                   THE     ATTORNEY          GENERAL
                              OF TEXAS

                              May 19, 1988



      G.V. Brindley, Jr., M.D.     Opinion No. JR-986
      Executive Director
      Texas State Board of         Re:    Whether rules of the Board
         Medical Examiners         of Medical Examiners authorizing
      P. 0. Box 13562              closed administrative    sanction
      Austin, Texas   78711        proceedings in disciplinary mat-
                                   ters are valid following   amend-
                                   ments to the Medical     Practice
                                   Act   (RQ-1254)

      Dear Dr. Brindley:

           You ask several questions about the effect of recent
      amendments to the Medical    Practice Act, article     4495b,
      V.T.C.S., on the powers and duties of the Board of Medical
/--   Examiners in disciplining its licensees.   You first inquire
      whether the board may continue to hear complaints     against
      licensees in "administrative sanction" hearings which are
      informal, closed hearings as described by board rules.    Bd.
      of Medical Examiners, 22 T.A.C.   5195 (1980), as amended by
      11 Tex. Reg. 4852   (1986). We limit our discussion to the
      question asked, and do not address all issues raised by
      administrative sanction hearings.

           The board has authority to make rules not inconsistent
      with the Medical Practice Act asnecessary  to govern its own
      proceedings, perform its duties, regulate the practice    of
      medicine and enforce the act. V.T.C.S. art. 4495b, 52.09(a).
      The board may cancel,  revoke, or suspend the license of a
      practitioner of medicine   or impose any other authorized
      means of discipline if it finds he has practiced fraud or
      deception in taking an examination, has used alcohol     and
      drugs to the extent of endangering   the lives of patients,
      used a false, misleading,      or deceptive   statement   in
      advertising, violated valid rules issued by the board,    or
      engaged in any other conduct set out in section 3.08 of
      article 4495a, V.T.C.S. Id. Fj53.08, 4.01, 4.05, 4.12.
  I
           Pursuant to its rule-making authority the    board adopted
      rules authorizing an "administrative sanction"    procedure  to
      deal with violations  of the Medical  Practice    Act or board
      rules in cases where the director of the          investigation



                                   p. 4474
Dr. G.V. Brindley, Jr. - Page 2   @M-906)




division and the secretary or chief executive officer of the
board concur that the violation is either minor in nature or
subject to proper resolution by voluntary limitation of the      ?,
licensee's authority to practice medicine. 22 T.A.C. 5195.1.
The rules provide for an informal hearing before a hearings
officer and one or more representatives      of the board or
members of a district review committee. 22 T.A.C. 5195.3(l),
(2) - At the conclusion of the hearing, the hearings officer
and board representatives make findings of fact and con-
clusions   of law and recommend measures       to resolve   or
correct the matter which violates the Medical Practice Act.
Recommendations may include,    for example,   limitations  or
cancellation   of the physician's    license,   limitation  or
cancellation of his authority     to possess and prescribe
drugs, or the requirement that he have counseling or treat-
ment. 22 T.A.C. §195.3(8).      If the licensee rejects the
recommendations, the matter is referred to the Investigation
Division "for appropriate action." 22 T.A.C. §195.3(8), (9).
If the licensee voluntarily accepts the recommendations,    he
signs letters, agreements, affidavits, or other documents as
necessary to effectuate    his voluntary  acceptance   of the
recommended disciplinary measures.   Id. at 5195.3(10).    The
regulations further provide that the secretary       or chief
executive officer of the board and ultimately       the board
itself is to z;;;zz; or disapprove    the recommendations   of
the hearings            and the restrictions    to which the
licensee voluntarily agrees.   If the board does not approve
the administrative sanction action, the matter is referred
to the investigation     division  for filing of a formal
complaint for disciplinary    action, or other appropriate
action.   22 T.A.C.   §§195.3(10), (11); 195.4.     The rules
provide that the results of the hearing and any letter,
agreement, or affidavit   are open records.    Bd. of Medical
Examiners 11 Tex. Reg.. 4852 (1986) (amending 22 T.A.C.
5§195.3(12), 195.4(3)).

