Untitled Texas Attorney General Opinion ( 1987 )

THE ATTO NEP GENEECU.
OF TEXAS
September 25, 1987
Mr. William S. Nail Opinion No. .I+796
Executive Director
Texas State Board of Dental Examiners Re: Authority of the State
8317 Cross Park Drive, Suite 400 Board of Dental Examiners to
Austin. Texas 78754 reinstate a license that has
been cancelled because of
failure to comply with stat-
utory requirements
Dear Mr. Nail:
Chapter 9 of Title 71 of the Revised Civil Statutes of Texas,
specifically articles 4543 et seq., V.T.C.S., creates the State Board
of Dental Examiners [hereinafter the board] and regulates the practice
of dentistry. Article 4550a. V.T.C.S., sets forth, inter alia,
registration requirements for dentists. Under a specific set of facts
that you submit, you ask whether the State Board of Dental Examiners
has the discretion to reinstate a licensee’s dental license after the
licensee has failed to annually apply and register with the board.
Assuming the truth of the facts that you submit. we answer your
question in the negative.
Article 4550a, V.T.C.S., contains the following relevant
provisions:
Sec. 1. It shall be the duty of all persons
holding a dental license or dental hygienist
license issued by the State Board of Dental
Examiners, to annually apply and to be registered
as such practitioners with the State Board of
Dental Examiners on or before March 1st of each
calendar year. Each person so registering shall
pay in connection with such annual registration
for the receipt hereinafter provided for, a fee as
determined by said Board according to the needs of
said Board, such payment to be made by each person
to such Board, and every person so registering
shall file with said Board a written application
setting forth such facts as the Board may
require. . . .
p. 3763
Mr. William S. Wail - Page 2 (.Dd-796)
Sec. 2. If any person required to register as
a practitioner under the provisions hereof shall
fail or refuse to apply for such registration and
pay such fee on or before March 1st of each calen-
dar ye:z, as hereinabove set forth, his license or
certificate to practice Issued to him, shall
thereafter stand suspended so that thereafter in
practicing he shall be subject to the penalties
Imposed by law upon any person unlawfully practic-
ing. A person may renew an unexpired license or
certificate by paying to the Board before the
expiration of the license or certificate the
required renewal fee. If a person’s license or
certificate has been expired for not longer than
ninety (90) days, the person may renew it by
paying to the Board the required renewal fee and a
fee that is one-half of the examination fee for
the license or certificate. If a person’s license
or certificate has been expired for longer than
ninety (90) days but less than two years, the
person may renew it by paying to the Board all
unpaid renewal fees and a fee that is equal to the
examination fee for the license or certificate.
If a person’s license or certificate has been
exoired for two years or longer, the person may
not renew it. The person may obtain a new license
or cer tificate by submitting to reexamination and
complying with the requirements and proces dures for
obtaining an original license or certificate. The
Board must notify each licensee in writing of that
licensee’s impending license expiration 30 days
prior to said expiration and shall attempt to
obtain from the licensee signed receipt confirming
receipt of notification. . . . (Emphasis added.)
You provide us with the following factual information:
The license of a dental licensee of this Board
became delinquent March 1, 1984 and remained in a
delinquent status until March 1, 1986, a period of
two years. Following the license being in a
delinquent status for two years, the license was
cancelled pursuant to the above referenced pro-
vision of the Dental Practice Act.
The licensee in question contacted this Agency
in September, 1986 and requested that his license
be reinstated. The licensee was advised that
based on Attorney General Opinion No. MW-368 and
p. 3764
Mr. William S. Nail - Page 3 (JM-796)
Article 4550a, Section 2, that the Board did not
have the discretion to reinstate the license
without the licensee taking and passing the Dental
Examination.
Throughout 1984. 1985, and 1986 until the
cancellation, all required registration forms,
late notices, and the thirty (30) day cancellation
letter were sent to the last known address which
the licensee had furnished this Agency. Article
4550, Section 1, requires a licensee to provide
timely notification to the Board of any address
change. No record exists of any address change
from the last known address of the licensee to
which all correspondence was mailed. No attempt
was made to secure a written receipt inasmuch as
prior communications had been returned.
You claim that your agency sent the required statutory notice of the
impending expiration of the licensee’s license. However, there Is
correspondence submitted in connection with your request that claims
you may have failed to provide proper notice of the expiration of the
registrant’s license. Because you do not ask whether there was
substantial compliance with the notice provisions, we will not address
the issue. Nor do we address the issue of whether the previous action
may be corrected by some other means. You ask only whether the board
has discretion to reinstate the registrant’s license.
In our opinion, the underscored language of section 2 of the act
is clear and unambiguous. Section 2 of the act requires that, if any
person fails to renew his license within two years after the date by
which a registrant should have applied for license renewal, that
person’s license may not be renewed. A plain and unambiguous statute
should be construed according to its literal meaning. Brazes River
Authority v. City of Graham, 354 S.W.2d 99, 109 (Tex. 1961).
Furthermore, it is well established that exceptions to statutes may
not ordinarily be implied. Spears v. City of- San Antonio, 223 S.W.
166, 169 (Tex. 1920); Stubbs v. Lowrey’s Heirs, 253 S.W.2d 312, 313
(Tex. Civ. App. - Eastland 1952, writ ref’d n.r.e.); Nail v. McCue, 55
S.W.2d 211, 213 (Tex. Civ. App. - El Paso 1932, no writ). Where the
legislature has intended to except certain classes of persons from the
requirements of licensing statutes, or to provide a period of grace,
it has done so explicitly. See, e.g., Acts 1975, 64th Leg., ch. 709,
§3, at 2253 (persons engaged in business of structural pest control
for a period of two years granted two-year grace period before having
to comply with examination requirements); Acts 1947, 50th Leg., ch.
115, 510, at 195 (persons holding existing plumbing licenses from a
city are exempt from examination reqiurements for state licensing as a
plumber if they apply within 120 days from effective date of
p. 3765
I
Mr. William S. Nail - Page 4 (JM-796)
statutes); V.T.C.S. art. 4413 (29aa), 56(a) (persons who were peace
officers prior to effective date of statute need not meet certain
requfrements in order to continue employment as peace officers; -see
generally Attorney General Opinion MW-368 (1981).
Accordingly. we conclude that the State Board of,Dental Examiners
does not have the discretion to reinstate the license of a registrant
who has failed to renew his license within two years after the date by
which a registrant should have applied for license renewal.
SUMMARY
The State Board of Dental Examiners does not
have the authority to reinstate the license of a
registrant who has failed to renew his license
within two years after the date by which a regis-
trant should have applied for license renewal.
.
MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 3766