Untitled Texas Attorney General Opinion: KP-0451

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

November 16, 2023

Mr. Mark Bronson, D.C.
President
Texas Board of Chiropractic Examiners
1801 North Congress, Suite 10.500
Austin, Texas 78701

Opinion No. KP-0451

Re: Whether the Texas Board of Chiropractic Examiners has discretion to suspend or
revoke a chiropractor’s license under Texas Occupations Code section 201.5065 if the
chiropractor is convicted of certain offenses (RQ-0510-KP)

Dear Dr. Bronson:

You inquire whether the Texas Board of Chiropractic Examiners (the “Board”) has
discretion to suspend or revoke a chiropractor’s license under Occupations Code section 201.5065
if the licensee is convicted of certain offenses. 1 That provision states the Board “shall suspend” a
license for certain criminal violations and “shall revoke” a license upon final conviction for those
offenses. TEX. OCC. CODE § 201.5065. You contrast this provision with Occupations Code
section 201.502 and section 53.021, relevant portions of which both provide that the Board “may”
suspend or revoke a license based on certain criminal convictions. Id. §§ 201.502, 53.021; Request
Letter at 2.

A court would likely resolve any conflict between the Board’s mandatory duty under
section 201.5065 and authorities under section 201.502 or section 53.021 by applying
the more specific provision.

Occupations Code section 201.5065 provides the Board “shall suspend a chiropractor’s
license on proof that the chiropractor has been” either “initially convicted” of any of five categories
of criminal offenses or “subject to an initial finding by the trier of fact of guilt of a felony under”
one of three specified statutory provisions. TEX. OCC. CODE § 201.5065(a). The provision further
states that the Board “shall revoke the chiropractor’s license” upon “final conviction” for offenses
described in subsection 201.5065(a). Id. § 201.5065(b).

1
See Letter from Mark Bronson, D.C., President, Tex. Bd. of Chiropractic Exam’rs, to Honorable Ken Paxton,
Tex. Att’y Gen. at 3 (May 19, 2023), https://www.texasattorneygeneral.gov/sites/default/files/request-
files/request/2023/RQ0510KP.pdf (“Request Letter”).
Mr. Mark Bronson, D.C. - Page 2

Section 201.5065 thus imposes a duty on the Board to suspend or revoke a chiropractor’s
license where the requirements of the statute are met. See TEX. GOV’T CODE § 311.016(2)
(recognizing that generally “shall” imposes a duty); Sanchez v. Tex. State Bd. of Med.
Exam’rs, 229 S.W.3d 498, 515 n.13 (Tex. App.—Austin 2007, no pet.) (recognizing that an
Occupations Code provision that mirrors section 201.5065’s language “requires the Board [of
Medical Examiners] to suspend a physician’s license on proof that the physician has been initially
convicted of a felony” (emphasis added)); but see Helena Chem. Co. v. Wilkins, 47
S.W.3d 486, 493 (Tex. 2001) (“[W]e have held language that appears to impose a mandatory duty
to be only directory when this interpretation is most consistent with the Legislature’s intent.”).

Presuming the language in section 201.502 and section 53.021 is discretionary, the Board’s
duties under section 201.5065 are in tension with its authority under those provisions. See TEX.
GOV’T CODE § 311.016(1) (recognizing that generally “may” creates discretionary authority or
grants permission or power). Where one provision is general and the other more specific, a court
would likely resolve any resulting conflict by applying the more specific provision.

When specific and general statutory provisions conflict, the specific provision
typically prevails.

When interpreting statutes, a court’s “objective is to ascertain and give effect to the
Legislature’s intent[.]” In re D.S., 602 S.W.3d 504, 514 (Tex. 2020). As the “most reliable guide
to the Legislature’s intent,” courts “look to the plain language, construing the text in light of the
statute as a whole.” Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). Where statutory
provisions overlap, courts “[t]o the extent possible . . . construe the different provisions in a way
that harmonizes rather than conflicts.” In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 716
(Tex. 2015); see TEX. GOV’T CODE § 311.026(a). But where two provisions “are ambiguous or
irreconcilable,” courts may employ the rule of construction that “a specific provision controls over
a general provision . . . .” State ex rel. Best v. Harper, 562 S.W.3d 1, 10 (Tex. 2018); see TEX.
GOV’T CODE § 311.026(b). When comparing general and specific provisions, the general provision
will control only if it “is the later enactment and the manifest intent is that the general provision
prevail.” Harris Cnty. Appraisal Dist. v. Tex. Workforce Comm’n, 519 S.W.3d 113, 122
(Tex. 2017); TEX. GOV’T CODE § 311.026(b). With these rules of construction, we construe
section 201.5065 in connection with sections 201.502 and 53.021.

Occupations Code section 201.5065 prevails over 201.502 where the two provisions
conflict.