     You state that the administrative sanction rules were
based primarily on the board's authority under former law to
administer a private  reprimand.  Before it was amended by
the 70th Session of the Legislature, section 4.12 of the
Medical Practice Act provided as follows:

             Sec. 4.12 .Except as otherwise provided in
        Section    4.01  [pertaining to felony     con-
                                                                 ?,
        victions    under the Controlled     Substances
        ActI,   if the board finds any person to have
        committed    any of the acts set forth in
        Section 3.08 of this Act, it mav enter an
        order imoosina one or more of the following:




                             p..4475
         Dr. G.V. Brindley, Jr. - Page 3             (JM-906)




                    (1) deny the person's application for a
                license or other authorization  to practice
h
                medicine:

                    (2)           administer a    DUbliC   or   vrivate     re-
                primand:

                     (3) suspend,  limit,   or restrict    the
                 person's license or other authorization    to
                 practice medicine,   including limiting the
                 practice of the person to or by the exclusion
                 of one or more specified activities        of
                 medicine;

                    (4) revoke the person's license or                    other
                 authorization to practice medicine:

                     (5) require the person to submit to care,
                 counseling,  or   treatment   of   physicians
                 designated by the board as a condition     for
                 the initial, continued,     or renewal of a
                 license or other authorization   to practice
                 medicine;

                    (6) require the person to participate   in
                 a program  of education or counseling    pre-
                 scribed by the board;

                    (7) require the person to practice under
                 the direction  of a physician designated   by
                 the board for a specified period of time; or

                    (8)  require the person to perform                public
                 service considered appropriate by the                board.
                 (Emphasis added.)

         Acts 1981, 67th Leg., 1st C.S., ch. 1, 54.12, at 25.

              House Bill No. 2560 of the 70th Legislature made                    the
         following relevant changes in section 4.12:

                    Sec. 4.12   (a) Except as otherwise   pro-
                 vided in Section 4.01, if the board finds any
                 person to have committed any of the acts set
    .-           forth in Section 3.08 of this Act, it shall
                 enter an order imposing one or more of the
                 following:

^                   .     .   .    *




                                                 p. 4476
Dr. G.V. Brindley, Jr. - Page.4      (JM-906)




            (2) administer a oublic reDrimand.       . . .
         (Emphasis added.)

Acts 1987, 70th Leg., ch. 596, 511, at          4661, codified     as
V.T.C.S. art. 4495b, 54.12.

     The board no longer has authority           to administer     a
private reprimand.     Moreover,    prior  to   the   amendment   in
1987, section 4.12 stated that the board,"may             enter an
order" imposing one or more of several disciplinary measures
if it found that any person had committed          one of the acts
set forth in   section  3.08.    Thus,  the    board  formerly had
discretion to not issue an order when it made the requisite
finding. See aenerallv      District Grand Lodae No. 25 v.
Jones,  160 S.W.2d 915  (Tex.  1942) ('*may@'  ordinarily connotes
permission).   Section   4.12   now   provides     that the board
"shall enter an order"    if  it makes    such  a  finding.   Thus,
the board has no discretion to withhold a formal order when
it has found wrongdoing.       &q Hess 8 Skinner Enaineerinq
Co. v. Turnev, 203 S.W. 593      (Tex. 1918)      (word l'shall'l is
ordinarily a preemptory    term): McLaren v. State, 199 S.W.
811 (Tex. Crim. App. 1917) ("shall*' is ordinarily imperative
and not directory).    Under section 4.12 as amended, once the
board finds that a person has engaged in conduct set out in
section 3.08, it has a mandatory        duty to enter an order
imposing one or more of the section             4.12 disciplinary
measures.

