Untitled Texas Attorney General Opinion

July 29, 1963
Dr. M. H. Crabb Opinion No. C- 113
Secretarv. Texas State Board
Medical Examiners Re: Validity of Article II,
Medical Arts Building Section 2ab of House Bill
Fort Worth 2, Texas 76102 86, Acts of the 58th Leg.,
R.S., 1963.
Dear Doctor Crabb:
We are in receipt of your opinion request regarding
the constitutionality or validity of a portion of the appro-
priation bill of the 58th Legislature which may affect the
Texas State Board of Medical Examiners. The section cited above
appears as a rider to the appropriation act and is worded as fol-
lows:
"b. None of the moneys appropriated to the
Hospital Board or to Institutions under its jur-
isdiction by this Article may be expended for
salaries of persons assigned to positions entitled
'Medical Technician' as shown in this Article, un-
less such persons are licensed to practice medixne
by other States or Nations but have not yet been
licensed as physicians under the law of this State.
This provision shall t be construed to pro-
hibit salary payments?0 qualified phy%?ks re-
crulted from other states who are eligible for
license In Texas, and,notwlthstanding the require-
ments of the State Board of Medical Examiners, such
physicians shall be given a reasonable time to be
determined by the Hospital Board to secure a Texas
'licenseto practice medicine." (Emphasis added).
Section 35 of Article III of the Constitution of Texas
states as follows:
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Dr. M. H. Crabb, page 2 (c-113 )
“Sec. 35. No bill, (except general appropria-
tion bills, which may embrace the various subjects
and accounts for and on account of which moneys are
appropriated) shall contain more than one subject,
which shall be expressed in its title. But if any
subject shall be embraced in an act, which shall not
be expressed In the title, such act shall be void
only as to so much thereof, as shall not be so ex-
pressed."
If Section 28b of Article II of the appropriation bill
merely limits in some way the distribution of state money for
certain purposes and under certain enumerated conditions which
are incidental to the appropriation, then the rider is valid. If
the rider contains language which amounts to general legislation,
or conflicts with or modifies existing general legislation then
the rider must be declared Invalid. Moore v. Sheppard, 144 Tex.
537, 192 S.W.M 559 (19’+6).
The rider in question contemplates that a physician will
be employed as a "Medical Technician"; therefore we are not required
to ascertain whether or not he will perform any of those acts enumer-
ated in Article 4510 as the practice of medicine.
Article 4500 of Vernon's Civil Statutes states In part
as follows:
"The Texas State Board of Medical Examiners
may, in its discretion, upon payment b an appli-
cant of a fee of One Hundred Dollars ($ 100) grant
a license to practice medicine to any.reputable
physician who is a citizen of the United States
.and to llcentlates of other State or Terri-
to&es having requirements for medical registra-
tion and practice equal,to those established by
the laws of this State. . . ." (Emphasis added).
Article 4500 has long been construed to mean that the
Hoard of Medical Examiners must use Its own "discretion" In de-
ciding whether to grant a license to practice in Texas to licen-
tlates of other states. Attorney General's Opinion No. 0-1556
(1939). ~The rider to the appropriation act does not afford the
Hoard the discretion previously given it by Article 4500. Under
the provisions of the rider the medical technician cannot be paid
unless he does not have a license to practice in Texas. The rider
then proceeds t=hange the existing requirements of Article 4498
(whereby each practitioner must have a certificate issued by the
Hoard), and allows the Hospital Hoard to, in effect, suspend the
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_.
. .
Dr. M. H. Crabb, page 3 (C- 113 )
terms of Article 4498 for. "a reasonable time to be determined by
the Hospital Board."
The said Article 4498 states in part as follows:
"It shall be unlawful for any one to practice
medicine, in any of its branches, upon human beings
within the limits of this State who has not registered
in the District Clerk's office of every County in
which he may reside, and In each and every County in
which he may maintain an office or may designate a
place for meeting, advising with, treating in any
manner, or prescribing for patients, the certificate
evidencing his right to practice medicine, as issued
to him by the Texas State Board of Medical Examiners,
. . . (Emphasis added).
We therefore advise you that Section 28b of Article II
of House Bill 86 of the 58th Legislature is unconstitutional. It
attempts to abrogate or amend the general law requiring physicians
who practice medicine In Texas to obtain a certificate from the'
Texas State Board of Medical Examiners pursuant to Article 4498.
The caption to House Bill 86 is as follows:
"AN ACT appropriating money for the support
of the Judicial, Executive, and Legislative branches
of the State Government, for the construction of
State buildings, the payment of claims against the
State, and for State aid to public junior colleges,
for the two-year period beginning September 1, 1963,
and ending August 31, 1965; authorizing and pre-
scribing conditions, limitations, rules and proced-
ures for allocating and expending the appropriated
funds; and declaring an emergency."
Neither the title of Section 28 (Compensation Rules),
nor the caption of the bill would put anyone on notice that an
exception was being made to the requirements for the practice
of medicine in Texas. Attorney Gen-
eral's Opinions Nos. : v-1263 (1951);
WW-253 (1957); WW-1152
SUMMARY
Section 28b of Article II of House Bill 86 of
the 58th Legislature Is Invalid to the extent that
it attempts to alter or amend the general law regard-
ing the practice of medicine by way of a rider to the
appropriation bill.
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1 .-
Dr. M. H. Crabb, page 4 (C- 113)
Yours very truly,
````~
Fred D. Ward
Assistant
FDW:wb:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
W. 0. Shultz
Wayne Rodgers
Paul Phy
APPROVEDFOR THE ATTORNEY GENERAL
BY: Stanton Stone
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