Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
Dec:e:mber 13. 1984
JIM MAlTOX
Attorney General
Suprrms Court Building Carlo8 D. Codlnez, M.D. Opinion No. m-244
P. 0. BOX 12545 President
Austin. TX. 7571% 2545 Texas State Board ofi Re: Whether the Texas State
512i475.2501 Medical Examine::r# Board of Medical Examiners may
Telex 9!0/874-1357
Telecopier 5121475.0265
P, 0. Box 13562, Capitol Station use hearing examiners to conduct
Austin, Texas 78”:. 1 hearing of contested csses and
to draft proposals for decisions
714 Jackson. Suite 700 therein
Dallrr. TX. 75202.4506
2141742.5944
Dear Dr. Godinez:
4524 Albe‘la Ave.. Suite 160 You inform UII that the Texas State Board of Medical Examiners
El Paw TX. 799052792 wishes to utilize hearing examiners to conduct hearings of contested
91515353484 cases presented before the board. You also inform us that the board
is presently con’iucting disciplinary hearings before the entire
1 Texas). Suib 7OQ fifteen member bo;u:d. You vish to utilize hearing examiners as an
, ,.,us,on. TX. 77002-3111 alternative to your present method as a more cost effective procedure.
713/22-3-5888 In that regard you .ask:
Do t‘he Medical Practice Act and the
806 Broadway. Suile 312
Lubbock. TX. 79401379
Administrative Procedure and Texas Register Act
S(w747.5225 empower the Texas State Board of Medical Examiners
to utiUze hearing examiners to conduct hearings
in contjzsted cases and to draft proposals for
4309 N. Tenth. Suite B
McAllen. TX. 78501.1885
decisions therein as more fully described in
5121682.4547 section ‘15 of the Administrative Procedure and
Texas Register Act?
200 Main Plaza. Suite 400 The state of Texas has adopted the general rule that where a
San Antonio. TX. 78205-2797
statute permits ar. administrative authority to delegate the taking of
51212254191
evidence to less l:han the whole number, to a single member, or to an
examiner for this purpose, a hearing before such delegate is not a
A” Equal OpportunityI denial of due pro#:ess. See Colorado County Federal Savings and Loan
Affirmative Action Employer Assn. v. Lewis. 49.3 S.W.x723. (Tex. Civ. -App. - Austin 1973, writ
ref’d n.r.e.1: AlXorney General Opinion M-687 (1970) (Texas Water
Rights Comission has implied power-to utilize examiners under article
7542a. V.T.C.S.); see also 2 Am. Jur. 2d Administrative Law. 5407. p.
217-218 (1974); Aanot. 18 A.L.R. 2d 606 (1951).
Article 44951,, section 4.05(a), V.T.C.S.. the Medical Practice
Act, provides:
p. 1095
Dr. Carlos D. Codinez - Page 2 (JM-244)
(a) All hearin;g:r conducted under this sub-
chapter by the kard shall comply with the
provisions of the Administrative Procedure Act and
the board’s rules. The board may delegate the
authority to conduct hearings under this sub-
chapter to a hearjig committee comprised of not
less than three mehbers appointed by the board.
The composi ,tlon of such COI mnittee shall be con-
sistent with the p,covisions of Sections 2.08 and
2.09 of this Act. -Any individual or individuals
conducting a hearjig under this subchapter are
empowered to administer oaths and receive evidence
at the hearing and shall report the hearing as
prescribed by board-rules. (Emphasis added).
Thus, the legislature t.as authorized the Texas State Board of
Medical Examiners to delegate their duty to conduct contested cases in
disciplinary matters to a hewing committee composed of not less than
three members. See Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887.
(Tex. 1969). Thelegislatu& specified that the hearing committee
must be composed of board ms:mbers. We are of the opinion that the
legislature did not authoriie the board to delegate the function of
conducting disciplinary hear::ngs In contested cases to persons other
than members of the board. Of course, the hearing coPlmittee must also
comply with the provisions of sections 13 and 15 of article 6252-13a,
V.T.C.S.
gUMMARY
Article 4495b, wction 4.05(a), V.T.C.S.. does
not authorize the ‘Texas State Board of Medical
Examiners to dekgate their duty to conduct
contested casee in disciplinary matters to a
single hearing examiner.
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
p. 1096
Dr. Carlos D. Godiner - Pags 3 (JX-244)
RICK GILPIN
Chairman, Opinion Connittec
Prepared by Tony Guillory
Assistant Attorney General
.APPROVRD:
OPINIONCOMMITTEE
Rick Gilpin. Chairman
Colin Carl
Susan Garrisori
Tony Gulllory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
p. 1097