Can Texas require a chiropractor to have practiced for a minimum amount of time in another state before granting a reciprocity license?

Texas AG Opinion JM-1017: Can Texas Require Prior Out-of-State Practice for a Chiropractic Reciprocity License?

Plain-English summary

The Texas Board of Chiropractic Examiners wanted to add a rule of its own. When a chiropractor already licensed in another state applies for a Texas license through reciprocity, the board thought it might make sense to require that the applicant had actually practiced for some minimum amount of time in that other state first. The board's president asked the Attorney General whether it had the power to write that rule.

The answer was no. The reason comes down to a basic principle of how state agencies work in Texas. An agency is not a mini-legislature. It has only the powers the Legislature expressly gave it, plus whatever powers are necessarily implied by those. It cannot add new requirements that the statute does not contain, even reasonable-sounding ones.

The reciprocity statute here is section 9 of article 4512b. It says that a chiropractor already licensed in a state or territory whose requirements and practices are equal to Texas's is entitled to a Texas license on paying a fee and completing the paperwork: a certified copy of the out-of-state license, an application, a supporting affidavit, and an oath. Nowhere does section 9 say the applicant must have practiced for any length of time. The board's rule-making sections (4(a) and 4a) let it make rules for its own procedures, examinations, and enforcement, but those do not stretch to inventing a prior-practice prerequisite for reciprocity.

The board had one textual argument. Section 9 refers to the "license under which the applicant practiced chiropractic in the state or territory," and the board read the word "practiced" as a hint that the Legislature expected actual prior practice. The Attorney General conceded that phrase, read in isolation, could suggest that. But read in context, he concluded it means the license under which the applicant was entitled to practice, not proof that the applicant had in fact practiced for some period. So the board could not turn that phrase into a minimum-practice rule.

Currency note

This opinion was issued in 1989. 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.

Chiropractic licensing in Texas has been recodified since 1989. The old article 4512b, V.T.C.S., framework was moved into the Occupations Code (chiropractic licensing now lives in chapter 201), and the Texas Board of Chiropractic Examiners' rules and the reciprocity/licensure-by-endorsement provisions have been amended over the years. A chiropractor or regulator dealing with reciprocity today should look at the current Occupations Code and board rules rather than the article 4512b section numbers used here. The underlying administrative-law principle (an agency cannot add licensing requirements the statute does not authorize) remains good law.

Who this opinion affected (as of 1989)

The Texas Board of Chiropractic Examiners: The opinion told the board it could not adopt a rule requiring a minimum period of prior out-of-state practice as a condition of reciprocity licensure.

Out-of-state chiropractors seeking Texas licenses: The opinion confirmed that an applicant already licensed in a state with equal requirements was entitled to a Texas reciprocity license on paying the fee and completing the statutory paperwork, without having to prove a set amount of prior practice.

Common questions

Can the chiropractic board require a minimum amount of prior practice for a reciprocity license?
No. In this opinion the Attorney General concluded the board had no authority to adopt such a rule. Section 9 of article 4512b does not require any length of prior practice, and no other law gave the board that power.

Why couldn't the board just make the rule anyway?
Because a Texas administrative agency has only the powers expressly conferred by statute plus those necessarily implied, and its rules cannot impose conditions beyond or inconsistent with the statute. A minimum-practice requirement would add a burden the statute does not contain.

What did the reciprocity statute actually require?
That the applicant already hold a license from a state or territory with requirements and practices equal to Texas's, pay a fee, and file the procedural items: a certified copy of the license, an application, a supporting affidavit, and an oath.

Didn't the statute mention practicing in the other state?
It referred to the "license under which the applicant practiced chiropractic" in the other state. The Attorney General read that, in context, to mean the license under which the applicant was entitled to practice, not proof of actual prior practice for some minimum time.