We first consider whether the Board retains discretion to suspend or revoke a chiropractor’s
license under Occupations Code section 201.502. As relevant here, subsection 201.502(a) provides
that the Board “may revoke or suspend a license” for “being convicted of a crime involving moral
turpitude or a felony[.]” TEX. OCC. CODE § 201.502(a)(5). Subsection 201.502(c) provides that the
Board “may” revoke or suspend a chiropractor’s license due to the “license holder’s violation of a
law of this state, other than [Occupations Code chapter 201], or a rule of another licensing board
in this state, or of a statute or rule of another state . . . if the violation constitutes a violation of the
laws of this state or a board rule.” Id. § 201.502(c).
Mr. Mark Bronson, D.C. - Page 3

While Occupations Code sections 201.5065 and 201.502 are not coterminous, the
circumstances under which they apply can overlap. For example, both provisions involve the
Board’s suspension or revocation of a chiropractor’s license upon conviction for any felony
offense. Id. §§ 201.5065(a)(1)(A), .502(a)(5), (c). In that situation, the provisions cannot be
harmonized because the Board cannot both possess discretion to suspend or revoke a license under
section 201.502 and lack discretion under section 201.5065. Cf. In re Mem’l Hermann Hosp.
Sys., 464 S.W.3d at 718 (finding provisions irreconcilable because “a record or proceeding is either
confidential or not; it cannot be both”). Where, as here, “the literal terms of the two provisions
cannot both be true, the terms of the specific provision ordinarily will prevail.” Id. at 716.

Here, a court would likely conclude that section 201.5065 is the more specific provision
that “prevails as an exception to the general provision” where it conflicts with section 201.502.
TEX. GOV’T CODE § 311.026(b). As relevant to your inquiry, section 201.502 leaves it to the Board
to decide whether to suspend a license, revoke a license, or place a licensee on probation upon
“being convicted.” TEX. OCC. CODE § 201.502(a)(5). By contrast, section 201.5065 sets forth a
carefully constructed framework that delineates whether the licensee has been initially convicted,
subject to an initial finding of guilt, or finally convicted of particular offenses. Id. § 201.5065.
License suspension occurs upon initial conviction or an initial finding of guilt. Id. § 201.5065(a).
License revocation occurs upon final conviction. Id. § 201.5065(b). These strictly circumscribed
parameters demonstrate the intent for section 201.5065 to act as an exception to the discretion that
section 201.502 gives the Board on whether to take disciplinary action.

Other aspects of the two provisions also support this likely conclusion. Section 201.502
applies to both licensees and applicants alike, as it also allows the Board to “refuse to admit a
person to examinations . . . .” Id. § 201.502(a); see id. § 201.502(c). Section 201.5065 is more
focused, applying only to current license holders. See id. § 201.5065. Section 201.5065 pertains to
a specific subset of criminal offenses, whereas section 201.502 extends beyond violations of
criminal law. See, e.g., id. § 201.502(a)(8) (pertaining to “having a habit of intemperance” that
endangers a patient), 201.502(a)(11) (relating to advertising professional superiority), 201.502(c)
(involving violations of “a rule of another licensing board in this state”). In other words,
section 201.5065 is the specific provision because “the universe of conduct” on which suspension
or revocation “must be premised is confined” to a narrower list of actions than in section 201.502.
Cf. City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008) (concluding a statute that dealt
specifically with retaliation for employment discrimination prevailed over a conflicting
whistleblower provision that was not limited to workplace discrimination).

As the more specific provision, section 201.5065 prevails unless section 201.502 is a later-
enacted statute that the Legislature manifestly intended to prevail. See Harris Cnty. Appraisal
Dist., 519 S.W.3d at 122. Relevant portions of section 201.502 were enacted after
section 201.5065. 2 However, the Legislature did not include language demonstrating a manifest
intent for section 201.502 to prevail. See Harris Cnty. Water Control & Imp. Dist. No. 99 v.
Duke, 59 S.W.3d 333, 338 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (concluding express

2
Compare Act of May 23, 2017, 85th Leg., R.S., ch. 294, § 20, 2017 Tex. Gen. Laws 545, 550 (codified at
TEX. OCC. CODE § 201.502(c)), with Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § 32, 2005 Tex. Gen. Laws 3464,
3473 (codified at TEX. OCC. CODE § 201.5065).
Mr. Mark Bronson, D.C. - Page 4

language in the Tax Code expanding its application to the Water Code and repealing conflicting
provisions elsewhere demonstrated manifest intent for the Tax Code to prevail). Accordingly, a
court would likely conclude that section 201.5065 controls where the two provisions conflict.

Occupations Code section 201.5065 prevails over section 53.021 where the two
provisions conflict.

