                      May 9, 1963


Honorable Byron Tunnel1             Opinion No. C- 73
Speaker
House of Representatives            Re:   Various questions rel-
Austin, Texas                             ative to the "Rule Making
                                          Procedure" rule adopted
                                          by the Texas State Board
Dear Mr. Tunnell:                         of Examiners in Optometry.
             You have,requested an opinion from this office
concerning the "Rule Making Procedure" rule adopted by the
Texas State Board of Examiners in Optometry. Such rule is set
forth as follows:
             "In making rules and regulations for
      the regulation of the practice of optometry
      pursuant to Article 4556, Revised Civil Statutes
      of Texas, the Board shall prepare and propose
      such rules and regulations and submit by mail
      a copy of each such rule and regulation, as
      well as all other such rules and regulations
      as may have been proposed and filed with the
      Board, supported by a petition signed by at
      least twenty-five percent (25%) of the Optome-
      trists licensed by and practicing in the State
      of Texas, in ballot form to each Optometrist
      licensed by and practicing in the State of
      Texas for a vote thereon. At the end of thirty
      (30) days from the time such ballots are mailed,
      the Board shall count the ballots that have
      been returned, provided that no election shall
      be valid unless a minimum of fifty-one percent
      (51%) of the Optometrists licensed by and prac-
      ticing in the State of Texas shall have voted
      at the election at which such rule or rules
      are voted on; and each and all of such rules
      and regulations that have received two-thirds
      of the votes cast shall be by the said Board



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Hon. Byron Tunnell, page 2 (C- 73   )


       declared as approved by the profession. The
       fact that any rule or regulation is approved
       by the profession itself shall be considered
       by the Board as prima facie evidence that such
       rule or regulation Is reasonable and necessary
       for the regulation of the practice of Optometry
       in Texas. No rule or regulation for the regu-
       lation of the practice of Optometry shall be
       made by said Board that has not received two-
       thirds of the votes cast in the manner above
       provided."
             The questions propounded to us In behalf of the
Committee to Study Operation of Examining and Licensing Boards
of the House of Representatives are as follows:
             "(1) Does said 'Rule Making Procedure'
      violate Article I, Section 28, of the Consti-
      tution  of Texas, because the same delegates
      legislative power to Individual practitioners
      of Optometry In Texas, and thereby the power
      of suspending laws, which power Is conferred
      solely upon the Legislature of the State of
      Texas?
            "(2) Does said 'Rule Making Procedure',
      by delegating legislative power to private
      groups and Individuals, vlolate Article 4556,
      R.C.S. by making and adopting rules and regula-
      tions inconsistent with the act which created
      the Board?
            “(3) Is said 'Rule Making Procedure' an
      Improper and unconstitutional delegation of
      legislative authority, In that it fails to set
      out and define the limit of the authority of the
      private groups and indivlduals~to whom said legis-
      lative authority Is being delegated and supplies
      no standard or form by which the acts of such
      private groups and individuals may,be tested?
            "(4) Does said 'Rule Maklng Procedure',
      by delegating legislative authority to private
      groups and individuals, as aforesaid, deprive
      other Optometrists, of their property, privileges
      and immunities without affording due process of
      law as guaranteed by Article I, Section 18, of
      the Constitution of the State of Texas?

                          -359-
Hon. Byron Tunnell, page 3 (C- 73   )


             "(5) Does said rule constitute an abdica-
       tion by said Board of its rule making power to
       a group of individuals without due process of
       law?
            "(6) Is the rule an unwarranted and
      unauthorized delegation of legislative authority
      to private groups, depriving minority groups
      of due process of law guaranteed them by the
      Fourteenth Amendment to the Constitution of the
      United States?
             "Should the Attorney General hold that the
       'Rule Making Procedure' rule be invalid for any
       reason, then we request his opinion as to the
       validity of the 'Professional Responsibility Rule'
       which was adopted in accordance therewith."
              The Texas State Board of Examiners in Optometry
is given the authority to romulgate rules and regulations by
the provisions of Article fi556 of Vernon's Civil Statutes.
Since  this power has been upheld in Key v. Baber, 157 Tex. 3875
303 S.W.2d 376 (19571, we need only concern ourselves with tne
validity of the "Rule Making Procedure" rule. While the matter
is not free of doubt, there does exist a serious question about
the validity of the last sentence  of the "Rule Making Procedure"
rule. However, assuming the invalidity of this provision which
confers on the profession the power to prohibit the promulga-
tion of a rule, the other provisions are valid. The Board is
not obligated to approve and promulgate a rule merely because
it is approved by a two-thirds majority of the profession in
a valid referendum. The referendum vote of the profession In
is only advisory and the Board retains the discretion to pro-
mulgate or not to promulgate a profession-approved rule. As
long as the Board does not give binding effect to the referendum
vote, it may in the exercise of its discretion promulgate any
reasonable rule for the regulation of the profession. The fact
that a referendum may precede Board action does not render its
action invalid.
             Your opinion request further states:
             "Should the Attorney General hold that the
       'Rule Making Procedure' rule be invalid for any
       reason, then we request his opinion as to the
       validity of the 'Professional Responsibility Rule'
       which was adopted in accordance therewith."



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                                                                -   .