Background and statutory framework

Article 4512b, V.T.C.S., provided for the licensure of persons to practice chiropractic in Texas. Sections 4(a) and 4a conferred rule-making authority on the Board of Chiropractic Examiners: section 4(a) let the board prescribe rules for its own proceedings, government, and the examination of applicants, and section 4a empowered the board to make rules, not inconsistent with the law, necessary for the performance of its duties, the regulation of the practice of chiropractic, and the enforcement of the act. Section 9 provided for reciprocity licensing, directing the board, upon payment of a fee, to grant a license to licentiates of other states or territories "having requirements and practices equal to those established by the laws of this State," subject to procedural requirements including submission of a certified copy of the out-of-state license, an application, an affidavit from the issuing board or a registration officer, and an oath that the license was in full force and not suspended or cancelled when the applicant moved.

As an administrative agency, the board "has only such powers as are expressly conferred by statute together with those necessarily implied from powers and duties expressly given or imposed" (State v. Jackson, 376 S.W.2d 341 (Tex. 1964); Railroad Commission v. Fort Worth & D.C. Ry. Co., 161 S.W.2d 560 (Tex. Civ. App.-Austin 1942, writ ref'd w.o.m.)). Agency rules may not impose additional burdens, conditions, or restrictions in excess of or inconsistent with the statutory provisions (Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex. Civ. App.-Austin 1962, writ ref'd)).

Applying those principles, the Attorney General did not construe the section 9 language as authorizing the board to require that reciprocity applicants have practiced for any length of time, and found no other provision of state law conferring such authority. The board had argued that the phrase "license under which the applicant practiced chiropractic in the state or territory" indicated the Legislature intended actual prior practice. The Attorney General conceded that phrase, standing alone, might suggest a prior-practice requirement, but concluded that read in context it means, in effect, the "license under which the applicant was entitled to practice chiropractic in the state or territory." He therefore concluded the board is not authorized to establish by rule a minimum amount of time of practicing chiropractic in another state or territory as a prerequisite for admission under the reciprocity provisions of section 9.

Citations

Statutory authority:

• Tex. Rev. Civ. Stat. art. 4512b, § 4(a) (board rules for proceedings and examinations); § 4a (board rules for its duties, regulation, and enforcement); § 9 (reciprocity licensing of chiropractors licensed in other states or territories)

Cases:

• State v. Jackson, 376 S.W.2d 341 (Tex. 1964) (agency has only expressly conferred and necessarily implied powers)
• Railroad Commission v. Fort Worth & D.C. Ry. Co., 161 S.W.2d 560 (Tex. Civ. App.-Austin 1942, writ ref'd w.o.m.) (same)
• Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex. Civ. App.-Austin 1962, writ ref'd) (agency rules may not exceed or conflict with the statute)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1017
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1017.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. Three prior Attorney General opinion numbers in a "see also" citation were left as the scan rendered them because the digits are not legible enough to correct with confidence.

THE ATTORNEY GENERAL OF TEXAS

February 14, 1989

Mr. Clay Salyer
President
Texas Board of Chiropractic Examiners
8317 Mopac Expressway
Austin, Texas 78759

Opinion No. JM-1017

Re: Authority of the Texas Board of Chiropractic Examiners to establish by rule a minimum amount of prior practice of chiropractic for purposes of satisfying the reciprocity licensing requirement (RQ-1623)

Dear Mr. Salyer:

You ask:

Does the Texas Board of Chiropractic Examiners have the authority to establish by rule a reasonable minimum amount of time of practicing chiropractic within another state as a prerequisite for admission to practice in this State through reciprocity?

Article 4512b, V.T.C.S., provides for the licensure of persons to practice chiropractic in Texas. Sections 4 and 4a of that act confer rule-making authority on the Board of Chiropractic Examiners as follows in pertinent part:

The Board may prescribe rules, regulations and bylaws in harmony with the provisions of this Act for its own proceedings and government for the examination of applicants for license to practice chiropractic.

V.T.C.S. art. 4512b, § 4(a).

The Texas Board of Chiropractic Examiners shall have the power to appoint committees from its own membership, and to make such rules and regulations not inconsistent with this law as may be necessary for the performance of its duties, the regulation of the practice of chiropractic, and the enforcement of this Act.

