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### TEEA~ORNEY GENERAL

OFTEXAS

GERALD C. MANNXATTORN- GIENEHAL

Phil R. Russell, D. 0. R. H. Peterson,D. 0. EverettW. Wilson, D. 0. Members Texas State Board of Medical Examiners 1114Medical 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 receivedby this department.

It is believed that your letter will be fully answeredby a review of the Texas cases involvinga constructionof Article 4510, Revised Civil Statutes, 1925.
Article 4510, Revised Civil Statutes, 1925, provides:
"Anyperson shall be regarded as practicing medicine within the meaning of this law:

"1. Who shallpublicly orofess to be a physisian or surgeonand 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 injuryby 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 discussionof the subject at hand is found in the case of Ex Parte COLLINS, 121 S.W. 501, 

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

"As we understandrelator in his brief and argument,he concedesthat the statute is broad enough to coverhis offense,but that the constitutionalprovision just cited limits the power of the Legislatureto the regulationof the ?ract,ice of medicine, and that osteopathy is not practicingmedicine. The Constitution, when it demands the regulation of the practice of medicine,was not attempting to say that the Legislaturewas 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 healingby whatever .scientific'or supposedly scientificmethod 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.meanssomethingwhich is supposed to possess, or somemethod which is supposed to poksess, curativepower; but if this definition $f medicine is not correct,as stated in the Constitution,yet there is no linitationupon the power of the Legislature is said provision of the Constitutionwhich inhibits the Legislature of this stateunder its police power to pfevent any one practicingany 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 similarprovisions to the act of the Thirtieth Legislaturenow under considerationwere held constitutionalby 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 coveredby the act of the lhirtieth.Legislature. In other words, in order for one in this state to practice osteopathyTexas 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 significantto note that Relator, a physicianpracticing osteopathy in El Paso, Texas, specifically urged that the practice of osteopathy is not practicingmedicine. The court rejected this contention.
Thereafter, the court in the case of Newman vs. State, 124, S.W. 956, held likewise,and construedthe 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 scientificor supposedly scientificmethod, the art of preventing, curing, or alleviating diseases,and remedying as far as possible results of violence and accident, and that itwas broad enough to includeany method that was supposed to posses curative power, and authorized the passage of the act in question requiringphysicians and surgeons, including osteopaths,to obtain a licensebefore engaging in the practice of their profession.!*

Later in the case of COLLINESvs. STATE, 152 S.W. at p. 1049, the court further said:

"Themain contention of appellant seems to be that itwas incumbentupon the state to prove that he practiced, either generally or on this particularpatient,by some particular 'system or method,' and, as the state had not so proven that he practicedby some particular 'systemor method,' that thereforehis convictionwas erroneous..' riedo not so understand the statute. It is not incumbentupon the state to show that his practicewas 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 toTexas 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 Legislaturehas many tiines been before this court and construed,and as we understand their trend, if not direct holding, all of the decisionshave 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; Collinsv. State, 223 U.>. 288, 32 Sup. Ct. 286, 56 L. Ed. 439; Singh v. State, 146 S.W. $91; Germanyv. 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 fromMr.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 bonstitutionand Statutes, any one who shall 'offerto 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 osteopathyhas consistentlybeen held to be iriithin the phrase "the practice of medicine."

We trust thisanswers 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