DAN MORALES 

ATTORNEY GENERAL 

QlXfice of t@ Elttornep 63eneral 

&ate of ‘Qexae 

November 22, 1996 

Patti J. Patterson, M.D., MPH 

Acting Commissioner 

Texas Department of Health 

1100 West 49th Street 

Austin, Texas 78756-3 199 

Opinion No. DM-425 

Re: Whether a therapeutic optometrist 

may perform certain procedures (RQ-884) 

Dear Dr. Patterson: 

The Texas Optometry Act expressly forbids a therapeutic optometrist to perform 

surgery. The Texas Supreme Court has defined surgery to encompass only cutting 

operations, where the term was not defined otherwise by statute. You provide a list of 

eleven procedures and ask, in effect, if they constitute surgery and are therefore forbidden 

to a therapeutic optometrist. We conclude that a therapeutic optometrist may perform the 

listed procedures unless they involve cutting. 

For purposes of the Texas Optometry Act,’ the practice of therapeutic optometry 

involves using “objective or subjective means” to ascertain and measure the human eye’s 

power of vision;2 to examine and diagnose visual defects, abnormal conditions, and 

diseases of the human eye and adnexa; to prescribe or fix lenses or prisms3 to correct or 

remedy a defect of abnormal condition of vision; to administer or prescribe a drug or 

physical treatment in accordance with the act; and to treat the eye and adnexa in 

accordance with the act.4 The “adnexa,,” a term used in delimiting the scope of the 

practice of therapeutic optometry, means the lids and draining system of the eye.5 

Significantly, a therapeutic optometrist may not use surgery or laser surgery.6 On the 

other hand, a therapeutic optometrist “may remove superficial foreign matter and 

‘V.T.C.S. arts. 4552-1.01 -7.02, 

2See id. an. 4552-1.02(2) (defining “ascertaining and measuring powers of vision of the human 

O$‘). 

‘Srr id. an. 4552-1.02(3) (defining “fining lenses or prisms”). 

41d. an. 4552-1.02(7). 

51d. an. 4552-1.02(8); see also STEDMAN’MEDICAL S DICTIONARY 26 (5th unabr. lawyers’ ed. 

1982) (defining “adnexa” generally as “appendages; parts accessory to main organ or stmchm” and 

“adnexa oculi” as “the eyelids, lacrimal glands, etc., associated with the eyeball”). 

6V.T.C.S. an. 4552-1.02(7). 
Patti J. Patterson M.D., M.P.H. - Page 2 (DM-425) 

eyelashes from the external eye or adnexa”7 (so long as the removal does not involve 

wm9. 

You list eleven procedures that you indicate the Texas Optometry Board has 

approved for a therapeutic optometrist to perform: 

Removal of foreign body, external eye; conjunctival embedded 

(includes concretions), subconjunctival, or scleral nonperforating 

Removal of foreign body, external, comeal, without slit lamp 

Removal of foreign body, external eye; comeal, with slit lamp 

Repair of laceration, application of tissue glue, wounds or cornea 

and/or sclera 

Scraping of cornea, diagnostic, for smear and/or culture 

Removal of embedded foreign body, eyelid 

Closure of lacrimal punctum; by thermocauterization [or] ligation 

Closure of the lacrimal punctum; by plug each 

Dilation of lacrimal punctum, with or without irrigation, unilateral or 

bilateral 

Probing of nasolacrimal duct, with or without irrigation, unilateral or 

bilateral 

Probing of lacrimal calculi, with or without irrigation* 

You suggest that the Texas Ophthalmologist Association believes each of these 

procedures is forbidden to therapeutic optometrists. The Ophthalmologist Association 

apparently contends that each procedure is within the “practice of medicine” and 

“surgery” for purposes of the Medical Practice Act9 But that act does not apply to a 

licensed optometrist who contines his or her practice strictly to optometry as defined 

under the Texas Optometry ActtO Thus, so long as a therapeutic optometrist performs 

only therapeutic optometry, as the Texas Optometry Act circumscribes that practice, he or 

she is beyond the reach of the Medical Practice Act. 

‘Id. art 4552-1.03(b). 

We understand that you have taken your descriptions from the American Medical Asscciation’s 

Physicians * Current Procedural Terminology (1995). 

gV.T.C.S. art 4495b 

loId. at. 44954 8 3.06(b)(2). 

