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OFFICE OFTHE ATTORNEY GENERAL OF TEXAS **AUSTIN**

Honorable R. T. Weber, President Texas State Board of Dental Examiners Austin, Texas Dear Sir: Opinion No. O-2743 Re: Validity of forty-two advertisements by dentist under Article 752b, Texas Penal Code. In compliance with your request of October 15, we have given careful study to the volume prepared by you and submitted to us containing forty-two separate newspaper clippings of advertisements by dentists. In our Opinion No. O-1992, copy of which is attached hereto, weconstrued Article 752b, Vernon's Annotated Penal Code of Texas, which relates to dental advertisement. In this opinion weshall not review the authorities mentioned in our Opinion No. O1992, but shall merely apply the principles announced in that opinion to the various sample advertisements contained in the exhibits submitted by you.

Exhibit No. 1reads as follows: "Dr. W.W. Snider Dentist Dublin, Texas Office Phone 68 Res. Phone 84” Weagree with you that Exhibit 1is clearly a proper type of newspaper advertisement or professional card insertion. Exhibit No. 2which contains the names of twodentists, their office addresses and phone numbers, is likewise proper. Article 752, Vernon's Annotated Penal Code of Texas, expressly provides in part:

1'* * ** Provided, however, this shall not prevent two or 

### more legally qualified dentists. .

Honorable R. T. Weber, Page 2

from practicing dentistry in the sameoffices as a firm, pa,rtnership, or as associates in their ownnames as stated in licenses issued to them.

. . .” Exhibit No. 3 is apparently an advertisement 

### of two dentists operating as afirm or partnership, their names in the advertisement appearing as “Drs. Parker &Parker.” We believe such a combination of names in an advertisement is likewise proper.

The advertisement in Exhibit No. 4contains the statement: “Member Seguin Chamber of Commerce.” While a statement of such anature contained in anadvertisement of adentist maynot be in accordance with the highest standard of ethics of that profession, weare unable to find any provision of Article 752b or other article relating to the practice of dentistry, which prohibits such a statement. In view of the fact that criminal statutes are strictly construed, we do not believe that this advertisement constitutes a violation of Article 752b3,Penal Code.

The advertisement in Exhibit 5contains the statement:

“Emergency calls after office hours answered promptly” which you state “is considered by the Board of Dental Examiners as being surplusage and extraneous matter foreign to the intent of the Penal Code, Article 752a, and the concluding paragraph of Article 752b, Acts 1937, 45th Legislature, for in neither article quoted is there any intimation that apractitioner may call attention to his particular ability to answer the telephone promptly, but the Act merely states that he maylist his resident number and address.” Weare unable to find any prohibition in Article 752a to such a statement. The concluding paragraph of Article 752b to which you refer reads as follows:

“Provided, that any duly licensed practitioner of dentistry, maypublicly announce by way of newspaper or professional card that he is engaged in the practice of dentistry, giving his name, degree, office location where he is actually engaged in practice, office hours, telephone numbers 

### andresidence address; and if he limits his practi.ce to a specialty hemay state same.” In construing this paragraph of Article 752b we stated In our Opinion No. O-1992..

Honorable R T. Weber, Page 3
"Certainly since this is a criminal statute and must be strictly construed, it would seemclear that the dentist could advertise in any manner andwith as much space as he desires so long as his advertising did not fall under the prohibited practices of the article in question. "We, therefore, respectfully advise that Article 752b, Penal Code as amended, is valid and constitutional and the proviso at the end of said article is permissive rather than restrictive." @mphasis ours.) In other words, the last paragraph of Article 752b maynot be made the basis for a criminal prosecution since said paragraph prohibits no practice whatsoever but merely indicates the type of advertising which adentist mayemploy without violating any of the provisions of the Act. It is our opinion, therefore, that Exhibit 5does not constitute aviolation of either of the above mentioned articles.

For the samereasons as mentioned with reference to Exhibit 5, webelieve that Exhibit 6is not unlawful by reason of the statement in the advertisement "office air condit1oned.s

For the samereason, wedo not consider Exhibit 7as violating the criminal statutes because it contains the phrase "Graduate Nurse Assistant;" or Exhibit 8because it contains the phrase "X-Ray Equipped."

Exhibit 9contains the statement "Dental X-Ray." With regard to this exh1bj.t you ask the question: "If it is found that this particular dentist engaged in the general practice of dentistry, would this particular insert quoted above be in violati.on of the law

. . .?" The only reference to the advertising of a specialty by adentist contained in the statutes is found in the last portion of the last paragraph of Article 752b, which reads:

"And if he limits his practice to a specialty, he maystate same." As hereinbefore stated, this last paragraph of Article 752b ispermissibe and not restrictive and therefore cannot be made the basis of a criminal prosecution. Accordingly, it is our opinion that Exhibit 9does not constitute aviolation of law.Honorable R. T. Weber, Page 4

For the samereasons as stated with reference 

### to Exhibit 9, webelieve that the advertisement in Exhibit 10 is not unlawful by reason of containing the phrase "Dentist andX-Ray Work." Wehave reached the sameconclusion with reference to Exhibit 11which contains the statement "Complete Line of X-Ray Work;" Exhibit 12which 

### states"Special Attention Given Plate Work;" Exhibit 13which states "Doctor of Dental Surgery and General Dentistry" as well as "X-Ray Diagnosis;" Exhibit 15which states "Dentistry -- Orthodontia -- X-Ray;" Exhibit 16 stating "Dental Surgeon -- X-Ray andFlorascopic Work.V

Exhibit 14contains the statement "Dental Surgeon andMechanical Dentistry.', Of this you state: "The Board of Dental Examiners is at a loss to understand the meaning of the term 'Mechanical Dentistry.'" Conceding that the term "Mechanical Dentistry " does not have awell-recognized meaning among the dental profession wedo not believe that it is "of a character tending to mislead or deceive the public" within the scope of Section (e) of Article 752b; wherefore weare of the opinion that Exhibit 14will not justify criminal action.

The advertisement in Exhibit 17contains the statement "All Work Guaranteed; Prices Reasonable." Webelieve the phrase "All Work Guaranteed" is a violation of Subsection (j) of Article 752b, which reads:

"Advertising to guarantee any dental services." The statement "Prices Reasonable" cannot be construed, webelieve to violate Section (h), which reads:

"Advertising bargains, cut rates, or special values in dental services

. . ." Weagree with you that Exhibits 18, 19, 20 and 21 are all proper andauthorized insertions to indicate, in the case of Exhibit 18, the opening of an office by adentist; in Exhibit 19, a temporary location of dentist's office; in Exhibit 20, a contemplated location of adentist's office in the near future; and in Exhibit 21, the association of another dentist with an established practitioner.

Exhibit 22 reads as follows: "Dr. Buchanan Dentist Dr. Dixon's Location Lampasas, Texas."Honorable R. T. Weber, Page 5

With reference to this advertisement you ask whether it is permissible for adentist to refer to the fact that he is nowoccupying the premises for offices recently held by another dentist for an indefinite length of time or whether the reference to the previous practitioner’s location must be dropped after areasonable time has elapsed and the public should be informed of the newparty’s occupying such premises? Weare unable to find any provision of the penal statutes wh&ch forbids adentist to state that he is occupying the premises or offices formerly occupied by another dentist under any circumstances, wherefore wemust conclude that no limitation on the time during which such an advertisement maybe properly run can be found in the statutes.

Exhibit 23 presents the advertisement by an optometrist announcing that he “has returned to practice in Fort Stockton, office with Dr. E. A. Roberson, Dentist.” Wedo not believe this advertisement constitutes a violation of lawby the dentist. Moreover, in a city the size of Fort Stockton, the public might be better advised of the location of the optometristIs office by referring to the office of Dr. E. A. Roberson, than if the street address were given.

Exhibit 24 contains the statement “Formerly MayoDental Clinic.” As stated in the preceding paragraph weknow of no provisiorsin the statute which prohibit reference to the dentist formerly occupying the premises nowoccupied by the advertising practitioner.Exhibit 25 reads as follows:

“Dr. J. H. Williamson, Dentist Kray La,boratory andDental Diagnosis Pyorrhea Treat.ment, Extraction, Artif lcial Teeth.

“Howoften to you see your DENTIST? Get the watchful help of your DENTISTbefore serious trouble occurs. Neglect is dangerous and costly.”

“Kray” advertisement, is obviously amisprint for “X-ray” in this

and such misprint would not subject the dentist to prosecution 

### forfalse or misleading advertising.

As stated In our discussion of Exhibit 9, wedo not consider the statement of several specialties as constituting a violation of Article 752b. Nor are weable to find any provisions Ofthe statutes which forbids advertising by means OfHonorable R. T. Weber, Page 6

a dissertation urging readers to see their dentists such as is contained in this exhibit.

Wedo not believe that the advertisement contained in Exhibit 26wherein the doctor’s nameappears in bold and black-face type constitutes a violation of the Act. As stated in our Opinion No. O-1992:

“It would seem clear that the dentist could advertise in any manner and with as much space as he desires so long as his advertising did not fall under the prohibited practices of the article in question.” Exhibit 27 contains the statement “Credit Dentist.” This statement can certainly not be construed as coming within the prohibitions of Sections (g) and (h) of Article 752b against advertising comparative values or bargains, and consequently we believe the same is not unlawful.

As to the statement “Has returned to Austin and ReOpened His Office” in this exhibit, wecan find no evil therein which is prohibited by statute.