     House Bill No. 2560 also added the following            language
to section 4.04 of article 4495b, V.T.C.S.:

         The board may, unless precluded by the law or
         this Act, make a disposition of any complaint
         or matter  relating to this Act, or of any
         contested case by stipulation, agreed settle-
         ment, or consent order. The board shall adopt
         such rules as are appropriate   to carry out
         such disposition.  Such disnosition shall be
         considered a discivlinarv order.     (Emphasis
         added.)

V.T.C.S. art. 449533, 54.04(b). Thus, these other means            of
dealing with a complaint or contested case are now to              be
considered disciplinary orders.

     Rules authorizing   administrative  sanction   hearings
which were based on the board's   former authority to issue
orders administering a private reprimand,   and those which
were based on its former authority to issue no order at all
after a finding of misconduct, are no longer consistent with




                                p. 4477
      Dr. G.V. Brindley, Jr. - Page 5    (JR-906)


C




      the amended statute and are invalid. The board may make
      "rules, regulations,    and bylaws not inconsistent"      with
      article 4495b, as necessary      for the performance   of its
      duties. V.T.C.S. art. 449533, 52.09(a). Essential     elements
      of the  administrative  sanction   procedure are  inconsistent
      with the amended provisions of sections 4.04(b) and 4.12 of
      article 4495, V.T.C.S.,    and are therefore     invalid.    An
      administrative agency has only those powers expressly        or
      impliedly delegated   to it by the legislature,       and the
      legislature may withdraw from an administrative agency any
      of the powers delegated.   State v. Jackson, 376 S.W.2d     341
      (Tex. 1964). Section 4.05 of article 4495, V.T.C.S.,      sets
      out the hearing procedures     which the board may     use in
      disciplinary matters:

                 Sec. 4.05   (a) The president of the board
              shall designate one of the following alterna-
              tive procedures    for the conduct of each
              individual contested case in a disciplinary
              matter:

                  (1) a hearing before the board    itself
              where a quorum of the board shall be present
,--           for the hearing   and decision  at the con-
              clusion of the hearing:

                  (2) a hearing committee   appointed by the
              president of the board, provided       that the
              hearing committee  shall be composed of not
              less than three members of the board and the
              composition  of such      committee   shall  be
              consistent with the provisions      of Sections
              2.08 and 2.09 of this Act; or

                 (3) a hearing before a hearing      examiner
              appointed by the board to conduct a hearing
              and to prepare   and submit to the board    for
              action a proposal for decision as provided in
              the Administrative     Procedure   and    Texas
              Register Act    (Article 6252-13a,     Vernon's
              Texas Civil Statutes).

      V.T.C.S. art. 449533, §4.05.

           Your second and third questions are contingent on a
      determination  that the board has present      authority to
      conduct administrative sanction hearings.   In view of our
      answer to your first question, we need not answer them.




                                     p. 4478
Dr. G.V. Brindley, Jr. - Page 6   0-906)




     You next ask for an interpretation of section   2.09(P)
of the Medical Practice Act, as amended by the 70th Legisla-
ture. It provides as follows:

            (p) The board shall disseminate at least
        twice a year and at other times determined
        necessary by the board information as is of
        significant interest to the physicians      in
        Texas. The information must      include sum-
        maries of discivlinarv orders made aaainst
        phvsicians  licensed in this state, board
        activities and functions, pertinent    changes
        in this Act or board rules and regulations,
        and attorney general opinions. The require-
        ments of this section are in addition to the
        reporting requirements imposed under Section
        4.14 of this Act.     The board shall dis-
        seminate the information:

           (1) to all licensed physicians practicing
        in this state:

            (2) to all health-care entities and other
        board-designated   health-care   institutions
        operating in this state:

           (3) to all members      of      health-related
        legislative committees;

            (4) on written request, to members of the
        general public; and

           (5)   to public  libraries   throughout    the
        state.   (Emphasis added.)

V.T.C.S. art. 449513, 52.09(p).     Before it was amended,
section 2.09(p) only required the distribution of informa-
tion of significant interest to Texas physicians,   including
board activities,  changes in the Medical   Practice Act or
rules and regulations    thereunder,   and attorney   general
opinions.  It did not require the dissemination of disci-
plinary orders.