We next consider Occupations Code section 53.021. That provision is in Title 2 of the
Occupations Code, which is titled “General Provisions Relating to Licensing” and is unrelated to
any specific licensing board. See TEX. OCC. CODE § 53.021. Section 53.021 provides that, subject
to certain notice requirements, “a licensing authority may suspend or revoke a license, disqualify
a person from receiving a license, or deny to a person the opportunity to take a licensing
examination on the grounds that the person has been convicted of” one of three listed categories
of offenses. Id. § 53.021(a). As “a licensing authority,” this provision generally applies to the
Board. 3

As with section 201.502, there may be an overlap between section 201.5065 and
section 53.021. For example, subsection 53.021(a)(1) allows, but does not require, the Board to
revoke a license upon conviction for “an offense that directly relates to the duties and
responsibilities of the licensed occupation[.]” Id. § 53.021(a)(1). A conviction could invoke both
section 53.021 and section 201.5065 where it involves an offense referenced in section 201.5065
that directly relates to a licensee’s duties and responsibilities as a chiropractor. Here again, the two
provisions cannot be harmonized because the Board cannot possess discretion to suspend or revoke
a chiropractor’s license under section 53.021 and at the same time lack discretion regarding
suspension and revocation under section 201.5065. Accordingly, a court would likely apply the
specific provision over the general.

The suspension and revocation powers in section 53.021 are, with limited exceptions,
granted to any “licensing authority.” Id. § 53.021; see also id. § 53.002 (addressing the
applicability of chapter 53). Conversely, the suspension and revocation duties contained in
section 201.5065 are particular to the Board. See id. §§ 201.001(1) (defining “[b]oard” to mean
the Texas Board of Chiropractic Examiners for purposes of chapter 201), 201.5065 (stating the
“board” shall suspend or revoke a chiropractor’s license). While this alone likely is sufficient to
conclude that section 53.021 is the general provision, other aspects of section 53.021 also support
this conclusion. Cf. Mandel v. Lewisville Indep. Sch. Dist., 499 S.W.3d 65, 75 (Tex. App.—Fort
Worth 2016, pet. denied) (concluding that the notice and pleading requirements for tax suits prevail
over the generally applicable requirements for all suits). Unlike section 201.5065, section 53.021
applies to license applicants in addition to licensees. TEX. OCC. CODE § 53.021(a) (allowing a
licensing authority to “disqualify a person from receiving a license[] or deny to a person the
opportunity to take a licensing examination”). Relevant portions of subsection 53.021(a) were

3
See TEX. GOV’T CODE § 2001.003(3), (7) (defining “[l]icensing” to include suspension and revocation by a
“[s]tate agency” which is defined to include a state board); see also TEX. OCC. CODE § 53.001 (adopting definitions
provided by Government Code chapter 2001).
Mr. Mark Bronson, D.C. - Page 5

enacted after section 201.5065, 4 but section 53.021 contains no language showing a manifest intent
that it prevails. 5 Accordingly, where the two provisions conflict, a court would likely find that the
Board’s duties under section 201.5065 prevail over its authority under subsection 53.021(a).

4
See Act of May 31, 2009, 81st Leg., R.S., ch. 616, § 3, 2009 Tex. Gen. Laws 1400, 1401–02 (codified at
TEX. OCC. CODE § 53.021(a)).
5
You also raise Occupations Code section 53.003. See Request Letter at 3. That provision requires chapter 53
to be liberally construed to carry out the Legislature’s intent “to enhance opportunities for a person to obtain gainful
employment after the person has: (1) been convicted of an offense; and (2) discharged the sentence for the offense.”
TEX. OCC. CODE § 53.003(a). You express uncertainty as to whether “this requirement for a liberal construction has
any effect on the mandatory language in [section] 201.5065.” Request Letter at 3. On its face, section 53.003 has no
impact on whether section 53.021 is the more specific statute or was later enacted. The language employed in section
53.003 also does not demonstrate manifest intent that section 53.021 should prevail over section 201.5065 in the event
of a conflict.
Mr. Mark Bronson, D.C. - Page 6

S U M M A R Y

Occupations Code chapter 201 provides for the regulation of
chiropractors by the Board of Chiropractic Examiners. Occupations
Code chapter 53 is generally applicable to all licensing authorities.
Occupations Code section 201.5065 states the Board “shall”
suspend or revoke a chiropractor’s license under the circumstances
listed. Occupations Code sections 53.021 and 201.502 state the
Board “may” suspend a license, revoke a license, or take other
disciplinary actions under the circumstances set forth in each statute.
Section 201.5065 is the more specific provision when compared
with either section 53.021 or section 201.502. While relevant
portions of section 53.021 and section 201.502 were adopted after
section 201.5065, there is no manifest intent for either provision to
prevail over section 201.5065. Therefore, a court would likely
conclude Occupations Code section 201.5065 prevails over section
53.021 and section 201.502 in the event of a conflict.

Very truly yours,

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KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

J. AARON BARNES
Assistant Attorney General, Opinion Committee