V.T.C.S. art. 4512b, § 4a.

Section 9 provides for the licensing of persons by the board who have already been licensed to practice in other states or territories:

The Texas Board of Chiropractic Examiners shall upon payment by an applicant of a fee grant license to practice chiropractic to licentiates of other states or territories having requirements and practices equal to those established by the laws of this State. Applications for license under the provisions of this Section shall be in writing, and upon a form to be prescribed by the Texas Board of Chiropractic Examiners. Said application shall be accompanied by a license, or a certified copy of license to practice chiropractic, lawfully issued to the applicant, upon examination, by some other state or territory of the United States. Said application shall also be accompanied by an affidavit made by the president or secretary of the Board of Chiropractic Examiners which issued the said license, or by a legally constituted chiropractic registration officer of the state or territory by which the license was granted, and on which the application for chiropractic registration in Texas is based, reciting that the accompanying license has not been cancelled or revoked, and that the statement or qualifications made in the application for chiropractic license in Texas is true and correct. Applicants for license under the provisions of this Section shall subscribe to an oath in writing before an officer authorized by law to administer oaths, which shall be a part of said application, stating that the license under which the applicant practiced chiropractic in the State or territory from which the applicant removed was at the time of such removal in full force, and not suspended or cancelled. Said application shall also state that the applicant is the identical person to whom the said certificate was issued, and that no proceeding has been instituted against the applicant for the cancellation of said certificate to practice chiropractic in the State or territory by which the same was issued; and that no prosecution is pending against the applicant in any State or Federal Court for any offense which, under the law of Texas is a felony. (Emphasis added.)

V.T.C.S. art. 4512b, § 9.

You suggest in your request letter that:

The language 'under which the applicant practiced,' however, seems to indicate that the legislature intended that an applicant for reciprocal license should have practiced chiropractic in the applicant's former state of residence and/or licensure before a reciprocal license is granted by this Board.

As an administrative agency of the state, the Board of Chiropractic Examiners "has only such powers as are expressly conferred by statute together with those necessarily implied from powers and duties expressly given or imposed." 2 Tex. Jur. 3d Administrative Law, § 2 (citing, inter alia, State v. Jackson, 376 S.W.2d 341 (Tex. 1964) and Railroad Commission v. Fort Worth & D.C. Ry. Co., 161 S.W.2d 560 (Tex. Civ. App. - Austin 1942, writ ref'd w.o.m.)). Agency rules "may not impose additional burdens, conditions, or restrictions in excess of or inconsistent with the statutory provisions." Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex. Civ. App. - Austin 1962, writ ref'd); See also, e.g., Attorney General Opinions JW-650 (1987); G-668 (1987); FBI-573 (1982).

We do not construe the language to which you refer in section 9, article 4512b, V.T.C.S., as authorizing the board to establish a requirement that applicants for licensure under section 9 have practiced for any length of time. Nor do we find any other provision of state law conferring such authority on the board. We think that the applicable provisions contemplate that a person licensed in another state or territory "having requirements and practices equal to those established by the laws of this state" is entitled to licensure in Texas upon payment of a fee and compliance with the procedural provisions under section 9 for the filing of the copy of the license, the application and accompanying affidavit and oath. We concede that the language "license under which the applicant practiced chiropractic in the state or territory," standing alone, might suggest a requirement of prior practice. But we think that this language read in context means, in effect, "license under which the applicant was entitled to practice chiropractic in the state or territory."

Accordingly, we conclude that the Texas Board of Chiropractic Examiners is not authorized to establish by rule a minimum amount of time of practicing chiropractic in another state or territory as a prerequisite for admission to practice in this state under the reciprocity provisions of section 9, article 4512b, V.T.C.S.

SUMMARY

The Texas Board of Chiropractic Examiners is not authorized to establish by rule a minimum amount of time of practicing chiropractic in another state or territory as a prerequisite for admission to practice in this state under the reciprocity provisions of section 9, article 4512b, V.T.C.S.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General