Clinton DeWolfe, O.D. 

Chairman 

Texas Optometry Board 

P. 0. Box 988 

Blanco, Texas 78606 

Opinion No. JM-1081 

Re: Whether the Texas Optometry 

Act prohibits an optician from 

giving another free pair of 

spectacles, eyeglasses or contact 

lenses to a person who purchases 

a first pair (RQ-1667) 

Dear Dr. DeWolfe: 

You inform us that opticians and national laboratories 

have recently offered a free pair of eyeglasses or contact 

lenses to purchasers of a first pair of glasses or contact 

lenses. You ask whether these "buy-one, get-one-free" sales 

violate section 5.06 of the Texas Optometry Act and a board 

rule based on that section. Section 5.06 provides as 

follows: 

It shall be unlawful for any person in 

this state to give, or cause to be given, 

deliver, or cause to be delivered, in any 

manner whatsoever, any spectacles or eyeglasses, separate or together, as a prize 

or premium, or as an inducement to sell 

any book, paper, magazine or any work of 

literature or art, or anv item of merchandise 

whatsoever. (Emphasis added.) 

V.T.C.S. art. 4552-5.06. A person who violates any provision of the Texas Optometry Act is guilty of a misdemeanor 

punishable by a fine, confinement in the county jail, or 

both. V.T.C.S. art. 4552-5.19. 

An Optometry Board rule provides that "no person in 

this state shall give . . . any contact lenses as a prize or 

premium, or as an inducement to sell any book, paper, 

magazine, or any work of literature or art, or any item of 

merchandise whatsoever." 22 T.A.C. 5 273.3. The rule does 

not state that it is unlawful to give contact lenses as a 

premium to sell an item of merchandise. 

P. 5646 
Dr. Clinton DeWolfe - Page 2 (JM-1081) 

You ask whether section 5.06 and board rule 273.3 

prohibit giving a second pair of spectacles, eyeglasses, or 

contact lenses to a person who purchases a first pair. If 

we conclude that this practice is prohibited, you ask 

whether it would also prohibit a gift of free frames or free 

lenses as an inducement to sell eyeglasses, and a sale of 

eyeglasses, frames, or lenses for one cent or another 

insignificant amount. 

Article 4552-1.02, V.T.C.S., provides in part: 

The 'practice of optometry' is defined to 

be the employment of objective or subjective 

means . . . for the purpose of ascertaining 

and measuring the powers of vision of the 

human eye, and fitting lenses or prisms to 

correct or remedy any defect or abnormal 

condition of vision. . . T 

V.T.C.S. art. 4552-1.02(l). 

A "dispensing optician" or *'opthalmic dispenser" is 

defined as Ita person not licensed as an optometrist or 

physician who sells or delivers to the consumer fabricated 

and finished spectacle lenses, frames, contact lenses, or 

other opthalmic devices prescribed by an optometrist or 

physician." V.T.C.S. art. 4552-1.02(5). See V.T.C.S. art. 

4552-1.02(3)(A) (ophthalmic dispenser is not prohibited from 

making facial measurements to dispense or adapt ophthalmic 

prescriptions or lenses, products and accessories). 4E 

also Williamson v. Lee Ontical of Oklahoma, 348 U.S. 

486 (1955) (an optician iS qualified to grind lenses, fili 

prescriptions, and fit frames). 

A l%wo-for-onel~ sale of eyeglasses by a dispensing 

optician may merely be a pricing policy which gives a volume 

discount. We will not, however, deal with your question in 

terms of pricing policies that may be adopted by persons 

who sell prescription glasses. Instead, we will consider 

whether a pair of spectacles, eyeglasses, or contact lenses 

is an "item of merchandise" within section 5.06 of the act. 

Article 4552 does not define the term "merchandise," 

but it uses this word in other provisions. When the same 

word is used more than once in a statute, it will be given 

the same meaning, unless a different intent is indicated. 

Brown v. Darden, 50 S.W.2d 261 (Tex. 1932). 

