Untitled Texas Attorney General Opinion ( 2000 )

OFFlCE OF THE ATTORNEY G8NEA.u. ST*TP OF TEXAS
JOHN CORNYN
August 29,200O
Mr. Allen M. Hymans Opinion No. JC-0274
Executive Director
Texas State Board of Podiatric Re: Authority of the Texas State Board of Podiatric
Medical Examiners Medical Examiners to conduct warrantless on-site
P.O. Box 12216 compliance inspections of its licensees and their
Austin, Texas 78711 premises (RQ-0211-X)
Dear Mr. Hymans:
You have requested our opinion regarding the authority ofthe Texas State Board ofpodiatric
Medical Examiners to conduct warrantless on-site compliance inspections of its licensees and their
premises. For the reasons indicated below, we conclude that it may not do so.
The Board of Podiatric Medical Examiners (“the Board”) is directed by statute to:
adopt reasonable or necessary rules and bylaws consistent with the
law regulating the practice of podiatry, the law of this state, and the
law of the United States to govern:
(1) its proceedings and activities;
(2) the regulation of the practice of podiatry; and
(3) the enforcement of the law regulating the practice of podiatry.
TEX. Oct. CODEANN. 5 202.15 1 (Vernon 2000). In addition, the Board is required by rule to:
develop a system to monitor a podiatrist’s compliance with this
chapter. The system must include:
(1) procedures for determining whether a podiatrist is in
compliance with an order issued by the board; and
(2) a method of identifying and monitoring each podiatrist who
represents a risk to the public.
Mr. Allen M. Hymans - Page 2 (X-0274)
Id. 5 202.602. In accordance with these statutory directives, the Board has adopted a rule
authorizing it to:
conduct a compliance monitoring program in which podiatric
practices are inspected on an unannounced basis to insure that
licensees are complying with the requirements of the applicable
statutes and rules. Those items to be inspected include, but are not
limited to, display of licenses; compliance with required consumer
information; continuing education requirements; sanitation; patient
record completion; drug security; drug accountability; and
compliance with other state and federal laws.
22 TEX. ADMIN.CODE5 376.1 l(a) (2000). You ask whether this rule is within the Board’s statutory
authority.
This office recently had occasion to address a similar issue regarding the authority of the
Polygraph Examiners Board to conduct on-site inspections of its licensees’ places of business. As
we said in Attorney General Opinion JC-0204, the matter of on-site inspection of a private
commercial enterprise implicates the Fourth Amendment to the United States Constitution, and
article I, section 9, of the Texas Constitution. See Tex. Att’y Gen. Op. No. JC-0204 (2000) at 1.
Following the Texas Court of Criminal Appeals, the opinion applied United States Supreme Court
precedent “to determine the constitutionality, under both the federal and state constitutions, of the
on-site inspections.” Id. Attorney General Opinion JC-0204 observed that “[nlormally, authorities
may not search, without a warrant, portions of a commercial enterprise that are not open to the public
unless the commercial enterprise is involved in a ‘closely regulated industry.“’ Id. at 2; see also
Santikos v. State, 836 S.W.2d 631,632-33 (Tex. Crim. App. 1992) (en bane).
The United States Supreme Court has recognized four industries as “closely regulated”:
automobilejunkyards, coal mining, firearms and ammunition sales, and the liquor industry. See Nav
Yorkv. Burger,482U.S. 691,703-04,719n.2(1987);Marshallv. Barlow’s, Inc.,436U.S. 307,313
(1978). Other courts have extended the list to include, inter alia, commercial fishing, see United
States v. Raub, 637 F.2d 1205,1209-l 1 (9th Cir. 1980) (salmon fishing in Puget Sound area); phar-
maceuticals, see United States v. Schzjiian, 572 F.2d 1137, 1142 (5th Cir. 1978) (“pervasively
regulated” business subject to inspection); and massage parlors, see Pollard v. Cockrell, 578 F.2d
1002, 1014-15 (5th Cir. 1978); see generally, Adust Video v. Nueces County, 996 S.W.2d 245,255
n.5 (Tex. App.-Corpus Christi 1999, no pet.). Two federal courts have, however, struck down
statutes that authorized warrantless searches of medical facilities. See Margaret S. Y. Edwards, 488
F. Supp. 181,214-17 (E.D. La. 1980); Hawaii Psychiatric Sot ‘y v. Ariyoshi, 481 F. Supp. 1028,
1045-52 (D. Hawaii 1979).
