Untitled Texas Attorney General Opinion ( 1952 )

Hon. M. B. McCoy, D.C. Opinion No. V-1426
President, Texas-Board of
Chiropractic Examiners Re: Authority of the Board
Austin, Texas of Chiropractic Exam-
iners to require penal-
ties or examinations as
a prerequisite to rein-
statement of a license
suspended for nonpayment
Dear Sir: of annual renewal fees.
Your request for our opinion reads In part
as follows:
"Section 8 of the Chiropractic Act
provides that each Chiropractic Licensee
shall pay an annual renewal ,fee.
"Several licensees failed to pay
their 1951 renewal fee, and their licenses
were suspended.
"Several of the licensees are now
asking that their licenses be reinstated.
The Board is requiring applicants for re-
instatement to submit a request for rein-
statement together with an affidavit set-
ting out facts adequate to show such
licensee entitled to be reinstated.
"The Board believes that in some in-
stances It might be well to require the ap-
plicant for reinstatement to take an exami-
nation. The Board is also of the opinion
that the applicant should be charged either
a reinstatement fee, or as a penalty, pay
all past due annual renewal fees In order
to get his license in good standing.
"The Board has discussed this problem
in open meeting, and finds a difference of
opinion exists among the members as to the
authority of the Board with reference to
the above.
Hon. M. B. McCoy, D.C., page 2 (V-1426)
23r
"Question 1. Can the Board rule
that an applicant for reinstatement of
a license must pay a penalty as a pre-
requisite for the reinstatement of a
license after It has been suspended for
nonpayment of annual renewal fees?
"Question 2. Can the Board rule
that as a prerequisite'for the reln-
statement of a lloense suspended for
nonpayment of annuai renewal fees the
applicant must pay the annual fees for
all years during which his license has
been suspended?
"Question 3. Can the Board if it
deems necessary require the applicant
for reinstatement of a license suspended
for nonpayment of annual renewal fees to
take an examination to enable the Board
to consider whether or not the applicant
should be considered as eligible for re-
instatement?" .
In Corzellus v. Railroad Commission, 182
S.W.2d 412, 415 (Tex. Clv. App. 1944), it is stated:
"The general rule is well settled
that boards or commissions which are crea-
tures of the statutes, can exercise only
such authority as is conferred upon them
by law in clear and express language and
that authority will not be construed as
be;;; conferred by impllcatlon." [Emphasis
.
Section 8 of Article 4512b, V.C.S. (Chlro-
practic Act) provides In part:
"It shall be unlawful for any person
who shall be licensed for the practice of
chiropractic by the Texas Board of Chlro-
practic Examiners as created by this Act,
unless such person be registered as such
practitioner with the Texas Board of Chlro-
practic Examiners on or before the first
day of January, A. D. 1950, or thereafter
registered In like manner annually as pro-
vided by this Act on or before the first
Hon. M. B. McCoy, D.C., page 3 (v-1426)
day of January of each succeeding year, to
practice chiropractic In this State. Each
person so licensed and registered shall be
deemed to have complied with the require-
ments and prerequisites of the laws govern-
ing the practice of chiropractic in this
State. Each person so registered with the
Texas Board of Chiropractic Examiners shall
pay in connection wlth each annual registra-
tion and for the receipt hereinafter pro-
vided for, a %ee to be fixed by the Texas
Board of Chiropractic Examiners not to ex-
ceed Fifteen Dollars ($15), which fee shall
accompany the application of every such
person for registration. Such payment shall
be made to the Texas Board of Chiropractic
Examiners. Every person so registered
shall file with said Board a written ap-
plication for annual registration, setting
forth his full name, his age, post-office
address, his place of residence, the coun-
ty or counties in which his certificate
entitling him to practice chiropractic has
been registered, and the place or places
where he is engaged in the practice of
chiropractic, as well as the college of
chiropractic from which he graduated, and
the number and date of his license certlfi-
cate.
"Upon receipt of such application,
accompanied by the registration fee, the
Texas Board of Chiropractic Examiners, after
ascertaining either from the records of the
Board or from other sources deemed by it to
be reliable, that the applicant Is a licensed
practloner of chiropractic in this State,
shall Issue to the applicant an annual regis-
tratlon receipt certifying that the applicant
has filed such application and has paid the
registration fez mentioned for the year in
question; . , .
