~~~EA~TORNEYGENERAL 

OFTEXAS 

November 5, 1959 

Dr. Ira E. Woods, President 

State Board of Examiners in Optometry 

Bolm Building 

Austin, Texas 

Opinion No. WW-722 

Re: Validity of rules 

proposed to be adopted 

by the State Board of 

Dear Dr. Woods: Examiners in Optometry 

You have requested our opinion on the validity of 

rules proposed to be adopted by the Texas State Board of' 

Examiners in Optometry. These rules provide as follows: 

"In order to protect the public in the 

practice of optometry, better enable members 

of the public to fix professional responslbility, and further safeguard the doctorpatient relationship, the following rule is 

hereby adopted by the Texas State Board of 

Examiners in 'Optometry on the day of 

the day Af 

1959, to becomeectlve on 

t 1959. 

"Section 1. No optometrist shall: 

a. Divide, share, split, or allocate, 

either directly or Indirectly, any 

fee for optometric services or materials with any lay person, firm or 

corporation, provided that this rule 

shall not be Interpreted to prevent 

an optometrist from paying an employee in the regular course of employment, 

,and provided further that it shall not 

be construed as a violation of this 

rule for any optometrist to lease 

space from an establishment on a 

percentage of gross receipts basis 

or to sell, transfer or assign accounts receivable. 
. . _ 

Dr. Ira E. Woods, page 2 (Ww-722) 

b -* Divide, share, split or allocate 

either directly or Indirectly, any 

fee for optometric services or materials with another optometrist or 

with a physician except upon a division of service or responsibility and 

then only after the patient paying the 

fee has full knowledge thereof, provided that this rule shall not be lnterpreted to prevent partnerships for the 

practice of optometry. 

C. - Practice or continue, after the elapsing of a reasonable time not to exceed 

one (1) year after the effective date 

of this rule, to practice optometry 

under, or use in connection wi.th his 

practice oi optometry, any assumed name, 

corporate 'name, trade name, or any name 

other than the name under which he is 

licensed to practice optometry in Texas; 

provided, however, that optometrists 

practicing as partners may practice under 

the full or last names of the partners. 

Optometrists who are employed by other 

optometrists shall practice in their own 

names, but may practice in an office 

listed under the name of the individual 

optometrist or partnership of optometrists 

by whom they are employed. In event of 

the death or retirement of a partner, the 

surviving partner or partners practicing 

optometry in a partnership name may, with 

the written permission of the retiring 

partner or the deceased optometrist's 

widow or other legal representative, as 

the case may be, continue to practice 

with the name of the deceased partner in 

the partnership name for a period not to 

exceed one (1) year from the date of his 

death, or during the period of admlnistration of a deceased partner's estate as 

provided by Article 4563, as amended, 

Revised Civil'Statutes of Texas, whichever period shall be the longer. 
Dr. Ira E. Woods, Page 3 (WJ-722) 

d. Use, cause or allow to be used after 

the elapsing of a reasonable time not 

to exceed one (1) year after the effective date of this rule, his name or 

professional identification, as authorized by Article 4590e, as amended, Revised Civil Statutes of Texas, on or 

about the door, window, wall,directory, 

or any sign or listing whatsoever, of 

anyofflce, location or place where 

optometry is practiced, unless said optometrist is actually present and practicing optometry therein during the hours 

such office, location or place of practice 

is open to the public for the practice of 

optometry. 

E* Practice or continue, after the elapsing 

of a reasonable time not to exceed one 

(1) year after the effective date of this 

rule, to practice optometry In any office, 

location or place of practice where any 

name, names or professional identification 

on or about the door, window, wall, directory, or any sign or listing whatsoever, or 

in any manner used in connection therewith, 

shall indicate or tend to indicate that such 

office, location or place of practice Is 

owned, operated, supervised, staffed, directed or attended by any person not actually present and practicing optometry 

therein during the hours such office, 

location or place of practice Is open to 

the public for the practice of optometry. 

C* The requirement of subparagraphs !J and e 

above that an optometrist be 'actually 

present' In an office, location or place 

of practice holding his name out to the 

public shall be deemed satisfied if the 

optometrist Is, as to such office, locatj.on 

or place of practice, either: 
Dr. Ira E. Woods, page 4 (WV-722) 

(1) physically present therein 

more than half the total number of hours such office, location, or place of practice is 

open to the public for the 

practice of optometry during 

each calendar month for at least 

nine months in each calendar 

year; or 

(2) physically present in such 

office, location, or place of 

practice for at least one-half 

of the time such person conducts, 

directs, or supervises any practice of optometry. 

Provided that this rule shall not be 

interpreted as requiring the physical 

presence of a person who is ill, injured, ore otherwise incapacitated 

temporarily. 

