Bon.~B. Carl Rdlder, Secretary~ 

Texas State Board of Dental Examiners 

Nixon Buildlng~ 

Corpus Christi, Texas 

Dear Sir: OplnLon No. O-2058 

Re: (a) Whether or not bperation of 

chain dental offices under 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-our letter of April 2, 1940;reque.+.tlng the opinion 

of this department on the above stated questions. 

The facts underlying your opinion request are restated 

as follows: 

The dentist in question l"esiding in Los Angeles, Carlfornia, and maintaining an office there holds ti "license etititling him to practice dentstry in the state of'.Texa.%. Hiti address given In registering with the Texas-State Board of Delitiil 

Examiners is an office address at Houston, Texas. Two offIces 

are maintained under the name of this dentist in Texas - the 

one In Houston and one located in Dallas. These Texas offices 

are actually operated by a former wife of this dentist-and his 

daughter. We shall hereafter refer to the dentfst in question 

,as Dr. X. 

Using the medus operandi of the Dallas office as an ex-'~ 

ample, we find that the daughter of Dr. X is in charge. She is 

not a licensed dentist, but employs licensed dentists to make 

an~examlnatlon of patients and do the actual dental work. Thfs 

licensed dentist examines patients and informs her (the daughter) 

of his findings, after which she tells the patients what she 

thinks should be done, the price of the work 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. Carl Holder, Secretary, page 2 0-2058 

Dr. X Is prominently displayed 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~work performed In this office is done 

by another doctor, Dr, Y, employed by the daughter of Dr. X. 

Dr. A and Dr. 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 occasions any 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 following questions: 

(a) Are the maintenance of chain 

than two) prohibited by the laws of this 

chain dental offices being so maintained 

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 practice of 

dentistry and kindred professions and to Impose reasonable restrlctions upon 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.'Oregon State 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 general welfare of its Inhabitants; "and the vocation Itself being subject 

to.regulation, so are all of its incidents." 

The answer to the questions propounded in your letter 

involves an interpretation of ch. 7 of Title 12 .of the Penal 
Hon. B. Carl Holder, Secretary, page 3 0-2058 

code of this State and particularly H.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: 

"Article 752. 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 issued by 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 offices where 

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 practicing dentistry 'In the same 

offices as a firm, partnership, or as associates 

in their own names-as stated in licenses 'Issued 

to them. Provided, however, that any dentist 

practicing under his own license may be~employed 

by any person, firm, or partnership pract,icFng 

dentistry under licenses issued-~to them. Bachaay of violation of this Article shall constitute 

9 separate offense." 

Section 6 of House Bill 36 (Article 752~) reads as follows: 

"This Act shall not be Intended to prohLblt 

any duly authorized, licensed and registered 

dentist 'from.malntaining one 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: 

"The State 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 issued by said Board 

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, or any 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: 

"Any person who 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 of Article 752c, Vernon's Annotated Perial'Code, 

supra, is the only section of the statutes.touchlngupon.the 

'question of maintaFning more than one office. -Butwe .must 

direct ~your attention to the fact that said Sectlon 6.does.not 

in terms prohibit anything, nor does Rouse BXll 36, Ctiapter~~501, 

Acts~of 1937, 45th Legislature, page 1346, provFde a pena'lty 

for the ~'violatlon of,section 6. In this Sectioti ~thelegislature simply provided a guide for and a limFtati.on upon the . 

oonstructloii of other sections of chapter 501, Acts of 1937, 

85th Legislature. 

As forcefully stated by Chief Justlce~Smith in Sherman 

v;"State Board of-Dental Examiners (C.C.A. 1938) 116 S.W. (2d) 

843, writ refused, 

"Section 6 directlv attacked, does not 

within Its ow; vrovlslons restrict licensed 

dentists in the conduct of their vocation. 

