Untitled Texas Attorney General Opinion ( 1987 )

G. V. Brlndlay, Jr., M.D. Opinion NO. 34-665 Executive Director Texas State Board of Medical Re: Authority of the State Board Examiners of Medical Examiners to require P. 0. Box 13562 additional postgraduate medical Austin, Texas 78711 training of certain licensure applicants Dear Dr. Brindley: You ask about au apparent conflict between sections 3.04 and 5.04 of the Texas Medical Practice Act (hereinafter the act). article 4495b, V.T.C.S. Section 3.04 appears to apply to all applicants for licenaure by examination whereas section 5.04 applies specifically to students of foreign medical schools who are applicants for licensure by examination. Your questions turn on whether these provisions are mutually exclusive or whether a student of a foreign medical school must comply with certain provisions in both sections. A careful reading of each of these sections is essential to understand their effect. Section 3.04 of article 4495b provides, in full: (a) An applicant. to be eligible for the examination and issuance of license, must present satisfactory proof to the board that the appli- cant: (1) is at least 21 years of age: (2) is of good professional character; (3) has completed 60 semester hours of college courses other than in medical school, which courses would be acceptable, at the time of completion, to The University of Texas for credit ou a bachelor of arts degree or a bachelor of science degree; (4) is a graduate of a medical school or college that was approved by the board at the time the degree was conferred; and p. 3032 . Dr. G. V. Brindley, Jr. - Page 2 (JM-665) (5) has successfully completed a oae year program of graduate medical training approved by the board. In addition to other licensure requirements, the board may require by rule and regulation thst graduates of medical school 6 located outside t:he United States and: Canada comply vith other requirements that the board considers appropriate, including but not limited to additional graduate medical training in the United States, except those who qualify for 1,icensure in Sectioo 5.04 of this Act. However, the applicant shall be eligible for examination prior to complying with Subdlvisioa (5) of Subsection (a) of this section but shall not be eligible for the Issuance of au uu- restricted license until the requirements of this subsection have been satisfied. (b) Applications for examination must be made in writing, verified by affidavit, filed with the board on forma prescribed by the board, and accompanied by a fee as the board determines to be reasonable. (Emphasis added). Section 5.04 of article 4495b provides, in full: (a) NotwithstandIng any other provision of law, an individual who has been a student of a foreign medical school is eligible for licensure to practice medicine in this state if he: (1) has studied medicine in a reputable medical school as defined by the board located outside the United States: (2) has completed all of the didactic work of the foreign medical school; (3) has attained a score satisfactory to a medical school in the United States approved by the Liaison Committee on Medical Education on a qualifying examination and has satisfactorily completed one academic year of supervised clinical training for foreign medical students as defined by the American Medical Association Council on Medical Education under the diree- tion of the medical school in the United States; (4) has attained a passing score on the Education Council for Foreign Medical Graduates p. 3033 Dr. G. V. Brindley, Jr. - Page 3 (JM-665) examination, or other examination, if required by the board; and (5) has passed the examination required by the board of all applicants for license. sec~",~n Satisf ac ti on of the requirements of Sub- (a) of this section are in lieu of the completion of any requirements of the foreign medical school beyond completion of the didactic work, and no other requirements shall be a condition of licensure to practice medicine in this state. (c) Satisfaction of the requirements specified in Subsection (a) of this section shall be In lieu of certification by the Educational Council for Foreign Medical Graduates, and the certification is not a condition of licensure to practice medicine in this state for candidates who have completed the requirements of Subsection (a) of this section. (d) A hospital that is licensed by this state, that is operated by the state or a political subdivision of the atate. or that receives state financial assistance, directly or indirectly, may not require an individual who has been a student of a foreign medical school to satisfy any requirements other than those contained in Subdivisions (1). (2). (3). and (4) of Subsection (a) of this section prior to commencing an internship or residency. (e) A document granted by a medical school located outside the United States issued after the completion of all the didactic work of the foreign medical school shall, on certification by the medical school in the United States in which the training was received of satisfactory completion by the person to vhom the document was issued of the requirements listed in Subdivision (3) of Subsection (a) of this section, be considered the equivalent of a degree of doctor of medicine or doctor of osteopathy for purposes of licensure. (Emphasis added). The epparent conflict between sections 3.04 and 5.04 of the act stems from the underscored language in subsection 3.04(a), subdivision 5 and subsections (a) and (b) of section 5.04. You suggest that subdivision (5) of subsection 3.04(a) implicitly repeals subsections p. 3034 Dr. G. V. Brindley, Jr. - Page 4 5.04(a) and (b). In 1981 the legislature incorporated both sections 3.04 and 5.04 Into article 4495b in the same act. See Acts 1981. 67th Leg., 1st C.S., ch. 1. 91, at 1. Acts of the same legislative session must be construed together; courts vi11 not presume one to have annulled the other. Wright v. Broeter, 196 S.U.Zd 82, 85 (Tex. 1946). This is particularly ‘true with regard to two statutes reenacted into one code. Subdivision (5) of subsection 3.04(a) was not added to article 4495b. however, until 1983. See Acts 1983, 68th Leg., ch. 974. 