Bon.~B. CarlRdlder, Secretary~

Texas State Board of Dental Examiners Nixon Buildlng~ Corpus Christi,Texas
Dear Sir: OplnLonNo. O-2058 Re: (a)Whether or not bperation of chain dental officesunder facts set forth Is in violation of the laws of this State. (b)Whether 6r not the dentist in question is violating laws regulating the practice of dentistry.
Xe have for reply your letter of March 7, 1940, stippl& mented by y-ourletter of April 2, 1940;reque.+.tlng the opinion of thisdepartment on the above statedquestions. The facts underlying your opinionrequest are restated as follows:

The dentist in question l"esidingin Los Angeles, Carlfornia, and maintaining an office there holds ti"licenseetititling him to practice dentstry in the state of'.Texa.%. Hitiaddress given Inregisteringwith the Texas-StateBoard of Delitiil Examiners is an office address at Houston, Texas. Two offIces are maintained under the name of this dentist in Texas - the one InHouston and one located inDallas. These Texas offices are actually operated by a former wife of thisdentist-and his daughter. We shall hereafter refer to the dentfst in question ,asDr. X.

Using the medus operandi of the Dallas office as an ex-'~ ample,we find that the daughter ofDr. X is in charge. She is not a licenseddentist, but employs licenseddentists to make an~examlnatlonof patients and do the actual dentalwork. Thfs licenseddentist examines patients and informsher (thedaughter) of his findings,after which she tells the patientswhat she thinks shouldbe done, the price of thework and makes arrangements for payment. The licensed dentist then does the work as directed.

As to the outward appearance of the offlce, the name Of?.

Hon. B. CarlHolder, Secretary,page 2 0-2058

Dr. X Is prominentlydisplayed on the outside of the building. On one of the doors leading to the office are the following names:DOCTOR X Dr, A
Dr. B Dr. X The actual dental~workperformed In this office isdone by another doctor,Dr, Y, employed by the daughter of Dr. X. Dr. A andDr. B are no longerconnected with the office, having left a short time ago. .Dr.X, of course, In in California,and is very seldom, If ever, In either of his Texas offices. The exact amount of time spent in the Texas offices and~whether-on these occasionsany actual dental practice is done by Dr. X, Is not known. Moreover, the exact facts as to the operation of the Houston office are not given, yet we shall assume that the plan of-operatron 1s similar to that of the Dallas office.

On the basis of these facts you ask the followingquestions: (a) Are the maintenance of chain than two) prohibitedby the laws of this chain dental officesbeing somaintained forth? (b) Is Drp-X acting in violation ^_

. . dental offices (more

state, and, if so, are under the facts set

of any of the laws in Texas regulating the practice OS oenlstrg?

The power of the Legislature to regulate the practiceof dentistry and kindred professionsand to Imposereasonable restrlctionsupon persons following this calling ls.well'establlshea by the courts of last resort in this State, as well as the Supreme Court of the United.States. Pistole v. State, 69 Texas Crfm.Rep. 127, 150 S.W. 618; Sherman.et al v. State,Board of Dental Examiners et al (C.C.A.~ 1938), 116 S.W. (2d) 843 writ refused; Semlar v.'OregonState Board, 148 Ore. 50,, 34 Pac. 311; Id. 294 U.S. 608, 55 Sup, Ct. 570, 97 L. Rd. 1086. The power is Inherent in the State under Its police power to protect and safeguard the Ilfe, health,morals, and generalwelfare of its Inhabitants; "and the vocation Itselfbeing subject to.regulation, so are all of its incidents."

