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Dr. H. G. Towle, President 

Texas State Board of Examiners in Optometry 

Snyder, Texas 

Dear Sir: 

Opinion No. O-1588 

Re: Does the Board of Optometry have authority to limit 

the amount or percentage that could be paid to a jewelry store by an optometrist, (and related questions) 

under Articles 4552-4566, inclusive, Vernon’s Civil 

Statutes, 1925, as amended. 

We are pleased to reply to your letter of October 17, 1939, wherein 

you say: 

“The State Board of Optometry would like to have a construction of H.B. 410, passed by the Forty-sixth Legislature, 

in regard to Subsections (b), (f), (g), (h) and (i) of Section 8, 

Article 3462. We are especially interested in these subsections by reason of the fact that a few optometrists are working 

in jewelry stores and are entering into contracts whereby a 

certain percentage of their fees are split with the owner of the 

jewelry store in lieu of rent. 

“In view of the Subsections as set forth above, and also 

Section 16 of H.B. 410, we would like to have 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 the jewelry store 

by the optometrist, and 

2. “If we could do so, as to whether or not.the Board could 

adopt a rule by which the percentage allowed from the optometrist’s practice would in no event exceed the usual and customary rental for the same or similar space in the adjacent property, 

or in the same locality. 
Dr. H. G. Towle, President, Page 2, O-1588 

3. “Also, under Section 16 of H. B. 410, could the board 

adopt rules and regulations covering practice by optometrists 

in jewelry 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 a separate one for 

handling accounts, and that all material and equipment be 

billed to the 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 the jewelry 

store. 

Article 4556, Vernon’s Civil Statutes, 1925, as amended, provides, in part: 

“The board shall have power to make 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 of the practice of optometry, but such regulations, as provided by the Legislature, must not be “inconsistent with 

this law.” 

We now call attention to Article 4566, Vernon’s Civil Statutes, 

as amended, which reads: 

“Provided that it shall not be construed as a violation of 

this Act forany optometrist to lease space from an establishment on a percentage 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 a violation of the Optometry Act, in our opinion 

any regulation tending to limit or fix the amount or percentage that could 

be paid by the,optometrist to the jewelry store would be improper because 

it would be “inconsistent with this law”, and contrary to the expressed intent of the Legislature. 
Dr. H. T. Towle, President, Page 3, O-1588 

Due to the fact that we have answered your first question in the 

negative, and since your second question depended on the first, your second 

question must be answered likewise. 

In our opinion your third an,d fourth questions must both be answered in the negative. 

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

See 9 TEX. JUR., 8 90, p. 522; 

16 C.J.S., fi 575, p. 1167; 

TAYLOR v. LEONARD (Tex. Civ. App.) 281 S.W. 596. 

The right to make contracts is declared to be both a liberty and a p.roperty 

right and to be within the protection of the guaranties against the taking of 

property without due process of law. An enactment which impairs this right 

is held to be invalid. 

9 TEX. JUR., § 90, p. 523. 

16 C.J.S., 5 575, p. 1167; 

HALL v. HIX, (Tex. Civ. App.) 297 S.W. 491. 

“The right of an optometrist, duly licensed, to conduct his 

business or practice optometry, is a property right protected 

by the Constitution. DENT v. W. VA., 129 U.S. 114, 123,. 124, 9 

Supt. Ct. 231, 32 L. Ed. 823; DOUGLAS v. NOBLE, 261 U.S. 

165, 43 Sup. Ct. 303, 67 L. Ed. 590.” 

HARRIS v. STATE BOARD OF OPTOMETRICAL EXAMINERS, 

Sup. Ct. of Penn. 1926, 136 Atl. 237, 

and, therefore, any regulation providing that an optometrist must “pay his 

own bills, advertising and all his equipment and merchandise” or providing 

“that a separates contract for rent be required, and a separate one for handling accounts, and that all material and equipment be billed to the optometrist 

and paid by the optometrist” would be invalid as contravening the above mentioned provisions of the 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 ,of the police 

power. Our statutes relating to the practice of optometry were enacted by 

the Legislature under this power; the purpose of said statutes and the intent of the Legislature was to protect the public health. 

33 TEX. JUR., 5 4, p. 294, e 5, p. 295, 5 7, p. 296. 

HILLIARD v. STATE, 7 Tex. Crim. App., 69; 

BAKER v. STATE, 91 Tex. Crim. Rep. 521, 240 S.W. 

924, 22 A.L.R. 1163; 

STATE v. GOLDMAN, 44 TEX. 104, 

and the statutes having this aim are to be construed in harmony with such 

purpose and policy. This is well expressed in the case of GOLDING v. 

SCHUBACH OPTICAL CO., Sup. Ct. of Utah, 1937, 70 Pac. (2d) 871, where 

the court says on page 874: 

‘The state has spoken on the subject of optometry 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 of the people to 

protect their eyesight. Chapter 11 of 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 of public concern, and one not qualified should not be permitted to examine eyes and diagnose and prescribe treatment, 

or types of glasses, to cure the defects, or preserve the failing 

sight. The act must therefore be construed in the 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, it is not within the province or power of the court 

to extend it beyond such purposes; or to read into it something 

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 of HARRIS v. STATE BOARD OF OPTOMETRICAL 

EXAMINERS, supra, the court said on page 239: 

“Therefore, the manner, scope, and extent of the 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 to the end to be obtained,. It cannot 

unreasonably prevent or limit the practitioner from acquiring 

the business for which he was licensed. Legislature do not have 

the power, under the guise of police regulation, to arbitrarily 

invade the personal right and liberty of the individual. * * * 

‘The manner or mode of exercising a lawful occupation 

may be regulated only in the interest of public health or’ to 

secure safety to the citizens. The Legislature cannot adopt, 

as regulations, the ethics of the profession which may limit 

the practice to be secured or the method of procuring it.” 

Thus, any regulation passed by the Legislature, or by an admisistrative board, must be for the purpose of protecting the public health; the regulations must be reasonably related to the end desired to be attained (the protection of the 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 16 C.J.S., 5 178, p. 548, § 188, p. 556, § 195, p. 562; 

9 TEX. JUR., 8 78, p. 506; 

STONE v. KENDALL (Tex. Civ. App.), 268 S.W. 759. 

In our opinion, such regulations as you mention in your letter, cannot 

be said to be regulations designed to protect the public health. In the case of 

STATE v. BORAH, 76 Pac. (2d) 757 Sup. Ct. of Ark. 1938, the court said on p. 

759: 

“In determining, therefore, whether or not a regulation of 

the practice o,f medicine in any of its branches is a reasonable 

one, and thus within the power of the Legislature to enact, the 

test must always be whether or not it is reasonably necessary 

and appropriate for the protection of the public health.” 
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Dr. H. T. Towle, President, Page 6, O-1588 

It is our opinion that the regulations which are mentioned in your 

letter, are not reasonably related to the 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 a denial of the freedom of contract and, in this, would contravene the Fourteenth Amendment of the United 

States Constitution and Section 19 of Article 8 of the Texas Constitution. Under 

the authorities cited, and the reasons herein stated, the answer to each of 

your questions must be answered in the negative. 

Yours very truly 

ATTORNEYGENERALOFTEXAS 

BY J&?-uhkw, 7-&4 

Walter R. Koch 

Ass.istant 

APPROVED NOV 29, 1939 

ATTORNEY GENERAL OF TEXAS 

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