     You ask whether section 2.09(p) as amended requires the
board to disseminate  summaries of administrative   sanctions
which involve disciplinary actions or practice   restrictions
voluntarily agreed to by the licensee, but for which no
formal board order has been entered.        Section   2.09(p)
requires the board to disseminate summaries of "disciplinary
orders" against licensed physicians.



                             p. 4479
Dr. G.V. Brindley, Jr. - Page 7   (JW906)




     Article 4495b, V.T.C.S., does not define  "disciplinary
orders" but the meaning   of this term can be determined   by
looking at sections      of the    statute on   disciplinary
proceedings.  Section   4.01(a) of article 449533, V.T.C.S.,
states as follows:

           Sec. 4.01   (a) Except as provided herein,
        the board may cancel, revoke, or suspend the
        license of any practitioner    of medicine or
        imvose anv other authorized means of dis-
        cinline upon proof of the violation of this
        Act in any respect or for any cause for which
        the board is authorized to refuse to admit
        persons to its examination   and to issue a
        license and renewal   license,   including an
        initial conviction or the initial finding of
        the trier of fact of guilt of a felony or
        misdemeanor involving moral turpitude.
        (Emphasis added.)

V.T.C.S. art. 449533, 54.01(a). The exceptions   set out in
section 4.01(b) and 4.01(c) relate to mandatory      license
suspensions and revocations in cases where a licensee     is
convicted of a felony or incarcerated in a state or federal
penitentiary.  Section 4.04(b) of article 4495b, V.T.C.S.,
provides that the board's disposition of "any complaint   or
matter relating to this act, or of any contested case by
stipulation, agreed settlement, or consent order" shall be
considered a disciplinary  order. Finally, section   4.12(a)
sets out disciplinary  measures, one or more of which the
board shall order when it finds a violation referred to in
section 4.01(a).    In our opinion,   "disciplinary  orders"
means the kind of order referred to in sections     4.01(a),
4.04(b), and 4.12(a) of article 449533, V.T.C.S.

     Before the September 1, 1987 effective date of the
recent amendments to article 4495b, V.T.C.S., the board was
not required to issue a disciplinary order even if it found
misconduct.   The section 2.09(p) requirement does not apply
in cases where the board did not issue a disciplinary order.
We reiterate that since September 1, 1987, section    4.12(a)
has required the board to issue a disciplinary order once it
makes fact findings described by the statute, and section
4.04(b) has treated certain other dispositions     as disci-
plinary orders. We moreover point out that section    2.09(d)
requires the board to "preserve a record of its proceedings
which shall be a public record."     Portions of the board's
minutes   recording  its approval of voluntarily     accepted
disciplinary measures   are therefore public under section
2.09(d), even though the board did not issue a disciplinary



                            p. 4480
Dr. G.V. Brindley, Jr. - Page 8   bJM-906)




order which would be subject to the section 2.09(p)      dis-
semination requirement.  See 22 T.A.C. §195.4(3)    (adminis-
trative sanctions were required to be noted in the board's
minutes).  See also Bd. of Medical Examiners, 11 Tex. Reg.
4852 (1986) (amending 22 T.A.C. 195.3(12); 195.4(3)).

     Your fifth, sixth, and seventh questions are based on
the assumption  that board approval of an administrative
sanction report  is a disciplinary order.   Because of our
answer to question four, we need not answer this group of
questions.

     Your last two questions relate to section 4.05(d)     of
article 4495b, V.T.C.S. This provision states in part:

            (d) All complaints,      adverse    reports,
        investigation   files,   other    investigation
        reports, and other investigative     information
        in the possession of, received or gathered by
        the board or its employees or agents relating
        to a licensee, an application for license, or
        a criminal investigation    or proceedings   are
        privileged   and confidential    and are     not
        subject to discovery,     subpoena,    or other         -\
        means of legal compulsion for their release
        to anyone other than the board or            its
        employees  or agents    involved in licensee
        discipline. . . . The board shall vrovide
        information uvon recfuest to a~ health-care
        entitv concernina   whether   a comolaint    has
        been filed aaainst a licensee or the licensee
        is under investiaation bv the board and the
        basis of and current status of that comnlaint
        or investiaation.   (Emphasis added.)