Exhibit 28 contai.ns apicture, presumably of the practitioner, wedo not believe that this violates any penal provision, particularly not Section (o), which reads:

“Advertising by means of large display signs, or glaring light signs, electric or neon, or such signs containing as apart thereof the repreaentation of a tooth, teeth, bridge work, plates of teeth, or any portion of the humanhead, or using specimens of such in display, d-irecting the attention of the public to any such person or persons engaged in the practice of dentistry.” Wecan not extend subdivision (0) which forbids advertising by means of “large display signs, or glaring light signs, electric or neon, or such signs containing as apart thereof the representation of a toot.h, teeth, bridge work, plates of teeth or any portion of the humanhead,” etc. display 

### signs” “Large

mentioned in this subdivision, when considered in connection with the other things named in the subdivision must be construed a.asomething other than newspaper advertisements. In legal construction of statutes, words -- like people

-- are knownby their associates. signs” is considered in this light, Andwhen the term “Display others mentioned in that connection, it means signs such as the and newspaper ads are not included.Honorable R. T. Weber, Page 7

Exhibit 29 contains the following statements:

“Good Plates Need Not BeExpensive Must Fit -- Improve Your Appearance -- Be Light In Weight -- Odorless -- Durable

“Easy Credit Terms.I’ This advertisement appears to have been skillfully written with the provisions of Article 752b in mind. The statement “Good Plates Need Not BeExpensive” is so phrased as not to comewithin subsection (h) forbidding advertising bargains, etc. “Must Fit,” etc. can hardly be construed as aguarantee so as to comewithin subsection (j).

Exhibits 30, 31, 32 and 33do not violate the statutes for reasons set out in our discussion of Exhibit 28.

Wedo not believe Exhibit 34 violates the rohibition against advertising bargains contained in Section (hPbecause of the statement “ALittle Cash andASmall AmountWeekly.”

For reasons heretofore discussed wecan find no objection to Exhibits 35and 36.

Exhibit 37 contains the statement: “A small amount downand a small amount weekly .I’ Since no representation is maderegarding the total cost of d.ental service, this statement cannot be construed as abargain. Wefind no vice in the advertisement.Exhibit 38 contains the statement: “I have always tried to makeas good plates as humanly possible and at the sametime keep myprices within the reach of the masses.” It is our opinion that this quotation violates subsection (d) which forbids “statements as to skill” as well as subsection (h), since by clear l.mplication it advertises bargains.

Exhlbit 39 is bad in that the following quotation therefrom maybe construed as “a statement as to the skill or method of practicing dentistry,” at least by inference, forbidden in Section (d):

“Not somanyyears back the science of dentistry had not progressed towhere it could rebuild sunken cheeks, almost eliminate wrinkles acd makeplates that fit, look good, are light in weight, odorless anddurable, as it can today.”Honorable R. T. Weber, Page 8

The claim of superior services is adroitly made, but whatever the phrasing the obvious meaning intended, and nodoubt conveyed, is that Dr. Mayois prepared to give and will give to the public that progressive dentistry that will

“rebuild sunken cheeks, almost eliminate wrinkles andmake plates that fit, look good, are light in weight, odorless anddurable.” In other words, laying aside all modesty, his claim is that his is the place to obtain “modern dentistry.”

Exhibit 40is clearly a violation of Section (h) of Article 752b by reason of the statement “Volume Business

-- Lowest Prices” and other material which maybe construed as a violation of Section (h), forbidding “ad.vertising bargains, cut rates or special values.

The samemaybe said of Exh%bit 41which contains the statement “Good Plates Need NotBe Expensive” and “Wehave always tried to makeas good plates as humanly possible and at the same time keep our prices within the reach of the masses”

-- “Easy Payments $10 -- $15 -- $20.” Likewise the statement in Exhibit 41 “Dental Laboratories” is a violation of Section (9) which forbids “advertising to the public any commercial dental laboratory or dental c1ini.c

.”

Exhibit 42clearly contains statements in violation of Section (h) forbidding bargains. Someof these are: “I have ever tried and shall continue to try to give the people of Texas good but inexpensive dentistry;” “Remember: Good dentistry need not be expensive.” It is not enough to authorize a conviction that adentist’s advertisement violates the spirit of the Penal Code -- it must domore -- it must violate the plain import of the language of the statute. Wethink this ad of Dr. Mayodoes both. Undoubtedly, throughout its length it violates the spirit of the statute, but specifically it violates the plain import of its language with respect to

“superior service” and the offering of a “bargain.”

In commenting upon the forty-two exhibits of sample dental advertisements which you have submitted to us, wehave attempted to give you our opinion of whether or not a criminal prosecution under Article 752b or any other article relating 

### todental advertising would be sustained whenbased on each one of these forty-two advertisements. Weare not and cannot be concerned in this opinion with the desirability or propriety of aparticular advort.iscment judgod on the basis of the accepted canons of ethics of the dental profession. Our opinion.’

.

Honorable R. T. Weber, Page 9

giving approval or disapproval of these advertisements is based solely upon the language of the statutes prescribing unlawful advertisement and the decisions of the court applicable thereto.

Wehope that this lengthy dissertation maybe of somehelp to you in carrying out the official duties of the Texas State Board of Dental Examiners. Yours very truly ATTORNEY

GENERALOFTEXAS

Walter R. Koch Assistant WRK:RS ENCLOSURE

APPROVED

FEB. 3, 19'41 THISOPINION GERALDC. MANN, CONSIDERED ANDAPPROVED ATTORNEY

.GENERAL

OFTEXAS INLIMITEDCONFERENCE