In the Margaret S. case, the state of Louisiana had attempted to require that both medical
records and abortion facilities be open for inspection at any time by the Department of Health and
Human Resources. The state argued that the medical profession should be categorized as a closely
Mr. Allen M. Hymans - Page 3 (X-0274)
regulated industry because the state regulates the initial licensing of doctors and conducts some
inspections, and because the practice of medicine is a privilege that may be revoked. See Margaret
S., 488 F. Supp. at 215-16. The court observed that “[t]he medical profession, unlike the liquor
industry, has no ‘long history’ of warrantless state inspection.” Id. at 2 16. Furthermore, “the
practice of medicine [is not] an industry in which heavy regulation is crucial to assure careful
distribution of dangerous weapons.” Id. at 216. “Rather, it is a profession with a history ofrespect
towards the recognized need for privacy in the doctor-patient relationship.” Id. As a result, the court
found that “the health industry. is not a closely regulated industry within the meaning ofMarshall
v. Barlow’s, Znc, 436 U.S. 307 (1978)” Id. at 217. In our opinion, this conclusion is sound. We
have found no evidence of pervasive regulation of the practice of podiatric medicine in Texas, nor
any Texas case that would furnish any basis for concluding that it should be so characterized.
Even if podiatric medicine were to be regarded as a “closely regulated industry,” however,
the Board would not be authorized under present circumstances to conduct warrantless inspections.
In the first place, the statute does not itself authorize. warrantless inspections. Rather, section
202.602 merely directs the Board to “develop a system to monitor a podiatrist’s compliance with this
chapter.” TEX. Oct. CODEANN. 5 202.602 (Vernon 2000). Warrantless random inspections are
permitted only by Board rule. It is well established that an administrative agency has only those
powers expressly granted and those necessarily implied therefrom. See City of Sherman v. Public
Util. Comm ‘n, 643 S.W.2d 681,686 (Tex. 1983); Stauffer Y. City of San Antonio, 344 S.W.2d 158,
160 (Tex. 196 1). In our opinion, the Board rule at issue here cannot be reasonably inferred from the
language of section 202.602.
Another portion of chapter 202 requires a licensed podiatrist to “conspicuously display both
the license and an annual renewal certificate for the current yearofpractice at the location where the
person practices.” TEX. OCC. CODEANN. 5 202.262(a) (Vernon 2000). Although the statute requires
the podiatrist to “exhibit the license and renewal certificate to a board representative on the
representative’s official request for examination or inspection,” see id. 202.262(b), this provision
does not authorize the Board’s representative to conduct warrantless searches or indeed, to enter a
portion of the premises that is not open to the public. With regard to the matter of “drug security”
referenced in the Board’s rule, the director of the Department of Public Safety or his designee may,
for the purpose of inspection, “at any reasonable time” enter premises where controlled substances
are kept, see TEX. HEALTH& SAFETYCODE 5 48 1.18 1 (Vernon 1992), and a person “required to keep
records relating to dangerous drugs” must “allow the official or employee to inventory all stocks of
dangerous drugs.” Id. § 483.025. But no statute commits such a role to the Board of Podiatric
Medical Examiners.
Furthermore, the legislature has in at least one other instance specifically conferred upon an
administrative agency the authority to conduct warrantless inspections. Section 101.04 of the
Alcoholic Beverage Code declares that “[b]y accepting [an alcoholic beverage] license or permit, the
holder consents that the [Alcoholic Beverage] [Clommission, an authorized representative , or
a peace ofticer may enter the licensed premises at any time to conduct an investigation or inspect the
premises for the purpose of performing any duty imposed by this code.” TEX. ALCO. BEV. CODE
Mr. Allen M. Hymans - Page 4 (X-0274)
ANN. 5 101.04 (Vernon 1995); see also Santikos v. State, 836 S.W.2d at 632. The absence ofsuch
a provision in the law governing podiatrists leads to the conclusion that the legislature did not intend
to confer such power.
Finally, even if we could infer the permissibility of warrantless inspections from section
202.602, that provision would be inadequate to satisfy constitutional requirements. In Adust Video
v. Nueces Counry, 996 S.W.2d 245 (Tex. App.-Corpus Christi 1999, no pet.), the court struck down
that portion of a permanent injunction against an adult book and video store that required the owners
of the establishment to consent to random inspections. The court found that “[tlhe absence of
conditions on the inspections violates the constitutional requirements for such administrative
searches.” Id. at 256. “The injunction must have a ‘properly defined scope, and it must limit the
discretion of the inspecting offtcers.“’ Id. (citing New York v. Burger, 482 U.S. at 703). As with
the injunction in Adust Video, so with the statute at issue here. Even if the power to conduct
warrantless inspections could somehow be inferred from section 202.602, nothing in the statute
places any limitations on that authority.
We conclude that the Texas State Board of Podiatric Medical Examiners is without authority
to conduct warrantless on-site compliance inspections of its licensees or their premises. In light of
our answer to this question, we need not respond to your other inquiries.
Mr. Allen M. Hymans - Page 5 (X-0274)
SUMMARY
The Texas State Board ofPodiatric Medical Examiners is not
authorized to conduct warrantless on-site compliance inspections of
its licensees or their premises.
JOH’N CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee