Can a Texas licensing board accept a voluntary surrender of a professional license?

Plain-English summary

The executive director of the Texas Board of Professional Geoscientists asked the AG whether the Board may accept a licensee's voluntary surrender of an unexpired license, and whether it may place conditions on doing so. The Board's licensing statute, chapter 1002 of the Occupations Code, gives the Board express powers to issue, renew, suspend, revoke, and discipline licenses, but it does not expressly mention a licensee voluntarily handing in a license.

The AG started from the rule that a state agency has only the powers the Legislature gives it expressly, plus those implied powers reasonably necessary to carry out its express functions; an agency may not invent a new power or one that contradicts the statute. Looking at chapter 1002 as a whole, the AG described its purpose as protecting the public by ensuring geoscientists are qualified, follow a code of conduct, and are subject to investigation and discipline. The Board's express authority to set a license expiration schedule and to end a license through suspension or revocation, the AG reasoned, implicitly includes the authority to let a licensee end his or her own license by surrendering it. Accepting a voluntary surrender fits the statute's purpose, is reasonably necessary to regulate the practice, and does not amount to a new power. So a court would likely find the Board has implied authority to accept a unilateral, voluntary surrender of a license. Because the AG answered the first two questions yes, it did not reach the third (whether some other law authorizes acceptance).

On the fourth question, the AG concluded the Board is not required to accept a voluntary surrender. Accepting a surrender is neither an express power nor a duty chapter 1002 imposes. Instead, under its general rulemaking power, the Board may likely impose reasonable conditions on accepting a voluntary surrender, for example a rule barring a licensee from surrendering a license while under investigation or facing pending disciplinary action. The AG did not pass on any specific rule, since none was provided, but noted that a rule may not impose burdens inconsistent with the statute and must stay in harmony with the statute's general objectives.

Currency note

This opinion was issued in 2016. 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. Chapter 1002 of the Occupations Code and the Board's rules may have been amended since 2016, so confirm the current law before relying on these specifics.

What the opinion meant for those who asked

The Texas Board of Professional Geoscientists (as the opinion described it): The opinion told the Board it would likely be found to have implied authority to accept a licensee's unilateral, voluntary license surrender, that it is not required to accept one, and that it may likely adopt reasonable rules conditioning acceptance, including a rule against surrender during an investigation or pending discipline.

Other state licensing boards (as the opinion described it): The opinion's reasoning rested on the general principle that an agency has implied powers reasonably necessary to carry out its express functions, and on the Board's express powers to set expiration schedules and to suspend or revoke licenses, an approach that describes how implied authority is analyzed rather than a rule limited to geoscientists.

Licensed geoscientists (as the opinion described it): The opinion described a path for a licensee to voluntarily give up a license, while noting the Board could place reasonable limits on that path, such as preventing a surrender used to escape a pending investigation or disciplinary action.

Common questions

Can a Texas licensing board let a professional surrender a license?
Under this opinion, likely yes for the Board of Professional Geoscientists. The AG concluded a court would likely find implied authority in chapter 1002 to accept a unilateral, voluntary license surrender.

Where does that authority come from if the statute doesn't say so?
The AG inferred it from the Board's express powers to set license expiration schedules and to suspend or revoke licenses, reasoning that the power to let a licensee end a license fits the statute's public-protection purpose.

Does the Board have to accept a surrender?
No. The AG concluded accepting a voluntary surrender is neither an express power nor a duty under chapter 1002, so the Board is not required to accept one.

Can the Board put conditions on a surrender?
The AG concluded a court would likely allow the Board, under its general rulemaking power, to impose reasonable conditions, such as barring surrender while a licensee is under investigation or facing pending discipline.

Did the AG approve a specific rule?
No. The AG declined to opine on any specific rule because none was provided, and noted only that a rule may not impose conditions inconsistent with the statute.

Background and statutory framework

A state agency has only the powers expressly granted by the Legislature plus those implied powers reasonably necessary to carry out its express functions, and may not exercise a new or contradictory power for administrative convenience (Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184 (Tex. 2007); Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310 (Tex. 2001); Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91 (Tex. App.-Austin 2004, pet. denied)).

Chapter 1002 of the Occupations Code, the Texas Geoscience Practice Act, licenses and regulates geoscientists and gives the Board express powers to adopt rules, set fees, adopt and enforce a code of professional conduct, receive complaints and investigate, deny licenses, set a license expiration schedule, and impose sanctions including suspension and revocation (Tex. Occ. Code §§ 1002.001-.501, 1002.151, 1002.152, 1002.153(a)-(b), 1002.154(a)-(c), 1002.156, 1002.251(a), 1002.252, 1002.261(a), 1002.262, 1002.401, 1002.402, 1002.403(a)(2)-(3)). Reading those powers and the statute's public-protection purpose, the AG concluded the authority to accept a voluntary license surrender is reasonably implied and not a new power.

