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                              September 23, 1971

    Honorable Jack Burton, 'O.D.    Opinion No. M- 958
    Chairman
    Texas Optometry Board           Re:     (1)   Whether the Board may use
    603 West 13th Street P115                     certain material as written
    Austin, Texas 78701                           examinations for licenses:
                                                  and:
                                            (2)   Whether Article ,4552-215(c)
                                                  Vernon's Civil Statutes, of
                                                  the Texas Optometry Law
    Dear Dr. Burton:                              is constitutional?
         Your request to this office for an official opinion poses
    two questions:
         1.   Whether or not the Texas Optometry Board is authorized
         to use a written examination developed by the International
         Association of Boards of.Optometry, rather than the written
         examination ordinarily given under ~the Texas Optometry Law,
         to test applicants.
         2.   Whether Article 4552-2.15(c), Vernon's Civil Statutes,
         is constitutional?
         Your first question is given a qualified affirmative answer.
         The Board may use the written examination made available by
    the International Assoication of Boards of Optometry or any other
    written examination apnroved by the Board, but only so long as the
    examination given to applicants complies in all material respects
    with the requirements'set out in Articles 4552-3.05 and 4552-3.06,
    Vernon's Civil Statutes.
        Article 4552-3.05 is quoted as follows:
             "The examination shall consist of written, oral
        or practical tests, in practical, theoretical, and
        physiological optics, in theoretical and practical
        optometry,ad in the anatomy, physiology, and path-
        ology of the eye as applied to optometry and in such
        other subjects as may be regularly taught in all re-
        cognized standard optometric universities or schools."
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Honorable Jack Burton, page 2       (M-958)



        Article 4552-3.06 states:
             "All examinations shall be conducted in writing
        and by such other means as the board shall determine
        adequate to ascertain the qualifications of applicants
        and in such manner as shall be entirely fair and im-
        partial to all individuals and every recognized school
        of optometry. All applicants examined at the same
        time shall be given the same written examination."
      It is observed that in implementing the requirements set out
above the Board may require such other means they determine ade-
quate to
      . ascertain
         -.   .    the qualifications of applicants,
                                   -_ .     . _ -. and, _they
                                                            .
may stipulate in sucn manner as snail 136entirely rair and im-
partial to all individuals and every recognized school of op-
tometry.
      we answer your second question in the affirmative. Article
4552-2.15(c) is quoted as follows:
             l'(c) The funds realized from annual renewal
        fees shall be distributed as follows: $10 of nach
        renewal fee collected by the board shall be dedi-
        cated to the University of Houston Development Fund.
        The license money placed in the development fund
        pursuant hereto shall be utilized solely for
        scholarships and improvements in the physical
        facilities, including library, of the,School of
        optometry.
            "The remainder of the fees attributable to
        annual renewal fees and all other fees payable
        under this Act shall be placed in the state treas-
        ury to the credit of a special fund to be known as
        the 'Optometry Fund,' and the comptroller shall upon
        requistion of the board from time to time draw war-
        rants upon the state treasurer for the amounts spec-
        ified in such requistion; provided, however, the
        fees from this optometry fund shall be expended as
        specified by itemized appropriation in the General
        Appropriations bill and shall be used by the Texas
        Optometry Board, and under its direction in carrying
        out its statutory duties."
      Moneys appropriated by the Legislature may be expended for
the purpose or purposes specified, provided the purpose is for a
public or governmental use as distinguished from private uses.
Honorable Jack Burton, page 3   (M-958)


State v. Citv of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960);
              v. Winden,
Bexar County '.. ..____-~110 Tex. 339, 220 S.W. 761 (1920); Road
District No. 4, Shelby'County v. Allred, 123 Tex. 77, 68 S.W.2d
     11934); Jefferson County v. Board of County and District Board
Indeljtedness, 143 Tex. 99, 182 S.W.2d 908 (1944); City of Aransas
Pass  v. Reelinq, 112 Tex. 339, 247 S.W. 818 (1923).
     It is our opinion that the purposes specified in Section 2.15(c)
of this Article are governmental purposes or uses as distinguished
from private purposes or uses and thus there are no constitutional
prohibitions.
                     SUMMARY
         The Texas Optometry Board may use the written
    examination made available by the Internatioral
    Association of Boards of Optometry or any other
    written examination approved by the Board, but only
    so long as the examinations given to applicants comply
    in all material respects with the requirements set out
    in Articles 4552-3.05 and 4552-3.06, Vernon's Civil
    Statutes.
          Article 4552-2.15(c) Vernon's Civil Statutes, of
     the Texas Optometry Law, is oonstitutional.
                                i'



                                      ney General of Texas
Prepared by Sam Jones
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
w, E. Allen, Co-Chairman




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Honorable Jack Burton, page 4     (M-958)




Jim Swearingen
Brandon Bickett
A. J. Gallerano
Howard Fender
SAM MCDANIEL
Acting Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




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