Article 4552-5.17, V.T.C.S., provides in part: 

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Dr. Clinton DeWolfe - Page 3 (JM-1081) 

Nothing in this Act shall be construed to 

apply to persons who sell ready-to-wear 

spectacles and eyeglasses as merchandise at 

retail . . . . (Emphasis added.) 

V.T.C.S. art. 4552-5.17. The definition of the "practice of 

optometry" includes a similar provision on selling ready-towear spectacles or eyeglasses as merchandise. V.T.C.S. art. 

4552-1.02(l). 

These provisions apply to the sale of mass-produced 

items like non-prescription sunglasses and eyeglasses that 

are essentially magnifying glasses in a frame. These items 

are not custom-made to correct the wearer's defects in 

vision and no special order is necessary to buy them.1 

t'Merchandisel' has been broadly defined as "all goods 

which merchants usually buy and sell, whether at wholesale 

or retail; wares and commodities such as are ordinarily the 

objects of trade and commerce." Black's Law Dictionary 890 

(5th ed. 1979); see also Hein v. O'Connor, 15 S.W. 414 (Tex. 

Ct. App. 1891). A "merchantl' is a "person who purchases 

goods at wholesale for resale at retail.'! Black's Law 

Dictionary, sunra. 

"Merchandise" has also been defined more narrowly to 

exclude an item which was specially prepared or modified 

according to the purchaser's specifications. A Missouri 

court has held that a contract to prepare and set up a 

monument in a cemetery was a contract for labor and not a 

contract for "goods, wares, and merchandise" within the 

state's statute of frauds. Carrollton Monument Co. v. 

Gearv, 240 S.W. 506 (MO. Ct. App. 1922). 

1. A prior version of section 5.06 describes in some 

detail the sale of eyeglasses as merchandise. A 1925 bill 

amending the statute regulating optometrists provided that 

"[plersons who sell spectacles and eye-glasses as merchandise" meant "merchants who do not practice optometry, or 

offer to practice optometry, but who sell spectacles or 

eye-glasses as merchandise, after they have been selected by 

their customers alone without the aid from the merchant 

. . . other than the particular and complete and. ready-towear spectacles or eye-glasses selected by the customer in 

person from trays- or other containers. . . .'I Acts. 1925, 

39th Leg., ch. 31, 5 13-c, at 151. 

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Dr. Clinton DeWolfe - Page 4 (JM-1081) 

Texas courts have also recognized this distinction in 

defining "merchandise*' under the Bulk Sales Law, which 

applies to the sale in bulk of a stock of merchandise, or 

merchandise and fixtures pertaining to conducting said 

business otherwise than in the ordinary course of trade.2 

Hobart MFG. Co. v. Jovce & Mitchell, 4 S.W.2d 185, 187 (Tex. 

Civ. App. - Fort Worth 1928, no writ). In Axtell Co. v. 

Word -, 29 S.W.2d 421 (Tax. Civ. App. - Austin 1930, no writ), 

the court stated that Texas courts have construed the Bulk 

Sales Act as not applying to "stock on hand used as 

incidental to or in connection with labor or mechanical 

skill." The court further stated as follows: 

The words, 'stock of merchandise,* as used in 

the statute have been uniformly construed by 

our courts to be used in the common and 

ordinary acceptation of those terms, and to 

mean the goods, wares, or chattels which a 

merchant holds for sale at retail for profit, 

and which are constantly going out of the 

store . . . and being replaced by other goods 

without any appreciable change of character 

by the labor or mechanical skill of purchaser 

[i.e., of the person who purchased the goods 

for resale]. 

29 S.W.Zd 421. 

Thus ltmerchandisell in some statutes does not include 

items which must be changed and adapted to the customer's 

individual requirements. We believe that the Texas 

Optometry Act uses "merchandise" in this sense. In section 

5.17, "ready-to-wear spectacles and eyeglasses" sold "as 

merchandise at retail" are mass-produced goods not adapted 

to the customer's vision. This language does not include 

eyeglasses and spectacles that may only be sold on a 

prescription. The same definition of "merchandise" also 

applies to the prohibition in article 4552-5.06, V.T.C.S., 

against giving away eyeglasses as an inducement to sell a 

2. The Bulk Sales Act has been repealed and replaced 

by the Uniform Commercial Code -- Bulk Transfers, Bus. & 

Corn. Code ch. 6. We have cited cases which construe the 

Bulk Sales Law to illustrate a possible definition of 

"merchandise." We express no opinion on whether the frames 

and lenses which a dispensing optician adapts in accordance 

with written prescriptions would be "merchandise" within the 

Bulk Transfers provisions. 

