DAN MORALES 

ArTORNEY GENERAL 

QBffice of tfie Elttornep @eneral 

iState of IlLexae 

March 30,1998 

Bruce A. Levy, M.D., J.D. 

Executive Director 

Opinion No. DM-471 

Texas State Board of Acupuncture Examiners Re: Whether the performance of acupuncture is 

P.O. Box 2018 within the scope of practice of a licensed Texas 

Austin, Texas 78768-2018 chiropractor (RQ-988) 

Dear Dr. Levy: 

You ask whether the practice of acupuncture is within the scope of practice of a licensed 

doctor of chiropractic, a question that we considered in Attorney General Opinion DM-415. We 

conclude that the practice of acupuncture as defined in V.T.C.S. article 4495b is within the scope 

of the practice of chiropractic, and consequently that the conclusion reached in DM-415 with respect 

to the practice of acupuncture by chiropractors is superseded by statute. 

The issue in DM-415 was whether the practice of acupuncture’ was within the scope of 

practice of a licensed chiropractor who was not also a licensed acupuncturist. Attorney General 

Opinion DM-415 (1996). Central to our determination was a consideration of whether acupuncture, 

defined in part as “the insertion of an acupuncture needle” into the human body, is an “incisive or 

surgical procedure” under V.T.C.S. article 4512b. Id. at 4. We reasoned that because the legislature 

expressly excluded from the range of procedures that are incisive or surgical “the use of a needle for 

the purpose of drawing blood for diagnostic testing,” the legislature considered the use of a needle 

for the purpose of drawing blood to be an incisive or surgical procedure. Id. at 5. Seeing no 

distinction between the use of a needle for drawing blood and the use of acupuncture needles, we 

concluded that acupuncture was not within the scope of practice of chiropractic. 

‘When Attorney General Opinion DM-415 was issued, V.T.C.S. article 4495b, which govenw the practice of 

acupuncture in Texas, defmed acupuncture as: 

(A) the insertion of an acupuncture needle and the application of moxibustion to 

specific areas of the human body as a primary mode of therapy to treat and mitigate a 

human condition; and 

(B) the administration of the-1 or electrical treatments 01 the recommendation of 

dietary guidelines, energy flow exercise, or dietary or herbal supplements in conjunction 

with tbe treatment described by Paragraph (A) of this subdivision. 

V.T.C.S. art. 4495b, 5 6.02 
Bruce A. Levy, M.D., J.D - Page 2 (DM-471) 

As a part of the acupuncture board’s sunset legislation, the Seventy-filth Legislature amended 

the definition of acupuncture in V.T.C.S. article 4495b, subchapter F (the “acupuncture statute”), 

to defme acupuncture in part as the “nonsurgical, nonincisive insertion of an acupuncture needle.” 

Act ofMay 29,1997,75th Leg., R.S., ch. 1170,1997 Tex. Sess. Law Serv. 4418,4418 (codified at 

V.T.C.S. art. 4495b, $6.02(l)). Because the acupuncture statute and the chiropractic statute both 

regulate health care professions, we believe they may be read in pari materia. Acupuncture is 

detined in the acupuncture statute as a “nonsurgical, nonincisive” procedure. Therefore, it is not an 

“incisive or surgical procedure” excluded by the chiropractic statute from the scope of the practice 

of chiropractic. Furthermore, the legislative history of the amendment to the acupuncture statute 

indicates that the amendment was intended to allow chiropractors to practice acupuncture without 

being separately licensed to do so. See Hearing on S.B. 361 Before the House Public Health Comm., 

75th Leg. (May 8, 1997) (testimony of Rep. Patricia Gray) (tape available in House Video/Audio 

Services Office). Therefore, our conclusion in DM-415 that needle acupuncture is not within the 

scope of the practice of chiropractic has been superseded by statute. 

It has been argued that the use of acupuncture needles by chiropractors not licensed to 

practice acupuncture contravenes the federal Food and Drug Administration’s (“FDA”) classification 

of acupuncture needles. We disagree. The FDA defines an acupuncture needle as “a device intended 

to pierce the shin in the practice of acupuncture.” 21 C.F.R. 4 880.5580. Acupuncture needles are 

classified by the FDA as “Class II” medical devices, which are devices for which general controls 

are insufficient to assure the safety and effectiveness of the device, and which are therefore subject 

to special controls. See 21 U.S.C. § 36Oc(a) (defining classes of devices); 21 C.F.R. 5 860.3 (same). 

The FDA requires acupuncture needles to be labeled for single use only, conform to FDA 

requirements for prescription devices, and comply with biocompatibility and sterility requirements. 

21 C.F.R. 5 880.5580. FDA regulations restrict the use of prescription devices, including 

acupuncture needles, to practitioners licensed by state law to use or order the use of such devices. 

Id. 4 801.109. The FDA does not, however, prescribe who may be licensed by a state to use the 

device. Any person authorized by state law to use acupuncture needles must do so in accordance 

with FDA regulations. 

p. 2663 
Bruce A. Levy, M.D., J.D - Page 3 (DM-471) 

SUMMARY 

The practice of acupuncture, as defined by V.T.C.S. article 4495b, is 

not an “incisive or surgical procedure” excluded t?om the scope of the 

practice of chiropractic. The conclusion reached in Attorney General 

Opinion DM-415 with respect to the practice of acupuncture by chiropractors 

is superseded by statute. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH .I. SHIRLEY 

Chair, Opinion Committee 

Prepared by Barbara Griffin 

Assistant Attorney General 

p. 2664