D. 2372 
Patti J. Patterson M.D., M.P.H. - Page 3 (nn-425) 

Accordingly, the issue we must determine is whether the procedures you have 

listed are surgery, and therefore outside the scope of therapeutic optometry. While the 

Optometry Act does not define the term “surgery,” the Medical Practice Act defines 

“surgery” to include any procedure “described in the surgery section of the Common 

Procedure Coding System as adopted by the Health Care Financing Administration of the 

United States Department of Health and Human Services.“11 Ah of the procedures you 

list are described in the surgery section of the P&sjcians’ Current Procedud 

Terminology ‘96,12 which the Health Care Financing Administration has adopted as the 

Common Procedure Coding System. 13 Thus, if the Medical Practice Act’s definition of 

“surgery” applies to the Texas Optometry Act, we must conclude that all of the 

procedures about which you ask are surgery and that a therapeutic optometrist may not 

perform them. 

Jn our opinion, however, the Medical Practice Act’s definition of “surgery” does 

not apply to the Texas Optometry Act. Initially, section 1.03 of the Medical Practice Act 

limits the applicability of the definitions provided in that section, which includes the 

definition of “surgery,” only to the Medical Practice Act. I4 Moreover, when the 

legislature excluded surgery from the practice of therapeutic optometry in 1991,‘s the 

Medical Practice Act did not define the term. gather, the legislature added the detlnition 

of “surgery” to the Medical Practice Act in 1993. 16 We may import a statutory definition 

into only a later-enacted statute;” here, where the Optometry Act was enacted prior to the 

Medical Practice Act’s definition of “surgery,” we may not import the definition. 

“Id. 5 l.O3(a)(l5). 

lZSee AMERICAN MEDICAL A&N, PHYSICIANS’ CURRENT PROCEDURAL TERMINOLOQY ‘% at 

231-32,240,242 (1995). 

13The Health Care Financing Administration’s Common Procedure Coding System (“HCPCS”) 

baa three levels of codes. GARY M. KNAUS. CF’T & HCF’CS CODING FOR OPTIMAL FU~~JRSEMENT 4 

(1987). The first level, which classities physician procedures and services, see id. at 7, is the American 

Medical Association’s Current F’rocedoral Terminology (“CPT”). Id. at 4. The second and third levels 

classify supplies, services, and procedurea, id.; they are not at issue here. 

14See V.T.C.S. art. 4495b. 5 1.03(a) 

15See Act of May 21,1991,72d Leg., RS., ch. 588.5 I,1991 Tex. Gen. Laws 2106,2108. 

Wee Act of May 30, 1993, 73d Leg., R.S.. ch. 862, 5 1, 1993 Tex. Gen. Laws 3374, 3375. 

Indeed, the legislative history of the amendment adding the definition of “surgery” indicates that the 

amendment was directed particularly at physicians. See Debate on S.B. 1062 on the Floor of the House, 

73d Leg., R.S. @4ay 17, 1993) (testimony of Rep. Alexander) (tap? available from House Video/Audio 

Services Oftice). 

“See Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675, 677-78 (Tax. Civ. App.- 

Houston [14th Dist.] 1974, no writ) (citing Brmvn v. Darden, 50 S.W.2d 261 flex. 1932)). 

n. 2773 
Patti J. Patterson M.D., M.P.H. - Page 4 W-425) 

Instead, we must define the term “surgery” to comport with its ordinary 

meaning.** The Texas Supreme Court has indicated that the word “surgery” embraces 

“only cutting operations, “19 where the statute at issue has not defined the word otherwise. 

Accordingly, we conclude that, for purposes of the Texas Optometry Act, the term 

“surgery” refers only to cutting operations. Whether the procedures you have listed 

involve cutting is a question of fact that cannot be answered in the opinion processzo To 

the extent that the procedures involve cutting and therefore constitute surgery, a 

therapeutic optometrist may not perform them. The Optometry Board has the authority to 

determine whether the procedures constitute surgery, but the board’s determination is 

subject to judicial review. 

SUMMARY 

For purposes of the Texas Optometry Act, V.T.C.S. articles 

4552-1.01 through 4552-7.02, the term “surgery” refers only to 

cutting operations. Whether a particular procedure is a cutting 

operation, which a therapeutic optometrist is forbidden to perform, is 

a question of fact. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fist Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Kymberly K. Oltrogge 

Assistant Attorney General 

‘*See Gov? Code 5 312.002(a). 

‘gTruck Ins. Erch. v. Seelbach, 339 S.W.Zd 521, 526 flex. 1960); cf: XVIl THE OXFORD 

ENGLISH DICTIONARY 293-94 (1989). 

YYCX, e.g., Attorney General Opinions DM-98 (1992) at 3, H-56 (1973) at 3, M-187 (l%S) at 3, 

O-2911 (1940) at 2. 

p. 2374