The Honorable R. T. Weber, D. D.S. 

Secretary-Treasurer, Texas State 

Board of Dental Examiners 

Capital National Bank Bldg. 

Austin, Texas 78701 

Dear Dr. Weber: 

Opinion No. H-41 

Re: The right of a Dental 

Association to regulate 

the relationship between 

the licensed dentist, the 

patient, and a third party 

with whom the patient has 

contracted to provide dental care to members of his 

Group. 

You have requested the opinion of this office with regard to a suggested 

amendment to the Texas Non-Profit Corporation Act. Article 1396-2. OlA(l), 

Vernon’s Texas Civil Statutes, currently provides in part as follows: 

“Charitable corporations may be formed for the 

purpose of operating a Dental Health Service Corporation which service corporat.ion will manage and 

coordinate the relationships 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 Dent~al Heal.th Service Corporation to provide dental care to members of that group . . . . 

A corporation formed hereunder shall maintain not 

less than t.hirt.y percent: (30%) of the number of dentists actually engaged in the practice of dentistry 

in th,is state as pa~rt:icipat,ing or contracting den.- 

tists, and shal,l file with t,he Texas State Board of 

Dent.al Examiners each Septem’ber the names and addresses of all contract.ing or participating dentists. ” 

The suggested amendment would add rhe foll,owing language as Article 

1396-2. OlA(2), V. T. C.S.: 

p. 166 
The Honorable Dr. R. T. Weber, page 2 (H-41) 

“Nothing contained in Article 1396-2. 01 shall be 

construed to limit the authority of any Dental Association with at least 70% of the dentists legally engaged in the practice of Dentistry in this State from 

establishing a committee or council or unincorporated 

association or corporation with full authority to regulate, contract, manage, control and coordinate the 

relationship between the licensed dentist, who will 

perform the services, and the patient who will receive 

such services, and a third party with whom the patient 

has contracted to provide dental care to members of 

his Group. The Dental Association may form a corporation for the above purposes under this Article 

or it may provide such services through the Texas 

Dental Association. ” 

Any Dental Health Service Corporation (DHSC) established under 

Article 1396-2. OlA(1) must maintain at least thirty percent participation 

of all practicing dentists. It has the authority to contract with groups 

to provide dental care to members of such groups, care to be provided 

by the participating dentists. Such DHSC is, therefore, a third party 

given the authority to “manage and coordinate” the relationship between the participating dentist on the one hand and the group memberpatient on the other. The two classes of parties subject to its management enter that relationship voluntarily, by contractual agreement. 

The suggested amendment would allow the creation of an organization 

(a committee or council or unincorporated association or corporation) 

which would have “full authority to regulate, contract, manage, control 

and coordinate” relationships among the designated parties. Those parties 

are of three classes rather than the two subject to DHSC management. 

The first subject party is “the licensed dentist, who will perform the 

services. ” Any dentist who is to perform the services to the designated 

individuals, whether or not he isamember of the Dental Association, is 

to be made subject t:o its full authority to regulate and control,. 

p. 167 
The Honorable Dr. R. T. Weber, page 3 (H-41) 

The second subject party is “the patient who will receive such services. ” 

There is no requirement of any relationship, contractual or otherwise,, 

between the patient and the Dental Association to whose authority the patient, 

in his relationship with his dentist, is to be made subject. 

The third party subject to the Association’s authority is that “third party 

with whom the patient has contracted to provide dental care to members 

of his Group, ” that is, the party which provides the link.between the dentist 

and the group member -patient, a party which, like the dentist and patient, 

does not necessarily stand in any contractual or other relationship with the 

Association. 

One such third party would therefore be any DHSC organized under 

Article 1396-2. OlA(l), V. T. C. S. The suggested amendment could conceivably subject a DHSC of exactly 30% of the practicing dentists of the 

State and their patients to the “full authority to regulate, contract, manage, 

control and coordinate” their internal contractual relationships of a council 

established by a Dental Association made up exclusively of the other 70% 

of the practicing dentists of the State.. It thus appears that the effect of the 

suggested amendment would be to permit a private sector of the population 

to establish an organization with independent powers to regulate contractual relations among other elements of the public with whom it stands in 

no contractual relationship. 

The creation of an organization so empowered would be in effect an 

attempted delegation of legislative powers, in violation of Art,icle 2, $1 and 

Article 3, § 1 of the Constitution, to a private organization. Such an attempted 

delegation would be unconstitutional and void. Trimmier v. Carlton, 296 S. W. 

1070 (1927); Texas National Guard Armory Board v. McGraw, 126 S. W. 2d 627 

(Tex. , 1939); Davis v. City of Lubbock, 326 S. W. 2d 699 (Tex., 1959); Daniel 

v. Tyrrell & Garth Inv. Co., 93 S. W. 2d 372 (1936); Brown v. Humble Oil 

& Ref. Co., 83 S. W. 2d 935 (1935), reh. den. 87 S. W. 2d 1069; Calvert v. 

Capital Southwest Corp., 441 S. W. 2d 247 (Tex. Civ.App., Austin, 1969, writ ref. 

n. r. e.), appeal dismissed, 397 U. S. 321. 

Very truly yours, 

JOHN L. HILL 

Attorney General of Texas 

p. 168 
The Honorable Dr. R. T. Weber, page 4 (H-41) 

APPF$$JED: 

DAVID M. KENDALL, Chairman 

Opinion Committee