Untitled Texas Attorney General Opinion ( 2003 )

OFFICE +he ATTORNEY GENERAL
GREG ABBOTT
February lo,2003
Ms. Cynthia S. Vaughn, D.C. Opinion No. GA-0020
President
Texas Board of Chiropractic Examiners Re: Whether the Board of Chiropractic Examiners
333 Guadalupe, Suite 3-825 may by rule allow an individual whose license has
Austin, Texas 78701-3942 expired to take a different licensing examination
from that required under section 20 1.354(e) of the
Occupations Code (RQ-0586-JC)
Dear Ms. Vaughn:
As president of the Texas Board of Chiropractic Examiners (the “Board”), you seek an
opinion on Occupations Code section 201.354(e) which governs the licensing of chiropractors whose
licenses have been expired for one year or more. You ask whether a person subject to Occupations
Code section 201.354(e) must retake all of the National Board of Chiropractic Examiners (the
“NBCE”) examinations presently required for original licensure by board rule, or whether the Board,
by rule, may determine which NBCE examinations sufficiently and safely fulfill the requirement of
reexamination under section 20 1.354(e).’
The NBCE is a non-profit national organization that provides several different tests for the
chiropractic profession. See Request Letter, supra note 1, at 1. You indicate that the NBCE Parts
I through IV examinations are designed to measure the competency of candidates for initial
licensure, while the Special Purposes Examination for Chiropractic is designed for licensing agencies
to use when considering cases of reciprocity, reinstatement following licensure lapse, suspension
or revocation, and the like. See id. at 2; NBCE EXAMINATION INFORMATION, FALL 2002,
section 1, at 3.
Occupations Code section 201.354(e) provides as follows:
(e) Except as provided by Subsection (g) and Section 201.355, a
person may not renew a license that has been expired for one year or
more. The person may obtain a new license by submitting to
‘Letter from Cynthia S. Vaughn, D.C., President, Texas Board of Chiropractic Examiners, to Honorable John
Comyn, Texas Attorney General (Aug. 7,2002) (on file with Opinion Committee) [hereinafter Request Letter].
Ms. Cynthia S. Vaughn - Page 2 (GA-0020)
reexamination and complying with the requirements and procedures
for obtaining an original license.
TEX. OCC. CODE ANN. 9 201.354(e) (Vernon 2003); see id. ch. 201, subch. G (requirements and
procedures for obtaining an original license). Subsection (g) allows a person to renew a license that
has been expired for one to three years if there is good cause for failure to renew as defined by board
rule. See id. 8 201.354(g); see also 27 Tex. Reg. 1263, 4705 (2002) (to be codified at 22 TEX.
ADMIN. CODE 8 73.2(h)(6)-(7)). Section 201.355 provides an exception for a person licensed in
Texas who moved to another state and “is currently licensed and has been in practice in the other
state for the two years preceding application.” TEX. Oct. CODEANN. 0 201.355(a) (Vernon 2003);
see 22 TEX. ADMIN. CODE 8 73.2(h)(5) (2002).
The Board is authorized to adopt rules and bylaws “relating to . . . the board’s examination
of an applicant for a license to practice chiropractic.” TEX. Oct. CODE ANN. 8 201.152(a)(2)
(Vernon 2003). As the governing body of an administrative agency, the Board may adopt only rules
that are authorized by and consistent with its statutory authority. See R. R. Comm ‘n v. Lone Star Gas
Co., 844 S.W.2d 679,685 (Tex. 1992); State Bd. of Ins. v. Deffebach, 631 S.W.2d 794, 798 (Tex.
App.-Austin 1982, writ ref’d n.r.e.); Tex. Att’y Gen. Op. No. JC-0541 (2002) at 2; see also Gerst
v. Oak Cliff Savs. and Loan Ass ‘n, 432 S.W.2d 702,706 (Tex. 1968) (rules must be in harmony with
the general objectives of the statute).
The legislature has provided, with two statutory exceptions, that “a person may not renew
a license that has been expired for one year or more” but may “obtain a new license by submitting
to reexamination and complying with the requirements and procedures for obtaining an original
license.” TEX. OCC. CODE ANN. 5 201.354(e) (Vernon 2003). Applicants for a new license must
pass the “required and optional parts of the examination given by the National Board of
Chiropractic Examiners, as required by and under conditions established by board rule” and an
examination prepared by the Board on the law governing the practice of chiropractic in Texas. Id.
9 201.304(a)(l). M oreover, an examination given to applicants for an initial license “shall be
conducted on practical and theoretical chiropractic and in the subjects of anatomy-histology,
chemistry, bacteriology, physiology, syrnptomatology, pathology and analysis of the human spine,
and hygiene and public health.” Id. 8 201.305(b). A board rule requires applicants for initial
licensure to “take and pass Parts I, II, III, IV and Physiotherapy” of the NBCE examinations. 22
TEX. ADMIN. CODE 8 71.6(a) (2002). Board rules on the licensure of a person whose license has
been expired for a year or more must be consistent with section 201.354(e), which requires, subject
to the two noted exceptions, the person whose license has expired to comply with the requirements
and procedures for obtaining an original license. Accordingly, the Board has no authority to provide
by rule additional exceptions from the legislatively established requirements for licensure of persons
whose license has been expired for one or more years.
Ms. Cynthia S. Vaughn - Page 3 (GA-0020)
SUMMARY
Occupations Code section 20 1.354(e) provides, with certain
exceptions, that a person may not renew a license to practice
chiropractic that has been expired for one year or more but may
obtain a new license by submitting to reexamination and complying
with the requirements for obtaining an original license. The Board of
Chiropractic Examiners does not have authority to adopt a rule
providing that such persons may be licensed by taking an examination
different from that required of first-time applicants.
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Deputy Attorney General - General Counsel
RICK GILPIN
Deputy Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee