### ~~~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 rulesprovide as follows:

"In order to protect the public in the practice of optometry,better enablemembers 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 'Optometryon the day of

the day Af1959, 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 shallnot be construed as a violation of this rule for any optometrist to lease
space from an establishment on a percentage of gross receiptsbasis

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

Dr. IraE. Woods, page 2 

### (Ww-722)

b -* Divide, share, split or allocate either directly or Indirectly,any fee for optometric services ormaterialswith another optometrist or with a physician except upon a division of service or responsibilityand then only after the patient paying the fee has full knowledge thereof,provided that this rule shallnot be lnterpreted to preventpartnerships for the practice of optometry.

C. - Practice or continue,after the elapsing of a reasonable time not to exceed
one (1)year after the effectivedate of this rule, to practice optometry under, or use in connectionwi.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 partnersmay practiceunder the full or last names of the partners. Optometristswho are employedby other optometrists shallpractice 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 survivingpartner or partners practicing optometry in a partnershipname may, with thewritten permission of the retiring partner or the deceased optometrist's widow or other legal representative,as the casemay 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 deceasedpartner's estate as provided by Article 

### 4563,as amended, Revised Civil'Statutesof Texas,whichever period shallbe 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 listingwhatsoever, of anyofflce, location or placewhere optometry is practiced,unless said optometrist is actuallypresent and practicing optometry thereinduring 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 effectivedate of this rule, to practice optometry In any office, location or place of practicewhere any name, names or professional identification
on or about the door,window, wall, directory, or any sign or listingwhatsoever, 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 attendedby 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 !Jand e above that an optometristbe 'actually present' In an office, location or place of practice holding his name out to the public shallbe 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)physicallypresent therein
more thanhalf the total number of hours such office, location, or place of practice is open to the public for the practice of optometryduring each calendarmonth for at least nine months in each calendar year; or
(2)physicallypresent in such office, location, or place of practice for at least one-half of the time suchperson conducts, directs, or supervisesany practice of optometry.

Provided that this rule shall not be interpretedas requiring the physical presence of a personwho is ill, injured, oreotherwise incapacitated temporarily.

The requirementof subparagraphsd and
e above that an optometristbe 'practic- &g optometry'at an office, location,

or place of practiceholding his name out to the public shallbe deemed satesfled if the optometristregularlymakes personal examinationat 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.

"Section2. The willful or repeated failure or refusal of an optometristto complywith any of the provisions of Section 1 above shallbe considered'by the Texas State Board of Examiners in Optometry to constituteprima facie evidence that such optometrist Is guilty of violation of Chapter 10, Title 71. as amended,.of the Revised Civil-Statutesof Texas, and shall be sufficientground for the filing of charaes

revoke or-suspendhis license: ~I~ to cancel, The charges shall state the specific instance or instances in which it is alleged that the rulewas not compliedwith.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 remainingportions of the above provisions, and it is hereby declared to be the intention of the Texas StateBoard of Examiners in Optometry to have promulgated and adopted each section, subsection,paragraph, subparagraph, sentence, clause, or part of the above provisions Irrespectiveof the fact that any other section, subsection,paragraph, subparagraph, sentence, clause, or part of the above provisionsmay be declared invalid, that is, it isthe Intentionof the saidBoard that each of the above provisions and portions thereof are severable.

"Section

### 4. All rules,, regulations,and administrative Interpretationsheretofore~ adopted by the Board are hereby.repealedand rescinded insofar as such rules or interpretations,or any of them, or any provision thereof, is, or are inconsistentherewith."

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 "corporatepractice of optometry" an,dto~preventthe practice of optometry "underan assumed nsme, corporatename or,trade name." It is

now settled that a~corporation,.buslnessenterprise, or unlicensed individual cannotpractice optometry~throughlicensed 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 "wasnot designed to confer rights,but rather to imposeDr. Ira E. Woods, page 6 (WW-722)

obligations." ADD. 1943). McCarleyv. 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 dealingwith a separate entity, the arrangement Is prohibitedunder the corporate practice rule doctrine. The use of an assumed name or trade name hides the Identity of the optometristwith whom the patient Is actually dealing,and to this extent, destroys the optometrist-patientrelationship. The optometristhas misrepresented to the public the true facts by the adoption of a name other than the name underwhich he is licensed. Suchmisrepresentation is prohibitedby the provisions of Article 4563, Revised Civil Statutes of Texas, 1925, as amended. Furthermore, Article 4590e, Vernon's Civil Statutes, specificallyprovides the method of identificationof Individuals licensed to practice optometry in this State, and such identificationdoes not include the use of any assumed name, corporatename, 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 inconsistentwith the statutoryprovisions regulating the practice of optometryand are, therefore, valid, Kee v. Baber, supra.

SUMMARY

The proposed rules of the Optometry Board seeking to prevent the "corporatepractice of optometry"and the practice of ootometry under an assumedname, corporate name, trade name, or ‘any name. other than~the
name under which an optometrist is licensed to practice optometryare valid since such rules and regulationsare not inconsistent with the statutoryprovisions regulating the practice of optometry.

Yours very truly,

WILL WILSON

JR:mfh ~~~zlp~

Assistant