Texas Attorney General Opinion: JM-906 Page: 4 of 15
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Dr. G.V. Brindley, Jr. - Page 4 (JM-906)
(2) administer a public reprimand.
(Emphasis added.)
Acts 1987, 70th Leg., ch. 596, 11, at 4661, codified as
V.T.C.S. art. 4495b, 4.12.
The board no longer has authority to administer a
private reprimand. Moreover, prior to the amendment in
1987, section 4.12 stated that the board "may enter an
order" imposing one or more of several disciplinary measures
if it found that any person had committed one of the acts
set forth in section 3.08. Thus, the board formerly had
discretion to not issue an order when it made the requisite
finding. See generally District Grand Lodge No. 25 v.
Jones, 160 S.W.2d 915 (Tex. 1942) ("may" ordinarily connotes
permission). Section 4.12 now provides that the board
"shall enter an order" if it makes such a finding. Thus,
the board has no discretion to withhold a formal order when
it has found wrongdoing. See Hess & Skinner Engineering
Co. v. Turney, 203 S.W. 593 (Tex. 1918) (word "shall" is
ordinarily a preemptory term); McLaren v. State, 199 S.W.
811 (Tex. Crim. App. 1917) ("shall" is ordinarily imperative
and not directory). Under section 4.12 as amended, once the
board finds that a person has engaged in conduct set out in
section 3.08, it has a mandatory duty to enter an order
imposing one or more of the section 4.12 disciplinary
measures.
House Bill No. 2560 also added the following language
to section 4.04 of article 4495b, V.T.C.S.:
The board may, unless precluded by the law or
this Act, make a disposition of any complaint
or matter relating to this Act, or of any
contested case by stipulation, agreed settle-
ment, or consent order. The board shall adopt
such rules as are appropriate to carry out
such disposition. Such disposition shall be
considered a disciplinary order. (Emphasis
added.)
V.T.C.S. art. 4495b, 4.04(b). Thus, these other means of
dealing with a complaint or contested case are now to be
considered disciplinary orders.
Rules authorizing administrative sanction hearings
which were based on the board's former authority to issue
orders administering a private reprimand, and those which
were based on its former authority to issue no order at all
after a finding of misconduct, are no longer consistent withp. 4477
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-906, text, May 19, 1988; (https://texashistory.unt.edu/ark:/67531/metapth273344/m1/4/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.