Could the Texas medical board use a single hearing examiner instead of board members to conduct physician disciplinary cases?

Texas AG Opinion JM-244: Medical Board Hearing Examiners

Plain-English summary

The Texas State Board of Medical Examiners wanted to replace disciplinary hearings before the full fifteen-member board with a more cost-effective procedure using hearing examiners. It asked whether the Medical Practice Act and Administrative Procedure and Texas Register Act allowed examiners to conduct contested cases and draft proposed decisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

JM-244 concluded that the board could not delegate its disciplinary-hearing duty to a single hearing examiner. Its summary said article 4495b, section 4.05(a), did "not authorize" that delegation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

The statute expressly allowed delegation to a hearing committee "comprised of not less than three members appointed by the board." JM-244 read that language as requiring the committee to consist of board members. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

The opinion added that a properly constituted board-member hearing committee still had to comply with sections 13 and 15 of the Administrative Procedure and Texas Register Act. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could one hearing examiner conduct the medical board's disciplinary case?

No. JM-244 said the Medical Practice Act did not authorize delegation of contested disciplinary cases "to a single hearing examiner." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

What delegation did the statute allow?

It allowed the board to delegate a hearing to a committee of at least three members appointed by the board. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

Could people who were not board members serve on that hearing committee?

Not under JM-244's reading. The opinion said the legislature "specified that the hearing committee must be composed of board members." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

Did administrative-procedure law eliminate the Medical Practice Act's committee requirement?

No. JM-244 treated the Medical Practice Act's specific delegation rule as controlling and said the board-member committee also had to comply with administrative-procedure sections 13 and 15. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

Background and statutory framework

Article 4495b, section 4.05(a), required disciplinary hearings to comply with the Administrative Procedure Act and board rules. It allowed delegation to a hearing committee of at least three board members and empowered the people conducting the hearing to administer oaths, receive evidence, and report the hearing as board rules prescribed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

JM-244 acknowledged the general rule that a hearing before a delegate does not deny due process when a statute permits an agency to delegate evidence-taking to fewer members or an examiner. It found that the medical-board statute made a narrower delegation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

Citations and references

• Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887 (Tex. 1969), appeared after the opinion's discussion of the legislature's express authorization for a three-member board hearing committee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf
• Attorney General Opinion M-687 (1970) had found implied examiner authority for the Texas Water Rights Commission under a different statute. JM-244 did not extend that result to the medical board's specific committee language. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0244
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0244.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

December 13, 1984

Carlos D. Godinez, M.D.
President
Texas State Board of Medical Examiners
P. O. Box 13562, Capitol Station
Austin, Texas 78711

Opinion No. JM-244

Re: Whether the Texas State Board of Medical Examiners may use hearing examiners to conduct hearings of contested cases and to draft proposals for decisions therein

Dear Dr. Godinez:

You inform us that the Texas State Board of Medical Examiners wishes to utilize hearing examiners to conduct hearings of contested cases presented before the board. You also inform us that the board is presently conducting disciplinary hearings before the entire fifteen member board. You wish to utilize hearing examiners as an alternative to your present method as a more cost effective procedure. In that regard you ask:

Do the Medical Practice Act and the Administrative Procedure and Texas Register Act empower the Texas State Board of Medical Examiners to utilize hearing examiners to conduct hearings in contested cases and to draft proposals for decisions therein as more fully described in section 15 of the Administrative Procedure and Texas Register Act?

The state of Texas has adopted the general rule that where a statute permits an administrative authority to delegate the taking of evidence to less than the whole number, to a single member, or to an examiner for this purpose, a hearing before such delegate is not a denial of due process. See Colorado County Federal Savings and Loan Assn. v. Lewis, 493 S.W.2d 723 (Tex. Civ. App. - Austin 1973, writ ref'd n.r.e.); Attorney General Opinion M-687 (1970) (Texas Water Rights Commission has implied power to utilize examiners under article 7542a, V.T.C.S.); see also 2 Am. Jur. 2d Administrative Law, §407, pp. 217-218 (1974); Annot., 18 A.L.R.2d 606 (1951).

Article 4495b, section 4.05(a), V.T.C.S., the Medical Practice Act, provides:

(a) All hearings conducted under this subchapter by the board 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 subchapter to a hearing committee comprised of not less than three members appointed by the board. The composition of such committee shall be consistent with the provisions of Sections 2.08 and 2.09 of this Act. Any individual or individuals conducting a hearing 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 has authorized the Texas State Board of Medical Examiners to delegate their duty to conduct contested cases in disciplinary matters to a hearing committee composed of not less than three members. See Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887 (Tex. 1969). The legislature specified that the hearing committee must be composed of board members. We are of the opinion that the legislature did not authorize the board to delegate the function of conducting disciplinary hearings in contested cases to persons other than members of the board. Of course, the hearing committee must also comply with the provisions of sections 13 and 15 of article 6252-13a, V.T.C.S.

SUMMARY

Article 4495b, section 4.05(a), V.T.C.S., does not authorize the Texas State Board of Medical Examiners to delegate their duty to conduct contested cases in disciplinary matters to a single hearing examiner.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton