JRNEX        GENERAL
                                  OF         EXAS




Honorable   Don Kennard
Chairman
Public Health Committee                          Opinion    mw-387
Senate of the State of Texas
Capitol Station                                  Re: Rule-making    power of
Austin,  Texas   78711                               the Texas State Board
                                                     of Examiners   in Optometry
                                                    ‘under the provisions   of
                                                     Sec. 2.14 of Article II of
                                                     Senate Bill 781 of the 6lst
                                                     Legislature.

Dear Mr.     Kennard:

         Your request      for an opinion poses     the following    question:

             “Does Section 2.14 of the proposed bill limit the
         Board to the making of procedural    rules only or would
         the underlined provisions  have the effect of clothing
         the Board with authority to make interpretive     rules or
         rules whioh would have the effect of enlarging upon or
         expanding the specific provisions   of the Bill?”

         Section   2.14   of Article   II of Senate Bill   781 of the 61st Legis-

lature   reads   as followe:

              “Section 2.14,   RULES AND REGULATIONS.           The Board
         shall promulgate    procedural rules and regulations    only
         consistent with the provisions   of this Act, to govern the
         conduct of tap business and proceedings.      Notwithstanding




                                           - 1911-
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Hon.   Don Kennard,        page 2 (M-387




           any other provision of this Act, the board shall not have
           any power or authority to amend or enlarge upon any pro-
           vision of this Act by rule or regulation or by rule or
           regulation to change the meaning in any manner whatsoever
           of any provision of this Act, or to promulgate     any rule
           or regulation which is in any way contrary to the underlying
           and fun&mental     purposes of this Act or to make any rules
           or regulation which is unreasonable,    arbitrary,   capricious,
           illegal,  or unnecessary.   (Emphasis  ours)

           In construing    the rule making   power     of the Texas   State Board   of

Examiners      in Optometry     under existing   law,    the Court in Kee v.   Baber,

157 Tex. 387,   303 S.W. 2d 376 (1957) held:

                “It must likewise be conceded that broad regulatory
           powers,   many of which are somewhat discretionary        in
           nature, are delegated to the Texas State Board of Exam-
           iners in Optometry,    which for convenience   we shall here-
           after refer to as the Optometry Board.      Article 4556, Ver-
           non’s Ann. Tex. Civ. Stats. provides that ‘The Board shall
           have the power to make such rules and regulations        not in-
           consistent with this law as may be necessary       for the perfor-
           mance of its duties, the regulation of the practice of optometry
           and the enforcement    of this Act.’  This authority is similar
           in scope to that vested in the State Board of Medical Examiners
           under the ‘Medical    Practice Act and in this Court under
           the State Bar Act, and differs from the narrower delegation
           contained in the Dental Practice Act and other similar        Acts
           relating to administrative    boards that could be mentioned.




                                           - 1912-
   ,




Hon.    Don Kennard,        page 3 (M-387



         The Optometry Board is empowered not only to adopt
         regulations   necessary for the performance    of its duties
         but also such rules as are necessary    for ‘the regulation
         of the practice of optometry.’  ” (Emphasis    ours)

          Likewise       in Texas     State Board   of Examiners   in Optometry   v.   Carp,

412.   S. W.   2d 307 (Sup.     Ct.    1967) the Court held:

              “In Kee v. Baber,    157 Tex. 387, 303 S.W. 2d 376 (1957), this
         court sustained the validity of three rules that the Board of Op-
         tometry promulgated.       These rules regulated ‘bait’ adver-
         tising,  basic competence,    and corporate    practice of opto-
         metry.    The court held that Article 4556 was a broad
         delegation of regulatory    powers to the Board since it
         authorized the Board to adopt such rules as are neces-
         sary for ‘the regulation of the practice of optometry. ’
         The court also held that each of the rules was consistent
         with, related to, and an implementation       of one or more
         of the prohibited categories    set out in Article 4563.   The.
         Professional   Responsibility   Rule which is under attack
         prohibits five forms of practice by those licensed as
         optometrists,   and as in Kee v. Baber, we shall ex-
         amine each of the prohibited practices      with reference
         to Article 4563 and other optometry regulations.