53, at 5291, 5293. When there exix an irreconcilable conflict between two statutes or two provisions of a statute, the later enactment will ordinarily control. See Wright v. Broeter, 196 S.W.Zd at 85. Subsection 3.04(a). subdiviz (5) and subsections 5.04(a) and (b) are not inconsistent. In fact, because subsection 3.04(a), subdivision (5) refers specifically to section 5.04, the legislature must have intended section 3.04 to be construed vlth section 5.04. Your first specific question is whether subdivision (5) of subsection 3.04(a) authorizes the board to require additional graduate training of students of foreign medical schools. The relevant portion of subdivision (5) provides that [i]n addition to other licensure requirements, the board may require by rule and regulation that graduates of medical schools located outside the United States and Canada comply with other requirements that the board considers appropriate, including but not limited to additional graduate medical training in the United States, except those who qualify for licensure in section 5.04 of this Act. (Emphasis added). V.T.C.S. art. 4495b, 13.04(a)(5). Consequently. the board clearly may not require additional graduate training of students of foreign medical schools who meet the requirements of section 5.04. The more difficult questiou is whether the exception for those who qualify for liceasure under section 5.04 applies only to the “other requirements” and to the “additional graduate medical training” or to more general licensure requirements set out in subdivisions (1) through (4) of subsection 3.04(a). You ask whether the board may apply the requirements of sub- divisions (1) through (4) of subsection 3.04(a) to students of foreign medical schools. Subsection 5.04(a) provides that “[n]otvithstanding any other provision of law” a student of a foreign medical school is “eligible for licensure” if he meets certain specific requirements. Subsection 5.04(b) of the act states that (s]atisfaction of the requirements of Subsection (a) of this section are in lieu of the completion of any requirements of the foreign medical school beyond completion of the didactic work, and no p. 3035 Dr. G. V. Brindley, Jr. - Page 5 other requirements shall be a condition of licensure to practice medicine in this state. (Emphasis added). Pou suggest that subsections 5.04(a) .and (b) only except students of foreign medical schools from additional requirements authorized by subdivision (5) of subsection 3.04(a), not from the requirements of subdivisions (1) through (4). Subsection 3.04(a), subdivision (5) refers to section 5.04 in the context of an exception only to the additional requirements authorized in subsection 3.04(a), subdivision (5). By negative implication this constitutes evidence of the legislature’s intent that the other statutory requirements in section 3.04 apply to students of foreign medical schools. Subdivision (5) of subsection 3.04(a) authorizes the board to impose by rulemaking “other requirements,” including “additional graduate medical training,” on students of foreign medical schools. These requirements may be imposed “[ijn addition to other licenaure requirements.” This statement refers logically to the statutory licensure requirements set out in subdivisions (1) through (4) of subsection 3.04(a) and indicates that these subdivisions apply to students of foreign medical schools. Subdivision (5) of subsection 3.04(a) provides that in addition to these licensure requirements. the board may impose “other requirements” and “additional graduate medical training” except of “those who qualify for licensure in section 5.04.” This exception logically applies only to tha phrases “other requirements” and “additional graduate medical training,” not to “other licensure requirements.” This construction also follows from an examination of the basic purpose for section 5.04. Section 5.04 provides a specific method by which students of foreign medical schools may complete their graduate training in the United States. Subsection 5.04(b) provides that “[s]atisfaction of the requirements of subsection (a) . . . are ip lieu of the completion of any requirements of the foreign medical school beyond completion of the didactic work.” Consequently, the final clause in subsection 5.04(b), that “no other requirements shall be a condition of llcensure to practice medicine in this state.” logically refers only to other requirements regarding corppletion of the didactic work and additional graduate medical training. 1. Subsection 3.04(a), subdivision (4) requires graduation from e medical school approved by the board. Subsection 5.04(a). sub- divisions (1) and (2) require only the completion of all of the didactic work of a “reputable” foreign medical school as defined by the board. These requirements are not, however. in conflict. See 55.04(t) (completion of didactic work and meeting requirementsof subsection 5.04(a), subdivision (3) shell be considered equivalent of degree). p. 3036 Dr. G. V. Brindley, Jr. - Page 6 Finally, it would be unreasonable to conclude that the legisla- ture intended section 5.04 to be a complete substitute over section 3.04 for all of the requirements for licensure by examination. Sub- divisions (1) and (2) of subsection 3.04(a) require, respectively, that applicant8 for licenclure be at least 21 year8 of age and of good professional character. Section 5.04 contain8 no similar general requirement8 for applicant8 for licensure who are students of foreign medical schools. The Board of Medical Examiners has only the powers granted expressly or by necessary implication in Texas law. If section 5.04 were deemed the exclusive set of all requirements for student8 of foreign medical schools , the board would have no authority to impose these basic requirements. For these reasons, the board may apply the general requirements in section 3.04 to a student of a foreign medical school who applies for licensure by examination. SUMMARY The Texas State Board of Medical Examiners may not impose the "other raquirements" and "additional graduate medical training" authorized by subsection 3.04(s), subdivision (5) of article 4495b. V.T.C.S., on studants of foreign medical schools who meet the requirements of subsection 5.04(a) of article 4495b. The board may, however. apply the general, statutory requirements of section 3.04 to students of foreign medical schools. JIM UATTOX Attorney General of Texas JACK HIGETOWER First Assistant Attorney Genaral MARTKELLER Executive Assistant Attorney General JUDGEZOLLIE STEAKLEY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Jennifer Riggs Aasistant Attorney General p. 3037