On whether acceptance is mandatory, the AG noted it is neither an express power nor a duty, so the Board is not required to accept a surrender, but it may likely impose reasonable conditions under its general rulemaking power, subject to the limit that a rule may not impose burdens inconsistent with the statute and must harmonize with its objectives (Tex. Gov't Code § 311.016; Tex. Occ. Code § 1002.151; Hollywood Calling v. Pub. Util. Comm'n, 805 S.W.2d 618 (Tex. App.-Austin 1991, no writ); Pruett v. Harris Cty. Bail Bond Bd., 249 S.W.3d 447 (Tex. 2008)).

Citations

Statutory provisions:

• Tex. Occ. Code §§ 1002.001-.501 (Texas Geoscience Practice Act)
• Tex. Occ. Code § 1002.151 (rulemaking authority)
• Tex. Occ. Code § 1002.152 (fees)
• Tex. Occ. Code § 1002.153(a)-(b) (code of professional conduct)
• Tex. Occ. Code § 1002.154(a)-(c) (enforcement, complaints, investigations)
• Tex. Occ. Code § 1002.156 (license required)
• Tex. Occ. Code § 1002.251(a) (license requirement)
• Tex. Occ. Code § 1002.252 (exempt activities)
• Tex. Occ. Code § 1002.261(a) (license requirement)
• Tex. Occ. Code § 1002.262 (license expiration schedule)
• Tex. Occ. Code § 1002.401 (denial of license)
• Tex. Occ. Code § 1002.402 (sanctions and disciplinary actions)
• Tex. Occ. Code § 1002.403(a)(2)-(3) (suspension and revocation)
• Tex. Gov't Code § 311.016 ("Shall" imposes a duty)

Cases:

• Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184 (Tex. 2007)
• Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310 (Tex. 2001)
• Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91 (Tex. App.-Austin 2004, pet. denied)
• Hollywood Calling v. Pub. Util. Comm'n, 805 S.W.2d 618 (Tex. App.-Austin 1991, no writ)
• Pruett v. Harris Cty. Bail Bond Bd., 249 S.W.3d 447 (Tex. 2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0080
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0080.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 3, 2016

Mr. Charles Horton Opinion No. KP-0080
Executive Director
Texas Board of Professional Geoscientists Re: Whether the Texas Board of Professional
Post Office Box 13225 Geoscientists has implied authority under
Austin, Texas 78711-3225 Occupations Code chapter 1002 to accept and
place limits on the voluntary surrender of a
license (RQ-0066-KP)

Dear Mr. Horton:

You request our opinion about the voluntary surrender of an unexpired license issued by the Texas Board of Professional Geoscientists (the "Board"). [1] Specifically you ask:

    (1) Does the Board's express authority to issue, renew, suspend, revoke, and take other disciplinary action against the Board issued license, before expiration, include an implied authority to accept the licensee's voluntary termination by surrender of the license before it expires?

    (2) Does the Board's broad authority to regulate professional geoscience under the Act, as a whole, include the implied authority to accept a licensee's voluntary termination by surrender of a Board-issued license?

    (3) If the answer to both questions 1 and 2 is "no," is the Board authorized by other law to accept the voluntary termination by surrender of a license it issued previously?

    (4) If the Board is authorized to accept the voluntary termination by surrender of a license, must the Board accept a unilateral voluntary surrender of the license by a licensee, or may the Board impose limitations on a licensee's ability to voluntarily and unilaterally terminate a Board-issued license by surrender? For example may the Board adopt rules that would prohibit the licensee from voluntarily and unilaterally, without Board approval, terminating a license while the licensee is under Board investigation or is the subject of a pending disciplinary action by the Board?

Request Letter at 2. As your first two questions raise the issue of the Board's implied power, we address them together. See id.

As an administrative agency of the State, the Board has only those powers expressly given it by the Legislature or those implied powers that are reasonably necessary to carry out its express functions or duties. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192-93 (Tex. 2007). "An agency may not, however, exercise what is effectively a new power, or a power contradictory to the statute, on the theory that such a power is expedient for administrative purposes." Pub. Util. Comm'n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex. 2001). But an agency will be determined to have that implied power which is necessary to accomplish its purpose. See id. (acknowledging that the Legislature impliedly intends that an agency have "whatever powers are reasonably necessary to fulfill its express functions or duties"). When considering the scope of an agency's authority, courts examine the language of the statute to determine, and give effect to, the Legislature's intent with respect to the agency's implied powers. Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 156 S.W.3d 91, 101 (Tex. App.-Austin 2004, pet. denied). Absent an express grant of power to accept the unilateral, voluntary termination of a license, we look to the language of chapter 1002 to consider whether such power is reasonably necessary for the Board to carry out its express functions.