The underlined sentence of section 4.05(d) was added by the
70th session  of the legislature.    YOU ask whether    this
language requires the board to inform health-care   entities
upon request about any and all complaints filed against    a
physician since his license was originally   issued and the
status of those complaints,  including complaints in closed
investigative files.

     A similar issue of statutory construction was addressed
by the Texas Supreme Court in Industrial Foundation of the
South v. Texas Industrial Accident Board, 540 S.W.2d     668    ?
(Tex. 1976), cert. denied, 430 U.S. 931. In this case, the
Supreme Court considered whether the Texas Open Records Act,
article 6252-17a, V.T.C.S., required disclosure of claims
for workman's   compensation   benefits  filed by    injured



                             p. 4481
    Dr. G.V. Brindley, Jr. - Page 9   (m-906)




    workers.  The court rejected the argument that all claim
    information filed with the Industrial Accident Board prior
    to the act's effective date should remain confidential,
    stating as follows:

             First, it is clear that the Act is intended
          to apply to all records kept by governmental
          bodies, whether acquired before or after the
          Act's effective  date. No exception is made
          for records which were considered confidential
          prior to June 14, 1973.

    540 S.W.2d at 677. Section 4.05(d) applies to complaints
    generally and is not limited to, for example,     complaints
    pending as of the effective  date of the 1987 amendments  to
    article 4495b, V.T.C.S.,  or to complaints  filed after the
    effective date.

         An examination  of the purpose of this portion      of
    section 4.05(d) supports our opinion that it requires   the
    board to inform health-care entities upon request about all
    complaints about a physician   filed since his license was
    originally issued.   A "health-care  entity" is defined  to
    include the following:

               (A) a hospital that is licensed pursuant
            to the Texas Hospital Licensing Law    (Article
            4437f, Vernon's Texas Civil Statutes) or the
            Texas Mental Health Code    (Articles 5547-88
            through   5547-100,  Vernon's    Texas    Civil
            Statutes):

                (B) an entity, including a health main-
            tenance organization, group medical practice,
            nursing home, health science center, uni-
            versity medical school, or other health-care
            facility, that provides medical   or health-
            care services and that follows a formal peer
            review process for the purposes of furthering
            quality medical or health care: and

                (C) a professional  society or associa-
            tion, or committee   thereof,  of physicians
            that follows a formal peer review process for
            the purpose of furthering quality medical  or
            health care.

    V.T.C.S. art. 449513, 51.03(a)(5).  Health-care entities, as
    defined   in the statute,    include entities which employ
c   physicians, give physicians staff privileges, or evaluate




                                 p. 4482
Dr. G.V. Brindley, Jr. - Page 10 @M-906)




the   qualifications    and   professional   competence
physicians. See aenerallv   V.T.C.S. art. 4495b,  §l.O3(a)($
(definitions of "medical peer review committee" and "medical
peer review").    These entities will be better      able to
evaluate a physician for employment or association with the
entity if they have access to all complaints pertaining    to
the physician since he was first licensed.