Section 14 of the Act provides In part as
follows:
"The Texas Board of Chiropractic Ex-
aminers shall have the authority to revoke,
cancel, or suspend the license of any person
Hon. M. B. McCoy, D.C., page 4 (V-1426)
236
. * v for any of the following reasons:
"1. For failure to comply with,
or the violation of, any of the provi-
sions of this Act; . . .'
At the outset we think it important to
point out the distinction between,the sus ension
of a license by the Board under Section 1t and the
automatic cessation of a licensee's right to engage
in the practice of chiropractic in this State be-
cause of his failure to pay the annual registration
fee under Section 8. We do not interpret Section 8
as requiring a licensee who is not presently engag-
ing in the practice of chiropractic in this State to
pay the registration fee In order to keep his license
in good standing. This section merely makes It un-
lawful for a*licensee to practice in Texas unless he
has registered and paid the registration fee for the
ourrent year. If he is not engaging In the practice
of chiropractic In this State,,he is not required to
maintain current registrations, and he has not vio-
lated or failed to comply with the provisions of the
act by falling to register during that period. Con-
sequently, there has been no occasion by such fact.
alone for the Board to suspend his license; rather,
he has simply failed to meet a condition preoedent
to his right to engage In the practice for that year.
We find aothlng in the Chiropractic Act
which would prevent a licensee who has discontinued
his practice In this State from resuming practice at
a later date without payment of registration fees
for prior years. The only thing that can be re-
quired of him is registration and payment of the
fee for the then current year.
However, if a licensee engages 1~ the
practice of chiropractic in this State without
being currently registered, then he has violated
the provision of Section 8 making such practice
unlawful, and the Board would have authority to
cancel revoke, or suspend his license under Sec-
tion 14 "for failure to comply with, or the vio-
lation of, any of the provisions of this Act."
As to a licensee whose license has been
suspended for practicing chiropractic without hav-
ing registered and paid the required fee, the answer
Hon. M. B. McCoy, D.C., page 5 (v-1426)
is obscured by the fact that the Chiropractic Act
is silent with regard to the rights of the licensee
or the powers of the Board in the reinstatement
of a license after suspension. However, we are
of the opinion that the Board doe8 not have author-
ity to assess a penalty or a reinstatement fee.
Fees and penalties may be assessed only when they
are provided by law. McCalla v. City of Rockdale,
. 0
the Chlropra%ic Act authorizing the Board to as-
sess a penalty or reinstatement fee upon relnstate-
ment of a suspended license. .
Similarly, it Is our opinion that the
Board may not require the payment of fees for past
years as a condition to reinstatement. The possible
consequences of practicing without registration are
found in the provisions authorizing revocation, sus-
' pension, and nonissuance of licenses, injunction, and
criminal prosecution. However, there Is no provision
in the act authorizing the collection of past fees as
a condition to reinstatement of a suspended license.
Neither Is there a provision in the Chiro-
practic Act authorizing the Board to require a person
whose license has been suspended to take an examina-
tion before his license is reinstated. While we do
not think there is any question as to Its power to
reinstate a suspended license, the Board in restoring
the privileges which the license confers may not at-
tach conditions or requirements not set out In the
statute. Some of the licensing statutes of this State
do grant the administering board authority to require
re-examination and payment of past registration fees
upon reinstatement of a suspended license. However,
the powers of the Board of Chiropractic Examiners
must necessarily be found In the provisions of the
Chiropractic Act. Since that statute does not grant
these powers to the Board, it is lacking in authority
to exercise them.
Unless statutory provisions call for a
different construction, suspension of a license
ordinarily connotes a temporary withholding of the
privileges attaching thereto, while a cancellation
or revocation connotes a complete nullification or
238
Hon. M, B. McCoy, D.C., page 6 (V-1426)
destruction of the basis for the privileges. We
are not here expressing an opinion on the a~uthority
of the Board to reinstate licenses which have been
cancelled or revoked or to require an examination
as a condition to reinstatement in those cases.
SUMMARY
The Board of Chiropractic Examiners
is not authorized under existing laws to
assess a penalty or reinstatement fee or
to require the payment of registration
fees for past years as a prerequisite to
reinstatement of a license which has been
suspended for nonpayment of annual regls-
tration fees. Neither does the present
law authorize the Board to require an ap-
plicant for reinstatement of a suspended
license to take an examination before re-
instatement,
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
A /
Mary K. Wall
Reviewing Assistant
Assistant
Charles D. Mathews
First Assistant
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