Chapter 1002 of the Occupations Code provides for the licensing and regulation of geoscientists. See TEX. OCC. CODE §§ 1002.001-.501 ("Texas Geoscience Practice Act"). Chapter 1002 requires a person who engages in the public practice of geoscience to have a license issued by the Board. Id. §§ 1002.251(a), 1002.156, 1002.261(a); see also id. § 1002.252 (listing activities exempted from license requirement). Under chapter 1002, the Board has express authority to "adopt and enforce rules consistent with [chapter 1002] and necessary for the performance of its duties." Id. § 1002.151. The Board is authorized to set reasonable and necessary fees, including for the "application, examination, licensure, and renewal of a license." Id. § 1002.152. It shall adopt and enforce a code of professional conduct. Id. § 1002.153(a)-(b). The Board is mandated to enforce chapter 1002, including receiving complaints and conducting investigations. See id. § 1002.154(a)-(c). Chapter 1002 authorizes the Board to deny a license in certain instances. See id. § 1002.401. Chapter 1002 also authorizes the Board to establish a license expiration schedule. See id. § 1002.262. And it authorizes the Board to impose sanctions and to take disciplinary actions, including the suspension and revocation of a license. See id. §§ 1002.402, 1002.403.

You point to either the Board's general rulemaking power or its range of enforcement powers as express powers from which may be implied the power to accept a voluntary surrender of a license. See Request Letter at 2-3. The Board's rulemaking authority encompasses broadly that power which is necessary for the Board to perform its regulatory and enforcement duties. See TEX. OCC. CODE § 1002.151. In addition, the Board is expressly authorized to fully suspend or revoke a license. See id. § 1002.403(a)(2)-(3). Chapter 1002 does not have a stated purpose but considered as a whole, it is apparent that the purpose of the chapter is to protect the public by ensuring that persons practicing as geoscientists are qualified, perform under a code of ethics and behavior, and are subject to investigation and discipline for acting in violation of chapter 1002. See supra at 2 (citing TEX. OCC. CODE §§ 1002.152-.154, 1002.401). The Board's express authority over a license expiration schedule and its authority to terminate a license via suspension or revocation implicitly include the authority to allow a licensee to terminate his or her own license by surrendering it. Having the power to accept a voluntary surrender of a license comports with the purpose of the statute, including the power of revocation, and is reasonably necessary for the Board to regulate the practice of geoscience. And it does not equate to the exercise of a new power. See Pub. Util. Comm'n of Tex., 53 S.W.3d at 316 (recognizing that an administrative agency may not, by rule, exercise what is effectively a new power for expediency's sake). Accordingly, a court would likely determine that the powers given the Board to enforce chapter 1002's regulation of professional geoscientists include the implied authority to accept a unilateral, voluntary surrender of a license by a licensee. Given this conclusion, we need not address your third question.

Your fourth question is whether the Board may be required to accept such a voluntary surrender of a license or whether the Board may impose conditions on its acceptance of a license surrender. See Request Letter at 2. The Board's acceptance of a voluntary surrender of a license is not an express power mandated in chapter 1002. See supra at 2. Nor is it a duty imposed by chapter 1002. Cf. TEX. GOV'T CODE § 311.016 ("'Shall' imposes a duty."). Accordingly, chapter 1002 does not require the Board to accept a unilateral, voluntary surrender of a license. A court would likely conclude that, pursuant to its general rulemaking power, the Board may impose reasonable conditions on its acceptance of a voluntary license surrender. [2] See TEX. OCC. CODE § 1002.151.

SUMMARY

A court would likely determine that the Board of Professional Geoscientists has implied authority under chapter 1002 of the Occupations Code to accept the unilateral, voluntary surrender of a license by a licensee. A court would likely also find that the Board may impose reasonable conditions on its acceptance of a voluntary license surrender.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Mr. Charles Horton, Exec. Dir., Tex. Bd. of Prof'l Geoscientists, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 5, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Though you refer to potential elements of a rule, you do not provide us the language of any proposed rule. Thus, we do not opine on any specific rule but advise you only generally that an administrative rule may not impose additional burdens, conditions, or restrictions that are inconsistent with the statute. Hollywood Calling v. Pub. Util. Comm'n, 805 S.W.2d 618, 620 (Tex. App.-Austin 1991, no writ). The determinative factor in deciding whether an agency has exceeded its rulemaking authority is whether the rule's provisions are in harmony with the statute's general objectives. Pruett v. Harris Cty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008).