THE ATTORNEY GENERAL 

U-BP%-BCXAS 

Honorable William J. Kemp Opinion No. M-1233 

President, Texas State Board 

of Dental Examiners Re: By what method may 

310 Capitol National Bank Bldg. 

Austin, Texas 78701 

third parties legally 

engage in providing 

dental care for people 

in Texas, and related 

Dear Dr. Kemp: questions. 

In your recent request for an opinion from this office, 

you asked the following questions: 

Question 1. 

By what method may third parties, whether individuals or groups, government or business, charitable organizations or professional organizations 

legally engage in providing dental care for people 

in this State? 

Question 2. 

Can a professional organization, such as the 

Texas Dental Association, contract for dental 

services to be rendered to citizens of this State 

by its members who are Texas dental licensees? 

Question 3. 

Can the Welfare Department or Health Department 

of the State of Texas contract for dental care to 

be rendered to citizens of this State by Texas 

dental licensees? 

Question Ir. 

Must the provisions of the Dental Service 

Corporation (Article 1396-2.01, Sub. A(1)) be complied with where the private relationship of doctor 

and patient is not originally present but is 

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Hon. William J. Kemp, page 2 (M-1233) 

furnished by others than the individual (patient)? 

The initial problem in answering your first, sedbnd, 

and fourth questions is whether s third party can contract 

for dental services, as defined by Article 4551a, Vernon's Civil 

Statutes,* to be rendered to citizens of this State, because 

Subdivision (4) of that statute provides: 

"Any one who owns, maintains or operates any 

office or place of business where he employs or 

engages, under a kind of contract whatsoever, any 

other person or persons to practice dentistry as 

above defined shall be deemed to be practicing 

dentistry himself, and shall himself be required 

to be duly licensed to practice dentistry as hereinabove defined, and shall be subject to all of the 

other provisions of this Chapter, even though the' 

person or persons so employed or engaged by him 

shall be duly licensed to practice dentistry as hereinabove defined." (Emphasis added.) 

Article ‘1551~ provides that "The actual practice of dentistry 

in violation of the laws of the State shall be enjoined at the 

suit of the State . . . ." 

The prohibition against third parties contracting for 

such dental services is repeated in Article 754a, Vernon's Penal 

Code. Article 752 of that Penal Code provides: 

11 . . . It shall be unlawful for w person 

or persons to operate, manage, or be employed in 

any room, rooms, office, or offices where dental 

service is rendered or contracted for under the 

name of a corporation, company, association, or 

trade name, or in any other name than that of the 

*All references to Articles are to Vernon's Civil Statutes, unless otherwise noted. 

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Hon. William J. Kemp, page 3 (M-1233) 

legally qualified dentist or dentists actually engaged in the practice of dentistry in such room, 

rooms, office or offices; provided, however, this 

shall not prevent two or more legally qualified 

dentists from practicing dentistry in the same 

offices as a firm, partnership, or as associates 

in their own names as stated in licenses issued to 

them . . . Each day of violation of this Article 

shall constitute a separate offense." (Emphasis 

added.) 

Article 754 of that Penal Code makes any violation of the above 

articles punishable by a fine of $100 minimum to $1000 maximum 

or 1 to 12 months in jail or both. 

The respective exceptions to the above civil and criminal 

prohibitions are found in Article 4551b, Vernon's Civil Statutes, 

and Article 753, Vernon's Penal Code. The only exception that 

applies to the questions at hand is exception (8), the same wording appearing in both Articles, as follows: 

"The definition of dentistry . . . shall not 

apply to: . (8) Dental Health Service Corporations legaliy'chartered under Subsection (1) of 

Article 2.01, of the Texas Non-Profit Corporation 

Act; . . ." 

The Texas Non-Profit Corporation Act, Article 1396-2.01, Subdivision A(l), provides in part: 

"(1) Charitable corporations may be formed 

for the purpose of operating a Dental Health 

Service Corporation which service corporation 

will manage and coordinate the relationship between the contracting dentist, who will perform 

the dental. services, and the patient who will 

receive such services where such patient is a 

member of a group which has contracted with the 

Dental Health Service Corporation to provide dental 

care to members of that group . . . .'I 

This language of the Texas Non-Profit Corporation Act is 

permissive and not mandatory by its terms. However, since any 

third person or association attempting to contract for services 

to be rendered to citizens of the State would be in violation of 

the Penal Code and subject to civil injunctive proceedings, it 

would seem that the abovementioned Non-Profit Corporation provides 

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Hon. William J. Kemp, page 4 (M-1233) 

the only answer at present to your questions one, two, and four. 

Since Article 4551a, Vernon's Civil Statutes, and Article 

752, Vernon's Penal Code, by their terms do not prohibit State 

action, the answer to your third question requires examination 

of the statutory powers of the departments named. The Medical 

Assistance Act of 1967, Article 6953-1, administered by the State 

Department of Public Welfare, states in section (2): 

"It is the intent of the Legislature to make 

statutory provision which will enable the State of 

Texas to provide Medical Assistance on behalf of 

needy individuals of this state and to enable the 

state to obtain all benefits provided by the Federal 

Social Security Act as it now reads or as it may hereafter be amended, or by any other Federal Act now in 

effect or which may hereafter be enacted within the 

limits of funds available for such purposes. Wherever 

used in this Act the term 'Medical Assistance' shall 

include all of the health care, services, assistance 

and benefits authorized or provided for in such 

Federal legislation." 

The Social Security Act in 42 U.S.C. 1396(d)(a), defines "medical 

assistance" as including dentists' services to enumerated classes 

of people. Therefore, the State Department of Public Welfare can 

contract for the rendering of dental services as provided in 

Article 695j-1. However, the contract by the State Department of 

Public Welfare can cover only individuals who are eligible and 

receiving a grant of certain public assistance as specified by 

the statutes at the time of rendering the medical or dental 

services. 

In the absence of a statutory duty or responsibility to 

provide dental care, an agency such as the State Department of 

Public Health could not contract to provide such care. However, 

the State Department of Public Welfare is statutorily empowered 

to administer the Medical Assistance Act of 1967 under Article 

6953-l. 

Furthermore, the State Department of Public Welfare is 

statutorily authorized to enter into cooperative agreements with 

other State agencies and departments, such as the State Department 

of Public Health, as may be deemed "expedient," under Article 

695j-1, Section 3(7) and thereby legally engage in providing 

dental care as above stated. It is our opinion that the Dental 

Practices Act, including Article 4551~ and Articles 752 and 754a, 

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, . 

Hon. William J. Kemp, Page 5 (M-1233) 

are Inapplicable to the State and Its agencies in the discharge 

of these statutory responsibilities. 53 Tex.Jur.2d 58, Statutes, 

Sec. 32; 49 AmJur. 235, States, Sec. 14, p. 236, Sec. 15. 

SUMMARY 

Third parties, except the State and Its 

agencies, whether individuals, associations, or 

corporations, may legally contract for dental care 

to be rendered to citizens of the State only by 

complying with Article 1396-2.01 of the Texas NonProfit Corporation Act. The State Department of 

Public Welfare and other State agencies, can so 

contract pursuant to the Medical Assistance Act 

of 1967, (Article 695j-1, V.C.S.) and Article 

695c, Section 4(12), Vernon's Cfil Statutes. 

Prepared by Kerns Taylor 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

W. E. Allen, Acting Chairman 

Jim Swearlngen 

Gerald Ivey 

James McCoy 

James Quick 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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