Hon. Byron Tunnell, page 4 (C- 73   )


             The "Professional Responsibility Rule" referred
to above was adopted on December 21, 1959, following the
procedure specified In the "Rule Making Procedure" rule.
              Article 4556, Vernon's Civil Statutes, provides
that:
              "The Board shall preserve a record of
        its pro:eedlngs in a book kept for that purpose
        . . . .
The record so provided for in Article 4556 discloses that:
              "President Woods reported that as directed
        by vote of the board on June 28, 1959, the Pro-
        fessional Responsibility Rule has been submitted
        to the Attorney General and that the Attorney
        General's official opinion Is that the rule will
        be valid~if adopted. He reported furtkier that,
        as set forth In the board's rules of procedure,
        a 'for or againstadoption' ballot was mailed
        to each of the 839 licensed optometrists practicing
        in Texas, with a request that the ballots be.
        marked and returned to the board office by Decem-
        ber 6, 1959.
              "The President appointed Drs. Shlpman~and
        Gill as a committee to canvass the ballots.
        This committee reported that 570 ballots were
        returned by December 6th, there being 539 for
        adoption of the rule and 31 against. Also after
        December 6th three ballots for adoption and none
        against were received.
              "Mr. Bergman, attorney for Dr. Carp, spoke
        at some length to the board in opposition to the
        adoption of the rule. He was followed by Mr.
        Keith, attorney for Dr. Rogers, who also spoke
        at some length against adoption of the rule.
        After this Dr. Carp, Mr. Bergman and Mr. Keith
        retired from the meeting. Mr. Reeves and Mr. Gee
        remained for a short time and answered some
        questions asked by board members and then they
        too retired from the meeting.
              "The board continued the discussion for
        some time with Dr. Rogers suggesting that action



                          -361-
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     Hon. Byron Tunnell, page 5 (C- 73   )


              on ado&Ion be wostwoned until  the next board
              meeting. Flnaliy a-motion was made by Dr.'Harbour
              and seconded by Dr. Gill that the Professional
              Responsibility Rule as approved by the Attorney
              General be officially adopted by th board as of
              December 21, 1959. Thi3 motion carzied by a vote
              of 4“ayes"and   1 'no' with Dr. Baber being ab-
              sent. . . ." (Emphasis added).
                   While the "Rule Making Procedure" rule was ap-
     parently followed in the adoption by the Texas State Board
     of Examiners In Optometry of the "Professional Responsibility
     Rule," the records of the Texas State Board of Examiners in
     Optometry, as required to be kept by Article 4556, reflect that
     It was only adopted after a vote by the members of the Texas
     State Board of Examiners in Optometry. Regardless of the
     validity or invalidity of the "Rule Making Proceduren rule, or
     any part thereof, the Texas State Board of Examiners in Optometry
     had the authority to promulgate the "Professional Responsibility
     Rule." See Ke v. Baber, supra, and Attorney General's Opinion
     NO. ww-722 (1  5
                 .?hr--
                  As the records of the Texas State Board of Exam-
     iners    Optometry reflect that the "Professional Responsibility
             In
     Rule" was adopted only after a vote of the membership of the
     Texas State Board of Examiners in Optometry, we are of the opinion
     that even though some portion of the "Rule Making Procedure" rule
     may be invalid, this would not invalidate the adoption of the
     "Professional Responsibility Rule" as the Board had authority
     to enact this rule regardless of the procedure followed prior
     to its adoption.
                  While the "Rule Making Procedure" rule seems to
     give those licensed by the Board the power of vetoing a pro-
     posed rule, it does not require the Board to adopt any particular
     proposed rule which may have been approved by the profession of
     optometry as a whole. Under the "Rule Making Procedure* rule,
     only the Board can actually adopt a given rule or regulation.
     Such being the case, any defect in that portion of the "Rule
     Making Procedure" rule, which requires that no rule be adopted
     by the Board without first receiving the required vote as set
     out therein, would not affect the validity of a rule actually
     adopted by the Board. Consequently, we are of the opinion that
     the "Professional Responsibility Rule“ adopted by the Texas
     State Board of Examiners In Optometry is not invalid bv reason
     of any provision found in the "Rule Making Procedure" rule.




                                -362-
Hon. Byron Tunnell, page,6 (C-73    1


                    SUMMARY
            That portion of the "Rule Making Procedure"
      rule adopted by the Texas State Board of Exami-
      ners In Optometry, which provides that no rule
      shall be adopted by the Texas State Board of
      Examiners in Optometry which has not received
      the vote required in the "Rule Making Procedure"
      rule, is subject to serious question on the
      ground that It constitutes an unlawful delegation
      of the power of the Board to determine which
      rules and regulations may be adopted and pro-
      mulgated.
            However, assuming the invalidity of that
      portion of the "Rule Making Procedure" rule
      adopted by the Texas State Board of Examiners
      In Optometry, such would not affect the validity
      of the "Professional Responsibility Rule" adopted
      by the Texas State Board of Examiners in Optometry.
                                        Yours   very truly,
                                        WAGGONER CARR
                                        Attorney General




FDW:wb:mkh                              Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. C. Davis
Albert P. Jones
Grady Chandler
Albert Pruitt
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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