Mrs. Bobbye Ferris                Opinion No. JM-650
Executive Director
Texas Board of Chiropractic       Re: Whether an applicant who is blind
   Examiners                      may be prohibited     from taking  the
1300 E. Anderson Lane             state   licensing examination to be a
Building C, Suite 245             chiropractor
Austin, Texas    70752

Dear Mrs. Ferris:

      You ask whether au applicant who is blind cau be prohibited     from
taking the examination   to obtain a license to practice chiropractic    in
the State of Texas.    We answer your question in the negative.

      Article 4512b. V.T.C.S., creates the Texas Board of Chiropractic
Examiners and governs the licensure   and regulation    of chiropractors.
Section 10(a) of the licensing  act specifically  provides,  in pertinent
part, that

          [a]11 applicants.  for license    to practice    chiro-
          practic    in this  state,   not otherwise    licensed
          under the provisions     of this law, xust success-
          fully   pass an examination   by the Texas Board of
          Chiropractic   Examiners established   by this law.
          The Board is authorized to adopt and enforce rules
          of procedure not inconsistent     with the statutory
          requirements.

V.T.C.S. art. 4512b. 510(a).   It is suggested that the board's refusal
to permit a blind applicant    to take the licensing    examination is a
violation of federal law, specifically   29 U.S.C. section 794 [section
504 of the Rehabilitation  Act of 19731. which provides that

          [n]o otherwise qualified   handicapped individual     in
          the United States,    as defined in section      706(7)
          of this   title, shall.   solely     by reason of his
          handicap, be excluded from the participation        in,
          be denied the benefits      of,   or be subjected     to
          discrimination   under any program or activity
          receiving Federal financial     assistance.  . . .




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Mrs. Bobbye Ferris     - Page 2      (JM-650)




On the other hand, it is argued, that under the authority            of South-
eastern Community College v. Davis, 442 U.S. 397 (19791, the board’s
refusal  does not constitute      a violation   of either   29 U.S.C. section
794 or the equal protection      and due process clauses of the Fourteenth
Amendment‘to the United States Constitution.            In e,      the United
States Supreme Court held, inter alia.        that there was no violation     of
29 U.S.C. section      794 or of the equal protection         and due process
clauses of the Fourteenth Amendment in an instance in which an educa-
tional  institution     refused   to admit an individual       with a severe
hearing disability    to a nursing program.      We need not address whether
federal  law or the Davis case is apposite          to the instant     request,
because we conclude thathe        board’s refusal   to permit a blind person
to take the licensing     examination is a violation    of state law.

     Section   10(a)   of article    4512b further      provides     that

           all applicants      shall be eligible          for examination
           who present      satisfactory       evidence       to the Board
           that they are more than eighteen                  (18) years of
           age, of good moral character,           have completed sixty
            (60) sexaster hours of college           courses, other than
           a chiropractic      school,     and are graduates of bona
           fide     reputable      chiropractic          schools        (whose
           entrance requirements          and course of Instruction
           are as high as those of the better                      class    of
           chiropractic      schools     in the United States);              a
           reputable     chiropractic       school     shall     maintain    a
           resident    course of instruction           equivalent      to not
           less than four (4) terms of eight (8) months each,
          ‘or a resident      course of not less than the number
           of semester hours required by The University                     of
           Texas for the granting             of a Bachelor          of Arts
           degree: shall give a course of instruction                  in the
           fundamental subjects        named in Section 12 of this
           Act; and shall have the necessary                teaching force
           and facilities      for proper instruction             in all of
           said subjects.       Applications       for examination must
           be made in writing,          verified      by affidavit,        and
           filed   with the secretary         of the Board, on forms
           prescribed     by the Board, accompanied by a fee.
           All   applicants    shall be given due notice               of the
           date and place of such examination.

      Section 14a of article   4512b, V.T.C.S..            details    the grounds   for
refusing,   revoking, or suspending a license             granted    by the board   and
provides the following:




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Mrs. Bobbye Ferris   - Page 3 (JM-650)




              Sec.  14a.    The Texas Board of Chiropractic
          Examiners may refuse       to admit persons     to its
          examinations   and may cancel,    revoke or suspend
          licenses  or place licensees  upon probation for such
          length of tims as may be deemed proper by the Board
          for any one or more of the following    causes:

              1. For failure to comply with, or the violation
          of. any of the provisions of this Act or of a rule
          adopted under this Act;

             2. If it is found that said person or persons
          are in any way guilty of deception or fraud in the
          practice of chiropractic:

               3. The presentation      to the Board or use of
          any license,     certificate     or diploma,  which was
          illegally     or    fraudulently    obtained,   or  the
          presentation    to the Board of any untrue statement
          or any document or testimony which was illegally
          practiced   in passing the examination;

              4. Coqviction   of a crime of the grade of a
          felony,   or one which involves moral turpitude,  or
          the procuring or assisting    in the procuring of an
          abortion;