     Legislative history moreover indicates that the legis-
lature was concerned about the ease with which a physician
who lost his staff privileges for misconduct at one Texas
hospital could simply move to another without being subject
to any disciplinary action by the Board of Medical         Exa-
miners.  House Bill No. 2560 was a response to legislative
and public concerns     about the effectiveness    of     state
regulation of physicians and the board's ability to protect
the public    from incompetent practitioners.     See     House
Insurance Committee, Bill Analysis   S.B. No. 87, 70th Leg.,
2d C.S.   (1987) (analysis of bill which adopted    technical
amendments to H.B. No. 2560); see also House Public Health
Committee, Bill Analysis    C.S.S.B. 171, 70th Leg.      (1987)
(analysis of bill which was source of many provisions        of
H.B. No. 2560).    These concerns were prompted   in part by
media reports   about Texas physicians who were not disci-
plined by the board despite complaints, malpracti.ce judg-
ments, or other information which raised significant    doubts
about their competence    to practice medicine.    See House
Research Organization,   Disciolinina the Doctors:     Medical
Reaulation in Texas at ,2 (March 10, 1987). In one widely
publicized case, a physician lost his staff privileges       at
one hospital   after a very large malpractice judgment was
taken against him.     He moved to another part of Texas,
joined the staff of another hospital, and subsequently      was
responsible for a similar incident of malpractice.    Id.

     The contemporary circumstances out of which legislation
arose and the leqislative historv may be consulted in inter-
preting a statute. San Antonio General Drivers, Helvers
Local No. 657 v. Thornton,     299 S.W.2d 911    (Tex. 1957);
Martin v. Shenvard,   102 S.W.Zd 1036  (Tex. 1937). In con-
struing a statute, a court shall consider the old law and
the evil to be remedied. Gov't Code 5312.005;        Dolan v.
Walker, 49 S.W.2d 695 (Tex. 1932). An interpretation of the
quoted language of section 4.05(d) will give health entities
access to information needed to evaluate physicians       with
whom they  deal  and will thus implement the legislative
purpose of protecting   the public  from incompetent   practi-
tioners.




                             p. 4483
     Dr. G.V. Brindley, Jr. - Page 11 (JM-906)




          Our construction of section 4.05(d) gives health-care
     entities access to complaints about physicians which this
     statute declared to be "privileged" before the 1987 amend-
     ments. See Acts 1981, 67th Leg., 1st C.S., ch. 1, at 1, 24.
     Article I, section 16, of the Texas Constitution    prohibits
     the adoption of any "retroactive  law, or any law impairing
     the obligation   of contracts. . . .I1 The constitutional
     prohibition against retroactive laws applies only to those
     laws destroying or impairing vested rights. Deacon v. Citv
     of Euless, 405 S.W.2d 59 (Tex. 1966); State Board of Reois-
     tration for Professional Enaineers v. Wichita    Enaineerinq
     co., 504 S.W.2d 606 (Tex. Civ. App. - Fort Worth 1973, writ
     ref'd n.r.e.): McGinlev v. McGinlev , 295 S.W.2d 913     (Tex.
     Civ. App. - Galveston 1956, no writ).   In our opinion,    the
     legislature has not destroyed  or impaired vested rights by
     providing health-care  entities with access to complaints
     about physicians filed with the Board of Medical    Examiners
     prior to the effective date of the 1987 amendments.

          The Supreme Court opinion in the Industrial    Foundation
     of the South v. Texas Industrial Accident Board case, m,
     provides helpful authority   on the constitutional issue as
     well as the issue of statutory construction.        There are
     differences in the factual settings of the Supreme        Court
     case and the question       we are addressing,     but    these
     differences tend to support our opinion that the amendment
     to section 4.05(d) of article 44951, did not impair vested
     rights. The Industrial Foundation    case dealt with benefit
     claims filed by workers on their own behalf, and the court
     determined that such claims were available to any member     of
     the public,   except   for information within     a "zone of
     privacy" protected by the Constitution.    540 S.W.2d at 681.
     Section 4.05(d) of article 449513, V.T.C.S., makes complaints
     and their disposition     available    only to health      care
     entities, not to the general public.       Moreover, the com-
     plaints at issue in section 4.05(d) are complaints        about
     licensed physicians filed by persons other than physicians
     who are the subject of the complaint. See Acts 1981, 67th
     Leg., 1st C.S., ch. 1, 51, at 1; 54 at 22, 23, 24       (former
     §§4.02 and 4.05(d) of article 4495b, V.T.C.S.,            which
     pertained to complaints).     Although   the complainants    in
     Industrial  Foundation might be able to say that they
     furnished the information   in the expectation of confiden-
     tiality, the physicians cannot make such an assertion.
 -        Moreover, the court in Industrial Foundation stated    as
     follows:

