-

Dr. H. G. Towle, President Texas State Board of Examiners inOptometry Snyder, Texas Dear Sir: Opinion No. O-1588

Re: Does the Board ofOptometry have authority to limit the amount or percentage that could be paid to ajewelry store by an optometrist, (and related questions) under Articles 4552-4566, inclusive, Vernon’s Civil Statutes, 1925, as amended. We are pleased to reply toyour letter ofOctober 17, 1939, wherein you say: “The State Board ofOptometry would like to have a construction **of**H.B. 410, passed by the Forty-sixth Legislature, in regard toSubsections (b), (f), (g), (h) and (i) ofSection 8, Article 3462. We are especially interested inthese subsections by reason of the fact that afew optometrists are working injewelry stores and are entering into contracts whereby a certain percentage oftheir fees are split with the owner ofthe jewelry store in lieu ofrent. “In view ofthe Subsections as set forth above, and also Section 16ofH.B. 410,we would like tohave your opinion as to 4;* ** 1.“Whether or not the board would have authority to limit the amount or percentage that could be paid to thejewelry store by the optometrist, and 2. “If we could do so, as towhether or not.the Board could adopt a rule by which the percentage allowed from the optometrist’s practice would inno event exceed the usual and customary rental for the same or similar space inthe adjacent property, or inthe same locality.Dr. H. G. Towle, President, Page 2, O-1588

3. “Also, under Section 16ofH. B. 410, could the board adopt rules and regulations covering practice by optometrists injewelry stores whereby the optometrist must pay his own bills, advertising and all his equipment and merchandise. 4. “Under Section 16,could the board require that a separate contract for rent by required, and aseparate one for handling accounts, and that all material and equipment be billed tothe optometrist and paid by the optometrist.” In our opinion the board would not have authority to limit the amount or percentage that could be paid by the optometrist to thejewelry store. Article 4556, Vernon’s Civil Statutes, 1925, as amended, provides, inpart:

“The board shall have power tomake such rules and regulations not inconsistent with this law as may be necessary for the * * * regulation of the practice of optometry * *.*” Thus, the board could make such regulations that’might be necessary for the regulation ofthe practice of optometry, but such regulations, as provided by the Legislature, **must** not be “inconsistent with this law.” We now call attention toArticle 4566, Vernon’s Civil Statutes, as amended, which reads:

“Provided that itshall not be construed as a violation of this Act forany optometrist to lease space from an establishment onapercentage or gross receipts basis or to sell, transfer or assign accounts receivable.” Since the Legislature has provided that such leasing, as is mentioned above, is not aviolation ofthe Optometry Act, in **our** opinion any regulation tending tolimit or fix the amount or percentage that could be paid by the,optometrist tothejewelry store would be improper because itwould be “inconsistent with this law”, and contrary tothe expressed intent of the Legislature.Dr. H. T. Towle, President, Page 3, O-1588

Due tothe fact that we have answered **your** first question inthe negative, and since your second question depended on the first, your second question must be answered likewise.

In our opinion your third an,dfourth questions must both be answered inthe negative.

By virtue ofthe Fourteenth Amendment tothe United States Constitution and Section 19ofthe Bill ofRights of our State Constitution, a person is deemed tohave a constitutional right to contract with reference to lawful **matters,** which includes the use of his property.

See 9TEX. JUR., 890, p. 522; 16C.J.S., fi575, p. 1167; TAYLOR v. LEONARD (Tex. Civ. App.) 281S.W. 596. The right tomake contracts is declared tobe both aliberty and a p.roperty right and tobe within the protection ofthe guaranties against the taking of property without due process of law. An enactment which impairs this right is held to be invalid.

9TEX. JUR., §90, p. 523. 16C.J.S., 5 575, p. 1167; HALL v. HIX, (Tex. Civ. App.) 297 S.W. 491. “The right ofan optometrist, duly licensed, to conduct his business or practice optometry, is aproperty right protected by the Constitution. DENT v. W. VA., 129U.S. 114,123,.124, 9 Supt. Ct. 231, 32L. Ed. 823; DOUGLAS v. NOBLE, 261U.S. 165, 43Sup. Ct. 303, 67L. Ed. 590.” HARRIS v. STATE BOARD OF OPTOMETRICAL EXAMINERS, Sup. Ct. of Penn. 1926, 136Atl. 237, and, therefore, any regulation providing that an optometrist must “pay his own bills, advertising and all his equipment and merchandise” or providing “that aseparates contract for rent be required, and a separate one for handling **accounts,** and that all material and equipment be billed tothe optometrist and paid by the optometrist” would be invalid as contravening the above mentioned provisions ofthe United States and Texas Constitution.Dr. H. T. Towle, President, Page 4, O-1588

We are aware of the fact that this right to practice optometry is not an inalienable right, but is subject to a proper exercise ,ofthe police power. Our statutes relating tothe practice of optometry were enacted by the Legislature under this power; the purpose ofsaid statutes and the intent ofthe Legislature was toprotect the public health.