               II. . .


              “We conclude that the court of civil appeals erred
         in its holding that the Professional   Responsibility Rule
         added new and inconsistent    provisions  to the Optometry
         Act.   To the contrary,  our opinion is that the rule’s
         provisions   are in harmony with the general objectives




                                             - 1913 -
Hon.    Don Kennard,      page 4      (M-387



          of the act and referable    to and consistent with one or more
          of its specific proscriptions.     We believe that the Legis-
          lature, by investing the Board with broad rule-making
          powers ‘/for/   the enforcement     of this Act’ and ‘/for/
          the regulation of the practice of optometry, ’ contempla-
          ted that the Board would use these powers to correct
          the evils generally   classified  in Article 4563, or some
          other provision   of the Optometry Act.      If these rule-
          making powers did not authorize the Board to regulate
          evils not encompassed      in the specific working of the
          act, they would be nothing more than meaningless
          excess.”   (Emphasis    ours)

          Therefore,     under existing        law,    the Board has the power to adopt

rules   and regulations       for the enforcement          of the provisions     of the Op-

tometry    Act and for the regulation          of the practice      of optometry.         Under


Section   2.14   of Article     II of Senate Bill      781, the power to adopt rules

and regulations       for the enforcement        of the provisions        of the Optometry

Act and for the regulation         of the practice        of optometry     is omitted      and

Section   2.14   of Article     II of Senate Bill      781 specifically     limits   the Board’s

rule making      power to “procedural          rules    and regulations      only,     consistent

with the provisions       of this act,   to govern        the conduct     of its business        and

proceedings.     ‘I   In view   of the wording        of Section   2.14   of Article     II of




                                               - 1914 -
Hon.     Don Kennard,         page 5     (M-387



Senate    Bill   781, it is our opinion that the proposed                  bill would limit      the

Board’s      rule making       power to procedural            rules    and regulations     to

govern    the conduct       of the Board’s        business     and proceedings,          and the

Board     would no longer           have the existing     power to adopt rules           and

reguIations       for the enforcement            of the provisions        of the Optometry

Act,    nor would the Board            possess     rule-making         power for the

regulation       of the practice       of optometry.

       We note in your request           that a contention        has been made that the

last phrase       contained     in the proposed        Section     2.14    might be construed

by the judiciary       of this State to authorize             the Board     to adopt additional

rules    and regulations        concerning        the practice     of optometry.         While    we

do not agree        with the above       stated    contention,        any doubt concerning         the

rule making         power   of the Board         may be removed           by either   granting     the

Board     similar     rule-making        power     as contained        in the existing    Opto-

metry     Act or by completely           removing      such rule-making          power with the

following     language:

                 Section    2.14.     RULES       AND REGULATIONS.                The Board

shall    have no authority          to promulgate      rules     and regulations      regarding




                                                   ” 1915 -
                                                                                                 .




Hon.        Don Kennard,     page 6 (M-387



             the enforcement       of the provisions     of this act or the regulation

             of the practice    of optometry:       however,      the Board    shall have

             authority    to make appropriate        rules   and regulations     relating
       ‘.
             to the organization     and operation       of this Board    and relating      to

             the conduct    of hearings    before    the Board     in connection    with

             violations    of this act.



                                          SUMMARY

                 Under Section 2.14 of Article II of Senate Bill 781, the rule-
             making power of the Optometry Board would be limited to the
             promulgation    of procedural rules and regulations   to govern
             conduct of the Board’s business and proceedings      and the Board
             would not have the power now existing,     to adopt rules and
             regulations  for the enforcement   of the Act and for the re-
             gulation of the practice of optometry.

                                                       Youflery       truly,




                                                       Attorn&      General    of Texas

Prepared       by John Reeves
Assistant      Attorney General

APPROVED:
OPINION COMMITTEE




                                              - 1916 -
Hon.   Don Kennard,    page 7   (M-387




Kerns Taylor,  Chairman
George Kelton, Co-Chairman
John Banks
John Grace
Arthur Sandlin
Ronald Luna

W. V. GEPPERT
Staff Legal Assist&t

HAWTHORNE      PHILLIPS
Executive Assistant




                                         - 1917 -