              5. Grossly   unprofessional    conduct   or   dis-
          honorable conduct of a character likely    to deceive
          or defraud the public,     habits of intemperance or
          drug addiction.  or other habits calculated     in the
          opinion   of the Board to endanger the lives         of
          patients;

             6. The use of any advertising    statement           of   a
          character to mislead or deceive the public;

              7. Employing or associating    with, directly  or
          indirectly,    any person who, during the period of
          such employment, commits any act constituting     the
          practice    of chiropractic when such person is not
          licensed to do so;

              a. The advertising of professional superiority,
          or the advertisLng     of the performance  of pro-
          fessional services in a superior manner;

              9.   The purchase,    sale,    barter,    use, or    any
          offer    to purchase,     sell,    barter    or use,     any




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Mrs. Bobbye Ferris     - Page 4    (JM-650)




           chiropractic      degree,  license,   certificate.         or
           diploma, or transcript    of license,   certificate,       or
           diploma in or incident       to an application       to   the
           Board of Chiropractic       Examiners for license          to
           practice   chiropractic;

               10. Altering with fraudulent           intent any chiro-
           practic    license,     certificate        or diploma,     or
           transcript    of chiropractic     license,     certificate or
           diploma;

                  11. The impersonation    of, or acting as proxy
           for,      another in any examination required  by this
           Act     for a chirporactic license;

                12. The impersonation      of a licensed    practi-
           tioner,   or the permitting      or allowing another to
           use his license    or certificate    to practice  chiro-
           practic   as defined by statute by a licensed      prac-
           titioner;

               13. Proof of insanity of the holder        of a certi-
           ficate.    as adjudged by the regularly        constituted
          'authorities;

               14. Failure    to use proper diligence       in  the
           practice  of chiropractic     by the holder of a certi-
           ficate,  or grossly   inefficient    practice of chiro-
           practic;

               15.   Failing    to clearly    differentiate a chiro-
           practic office     or clinic   from any other business or
           enterprise;     or

               16. Personally   soliciting  patients, or causing
           patients  to be solicited,      by the use of case
           histories of patients of other chiropractors.

       A general principle    of administrative     law is that' an administra-
tive agency has no inherent powers; au agency's jurisdiction              and the
nature and extent      of its powers must be found within the constitu-
tional    and statutory   provisions    applicable    to the agency.     Board of
Insurance Commissioners v. Guardian Life Insurance Co., 180 S.W.2d 906
(Tex. 1944); Blount v. Metropolitan        Life Insurance Co., 677 S.W.Zd 565
(Tex. App. - 2 .ustin 1984). r~ev'd on other grounds sub nom., Employees
Retirement System of Texas s         Uount. 709 S.W.Zd 646 (Tex. 1986).        An
aaencv may not exercise authority I  chat      exceeds  the  clear intent  of the
l;gisiature,    Gulf Coast Water Cd. v. Cartwright,         160 S.W.2d 269 (Tex.
Civ. App. - Galveston     1942, writ ref'd     w.o.m.),  nor may it enlarge its




                                  p. 2956
Mrs. Bobbye Ferris    - Page 5     (JM-650)




powers by its own orders.       Railroad Commission of Texas v. Fort Worth
6 Denver City Railway Co., 161 S.W.2d 560 (Tex. Civ. App. - Austin
1942; writ ref'd w.o.m.).        Where a power is granted to an adminis-
trative     agency and the method of-its             power is prescribed,      the
prescribed method excludes all others and must be followed.             Cobra Oil
6 Gas Corporation v. Sadler, 447 S.W.2d 887 (Tex. 1968); Foster v.
City of Waco, 255 S.W. 1104 (Tex. 1923). Specifically,               a licensing
agency for a business        or profession      is not empowered to enforce
standards which are different        from or inconsistent      with those of the
controlling     statute,  even though they may be reasonable          and may be
administered reasonably.       Bloomv.     Texas State Board of Examiners of
Psychologists,     492 S.W.2d 460 (Tex. 1973); Murphy v. Mittelstadt.          199
S.W.2d 478 (Tex. 1947).      See
                             -    Attorney   General   Opinion  H-801  (1976).

      We conclude,  therefore,   that the board may refuse to permit an
applicant,  who is eligible    under section  IOa, to take the licensing
examination only for those reasons set forth in section 14a of article
4512b. V.T.C.S.    The fact that an applicant is blind is not one of the
reasons set forth therein.      Accordingly.  we conclude that the Texas
Board of Chiropractic    Examiners may not refuse to permit an applicant
to take the licensing   examination because the applicant is blind.

                                  SUMMARY

                  The Texas Board of Chiropractic        Examiners may
           not refuse     to permit an applicant          to take the
           licensing    examination  because   the       applicant  is
           blind.




                                              Attorney   General of Texas

JACK HIGBTOWBR
First Assistant Attorney    General

MARYK!zLLER
Executive Assistant    Attorney   General

RICE GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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