,-
             [W]e do not   believe that information should
             be excepted   from disclosure  merely because




                                  p. 4484
Dr. G.V. Brindley, Jr. - Page 12   (J&$-986)




        the individual  furnishing   such information
        did so with the expectation    that access to
        the information would be restricted.        The
        Legislature  has not, by determining       that
        government information   formerly kept confi-
        dential should be disclosed,     impaired any
        vested right of 'a claimant to the confiden-
        tiality of the information.   Unless there   is
        such an impingement    upon a   vested  right,
        the Legislature  may require disclosure      of
        information even though it was deemed   confi-
        dential by an agency rule prior to the effec-
        tive date of the Act.   (Footnotes omitted.)

540 S.W.2d at 677-78.    See aenerallv Industrial  Foundation    '
of the South v. Industrial    Accident Board, at 677 ri. 15;
Open Records Decision No. 55A (1975) (discussing possibility
that information  provided   a governmental   body prior to
effective date of Open, Records Act pursuant      to express
promise of confidentiality might be protected by article    I,
section 16 from disclosure under the act). See also Open
Records Decision No. 64 (1975).

     The physician who was subject to the complaint had no
authority to determine whether it would be submitted to the
board, whether the board would decide to investigate it, or
whether the investigation would be closed without action or
would lead to some kind of administrative     action.    Pro-
ceedings held under the former "administrative     sanction"
rules were subject to a rule which attempted to withhold

        the nature of the hearing or the results
        thereof except as required by Texas Civil
        Statutes article 4495b, these sections,        or
        order of a  court   unless  such  disclosure   is
        authorized .by  the   licensee or   his  or  her
        attorney: provided, however, that disclosure
        shall be made in accordance with the volun-
        tary agreements   or affidavits     executed  by
        licensee and shall be made to other state or
        federal agencies requesting such information
        which have jurisdiction or authorization over
        aspects of medical    practice covered by such
        limitations    or    restrictions'   voluntarily
        accepted by licensee.

22 T.A..C. §195.3(12). This rule was amended in 1986 to
provide that the "results as well as the letters,    agree-
ments, and affidavits shall be open records." 11 Tex. Reg.
4852 (Nov. 28, 1986). This language does not attempt     to



                              p. 4485
Dr. G.V. Brindley, Jr. - Page 13   04-906)




make confidential the complaint or fact that it was dealt
with by "administrative sanction" proceedings. The "adminis-
trative   sanction"   rules provide no legal basis     for a
licensee to expect that complaints against him would forever
remain confidential.     See Open Records  Decision No. 468
(1987) (Open Records Act applies to complaints against peace
officer filed before its effective date): see also Henderson
Co. v. Thomvson, 300 U.S. 258 (1937); Texas State Teachers
Association v. State, 711 S.W.Zd 421 (Tex. APP. - Austin
1986, writ ref'd n.r.e.); State Board of Resistration     for
Professional Enaineers v. Wichita Enaineerinc     co., suvra
(constitutional    rules against   impairing contracts    and
retroactive laws are not absolute and must yield to the
state's right to safeguard the public safety and welfare).
But see Travelers' Insurance Co. v. Marshall, 76 S.W.2d 1007
(Tex. 1934)    (police power of state does not extend to
enactment of legislation, effect of which impairs obligation
of contracts).

     In conclusion, the legislature has created an exception
to the confidentiality provision found in the first sentence
of section 4.05(d). The board is required to provide       a
health-care entity with the described information about all
complaints filed against a physician    since he was first
licensed, as well as information about the status of such
complaints, even if the matter has been resolved and the
investigation closed.