The requirement of subparagraphs d and 

e above that an optometrist be 'practic- 

&g optometry' at an office, location, 

or place of practice holding his name 

out to the public shall be deemed satesfled if the optometrist regularly makes 

personal examination at such office, location, or place of practice of the eyes 

of some of the persons prescribed for 

therein or regularly supervises or directs 

in person at such office, location or 

place of practice such examinations. 

"Section 2. The willful or repeated failure or 

refusal of an optometrist to comply with any of the 

provisions of Section 1 above shall be considered'by 

the Texas State Board of Examiners in Optometry to 

constitute prima facie evidence that such optometrist 

Is guilty of violation of Chapter 10, Title 71. as 

amended,.of the Revised Civil-Statutes of Texas, and 

shall be sufficient ground for the filing of charaes 

revoke or-suspend his license: 

~I~ 

to cancel, The charges 

shall state the specific instance or instances in which 

it is alleged that the rule was not complied with. 
Dr. Ira E. Woods, page 5 (WW-722) 

Alternatively, or in addition to the above, it 

shall be the duty of the Board to institute and 

prosecute an action in a court of competent jurisdiction to restrain or enjoin the violation of 

any of the preceding rules. 

"Section 3. If any section, subsection, 

paragraph, subparagraph, sentence, clause or 

part of the above provisions shall, for any 

reason, be held invalid, such decision shall 

not affect the remaining portions of the above 

provisions, and it is hereby declared to be 

the intention of the Texas State Board of Examiners in Optometry to have promulgated and 

adopted each section, subsection, paragraph, 

subparagraph, sentence, clause, or part of the 

above provisions Irrespective of the fact that 

any other section, subsection, paragraph, subparagraph, sentence, clause, or part of the 

above provisions may be declared invalid, that 

is, it isthe Intention of the said Board that 

each of the above provisions and portions thereof are severable. 

"Section 4. All rules,, regulations, and 

administrative Interpretations heretofore~ adopted 

by the Board are hereby.repealed and rescinded 

insofar as such rules or interpretations, or any 

of them, or any provision thereof, is, or are 

inconsistent herewith." 

It Is our opinion that the PtiODOSed rules are valid 

underthe principles of law announced in Kee v. Baber, 

Tex.~ 

thereK' 

303 S.W.2d 376 .(1957), and the authorities cim 

A study of the proposed rules submitted to this office 

reveals that their purpose is to prevent the "corporate practice of optometry" an,d to ~prevent the practice of optometry 

"under an assumed nsme, corporate name or, trade name." It is 

now settled that a~corporation,.buslness enterprise, or unlicensed individual cannot practice optometry ~through licensed 

employees. Kee v. Baber, supra. Likewise, we are unable to 

find any provisionwhich authorizes the practice of optometry 

under any assumed name or trade name. The assumed name statute "was not designed to confer rights, but rather to impose 
Dr. Ira E. Woods, page 6 (WW-722) 

obligations." 

ADD. 1943). 

McCarley v. Welch, 170 S.W.2d 332, (Tex.Civ. 

The nractice of ontometrv is not a trade or 

merchandising business, but rather a profession to be regulated as such. If the public is actually dealing with a 

separate entity, the arrangement Is prohibited under the corporate practice rule doctrine. The use of an assumed name or 

trade name hides the Identity of the optometrist with whom the 

patient Is actually dealing, and to this extent, destroys the 

optometrist-patient relationship. The optometrist has misrepresented to the public the true facts by the adoption of a name 

other than the name under which he is licensed. Such misrepresentation is prohibited by the provisions of Article 4563, Revised Civil Statutes of Texas, 1925, as amended. Furthermore, 

Article 4590e, Vernon's Civil Statutes, specifically provides 

the method of identification of Individuals licensed to practice optometry in this State, and such identification does not 

include the use of any assumed name, corporate name, trade 

name, or any name other than the name under which an optometrist is licensed to practice optometry In Texas. 

The proposed rules do not prevent licensed optometrists 

from being employed by other licensed optometrist, nordo the 

rules prevent the forming of partnerships of optometrists. 

In view of the foregoing, It is our opinion that the 

proposed rules are not inconsistent with the statutory provisions regulating the practice of optometry and are, therefore, 

valid, Kee v. Baber, supra. 

SUMMARY 

The proposed rules of the Optometry Board 

seeking to prevent the "corporate practice 

of optometry" and the practice of ootometry under an assumed name, corporate name, 

trade name, or ‘any name. other than ~the 

name under which an optometrist is licensed 

to practice optometry are valid since such 

rules and regulations are not inconsistent 

with the statutory provisions regulating 

the practice of optometry. 

Yours very truly, 

WILL WILSON 

JR:mfh 

~~~zlp~ 

Assistant