing,      a written   report by their examining
physician.  The court stated:

          the Legislature may delegate to State officers,
          agencies, or administrative bodies the power to
          enact or promulgate rules and regulations in aid
          of the statutory authority conferred upon such
          administrative   body....   But   the   rules  and
          regulations so enacted by the administrative body
          may not impose additional burdens, conditions or
          restrictions in excess of or inconsistent with the
          statutory provisions.

358 S.W.2d at 876-77 (citation omitted) (emphasis added).  The court
concluded  that the board rule imposed an additional      burden or
restriction upon claimants, and that in enacting it the board had
exceeded its statutory authority.

     We think the same is true here.    Section 3.04 of article 4495b
lists the requirements that the legislature thought were necessary for
an applicant to satisfy in order to be eligible to take the medical
examination.  Other provisions in subchapter C of article 4495b impose
requirements upon applicants for the examination and for a license to
practice medicine.   Section 3.08, for example, lists 21 grounds that




                                 p. 2117
,


    Honorable Chet Brooks - Page 7      (MW-573)




    the board may rely upon     to     deny   an   application   for   either   the
    examination or a license.

         When one considers subchapter C of article 4495b in its entirety,
    one cannot help but be convinced that the eligibility requirements set
    forth in section 3.04 are the only ones that the legislature wanted
    applicants for the examination to have to satisfy. The board rules at
    issue here, which require 60 semester hours of non-medical courses
    that are acceptable to the University of Texas Health Science Centers
    for admission to medical school and a one-year program of graduate
    medical training, are quite onerous.     In our opinion, they go far
    beyond what the legislature intended, and can only be viewed as
    "additional burdens,   conditions or restrictions    in excess of or
    inconsistent with the statutory provisions,"      Kelly v. Industrial
    Accident Board, supra, at 876-77, which are not "in harmony with the
    general objectives of the act and referable to and consistent with one
    or more of its specific proscriptions," Texas State Board of Examiners
    in Optometry v, Carp, w,        at 313.   Rules (a)(3) and (a)(6) are
    therefore not authorized under section 2.09(a) of article 4495b.

         Accordingly, in answer to your second and third questions, we
    conclude that parts (a)(3) and (a)(6) of the board rule in question
    are invalid because they lack a statutory basis. We need not address
    your fourth question.   In answer to your first question, the board's
    use of the phrase "in its discretion" is not necessarily inconsistent
    with section 3.05(a) of article 4495b.   That section must be read in
    light of section 3.08, which lists reasons for refusing an application
    to take the examination or to obtain a license.   In other words, even
    if an applicant passes the examination the board could "in its
    discretion," deny a license to one who violates section 3.08.

                                 SUMMARY

                 Parts (a)(3) and (a)(6) of section 163.1 of the
              rules and regulations of the Texas State Board of
              Medical Examiners are invalid.




                                                 MARK      WHITE
                                                 Attorney General of Texas

    JOHN W. FAINTER, JR.
    First Assistant Attorney General

    RICHARD E. GRAY III
    Executive Assistant Attorney General




                                       p. 2118
Honorable Chet Brooks - Page 8   (Mw-573)




Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Bill Campbell
Rick Gilpin
Patricia Hinojosa
Jim Moellinger




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