The provision is nermisslve, rather than restrictive, and certainly does not by Its own 

terms come under the ban of either of the 

Constitutional guaranties Invoked by plaintif 

(Underscoring ours) 

f." 

For the reasons set forth and under the authorlty'of Sherman v* State Board of Dental Examiners, supra, we hold, and you 

are respectfully advised, that while other provisions 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 in multiple offices operated under the name of one 

dentist to prosecution for a misdemeanor, there are no provi- 
Hon. B. Carl Holder, Secretary, page 5 0-2058 

si'ons of our Penal Code In terms prohibiting the maintenance of 

chain d6nttil~offlces; and we cannot as a matter of law condemn 

the practices set forth on that score. 

Your second question Is whether or not Dr. OX is 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#e call your attentlbn flrst.to.Article 752a, Vernon’s Annotated Penal Code, which reads, in part, as follows: 

"It shall be urilawful for any person + +~ * 

to fraudulently employ any person or persons-to 

obtain or solicit patronage * * *" 

Next, tie call~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 includes any one or more 

of the following acts, to-wit: 

(a) employing 'Cappers' or-Steerers' to 

solicit and or obtain business; * * * 

('cl employing directly or indirectly or 

Permltting'any unlicensed person to perform 

dental servlces'upon any pers0n.W any room or 

office under his or her control; * * * 

taip)contract for 

employing any person or persons to ob; 

, sell or solicit patronage, 

zr*m$ng use of free publicity press agents; 

,It may be noted that In each instance under the articles 

above quoted the prohibition is against emnloslng someone or as 

in AFtlcle 752b (c) permitting an unlicensed person to perform 

dental ~servlces in a room or office under the control of the 

dentist. 

Of course, Dr. X's daughter, under the facts, may be 

found to be "performing dental services" without a license wlthin the ineanlng of subdlvislon (C) of Art. 75213, Vernon's Annotated Penal Code, for Article 754a provides that, 

"Any person shall be regarded, as practicing 

dentistry within the meaning of this Chapter: 
Hon. B. Carl Holder, Secretary, page 6 

*+*** 

O-2058 

3. Any one who owns, maintains or operates 

any office or place of business where :he employs or engages, under any kind of contract 

whatsoever, any other person or persons to 

practice dentistry as above defined, shall be 

deemed to be practicing himself and shall hlmself be requLred tom be duly licensed to practice dentlstry'as hereinabove deflned, 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 herelnabove defined." 

However, it has not been established as a matter of 

fact whether Dr. X actually employs his daughterin the Dallas 

office orhls ex-wife in the Houston office, 'or whether they 

themselves own and operate.those offices; simply ustng his 

name as a stimulant for trade. Moreover, ~lthas not b-een established whether or not these offices are actually under his 

control. Consequently-as to these Articles, while It may 

develop that Dr. X is acting In'vloIation thereof, theanswer 

wlll~~ultimately ~depend upon a determinationof then underlying 

facts - a determination ascertainable only by a judge or jury. 

.We-call your 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 offices where-dental service Is rendered 

or contracted for under * * * a trade name, 

or' in any mother name than that of the legally 

qualifled~dentlst or dentists actually engaged 

Fn the practice of dentistry in such room, 

rooms, office, or offices; * * *" 

B. 36, 

In order for It to be established that Dr: 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 determination which only a 

judge or jury can make. 

We have, therefore, answered your first question in the 
Hon. B. Carl Holder, 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 violating under the facts as they may develop. -Please note 

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 licensed dentists employed 

by them may be violating the law. 

Yours very truly 

ATTORNEYGENERAL OF TEXAS 

By s/Walter R. Koch 

Walter.~R. Koch 

Assistant 

JDS:JM:wc 

APPROVED APR I%, 1940 

s/Gerald C. Mann 

ATTORNEYGENERAL OF TEXAS 

By s/James D. Smullen 

James D. Smullen 

Approved Opinion Commlttee By s/BWB Chairman