     You finally ask:

           Are closed investigation files privileged
        and confidential   under the provisions    of
        section 4.05(d) of the act (i.e., subject to
        disclosure under the Open Records Act) if the
        person requesting information  is not acting
        on behalf of a health care entity?

     Section  4.05(d) provides    that Il[a]ll complaints,
adverse reports,  investigation files, other investigation
reports, and other     investigative  information"   in   the
possession of the board relating to a licensee,       license
application, or a criminal investigation or proceedings

        are privileged  and confidential  and  are
        not subject to   discovery,  subpoena,  or
        other means of legal compulsion  for their
        release. . . .

V.T.C.S. art. 4495b, 54.05(d). Section 3(a)(l) of the    Open
Records Act provides as follows:




                            p. 4486
Dr. G.V. Brindley, Jr. - Page 14   (m-906)




           Sec. 3. (a) All information     collected,
        assembled,  or maintained   by   governmental
        bodies pursuant  to law or ordinance   or in
        connection with the transaction of official
        business is public information and available
        to the public during normal business hours of
        any governmental  body, with the following
        exceptions only:

           (1) information    deemed confidential   by
        law, either Constitutional. statutorv. or   bv
        judicial decision.   (Emphasis added.)

V.T.C.S. art. 6252-17a, 53(a)(l).    Information within   the
scope of the confidentiality  provision of section  4.05(d),
article 4495b, V.T.C.S., is excepted from public disclosure
by section 3(a)(l) as "information   deemed confidential   by
statutory law.@' See oenerally Open Records Decision NO. 458
(1987) (discussing scope of predecessor to section    4.05(d)
confidentiality provision).

     Whether the section 4.05(d) confidentiality    provision
applies to particular information   requested under the Open
Records Act must be decided on a case-by-case basis,      and
cannot be answered as a hypothetical matter.   If you receive
an Open Records request for information which you believe is
exempted from public disclosure     by section 4.05(d),    as
incorporated into the Open Records Act by section    3(a)(l),
you must submit the matter to this office for a determina-
tion of whether the information falls within this exception.
See V.T.C.S. art. 6252-17a, 57.

                        SUMMARY

          Rules of the Board of Medical       Examiners
       authorizing '@administrative sanction" hearings
       are inconsistent with article 449513, V.T.C.S.,
       the Medical Practice Act, as amended by House
       Bill No. 2560 of the 70th Legislature, and are
       therefore invalid. Section 2.09(p) of article
       4495b, V.T.C.S.,   requires the board to dis-
       seminate summaries of the disciplinary    orders
       it issues.    This provision  does not require
       the board to disseminate summaries of "admini-
       strative   sanctions" which   involved    disci-
       plinary measures voluntarily agreed to by the
       licensee without a formal board order.     Since
       the September 1, 1987 effective date of amend-
       ments to the Medical Practice Act, section
       4.12 of that act has required the board to



                             p. 4487
Dr. G.V. Brindley, Jr. - Page 15 (JM-906)




      issue a formal disciplinary order if it finds
      that an applicant or licensee has engaged     in
      misconduct identified by that provision,     and
      section 4.04(b) has provided that disposition
      of complaints by stipulation, agreed settle-
      ment, or consent order' shall be considered    a
      disciplinary order. Section 4.05(d) of article
      4495b, V.T.C.S., requires the Board of Medical
      Examiners to inform health-care entities upon
      request about all complaints filed against     a
      physician since his license was originally
      issued and about the status of those com-
      plaints, including those in closed      investi-
      gative files. Information within the scope
      of the confidentiality   provision   of section
      4.05(d) of    article 4495b,      V.T.C.S.,   is
      excepted from public disclosure under the Open
      Records Act by section 3(a)(l) of that act.
      Whether particular    information   is excepted
      from public disclosure by section 4.05(d) must
      be decided by this office on a case-by-case
      basis pursuant   to    section 7 of      article
      6252-17a, V.T.C.S.

                                 Jzyh


                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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