_, _. . . 

TEEA~ORNEY GENERAL 

OFTEXAS 

GERALD C. MANN 

XATTORN- GIENEHAL 

Phil R. Russell, D. 0. 

R. H. Peterson, D. 0. 

Everett W. Wilson, D. 0. 

Members Texas State Board of Medical Examiners 

1114 Medical Arts Building 

San Antonio, Texas 

Gentlemen: 

Opinion No. O-1298 

Re: Is the term wosteopath" synonymous 

with or within the meaning of the 

phrases %he practice of medicine."? 

Your letter of August 17, 1939, with reference 

to the atove question, has been received by this department. 

It is believed that your letter will be fully 

answered by a review of the Texas cases involving a 

construction of Article 4510, Revised Civil Statutes, 

1925. 

Article 4510, Revised Civil Statutes, 1925, provides: 

"Any person shall be regarded as practicing 

medicine within the meaning of this law: 

"1. Who shall publicly orofess to be a physisian or surgeon and shall, treat, or offer to 

treat, any disease or disorder, mental or physical, 

or any physical deformity or injury, by any 

system or method, or to effect cures thereof; 

“2. Or who shall treat or offer to treat 

any disease or disorder, mental or physical, or 

any physical deformity or injury by any system 

or method, or to affect cures thereof and charge 

therefor directly or indirectly, money or other 

compensation." 
Texas State Board of %dical Examiners, page 2 O-1298 

The first discussion of the subject at hand is 

found in the case of Ex Parte COLLINS, 121 S.W. 501, 

223 U.S. 2SS, where, at page 503 the court said: 

"As we understand relator in his brief and 

argument, he concedes that the statute is broad 

enough to cover his offense, but that the constitutional provision just cited limits the 

power of the Legislature to the regulation of 

the ?ract,ice of medicine, and that osteopathy 

is not practicing medicine. The Constitution, 

when it demands the regulation of the practice 

of medicine, was not attempting to say that the 

Legislature was limited to any mode or method 

of healing in order to regulate it; but the 

word 'medicine' used in the Constitution means 

the art of healing by whatever .scientific'or 

supposedly scientific method may be used. It 

means the art of preventing, curing, or alleviating diseases, and remedying, as far as possible results of violence and accident. It 

further.means something which is supposed to 

possess, or some method which is supposed to 

poksess, curative power; but if this definition 

$f medicine is not correct, as stated in the 

Constitution , yet there is no linitation upon 

the power of the Legislature is said provision 

of the Constitution which inhibits the Legislature of this state under its police power to 

pfevent any one practicing any species or character of remedy to cure any real or supposed 

ill that the body has or is subject to for pay. 

Acts with somewhat similar provisions to the 

act of the Thirtieth Legislature now under 

consideration were held constitutional by the 

Supreme Court of this state in the case of 

Dowdell v. 1% Bride, 92 Tex. 239, 47 S.W: 524; 

also by this court in the case of Logan v. 

State, 5 Tex. App. 306. So we hold that osteopathy is one of the methods of curing the ills 

to which human flesh is heir, and is one 

of the methods of curing covered by the act of 

the lhirtieth .Legislature. In other words, in 

order for one in this state to practice osteopathy 
Texas State Board of i*ledical Examiners, page 3 O-1298 

for pay, he must secure a license, as provided 

for by the act of the Thirtieth Legislature. 

***w 

It is significant to note that Relator, a physician practicing osteopathy in El Paso, Texas, specifically urged that the practice of osteopathy is not practicing medicine. The court rejected this contention. 

Thereafter, the court in the case of Newman vs. 

State, 124, S.W. 956, held likewise, and construed the 

opinion in Ex Parte COLLINS, supra, as follows: 

"We there held that the word 'medicine,' as 

used in the Constitution, embraced the art of 

healing, by whatever scientific or supposedly 

scientific method, the art of preventing, curing, or alleviating diseases, and remedying as 

far as possible results of violence and accident, 

and that it was broad enough to include any 

method that was supposed to posses curative 

power, and authorized the passage of the act in 

question requiring physicians and surgeons, including osteopaths, to obtain a license before 

engaging in the practice of their profession.!* 

Later in the case of COLLINES vs. STATE, 152 S.W. 

at p. 1049, the court further said: 

"The main contention of appellant seems to 

be that it was incumbent upon the state to prove 

that he practiced, either generally or on this 

particular patient, by some particular 'system 

or method,' and, as the state had not so proven 

that he practiced by some particular 'system or 

method,' that therefore his conviction was erroneous..' rie do not so understand the statute. 

It is not incumbent upon the state to show that 

his practice was by any system or method, but 

simply aud solely that he treated a disease or 

disorder, mental or physical, and charged therefor, whether that treiitnent was by any system 

or method or not. In other words, the law, as 

we understand it, does not permit any one to 
Texas State aoard of Medical Examiners, page 4 O-129$ 

treat any disease or disorder and charge therefor, without first getting a license or a verification license and having it properly registered 

in the district clerk's office of his residence, 

whatever his method or system of treatment, 

whether he has any method or system or Ilot. '$his 

act of the Legislature has many tiines been before 

this court and construed, and as we understand 

their trend, if not direct holding, all of the 

decisions have been to the above affect. Sea 

Milling v. State, 150 S.;J. 435; Stiles v. State, 

148 S.W. 326; Ex parte Collins, 57 Tex. Cr. R. 2, 

121 S.W. 501; Collins v. State, 223 U.>. 288, 

32 Sup. Ct. 286, 56 L. Ed. 439; Singh v. State, 

146 S.W. $91; Germany v. State, 62 Tex. Cr. R. 

276 R. 157, 136 S.W. 786; Newman v. State, 58 

Tex. Cr. R. 223, 124 S.rJ. 956." 

Finally, we quote from Mr. Justice Stone of the 

U.S. Supreme bourt, speaking in the case of Hayman v. 

71 L Ed 714 as'follzws: 

City of Galveston 47 upreme Court, 363, 273 U.S. 414, 

l * 1 

"Under the Texas bonstitution and Statutes, 

any one who shall 'offer to treat any disease 

or disorder, mental or physical, or any physical 

deformity or injury, by any system or method or 

to effect cures thereof' is a physician and may 

be admitted to ractice within the state." 

The foregoing cases represent the construction 

of Article 4510, supra, by our courts. The practice 

of osteopathy has consistently been held to be iriithin 

the phrase "the practice of medicine." 

We trust this answers your inquiries satisfactorily, and we remain 

Yours very truly 

ATTORNEY GENERAL OF TFX.iS 

BY Wm- J. Fanning 

Assistant 

WmJF:ob/PAM 

APPROVED SEP l$, 1939 

GERALD C. MANN 

ATTORNEY GENERAL OF TEXAS 

APPROVED, OPINION COMMITTEE 

BY BviB, CHAIRMAN