The answer to the questions propounded in your letter involvesan interpretationof ch. 7 of Title 12 .ofthe PenalHon. B. Carl Holder, Secretary, page 3 0-2058

code of this State and particularlyH.B. No. 36, ch. 501, Acts of 1937, 45th Leg., p. 3046. Section 1 of this Act amends Art. 752 of the Penal Code to read as follows:

"Article752. It shall be unlawful for any person or persons to practice dentistry in this State under the name of a Corporation, company, association, or trade name; or under any name except his own proper name, which shall be the name used in his license as issuedby the State Board of Dental Examiners. It shall be unlawful for any person or persons to operate, manage, or be employed in any room, rooms, office, or officeswhere dental service is rendered or contracted for under the name of a,corporatlon, company,association, or trade name, or in any other name than that of the 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 qualifl~ed dentists from practicingdentistry 'Inthe same officesas a firm, partnership, or as associates in their own names-as stated in licenses 'Issued to them. Provided, however, that any dentist practicingunder his own licensemay be~employed by any person, firm, or partnershippract,icFng dentistry under licenses issued-~to them. Bachaay of violation of this Article shall constitute 9 separate offense." Section 6 of House Bill 36 (Article752~) reads as follows: "ThisAct shall not be Intended to prohLblt any duly authorized, licensed and registered dentist 'from.malntainingone additional office in any town or city other than the town of hLs residence.'I Section 4 of House Bill 36 (Article 752c,Vernon's Annotated Penal Code) reads as follows:

"TheState Board of Dental Examiners shall be, and it shall be their duty, and they are hereby authorized to revoke, cancel or suspend any license or licenses that may have been lssued by such Board,'if~ln the opinion of a majority of such Board, any person or persons to whom a license has been issuedby saidBoard to practice dentistry in this State, shall have,. -

Hon. B. Carl Bolder, Secretary, page 4 0-2058

after the issuance of such license, violated any of the provisions of the Statutes of the State of Texas relating to the practice of dentistry in this State, orany of the provisions of Chapter 7, Title 12 of the Penal Code of the State of Texas, or any amendments that may hereafter be made thereto * l * *' Article 754 of the'Pena1 Code makes the violation of an'y~'of

the pr~ovlslons

of chapter 7 of Tltle 12 of the Penal Code a misdemeanor and reads as follows:

"Anypersonwho shall violate any provision of this Chapter shall be fined not less

from one to SIX months'or both. Bach day of such violation shall be a separate offense."

-~.Section 6 ofArticle 752c,Vernon's Annotated Perial'Code, supra, is the only section of the statutes.touchlngupon.the 'questionof maintaFningmore than one office. -Butwe .must direct ~yourattention to the fact that said Sectlon 6.does.not in terms prohibitanything, nor does Rouse BXll 36, Ctiapter~~501, Acts~of 1937, 45th Legislature,page 1346, provFde a pena'lty for the~'violatlon of,section6. In this Sectioti~thelegislature simplyprovided a guide for and a limFtati.on upon the

. oonstructloii

of other sections of chapter 501, Acts of 1937, 85th Legislature.
As forcefully statedby Chief Justlce~Smith in Sherman v;"State Board of-DentalExaminers (C.C.A. 1938) 116 S.W. (2d) 843, writ refused,

"Section6 directlv attacked, does not within Its ow; vrovlslonsrestrict licensed dentists in the conduct of their vocation. The provision is nermisslve,rather than restrictive,and certainlydoes not by Its own terms come under the ban of either of the Constitutionalguaranties Invoked by plaintif (Underscoringours) f."

For the reasons set forth and under the authorlty'ofSherman v* State Board ofDental Examiners, supra,we hold, and you are respectfullyadvised, that while otherprovisions of chapter 7~of Title 12 of the Penal Code of this State (for example,Art. 752, as amended)might subject those operating,maintaining or employed inmultiple offices operated under the name of one dentist to prosecution for a misdemeanor, there are no provi-Hon. B. CarlHolder, Secretary,page 5 0-2058

si'ons of our Penal Code In terms prohibiting the maintenanceof chain d6nttil~offlces; and we cannot as a matter of law condemn the practices set forth on that score. Your secondquestion Iswhether or notDr. OXis actllig in violation of any of the laws of Texas regulating the practice of dentistry under the facts set forth In your letter.L,In this corinection

i#ecall your attentlbn flrst.to.Article752a,Vernon’s Annotated Penal Code, which reads, in part, as follows:

"It shall be urilawful for any person + +~* to fraudulentlyemploy any person or persons-to obtain or solicitpatronage * * *" Next, tiecall~your'atteiition to Article 752b, Vernon's Annotated Penal Code, which reads, In part as follows:

"It shall be unlawful for any persdh *'* *'~' to engage in or b&guilty of any~ unprofessional conduct in the practice of d'entliitry, directly or lndlrectly.Any 'unprofes'slonal conduct'"as used herein, me&ui%and includesany one or more of the followingacts, to-wit: (a) employing 'Cappers'or-Steerers' to solicitand or obtain business; * * * ('cl employingdirectly or indirectly or Permltting'anyunlicensed person to perform dental servlces'uponany pers0n.W any room or office under his or her control; * * *
taip)contract for

employing any person or persons to ob;

, sell or solicitpatronage, zr*m$ng use of free publicity press agents;

,Itmay be noted that In each instanceunder the articles above quoted the prohibition is against emnloslng someone or as in AFtlcle 752b (c)permitting an unlicensed person to perform dental ~servlcesin a room or office under the control of the dentist.

Of course,Dr. X's daughter, under the facts,may be found to be "performingdental services"without a licensewlthin the ineanlngof subdlvislon (C) of Art. 75213, Vernon's Annotated Penal Code, for Article 754a provides that,

"Anyperson shall be regarded, as practicing dentistrywithin the meaning of this Chapter:Hon. B. Carl Holder, Secretary, page 6

*+*** O-2058

3. Any onewho owns,maintains or operates any office or place of business where :heemploys or engages,under any kind of contract whatsoever, any otherperson or persons to practice dentistry as above defined, shall be deemed to be practicinghimself and shallhlmself be requLred tom be duly licensed to practice dentlstry'ashereinabovedeflned, 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 practicedentistry as herelnabove defined." However, it has not been establishedas a matter of fact whether Dr. X actually employs his daughterin theDallas office orhls ex-wife in theHouston office, 'orwhether they themselves own and operate.those offices; simply ustng his name as a stimulant for trade. Moreover,~lthas not b-eenestablishedwhether or not these offices are actually under his control. Consequently-as to these Articles,while It may develop that Dr. X is acting In'vloIationthereof, theanswer wlll~~ultimately

~dependupon a determinationof then underlying facts - a determinationascertainable only by a judge or jury. .We-callyour attention.also to Sectlon 1 of H. Acts 1937, ch. 501, 45th Leg., ProvldFng,

"It shall be unlawful for any person to operate;manage * * * any room, rooms, office or officeswhere-dental service Is rendered or contracted for under * * * a trade name, or'in any mothername than that of the legally qualifled~dentlstor dentists actually engaged Fn the practice of dentistry in such room, rooms, office, or offices; * * *" B. 36,

In order for It to be established thatDr: X is acting in violation of this provision of the Penal Code, It must be determined first that he Is operating or managing the office in Qu~estion,

and second, that dental services are being rendered and contracted for under a trade name or a name other than that of the legally qualified dentist actually engaged in the practice of dentistry there. The determination of whether or not this is happening Is also a determinationwhich only a judge or jury can make.
We have, therefore,answered your first question in theHon. B. CarlHolder, Secretary, page 7 o-2058

negative and your second by calling your attention to pertinent provisions of the Penal Code which Dr. X may be found guilty of violatingunder the facts as they may develop. -Pleasenote that we have confined our opinion strictly to the questions asked and have not expressed our views u@on whether or not Dr. X's daughter or ex-wife or~~the licenseddentists employed by them may be violating the law.
Yours very truly ATTORNEYGENERAL OF TEXAS

By s/WalterR. Koch Walter.~R.

Koch Assistant

JDS:JM:wc

APPROVEDAPR I%, 1940 s/Gerald C. Mann ATTORNEYGENERAL OF TEXAS By s/JamesD. Smullen JamesD. Smullen

Approved Opinion Commlttee By s/BWB Chairman