# F,AA~~~~~~ GENERAL OF TEXAS

AUSTIN. Txzxas 78711

April 25, 1974

The Honorable Carl C. Hardin, Jr: Executive Secretary Opinion No. H- 283

Texas State Board ofDental Examiners Re: Construction ofSenate Capital National Bank Building Bill 222, 63rd Legislature, Austin, Texas 78701 Regular Session, 1973

Dear Mr. Hardin:

You have requested our opinion as tothe effect ofcertain amendments tothe Dental Practice Act made bythe 63rd Legislature and now codified as Articles 4551d(l) and 4551f(6), V.T. C.S. Inyour request you advise that Texas dentists commonly patronize dental laboratories and dental technicians situated outside the state. Prescriptions for dental restorations needed by these dentists’ patients are sent to out-of-state laboratories for fabrication bythe dental techhicians employed.there. Most ofthe dental work done by these foreign laboratories is returned through the mails. You ask whether the amendments to the Dental Practice Act made bythe 63rd Legislature now prohibit out-of-state dental laboratories and dental technicians from filling aprescription for dental work submitted bya Texas dentist for one ofhis patients.

Article 4551d(l) empowers the Texas State Board ofDental Examiners toadopt rules and regulations pertaining todental laboratories and dental technicians. Article 45511(6)(a) requires dental laboratories and dental technicians to register with the Board as follows:

“(6)(a) It shall be the duty ofthe owner, owners, and manager ofeach dental laboratory in this State to annually apply toand register each dental laboratory in this State with which he has any connection or interest with the Texas State Board ofDental Examiners on or before March 1ofeach calendar year and to pay in conp. 1320The Honorable Carl C. Hardin, Jr., page 2 (H-283)

nection with such application afee ofnot less than $25 nor more than $200 as determined by the Board according to the needs ofthe Board to the Dental Registration Fund, and such application shall set forth such facts as the Board may require. It shall also be the duty ofeach dental laboratory technician registered pursuant to this Act and as provided by the Texas State Board ofDental Examiners in its rules and regulations toannually apply toand to register with the Texas State Board ofDental Examiners on or before March 1ofeach calendar year, and to pay in connection with such application afee ofnot less than $10nor more than $25 as determined by the Board according to the needs of said Board to the Dental Registration Fund, and such application shall set forth such facts as the Board may require; further, alist of all other employees ofadental laboratory who are not required to register hereunder shall befurnished quarterly to the Texas State Board ofDental Examiners and to the Dental Laboratory Advisory Board as provided in the rules ofthe Board. ”

Subsection (c) ofArticle 455lf(6) provides:

“(c) From and after the effective date ofthis Act, it shall be unlawful for anyone other than a dental laboratory or’dental technician duly registered hereunder, to fill any prescription for adental prosthetic appliance or the repair thereof, to be delivered bya licensed dentist in this State toadental patient. ”

An interpretation ofSubsection (c) that prohibited out-of-state dental laboratories or technicians from filling prescriptions for Texas dentists would clearly be suspect as imposing anundue burden oninterstate commerce. We need not reach that question because we interpret that subsection to provide nomore than that, before any laboratory or technician - regardless of where it or he is located - can fill aprescription submitted bya Texas dentist

p. 1321The Honorable Carl C. Hardin, Jr., page 3 (H-283)

for one ofhis patients, it must first be duly registered in accordance with the provisions ofArticle 4551f(6) (a). While Article 4551f(6) (a) requires all Texas dental laboratories and technicians to register with the Board, it does not preclude out-of-state laboratories or technicians from also registering under its provisions ifthey wish to service Texas dentists, Thus under Article 455lf(6) ofthe Dental Practice Act an out-of-state dental laboratory or technician is not precluded from filling prescriptions for Texas dentists so long as it or he has registered in accordance with the provisions of subsection(a).

We incidentally note that is has long been settled that the Legislature may regulate the practice ofdentistry and related skills in this manner under its police powers. Semler v. Dental Examiners, 294 U.S. 608(1935) and Carp v. Texas State Board ofExaminers in Optometry, 401S.W. 2d 639 (Tex. Civ. App., Dallas, 1966), rev’d on other grounds, 412S.W. 2d307 (Tex. 1967). In our opinion any burden imposed upon interstate commerce by our interpretation ofArticle 455lf(6) is neither undue nor clearly excessive in relation to the local health benefits to be derived from these provisions. See Huron Portland Cement Co. v. City ofDetroit, 362 U.S. 440 (1960) and Dixie Dairy Company v. City of Chicago, 355 F.Supp. 1351(N.D. Ill. 1973).

SUMMARY
Article 4551f(6) (c), V. T. C.S., does not prohibit out-of-state dental laboratories or technicians from filling prescriptions for Texas dentists so long as they have registered with the Texas State Board ofDental Examiners in accordance with the provisions ofArticle 455lf ’(6) (a). Very truly yours,

JOHN L. HILL Attorney General ofTexas

pn 1322The Honorable Carl C. Hardin, 

### Jr., page 4 W-284)

DAVID M. KENDALL, Chairman Opinion Committee

p. 1323