33TEX. JUR., 54, p. **294, e** **5,** p. 295, 57, p. 296. HILLIARD v. STATE, 7Tex. Crim. App., 69; BAKER v. STATE, 91Tex. Crim. Rep. 521, 240 S.W. 924, 22A.L.R. 1163; STATE v. GOLDMAN, 44TEX. 104, and the **statutes** having this aim are tobe construed inharmony with such purpose and policy. This is well expressed inthe case ofGOLDING v. SCHUBACH OPTICAL CO., Sup. Ct. of Utah, 1937, 70Pac. (2d) 871,where the court says on page 874:

‘The state has spoken on the subject ofoptometry and optometrists, not for the purPose of conferring any special privileges upon optometrists, nor to put any special restrictions upon them, but to preserve and protect the public against quacks and charlatans, who, however incompetent they might **be,** would prey upon the desire and necessity ofthe people to protect their eyesight. Chapter 11of Title 79, R.S. Utah 1933 (the **statute** referring to optometry) was enacted by the Legislature **because that**  body felt that the protection of eye sight was ofpublic concern, and one not qualified should not be permitted to examine eyes and diagnose and prescribe treatment, or types ofglasses, to cure the defects, or preserve the failing sight. The act must therefore be construed inthe light of the purposes of its enactment; that is, as a measure to protect the health and eyesight of the people, and when this purpose is accomplished, itis not within the province or power of the **court** to extend itbeyond such purposes; or to read into itsomething not designed to protect the public interest and health, **but to**  grant monopolies, regulate private business or relationships, grant special privileges, or curtail the normal human rights and liberties.” The Board of Optometry could make such regulations that would not be inconsistent with the law, but under the above cited authorities, any such regulation adopted must be for the purpose of protecting the public health.Dr. H. T. Towle, President, Page 5, O-1588

In the case ofHARRIS v. STATE BOARD OF OPTOMETRICAL EXAMINERS, supra, the court said on page 239:

“Therefore, the manner, scope, and extent ofthe practice are the subject of legislative inquiry and control but the regulations must be reasonable. The Legislature, under the police power, does not posse~ss the power to enact rules which have no substantial relation tothe end tobe obtained,. It cannot unreasonably prevent or limit the practitioner from acquiring the business for which hewas licensed. Legislature do not have the power, under the guise ofpolice regulation, to arbitrarily invade the personal right and liberty of the individual. * * *

‘The manner or mode ofexercising a lawful occupation may be regulated only inthe interest of public health or’to secure safety to the citizens. The Legislature cannot adopt, as regulations, the ethics ofthe profession which may limit the practice tobe secured or the method ofprocuring it.” Thus, any regulation passed by the Legislature, or by an admisistrative board, must be for the purpose of protecting the public health; the **regu** lations must be reasonably related tothe end desired tobe attained (the protection ofthe public health). Any rules which are not calculated to attain this end are invalid, particularly when they abrogate any of the inherent rights guaranteed under the constitution.

See 16C.J.S., 5 178, p. 548, § 188, p. 556, § 195, p. 562; 9TEX. JUR., 878, p. 506; STONE v. KENDALL (Tex. Civ. App.), 268 S.W. 759. In our opinion, such regulations as you mention inyour letter, cannot be said tobe regulations designed toprotect the public health. In the case of STATE v. BORAH, 76 Pac. (2d) 757 Sup. Ct. ofArk. 1938, the court said on p. 759: “In determining, therefore, whether or not a regulation of

the practice o,fmedicine inany of its branches is a reasonable one, and thus within the power of the Legislature toenact, the test must always be whether or not it is reasonably necessary and appropriate for the protection of the public health.”-- .-

Dr. H. T. Towle, President, Page 6, O-1588

It is **our** opinion that the regulations which are mentioned inyour letter, are not reasonably related tothe purpose for which our law on optometry was passed. They are not necessary and appropriate for the protection of the public health. Such regulations would be adenial ofthe freedom ofcontract and, inthis, would contravene the Fourteenth Amendment of the United States Constitution and Section 19**of**Article 8ofthe Texas Constitution. Under the authorities cited, and the reasons herein stated, the answer to each of your questions must be answered inthe negative. Yours very truly ATTORNEYGENERALOFTEXAS BY

# J&?-uhkw,7-&4

Walter R. Koch Ass.istant

APPROVED NOV 29, 1939

ATTORNEY GENERAL OF TEXAS

HS:ob