p. 5649 
Dr. Clinton DeWolfe - Page 5 (JM-1081) 

-. 

book, paper, magazine, work of literature or art, "or any 

item of merchandise." Article 4552-5.06 does not prohibit 

a dispensing optician or ophthalmic dispenser from giving 

away a second pair of prescription eyeglasses as a means of 

motivating people to have him fill the prescription for the 

first pair. 

Two other provisions of the Texas Optometry Act show 

that a "mercantile establishment" does not include the 

business premises of a dispensing optician. Article 

4552-5.14 regulates the business practices of an Optometrist 

"who leases space from and practices optometry on the 

premises of, a mercantile establishment.1' V.T.C.S. art. 

4552-5.14(a). See senerally Attorney General Opinion O-1588 

(1939) (practice by optometrists in jewelry stores). It 

requires the leased space to be separated from space used by 

other occupants of the premises and prohibits operation of 

the optometrist's practice as a department of the mercantile 

establishment. V.T.C.S. art. 4552-5.14(d)-(g). 

Article 4552-5.15, V.T.C.S., governs the business relationships of optometrists with dispensing opticians. It 

permits a dispensing optician to lease space to an 

optometrist. It also provides for complete separation 

between the premises of an optometrist and a dispensing 

optician if both occupy space in the same building. See 

Attorney General Opinion MW-292 (1981). 

Both provisions deal with the leasing of premises and 

with separating an optometrist's business from other types 

of business conducted in the same building. The leqislature's adoption of separate provisions to govern the 

optometrist's relationship to "mercantile establishments" 

and to "dispensing opticians" indicates that a dispensing 

optician does not operate a tUmercantile establishment." 

These provisions carry out and support the distinction 

between "merchandise" and prescription glasses and contact 

lenses which we have found in article 4552-5.06, V.T.C.S. 

Moreover, this situation appears to be an appropriate 

case for applying the maxim of ejusdem qeneris. Where 

general words follow specific words in a statutory enumeration, the general words are construed to embrace only 

objects similar in nature to those objects enumerated by 

the preceding specific words. Emolovees' Casualtv Co. v. 

Stewart Abstract Co., 17 S.W.2d 781 (Tex. Comm'n App. 1929). 

The first version of article 4552-5.06 was adopted in 

1925. Acts 1925, 39th Leg., ch. 31, at 149. We are unaware 

of any history evidencing the legislature's intent in 

adopting this provision, although its language suggests that 

P. 5650 
Dr. Clinton DeWolfe - Page 6 (JM-1081) 

it was directed at a practice of giving away eyeglasses with 

the purchase of reading material. It is however reasonable 

to assume that the legislature adopted this provision to 

protect members of the public from receiving eyeglasses with 

lenses that would not correct their defects in vision. The 

provision of two pairs of prescription glasses for the price 

of one does not violate this policy. 

Since we have concluded that "buy-one, get-one-free" 

sales do not violate article 4552-5.06, V.T.C.S., we need 

not answer your other questions, which are contingent on a 

contrary determination. 

SUMMARY 

The Texas Optometry Act does not prohibit 

a dispensing optician or an ophthalmic dispenser from giving a second free pair of 

prescription spectacles, eyeglasses, or contact lenses to a person who purchases a first 

pair. Article 4552-5.06, V.T.C.S., which 

prohibits any person from giving spectacles 

or eyeglasses as an inducement to sell "any 

book, paper, magazine, or any work of literature or art, or any item of merchandise," 

does not prohibit "buy-one, get-one-free" 

sales of prescription glasses by dispensing 

opticians or ophthalmic dispensers. 

WARY KELLER 

First Assistant Attorney General 

JIM MATTOX 

Attorney General of Texas 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

P. 5651